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grammar, paragraph reference
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DPenner1
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No, it is not. Section 1 allows legislatures to infringe all Charter rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can completely ignore the Charter rights that it can be applied to (ss. 2 & 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating Charter rights.

Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, Ford v. Quebec (AG) [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved).

In it, ss. 58 & 69 of Quebec's Charter of the French Language were disputed. Due to legislative hijinks*, it was unclear whether either section werewas covered by an invocation of the notwithstanding clause. The Court first undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not (para. 34).

Only after that did it address the substantive rights issues. While still analysing both ss. 58 & 69 to fall within the guarantees of Charter s. 2(b), the court only concluded s. 69 to infringe the Charter since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As Charter rights were found to be infringed, the Court then examined whether s. 69 could saved under Section 1. It could not, thus rendering it an unjustifiable infringement of the Charter (para. 73).

*To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the Constitution Act, 1982.

No, it is not. Section 1 allows legislatures to infringe all Charter rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can completely ignore the Charter rights that it can be applied to (ss. 2 & 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating Charter rights.

Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, Ford v. Quebec (AG) [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved).

In it, ss. 58 & 69 of Quebec's Charter of the French Language disputed. Due to legislative hijinks*, it was unclear whether either section were covered by an invocation of the notwithstanding clause. The Court first undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not. Only after that did it address the substantive rights issues. While still analysing both ss. 58 & 69 to fall within the guarantees of Charter s. 2(b), the court only concluded s. 69 to infringe the Charter since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As Charter rights were found to be infringed, the Court then examined whether s. 69 could saved under Section 1. It could not, thus rendering it an unjustifiable infringement of the Charter (para. 73).

*To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the Constitution Act, 1982.

No, it is not. Section 1 allows legislatures to infringe all Charter rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can completely ignore the Charter rights that it can be applied to (ss. 2 & 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating Charter rights.

Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, Ford v. Quebec (AG) [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved).

In it, ss. 58 & 69 of Quebec's Charter of the French Language were disputed. Due to legislative hijinks*, it was unclear whether either section was covered by an invocation of the notwithstanding clause. The Court first undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not (para. 34).

Only after that did it address the substantive rights issues. While still analysing both ss. 58 & 69 to fall within the guarantees of Charter s. 2(b), the court only concluded s. 69 to infringe the Charter since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As Charter rights were found to be infringed, the Court then examined whether s. 69 could saved under Section 1. It could not, thus rendering it an unjustifiable infringement of the Charter (para. 73).

*To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the Constitution Act, 1982.

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DPenner1
  • 5.1k
  • 2
  • 28
  • 71

No, it is not. Section 1 allows legislatures to infringe all Charter rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can completely ignore the Charter rights that it can be applied to (ss. 2 & 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating Charter rights.

Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, Ford v. Quebec (AG) [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved).

In it, ss. 58 & 69 of Quebec's Charter of the French Language disputed. Due to legislative hijinks*, it was unclear whether either section were covered by an invocation of the notwithstanding clause. The Court first undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not. Only after that did it address the substantive rights issues. While still analysing both ss. 58 & 69 to fall within the guarantees of Charter s. 2(b), the court only concluded s. 69 to infringe the Charter since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As Charter rights were found to be infringed, the Court then examined whether s. 69 could saved under Section 1. It could not, thus rendering it an unjustifiable infringement of the Charter (para. 73).

*To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the Constitution Act, 1982.