If governments decide our rights are an inconvenience, then it’s time to rein them in — that’s precisely what rights are designed to do.
Peter HoggIt’s not often a judge, a politician and an academic all agree, but when they do, you know they’re probably wrong.
In 1982, Quebec passed the Derogation Act, which included a notwithstanding clause in every Quebec law passed between 1982 and 1985, and also amended every Quebec law that was already in force in 1982. Alberta got a piece of the action with its Marriage Amendment Act, which defined “marriage” as the union of one man and one woman — despite the fact that the provinces don’t have the authority to define the word. Alberta’s action was therefore unconstitutional, and there’s nothing the clause could do about that.
Current Prime Minister Justin Trudeau has now expressed concerns about the clause, telling La Presse that he’s investigating the possibility of regulating its use: “[W]e are experiencing a certain trivialization of this suspension of rights,”, “And when you combine that with the rise of populism around the world, you can see that there are concerns about what might be done.”
According to this theory, which originated with none other than Peter Hogg, the clause promotes a dialogue between Parliament and the courts: Parliament enacts a law, the courts declare it unconstitutional, and then Parliament has the opportunity to override the courts. “In my mind, such an action is undemocratic in that the purpose of [the clause] was ultimate supremacy of Parliament over the judiciary, not domination over or exclusion of the judiciary’s role in interpreting the relevant sections of the Charter of Rights.”
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