This is the second of a two-part essay written by Professor Maxime St-Hilaire and Xavier Foccroulle Ménard. Part I can be read here. Assessment of the Fourth Argument on British, Australian and New Zealand Law While not convincing, we find the comparative argument to have more weight, and this despite the following clarification. Grégoire Webber, Eric Mendelshon and Robert Leckey give two examples taken from Australian law: that of the Human ...

The following is the first in a two-part series. Part II will be published next week. Introduction In the wake of the legal challenge to Quebec’s law on state secularism,[1] Professor Grégoire Webber, lawyer Eric Mendelsohn and Dean Robert Leckey jointly published a post in which they argue that the invocation of the “notwithstanding clause” in s.33 of the Canadian Charter of Rights and Freedoms does not preclude a court from making a declaration on ...

Professor Kerri Froc has written a thoughtful guest post for Double Aspect, in which she argues that s. 28 of the Charter is not merely an interpretive provision, but is rather a substantive and justiciable section in its own right. The implication if she is correct should not be understated. Section 28 states: Notwithstanding anything in this Charter, the rights ...

The imbroglio with the Ontario legislature’s enactment of Bill 5 to restructure the Toronto City Council a couple of months before an upcoming election, the Superior Court’s declaration of that legislation unconstitutional, the threatened invocation of the “notwithstanding clause” to override that declaration, and the Court of Appeal’s restoration of what little sanity could still be restored by reversing the Superior ...

I had the real privilege today of appearing on Your Morning on CTV to chat about the notwithstanding clause with host Ben Mulroney. In particular, we discussed the threat of premier-designate, François Legault to invoke s.33 of the Charter preemptively in legislation that would ban public servants and officials from wearing religious symbols. The full interview can be accessed here. ...

The notwithstanding clause saga brought about by the Ford government is difficult for those born and bred on Supreme Court precedent. Law students are presented with an idea of the courts as benevolent actors of the public trust, hemming in cavalier legislatures acting on the passions of citizens. The saga, though, forces us to reckon with another sort of control ...

I.     WHAT IS A CONSTITUTIONAL RIGHT? It has been said that Constitutions are a “mirror reflecting the national soul”[1].  While these comments were made before the Canadian Charter of Rights and Freedoms (Charter) came into effect, there is no reason to believe that the Charter, which focusses on a guaranteed set of civil liberties (Charter rights), should be any less ...

Summer is fast approaching and, in keeping with that season’s custom (though not yet a convention), I thought it best to engage Leonid Sirota in constitutional debate. Last year, we went a few rounds on section 7 of the Charter. This year, the hot topic is s.33 of the Charter, otherwise known as the “notwithstanding clause,” which states that Parliament or ...

Section 33 of the Canadian Charter of Rights and Freedoms – better known as the “notwithstanding clause” – is one of the most controversial parts of the Canadian constitution. Despite being an integral part of the formation of the Charter, commentators such as Andrew Coyne have suggested that the provision is “dead letter” or “taboo”. But on Monday, Saskatchewan Premier ...