OF SECTION 33
OF SECTION 33
1981 FIRST MINISTERS CONFERENCE
33 INVOCATION IN QUEBEC
FOR AND AGAINST SECTION 33
THE NOTWITHSTANDING CLAUSE
OF THE CHARTER
The constitutional notwithstanding
clause(1) set out in section
33 of the Canadian Charter of Rights and Freedoms has been controversial
since its emergence from a November 1981 Federal-Provincial Conference
of First Ministers. The controversy became more pronounced at the time
of the 15 December 1988 Supreme Court of Canada decisions in Chaussures
dealing with the signage provisions of Bill 101 (Charter of the French
Language) and the subsequent adoption by the Quebec National Assembly
of Bill 178 (An Act to Amend the Charter of the French Language).
This legislation contained a section 33 override clause (in this case
affecting Charter of Rights guarantees of freedom of expression
(section 2(b)) and equality rights (section 15)).
After setting out the content
of the section 33 notwithstanding clause, this paper will trace its development
in 1981 and describe the potential use then ascribed to it by its drafters,
parliamentarians and others. Finally, the paper will give the arguments
for and against the use of this clause.(4)
OF SECTION 33
Section 33(1) of
the Charter of Rights permits Parliament or a provincial legislature
to adopt legislation to override section 2 of the Charter (containing
such fundamental rights as freedom of expression, freedom of conscience,
freedom of association and freedom of assembly) and sections 7-15 of the
Charter (containing the right to life, liberty and security of the person,
freedom from unreasonable search and seizure, freedom from arbitrary arrest
or detention, a number of other legal rights, and the right to equality).
Such a use of the notwithstanding power must be contained in an Act, and
not subordinate legislation (regulations), and must be express rather
Under section 33(2) of the
Charter of Rights, on the invocation of section 33(1) by Parliament
or a legislature, the overriding legislation renders the relevant Charter
right or rights "not entrenched" for the purposes of that legislation.
In effect, parliamentary sovereignty is revived by the exercise of the
override power in that specific legislative context. Section 33(3) provides
that each exercise of the notwithstanding power has a lifespan of five
years or less, after which it expires, unless Parliament or the legislature
re-enacts it under section 33(4) for a further period of five years or
A number of rights entrenched
in the Charter are not subject to recourse to section 33 by Parliament
or a legislature. These are democratic rights (sections 3-5 of the Charter),
mobility rights (section 6), language rights (sections 16-22), minority
language education rights (section 23), and the guaranteed equality of
men and women (section 28). Also excluded from the section 33 override
are section 24 (enforcement of the Charter), section 27 (multicultural
heritage), and section 29 (denominational schools) - these provisions
do not, strictly speaking, guarantee rights.
All rights and freedoms
set out in the Charter are guaranteed, subject to reasonable limitations
under the terms of section 1. This has the effect, in combination with
section 32 of the Charter (making the Charter binding on Parliament and
the legislatures) and section 52 of the Constitution Act, 1982
(making the Constitution, of which the Charter is a part, the supreme
law of Canada), of entrenching the rights and freedoms set out in the
Charter. The invocation of section 33, and especially of section 33(2),
pierces the wall of constitutional entrenchment and resurrects, in particular
circumstances, the sovereignty of Parliament or a legislature. Consequently,
the Charter is a unique combination of rights and freedoms, some of which
are fully entrenched, others of which are entrenched unless overridden
by Parliament or a legislature.
OF SECTION 33
The establishment of a legislative
override in a constitutional context appears to be a uniquely Canadian
development with no equivalent in either international human rights documents
or western democratic human rights declarations.(5)
There are a number of Canadian legislative precedents to section 33 in
the notwithstanding provisions contained in the Canadian Bill of Rights,(6)
the Saskatchewan Human Rights Code,(7)
the Alberta Bill of Rights(8)
and the Quebec Charter of Human Rights and Freedoms.(9)
Each of these provisions says that the Bill of Rights, Code or Charter
is to have primacy over conflicting legislation unless the overriding
provision is invoked.
Since the recollections
of both participants in and observers of the 1980-82 constitutional patriation
process differ on this issue, the origins of section 33 can be described
only in general terms.(10)
All the participants were probably familiar with the legislative human
rights notwithstanding provisions then in existence at both the federal
and provincial levels. It appears that a notwithstanding provision for
the Charter was first proposed by Saskatchewan in the summer of 1980 during
the deliberations of the Federal-Provincial Continuing Committee of Ministers
Responsible for Constitutional Affairs (C.C.M.C.). It was seen as a compromise
between those for and those against an entrenched Charter of Rights.
The differences in view at that time, however, were too wide to be breached
by this proposed compromise.(11)
The idea of a notwithstanding
clause next surfaced during the Federal-Provincial Meeting of First Ministers
in Ottawa, 8-13 September 1980. On 11-12 September 1980, the Government
of Quebec circulated to the other provinces a document entitled "A
Proposal for a Common Stand of the Provinces." This discussion paper
attempted to find common positions on a number of issues. In relation
to the Charter of Rights, the proposal was to entrench fundamental
and democratic rights, and to make legal and non-discrimination rights
subject to a notwithstanding provision. This discussion paper, which came
to be known as the "Chateau consensus," was never really agreed
to by all the provinces - eventually, even Quebec backed away from it.(12)
Once the September 1980
Federal-Provincial Conference of First Ministers had broken down, activity
continued in the parliamentary, judicial and diplomatic arenas. Finally,
on 28 September 1981, the Supreme Court of Canada rendered its decisions
on three constitutional reference cases that had come to it from the Courts
of Appeal of Manitoba, Newfoundland and Quebec. The Supreme Court concluded
that the federal government had the strict legal right to engage in unilateral
constitutional patriation but that, according to convention, it would
need some degree of provincial support - less than unanimity but more
than two provinces - to proceed.
October 1981, a number of meetings took place among federal and provincial
officials and Ministers in preparation for a Federal-Provincial Conference
of First Ministers to be held between 2 and 5 November 1981. One measure
proposed at different times and in different forms by Alberta, British
Columbia and Saskatchewan was the possibility of a notwithstanding provision.
1981 FIRST MINISTERS CONFERENCE
The Conference seemed to
be at a stalemate on the afternoon of 4 November 1981 when the federal
Minister of Justice, Jean Chrétien, and the Attorneys General of Ontario
and Saskatchewan, Roy McMurtry and Roy Romanow, worked out a possible
compromise. The text of the agreement ultimately drafted by officials
overnight and without Quebecs participation, included entrenchment
of a Charter of Rights with a notwithstanding provision applicable
to fundamental freedoms, legal rights and equality rights. On the drafts
submission to the Ministers and First Ministers, Mr. Chrétien said the
federal government had agreed only that legal and equality rights could
be overridden. Ultimately, Prime Minister Trudeau was persuaded to agree
to the extension of the notwithstanding provision to fundamental freedoms
only on condition that the provision as a whole be subject to a five-year
sunset and re-enactment clause. Consequently, in public session on 5 November
1981, all governments, except that of Quebec, signed the constitutional
accord containing the notwithstanding provision.(13)
The matter was not finished,
however. In its form at that time, section 33 would not only have allowed
for an override of section 15 equality rights, but also of section 28,
which guaranteed the equality of men and women. As a result of a massive
pressure campaign organized by feminist and human rights groups across
Canada, both federal and provincial governments agreed to withdraw any
reference to section 28.(14)
The injection of the section
33 notwithstanding clause into the Charter of Rights in 1981 aroused
great controversy at the time, which has not abated. Yet acceptance (reluctant
in some cases) of the clause by all the participants in the November 1981
First Ministers Conference except Quebec, allowed the impasse to
be broken and the Charter of Rights, among other constitutional
changes, to become reality.
Many participants in the
First Ministers Conference, as well as parliamentarians and commentators,
recorded how they believed the notwithstanding provision would be used.
On the day the constitutional
agreement was reached and made public. Richard Hatfield, then Premier
of New Brunswick, said:
I am concerned about
the fact that there are provisions for opting out in important areas.
I want to give you an undertaking that I will do everything possible
to urge the Legislature of New Brunswick not to use that opportunity,
consistent with my firm view that if we are going to have rights,
they must be shared by all Canadians, regardless of where they live.(15)
G.W.J. Mercier, Attorney
General of Manitoba at the time, stated that:
...the rights of Canadians
will be protected, not only by the constitution but more importantly
by a continuation of the basic political right our people have always
enjoyed - the right to use the authority of Parliament and the elected
Legislatures to identify, define, protect, enhance and extend the
rights and freedoms Canadians enjoy.(16)
Allan Blakeney, then Premier
of Saskatchewan, described how he believed the notwithstanding clause
would be used by Parliament and the legislatures:
It contains a Charter
of Rights which protects the interests of individual Canadians, yet
in several vital areas allows Parliament and Legislatures to override
a court decision which might affect the basic social institutions
of a province or region and this is fully consistent with the sort
of argument we have put forward that we need to balance the protection
of rights with the existence of our institutions which have served
us so will for so many centuries.(17)
These public statements
by participants illustrate the tension inherent in the diversity of views
in the debate over the entrenchment of rights and the possibility of their
Shortly after the First
Ministers Conference, Pierre Trudeau, then Prime Minister of Canada,
expressed his less than enthusiastic acceptance of the notwithstanding
clause when he said:
I must be honest and
say that I dont fear the notwithstanding clause very much. It
can be abused as anything can, but the history of the Canadian Bill
of Rights Diefenbaker had adopted in 1960, it has a notwithstanding
clause and it hasnt caused any great scandal (sic). So I dont
think the notwithstanding clause deters very significantly from the
excellence of the Charter.(18)
He went on to say later
in the same interview:
...it is a way that
the legislatures, federal and provincial, have of ensuring that the
last word is held by the elected representatives of the people rather
than by the courts.(19)
Roy McMurtry, who participated
in the First Ministers Conference as Attorney General of Ontario,
The fact is that the
clause does provide a form of balancing mechanism between the legislators
and the courts in the unlikely event of a decision of the courts that
is clearly contrary to the public interest. On the other hand, political
accountability is the best safeguard against any improper use of the
"override clause" by any parliament in the future.(20)
Other participants in the
1981 First Ministers Conference have also indicated their views.
Thomas S. Axworthy said:
clause will not be employed lightly; the 1960 Federal Bill of Rights
had a similar override provision and it was only employed once in
two decades (in 1970 with the Public Order Temporary Measures Act),
and the provinces have shown a similar disinclination to use the override
provisions contained in their provincial human rights legislation.(21)
Jean Chrétien, then Minister
of Justice, said:
What the Premiers and
Prime Minister agreed to is a safety valve which is unlikely ever
to be used except in non-controversial circumstances by Parliament
or legislatures to override certain sections of the Charter. The purpose
of an override clause is to provide the flexibility that is required
to ensure that legislatures rather than judges have the final say
on important matters of public policy.
It is important to remember
that the concept of an override clause is not new in Canada. Experience
has demonstrated that such a clause is rarely used and when used it
is usually not controversial.
It is because of the
history of the use of the override clause and because of the need
for a safety valve to correct absurd situations without going through
the difficulty of obtaining constitutional amendments that three leading
civil libertarians have welcomed its inclusion in the Charter of Rights
A number of other commentators
also subsequently indicated how they expected Parliament and the legislatures
to use section 33. Gerard V. La Forest, then of the New Brunswick Court
of Appeal and later of the Supreme Court of Canada, made the following
comment in 1983:
My guess is that this
provision will rarely be used. The political unpopularity of making
declarations contrary to the Charter will militate against this. That
certainly has been the experience with the Canadian Bill of Rights
and with Quebecs Charter of Rights and Freedoms. I am aware,
of course, of Quebecs general attempt not to be bound by the
Charter, but this was done in the context of a transcendent political
situation that is not in its essence centred on questions of human
Professor Peter Hogg has
Presumably, the exercise
of the power would normally attract such political opposition that
it would rarely be invoked....
...the necessity of
re-enactment every five years will force periodic reconsideration
of each exercise of the override power, at intervals which (in some
jurisdictions at least) will often yield a change of government. This
reinforces the already powerful political safeguards against an ill-considered
use of the power.(24)
And finally, Professor Paul
C. Weiler had this to say about the notwithstanding clause:
Since the Canadian polity
had shown itself sufficiently enamoured of fundamental rights to enshrine
them in its Constitution, invocation of the non obstante clause was
guaranteed to produce a great deal of political flak. No government
can risk taking such a step unless it is certain that there is widespread
support for its position....
...Canadian judges are
given the initial authority to determine whether a particular law
is a "reasonable limit [of a right] ... demonstrably justified
in a free and democratic society". Almost all of the time, the
judicial view will prevail. However, Canadian legislatures were given
the final say on those rare occasions where they disagree with the
courts with sufficient conviction to take the political risk of challenging
the symbolic force of the very popular Charter. That arrangement is
justified if one believes, as I do, that on those exceptional occasions
when the court has struck down a law as contravening the Charter and
Parliament re-enacts it, confident of general public support for this
action, it is more likely the legislators are right on the merits
than were the judges.(25)
All the above comments on
the expected use of section 33 have a number of elements in common; section
33 was seen as a safety valve to be used on only rare occasions and it
was expected that it would be used in relation to "non-controversial
issues." It was anticipated that resort to section 33 would be to
preserve basic social and political institutions and enable legislatures
to overcome unacceptable judicial determinations where there was popular
support for doing so.
Experience so far has shown
at least three situations where section 33 was used in a way not foreseen
by those participating in the 1981 First Ministers Conference or
by commentators: the omnibus, routine invocation of section 33 by the
Quebec National Assembly between 1982 and 1985; the preventive use of
section 33 by Saskatchewan in relation to back-to-work legislation;(26)
and the adoption of Bill 178 by the Quebec National Assembly following
the 15 December 1988 Supreme Court of Canada decisions in Chaussure
Browns and in Devine. In this last case it might be argued
that a government claiming to be in agreement with a court ruling passed
a legislative measure said to be consistent with the spirit of that court
ruling but, for greater certainty and to avoid future litigation, included
a section 33 override clause.
33 INVOCATION IN QUEBEC
Events surrounding Quebec
language law stimulated vigorous debate on section 33 of the Charter.
In the 1981 constitutional accord, the federal government and all the
provinces except Quebec agreed upon the terms of constitutional change.
The Quebec government expressed its strong opposition to those terms by
including a notwithstanding clause in every piece of legislation put before
the National Assembly between 1982 and 1985. It also caused every Quebec
law in place at the time the Charter came into force to be amended with
This practice largely ceased
after 1985: section 33 has been used occasionally by both Liberal and
Parti Québécois governments since that time. Quebec resorted to the notwithstanding
clause after the Supreme Court of Canada, in the Chaussure Browns
and Devine cases on the language of commercial signs, ruled that
an outright prohibition of the use of languages other than French was
an unreasonable limitation on the freedom of expression guaranteed by
the Charter. The Quebec government thereupon introduced an amendment to
the language law that would maintain unilingual French signs outside premises
while permitting the use of other languages inside. To ensure that the
amendment would not become the object of another legal challenge, the
amending legislation invoked the legislative override authority of section
33 and the similar provision in the Quebec Charter of Human Rights
and Freedoms. This marked the first time that the override had been
used in direct response to a Supreme Court of Canada decision, rather
than in anticipation of litigation. The debate that followed was more
intensive than it would have been in the latter case, perhaps because
the Court had already ruled on the issue, and had identified the rights
and freedoms at stake. Moreover, minority language rights have long been
an emotional issue in Canada; there are few subjects where the use of
the override would invite more controversy.
FOR AND AGAINST SECTION 33
Arguments have been made
both in favour of and against allowing legislatures to override constitutionally
guaranteed rights and freedoms. Those who argue in favour of section 33
do not see it as inconsistent with entrenched rights and freedoms and
contend that it provides a mechanism whereby, in exceptional circumstances,
the elected legislative branch of government may make important policy
decisions and isolate them from review by the unelected judicial branch
of government. They argue that the threat to individual rights is not
great because there is a five-year limit on any use of the notwithstanding
power. Any such legislative override will be subject to public debate
at the time of its first enactment and at the moment of any subsequent
re-enactment. They also point out that only some, not all, rights are
subject to a possible legislative override.
Supporters of section 33
further maintain that, while it is useful and, indeed, very valuable,
for the courts to play a role in the elaboration of the rights and freedoms
that Canadians should enjoy, it is not proper for them to act as legislators.
Judges may remain in office for many years after their appointment, long
after the government that appointed them has left. That they do so now
is not questioned; however, if they had a greater "political"
role, their non-accountability to the electorate might well be a source
of controversy. Closely linked to this is the assertion that a policy-making
role would compromise the independence and impartiality of the courts
and would hasten their politicization.
It may thus be argued that
a legislative override, by allowing final political decisions to be made
by the elected representatives, mitigates the politicization of the courts.
In the United States, where the courts interpret and apply a constitution
that has no equivalent to section 33, judicial decisions about the constitution
have a greater finality and the stakes are correspondingly higher. The
significant political element in the selection of judges, particularly
at the United States Supreme Court level, has been openly acknowledged;
indeed, the Presidents power to nominate the judges of federal courts
means that the composition of those courts is quite regularly an issue
in presidential election campaigns. A President may have the opportunity
to name ideologically compatible judges who will continue to exercise
a great deal of power long after he has left office.
In contrast, in Canada,
there has been little evidence that judges are selected according to how
they would rule in various cases. If, however, the Charter did not contain
a notwithstanding clause and the courts were the final arbiters of social
values, it seems safe to speculate that this situation would be vulnerable
Closely linked to the submission
that legislators, and not judges, should have the final word on public
policy matters is the "safety valve" or "unintended consequences"
argument. Simply put, this suggests that the notwithstanding clause is
needed where a judicial decision based on Charter guarantees might result
in the threat to important societal values or goals. Because the Charter
rights and freedoms are generally stated and are susceptible to varying
constructions and interpretation, the courts may render judgments that
the drafters did not anticipate ("unintended consequences").
In short, section 33 has
been justified on the grounds that it preserves the principle of parliamentary
sovereignty. As well, legislators, unlike judges, are electorally accountable.
Section 33 also makes it possible for Parliament or a provincial legislature
to correct any unfortunate judicial interpretation of the Charter.
In 1989, a number of respected
constitutional authorities were asked whether section 33 represented a
threat to our basic rights and whether it should be repealed. Professor
Wayne MacKay of the Faculty of Law at Dalhousie University spoke in favour
of retaining the section.
clause should be kept, at least for the present. It permits debate
about which rights are fundamental in Canadian society and which should
prevail when rights are in conflict. In a democratic society steeped
in the tradition of parliamentary supremacy, it is proper to give
our elected legislators the final word.
But isnt the point
of entrenching rights in a charter that you protect those rights by
making the courts the final arbiters rather than the legislatures?
Yes, it is, and despite the notwithstanding clause, that is what has
happened and will continue to happen in all but a few situations.(27)
Professor MacKay went on
to say that, until the notwithstanding clause is abused "by some
thwarting of the legitimate aspirations of a truly dispossessed or marginalized
group in our society," we should give our legislators and our Constitution
the benefit of the doubt.(28)
Professor François Chevrette
of the Faculty of Law at the University of Montreal was opposed to the
Quebec governments use of section 33, since he did not think that
the French language was really in jeopardy. Even so, he, too, spoke out
in favour of retaining the clause. He points out that in Canada the balance
between political power and judicial power is very delicate, and that
in this regard we are different from the Americans, who do not share our
tradition of parliamentary supremacy. In Canada, political power can override
a judicial decision on an important or sensitive issue, and there is then
an opportunity for national debate. People would reflect, he said, and
the politicians might change their minds when a particular use of the
notwithstanding clause came up for renewal.(29)
Section 33 is considered
by critics to be inconsistent with the entrenchment of human rights and
freedoms. The basic argument is quite simply that, in the words of former
Quebec cabinet minister Clifford Lincoln, who resigned in protest against
the language law amendment, "rights are rights." In this view,
the rights and freedoms in the Charter are subject to judicial interpretation
but must be protected against legislative transgression. It is generally
true that governments do not violate rights in defiance of public opinion;
rather, it is precisely when the majority of the public are in favour
of, or at least not opposed to, the limitation or elimination of the rights
of a minority that constitutional constraints are needed. Moreover, the
Charter does not create absolute rights and freedoms that must be applied
literally; section 1 of the Charter provides that the rights and freedoms
guaranteed are subject to "such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society."
This, say opponents of the notwithstanding clause, should permit the courts
enough flexibility to accommodate legislative goals that infringe a guaranteed
right or freedom.
Another contrary argument
is that, because the legislative override is applicable to only the fundamental
freedoms and legal and equality rights, it creates a hierarchy of rights.
Other rights (see p. 2) are not subject to the override.
Another argument that has
been raised against section 33 is that the "rights and freedoms that
can be overridden are so significant as to raise questions about the nature
of the freedom that remains."(30)
Morris Manning expresses
it as follows:
If our freedom of conscience
or religion can be taken away by a law which operates notwithstanding
the Charter, if our right to life or liberty can be taken not in accordance
with the principles of fundamental justice, what freedom do we have?(31)
It has been argued that
the mere existence of the override power can entice governments to use
it. For instance, the Government of Saskatchewan might have relied on
section 1 of the Charter when enacting the Saskatchewan Government
Employees Union Dispute Settlement Act had it not been able to use
section 33. The Canadian Bar Association, at its 1984 annual meeting in
Winnipeg, concluded that section 1 of the Charter provides ample protection
for legislative authority,(32)
and therefore recommended that section 33 be repealed. Even if the section
were not repealed, the C.B.A. felt that the use of the override power
should at least be subject to guidelines.(33)
Many people are concerned
that the notwithstanding clause might be used in cases where rights and
freedoms are most in need of protection. In 1985, Herbert Marx, who was
then the Liberal Opposition Justice Critic in Quebec, stated that "the
danger of having a notwithstanding clause will become evident
when we need protection most - we will not have it." In support of
his argument, Mr. Marx referred to the October crisis of 1970, when the
federal government set aside the Canadian Bill of Rights (which
had a notwithstanding clause) by enacting the Public Order (Temporary
Eugene Forsey also
spoke out against section 33:
clause is a dagger pointed at the heart of our fundamental freedoms,
and it should be abolished. Although it does not apply to the whole
Charter of Rights, it does apply to a very large number of the rights
and freedoms otherwise guaranteed. ...
Clearly, then, it gives
federal and provincial legislators very wide powers to do as they
see fit in limiting or denying those rights and freedoms. The Charter
would not have protected the Japanese-Canadians who were forcibly
interned during World War II. Nor will it protect anyone advocating
an unpopular cause today.
Perhaps none of our
legislatures will use the notwithstanding clause again. But it is
there. And if this dragger is flung, the courts will be as powerless
to protect our rights as they were before there was a Charter of Rights.(35)
In short, there are a number
of compelling arguments both in favour of and against section 33. Its
inclusion in the Charter was, and remains, controversial. The debate over
the clause will undoubtedly continue.
Also referred to as a non-obstante or override clause.
A.-G. of Quebec v. La Chaussure Browns Inc. et al.,
(1989) 55 D.L.R. (4th), p. 577.
Devine et al. v. A.-G. of Quebec; A.-G. of Canada, Mise-en-cause,
(1989) 55 D.L.R. (4th), p. 641.
Some information in this paper was taken from an earlier paper by Jeffrey
Lawrence: The Charter of Rights and the Legislative Override, Research
Branch, Library of Parliament, 20 January 1989.
Dale Gibson, The Law of the Charter: General Principles, Carswell,
Toronto, 1986, p. 125. There does, however, appear to be a type of override
provision in Finnish constitutional law.
R.S.C. 1985, Appendix III, s. 2.
C.S.S., c. S-24.1, s. 44.
R.S.A. 1980, c. A-16, s. 2.
R.S.Q., c. C-12, s. 52.
The balance of this part of the paper is drawn from: Philip Rosen, The
Section 33 Notwithstanding Provision of the Charter of Rights, Research
Branch, Library of Parliament, 21 August 1987.
Roy Romanow, John White and Howard Leeson, Canada...Notwithstanding:
The Making of the Constitution 1976-1982, Carswell/Methuen,
Toronto, 1984, p. 45.
Robert Sheppard and Michael Valpy, The National Deal: The Fight for
a Canadian Constitution, Fleet Books, Toronto, 1982, p. 60-62.
For a more detailed recounting of these events, see: Romanow et al.
(1984), p. 197-215; Sheppard and Valpy (1982), p. 263-302; and Edward
McWhinney, Canada and the Constitution 1979-82: Patriation and the
Charter of Rights, University of Toronto Press, Toronto, 1982, p.
90-101. For the personal memoirs of participants in these events see:
Roy McMurtry, "The Search for a Constitutional Accord - A Personal
Memoir," (1982) 8 Queens Law Journal 28; and Roy Romanow,
"Reworking the Miracle: The Constitutional Accord 1981," (1982)
8 Queens Law Journal 74.
Penney Kome, The Taking of Twenty-Eight: Women Challenge the Constitution,
The Womens Press, Toronto, 1983, p. 83-85; and Chaviva Hosek, "Women
and the Constitutional Process," in Keith Banting and Richard Simeon
(eds.), And No One Cheered: Federalism, Democracy and the Constitution
Act, Methuen, Toronto, 1983, p. 280-300.
Canadian Inter-Governmental Conference Secretariat, Federal-Provincial
Conference of First Ministers on the Constitution, Verbatim Transcript,
5 November 1981, p. 114.
Ibid., p. 115.
Ibid., p. 125.
Transcript of an Interview with the Prime Minister by Jack Webster, on
CHAN-TV Vancouver, 24 November 1981, p. 5.
McMurtry (1982), p. 65.
Thomas S. Axworthy, "Colliding Visions: The Debate over the Charter
of Rights and Freedoms 1980-81," in Weiler and Elliot (eds.), Litigating
the Values of a Nation: The Canadian Charter of Rights and Freedoms,
Carswell, Toronto, 1986, p. 24.
Canada, House of Commons, Debates, 20 November 1981, p. 13042-13043.
The three civil libertarians cited by Mr. Chrétien are Alan Borovoy, Gordon
Fairweather and Walter Tarnopolsky, according to articles in The Gazette
(Montreal) of 7 November 1981 and the Globe and Mail (Toronto)
of 9 November 1981.
Gerard V. La Forest, "The Canadian Charter of Rights and Freedoms:
An Overview," (1983) 61 Canadian Bar Review 19 at p. 26.
Peter Hogg, "A Comparison of the Bill of Rights and the Charter,"
in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights
and Freedoms: Commentary, Carswell, Toronto, 1982, p. 11.
Paul C. Weiler, "The Evolution of the Charter: A View from the Outside,"
in Weiler and Elliot (1986), p. 57.
Saskatchewan Government Employees Union Dispute Settlement Act,
S.S. 1984-6, c. 111. For a discussion of this legislation and related
issues see: Donna Greeschner and Ken Norman, "The Courts and Section
33," (1987) 12 Queens Law Journal 155.
"Is There a Threat to Our Rights?" a Readers Digest Forum,
compiled by C. Tower and P. Body, Readers Digest, June 1989,
p. 101-104, at p. 103.
Ibid., p. 104.
This and the following two arguments against section 33 are derived from:
Philip Kaye, "Overriding the Charter of Rights: Federal and Provincial
Powers under Section 33" (Current Issue Paper No. 72), Legislative
Research Service, Ontario Legislative Library, November 1987, p. 15.
Morris Manning, Rights, Freedoms and the Courts: A Practical Analysis
of the Constitution Act, 1982, Toronto, 1983, p. 55
"Annual Meeting - Resolutions," National, C.B.A., September
1984, p. 27, (Resolution 84-01-A).
Martin Hershorn, "An Interview with Herbert Marx," Viewpoints,
Vol. 13, No. 8, Winter 1985, p. 1.
"Is There a Threat to Our Rights?" (1989) at p. 101-102.