While the notwithstanding clause gives governments a unique way to override basic rights, Supreme Court judges have had a broad mandate to set out what those rights are
For 40 years the Charter of Rights and Freedoms has been a wild ride in a leaky boat.
“We have a careful Charter,” said John Whyte, a legal adviser to Saskatchewan premier Allan Blakeney when it was being drafted, fought over in federal-provincial negotiations at a historic Ottawa hotel and approved. The Supreme Court used the Charter to defend the unpopular, especially in criminal law. On pedophiles, written materials created for personal use could not be criminalized . A man who drunkenly raped a senior citizen in a wheelchair had to be allowed to use a defence of automatism, an inability to will one’s own actions . A rape-shield law restricting questions about a complainant’s sexual history was thrown out because it needed broader exceptions .
Then he went off to Oxford University, where he learned that the world understood by judges was privileged beyond belief. The federal government has never used the clause. The provinces have invoked it roughly 20 times, 15 of those by Quebec. Alberta tried to use it in 2000 to block same-sex marriage, but who can marry whom turned out to be federal jurisdiction. The most controversial current use is in Quebec, where it was invoked to protect Bill 21, which forbids certain public servants from wearing hijabs and other religious symbols in the workplace.
The Supreme Court building in Ottawa. Courts have the difficult job of deciding where the 'reasonable limits' are to the rights guaranteed in the Charter.between judges and legislators is built into the Charter’s very first section – the guarantee. Section 1 says the rights and freedoms are guaranteed, subject to “reasonable limits” that “can be demonstrably justified in a free and democratic society.
“In the context of this deadly and unprecedented pandemic,” Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench wrote in one such case in October, “I have determined that this is most certainly a case where a margin of appreciation can be afforded to those making decisions quickly and in real time for the benefit of the public good and safety.”
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