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 Title

Standing Up for Notwithstanding

 Author

Ted Morton

 Author Notes

Professor of political science, University of Calgary, Executive Director of the Alberta Civil Society Association. Mr. Morton is also one of Alberta's two Senators-Elect, elected by Albertans to represent Alberta in the Senate but so far ignored by Liberal prime minister Jean Chretien when making Senate appointments. Co-author (with Rainer Knopf) of The Charter Revolution and The Court Party (2000, Broadview Press)

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 Essay - 3/13/1998

"The then Premiers of Manitoba and Saskatchewan and the Premier of Alberta took the position in the constitutional discussions that we needed to have the supremacy of the legislatures over the courts. . . . we did not [want] to be in a position where public policy was being dictated or determined by non-elected people."

Peter Lougheed, former Premier of Alberta, on why he insisted on the inclusion of the notwithstanding clause in the Charter of Rights.

"I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit… At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent, practically resigned their government into the hands of that eminent tribunal."

Abraham Lincoln's First Inaugural Address, 1861, on why he refused to accept as final the Supreme Court's recent ruling in the Dredd Scott Case that African slaves were property, not human beings, and that their masters had liberty to do with them as they chose.

"The override gave Canada an opportunity to get the best out of British and American constitutionalism . . . to strike a shrewd balance between the wisdom derived from these two parts of our heritage… By providing a legislative counterweight to judicial power the Canadian Charter establishes a prudent system of checks and balances which recognizes the fallibility of both courts and legislatures and gives closure to the decisions of neither." [1]

Peter Russell, University Professor of Political Science and constitutional expert; University of Toronto.

Introduction

The Klein government's Bill 24 has provoked a campaign of disinformation and distortion about the purpose and nature of section 33 of the Charter of Rights. Albertans have been told that section 33 is a political "sledgehammer" to be associated with "banana republics and dictatorial regimes." Its use has been likened to a "nightmare scenario" and we are told that it was intended to be used only "for matters of national emergency." None of these allegations are true. They are the intellectual fantasies of small but influential group who are determined that judges should have the final word on all controversial matters of public policy. Their rhetorical excesses are a calculated and transparent attempt to frighten Albertans from ever using section 33 again. Whether section 33 was properly invoked in the circumstances involved in Bill 24 is one question. Whether section 33 is the monster described by Klein critics is another. A brief review of its history and purpose demonstrates that section 33 is an integral and valuable part of the new constitutional system of "checks and balances" initiated by the adoption of the Charter of Rights in 1982.

1. Section 33

Section 33 of the Charter allows a government to protect its legislation from judicial review under sections 2 (Fundamental Freedoms), 7-14 (legal rights) and 15 (equality rights). To do this, a government must insert a clause in the contested piece of legislation declaring that it "shall operate notwithstanding" one of the specified provisions of the Charter. The use of section 33 is limited to a five year period, at which time it ceases to have any legal effect. Alternatively, it may be renewed for another five year period. Since it was intended to serve as an instrument for legislatures to respond to incorrect or unacceptable judicial decisions, it is commonly referred to as the "legislative override" power as well as "opting out."

2. The Origins of section 33

Section 33 was one of the compromises worked out between former Prime Minister Trudeau and seven of the eight provinces that opposed his "constitutional patriation" plans of 1980-81. Eight provinces (all but Ontario and New Brunswick) opposed Trudeau's proposed Charter of Rights because it transferred so much power to judges, especially the Supreme Court. They thought that this empowerment of the judiciary conflicted with Canada's longstanding tradition of parliamentary democracy and that it would undermine the capacity of the provinces to be self-governing. They feared that federally-appointed superior court judges would use the Charter to unfairly strike down provincial policies. Their acceptance of the Charter in November, 1981 was conditional upon Trudeau's acceptance of the legislative override power. This compromise has been accurately described by former Alberta Premier, Peter Lougheed:

"The final 'deal' on November 5, 1981 was, as is almost always the case, a trade-off. Essentially Mr. Trudeau got his Charter of Rights and the Western Premiers got both the Alberta Amending Formula and a notwithstanding clause." (Lougheed,12)

The notwithstanding device was not new. A similar clause was part of the 1960 Diefenbaker Canadian Bill of Rights. When the newly elected Alberta Tories took office in 1972, they enacted an Alberta Bill of Rights which included a notwithstanding clause. Mr. Lougheed has recounted Merv Leitch's, his first Attorney-General, explanation for the need for such a clause: "[W]e needed to include a clause which allowed, if public policy dictated, for other Alberta bills to operate notwithstanding [i.e. in spite of] the Alberta Bill of Rights." [2] Similarly, the Quebec Charter of Human Rights and Saskatchewan Human Rights Code also contained a notwithstanding clause prior to the adoption of the Charter. Because of his personal familiarity with the notwithstanding device, Mr. Lougheed took the lead suggesting it as a way to break the federal-provincial deadlock over the proposed Charter of Rights in 1980-81. [3]

Contrary to critics, section 33 was not a "right wing" conspiracy. The then NDP Premier of Saskatchewan, Allan Blakeny, was even more adamant about including an override provision than Lougheed, and successfully insisted on other changes in the wording of the Charter to pre-empt judicial activism. Looking back, Blakeney recently explained, "I had real reservations about a constitutional Charter of Rights and Freedoms, because of its ongoing tendency to have the courts heavily involved in decisions which are essentially political and hence brings about [sic] a politicization of the courts." [4]

Nor was the Liberal government all that opposed to section 33, since they gave the federal government the same power, something that its provincial supporters had not demanded. When Trudeau's Justice Minister, Jean Chretien, introduced the amendments in the House of Commons on Nov. 20, 1981, he defended section 33 on principle not just as a "necessary evil." Section 33, Chretien explained, would serve as a "safety valve" to ensure "that legislatures rather than judges would have the final say on important matters of public policy." According to Chretien, section 33 would allow elected governments "to correct absurd situations without going through the difficulty of obtaining constitutional amendments." [5]

Commenting at the time of the November, 1981 compromise, Alan Borovoy, founder and long-time Executive Counsel of the Canadian Civil Liberties Association, assessed section 33 in similar fashion:

"Canada at the moment is a parliamentary democracy in which the will of Parliament is supreme. If there were no notwithstandings in the proposed Constitution, this supremacy would shift to the judges who would decide whether or not a law offended the Constitution. . . . By making it legally possible but politically difficult to override the Charter, they have married the two notions. . . . The result is a strong Charter with an escape valve for the legislatures."

Since then, academic commentators have provided a variety of descriptions of section 33 that capture its attempt to balance the power of accountable governments and non-elected judges. Professor Peter Russell of the University of Toronto has described section 33 as establishing "a partnership between legislatures and courts" and, alternatively, as "a form of legislative review of judicial review." [6] Professor Paul Sniderman of Stanford University has elaborated on this in a book published by Yale University Press in 1996:

"The root issue is who shall have the final word: the courts in their role as ultimate authorities on the Charter, or the parliaments, in their role as ultimate representatives of the public? Regimes following the American model have invested final decision-making power in courts; regimes following the English model have put it in Parliament. What distinguishes the Canadian regime is its deliberate effort to forestall an authoritative answer to the question of who shall have the final word. The Canadian political order invests final institutional power simultaneously in the courts, above all the Supreme Court, and in parliaments, both federal and provincial." [7]

3. Prior Use of section 33

Since its adoption, section 33 has been used extensively in Quebec but only sparingly in the rest of Canada. In June, 1992, the Levesque government signified its objections to the adoption of the Constitution Act, 1982 without Quebec's consent by enacting a "blanket override" that retroactively inserted a nothwithstanding clause into every existing Quebec statute. The Levesque government continued to routinely attach a nothwithstanding clause to every new piece of legislation that it enacted until its defeat by Bourassa and the Quebec Liberals in 1985. Four years into their first term, the Liberals invoked section 33 to protect Quebec's "French-only" public signs policy, which the Supreme Court had declared to violate the Charter. More recently, the Bouchard government has declared its intention to use section 33 to resurrect its restrictions on spending in referendums, a provision that the Supreme Court struck down in October, 1997.

Outside of Quebec, its use - or threatened use - has been limited to the two Western provinces of Saskatchewan and Alberta. In 1986 the Saskatchewan government attached a notwithstanding clause to its back-to-work legislation for government employees. The government feared that the courts might strike down the legislation as a violation of the Charter right to freedom of association.

Similar concerns prompted Alberta Premier Peter Lougheed to threaten to use section 33 in 1983. His government enacted Bill 33, The Public Service Employees Relations Act, which prohibited hospital workers from striking. The Alberta Public Service Union challenged Bill 33 in courts claiming that it violated their section 2(b) Charter right to freedom of association, which, they claimed, included the right to strike. Mr. Lougheed has described his government's response:

"We (the Alberta Government) decided at the time, after considerable deliberation, to announce in advance in the legislature (Nov. 17, 1983) that if the Supreme Court of Canada ultimately ruled that our legislation precluding the right of hospital workers to strike was invalid because of the freedom of association provisions of the Charter, that we the Alberta government would forthwith introduce similar legislation and include the "notwithstanding" clause as provided by Section 33." (Lougheed, 25)

In the end, the Supreme Court ruled that the section 2(b) right to freedom of association did not include a constitutional right to strike. (Alberta Labour Reference, 1986) Thus, Saskatchewan's use of the override was proven to be unnecessary, while Lougheed government did not need to resort to the use of the override power.

Alberta and Saskatchwan have also legislatively reversed Supreme Court rulings on constitutional language rights that fall outside the Charter. In the case of Mercure v. Saskatchewan, the Supreme Court ruled that the Saskatchewan Act of 1905 obligated Saskatchewan to enact all its legislation in both French and English. [8] The same logic applied to the Alberta Act. In both instances, however, the Court ruled that since this legal obligation was in the provinces' own constitutions, it could be validly repealed by the respective governments, providing the repealing legislation was itself enacted in both official languages. The governments in both provinces chose this option and amended their laws to repeal any obligations for bilingual legislation.

While Ottawa has not yet used section 33, it has reversed more Supreme Court Charter decisions than any of the English-speaking provinces. In three different instances, Ottawa has enacted remedial legislation to responded to Charter rulings that it found politically unacceptable. In 1991, then Justice Minister Kim Campbell introduced Bill C-49, reversing the Supreme Court's Seaboyer decision, which had struck down the "rape- shield" provision in section 276 of the Criminal Code. In 1995, then Justice Minister Allan Rock introduced Bill C-72, reversing the Supreme Court's 1994 Daviault decision, which had allowed extreme intoxication a defence against otherwise criminal conduct. In 1996, Allan Rock introduced Bill C-46 reversing the Court's O'Conner decision, which had allowed the accused access to the past medical records of the victim in sexual assault cases. While this form of legislative reversal is not the same as employing section 33, it reaffirms the principle behind section 33: that courts can make mistakes and in such instances they should not have the last word.

In the related field of the constitutional law of federalism, no one takes seriously the idea that the Supreme Court either does or should have the last word on division of powers. In his extensive analysis of the Supreme Court's role as legal arbitrator of Canadian federalism, Peter Russell found that the "legal consequences" of a Supreme Court decision were not the same as its "political consequences." The latter, he observed, "are determined by the intentions and resources of politicians." In the end, Russell found, "the level of a government's activity in a given policy field depends less on its constitutional resources than on its will to use the resources it has." [9]

Building on Russell's work, Patrick Monahan has proposed as a "fundamental maxim" of Canadian federalism that "contrary to repeated judicial pronouncements to the contrary, it is always possible to do indirectly what you cannot do directly." [10] He presents a series of cases studies that support this claim. For example, in 1978 when the Supreme Court struck down Saskatachewan's "windfall profits" production tax on oil, the province responded by enacting a new income tax that recovered the same amount of revenue. [11] Several years later, Premiers Blakeny and Lougheed teamed up to force Ottawa to accept a constitutional amendment that gave provinces the power lay taxes of any sort - direct and indirect - on non-renewable natural resources. Monahan summarizes his study as follows: despite an initial legal loss, "in each instance, the governments concerned were able to achieve the same regulatory goals through alternative instruments." In sum, in the constitutional law of federalism, political reversal or avoidance of judicial rulings is the norm for policies that a government really cares about.

Quebec's use of section 33 has given it a bad reputation in English-speaking Canada. This reputation is unmerited. Attacks on the integrity of section 33 have been encouraged by Charter-based interest groups and their supporters in the media and academia, all of whom would prefer a regime of judicial supremacy. However, as the preceding examples illustrate, there are numerous precedents for governments refusing to accept judicial interpretations of the constitution as final and conclusive. Practice confers its own legitimacy. The next section canvasses the arguments in support of this practice as it is enshrined in the notwithstanding clause.

4. Arguments in support of section 33

The basic argument for section 33 is the same one that Peter Lougheed used to defend his government's proposed use of section 33 to prevent hospital workers from striking in November, 1983: "[W]e did not [want] to be in a position where public policy was being dictated or determined by non-elected people." Ten years later, in the first Merv Leitch Memorial Lecture at the University of Calgary, Lougheed re-affirmed his support for this principle:

"In reflection, ten years later, I hold to the same view as then. The notwithstanding clause . . . should be retained on the basis of the supremacy of the elected Parliament over an appointed judiciary." (Lougheed, 36)

The basic wisdom of Lougheed's views on this matter have been affirmed and elaborated by some of Canada's most distinguished constitutional scholars: Peter Russell of the University of Toronto [12]; Paul Weiler, now at Harvard University [13]; Christopher Manfredi of McGill University [14]; and Patrick Monahan, Osgoode Hall Law School [15]. The case for section 33 has six essential components.

4.1 Judicial fallibility

Russell points out the obvious: "Judges are not infallible. They make decisions about the limits and nature of rights and freedoms which are extremely questionable." He cites numerous examples from both Canadian and American experience. Judicial fallibility, he declares, is not an argument for not having a Charter. Rather, it is an argument for having a back-up device when judges do get it wrong. "But occasionally situations will arise in which the citizenry through a responsible and accountable process conclude that a judicial resolution of a rights issue is seriously flawed and seek to reverse it. These are the situations in which we should enjoy the benefit of the legislative override."

McGill's Manfredi makes the same point: "Elevation to a nation's highest court does not transform an individual into a moral philosopher. Indeed, there is nothing in legal training or in the practice of law that imparts superior judgement in such matters." [16] As examples of judicial mistakes that should have been reversed by the use of section 33, Manfredi cites the the Supreme Court's Charter rulings in Seaboyer (overturning Parliament's "rape shield" law) and Askov (the "trial within a reasonable time" ruling that had the very unreasonable result of the dismissal of over 40,000 criminal cases).

Manfredi's judgement has recently been echoed by Allan Blakeney, one of the original supporters of section 33: "The courts are so ill equipped to deal with the social issues. First, it may not be in their [professional] background. But secondly, they can only consider statutes and cases. It's very difficult for them . . . to gather in all the facts about this issue, so that they will have the full range of arguments before them." [17] John Richards, author of the influential new study, Retooling the Welfare State, goes even further in criticizing the capacity of judges to solve policy problems: He suggests "a negative correlation exists between the extent of judicial review of social programs and their quality: the more review, the lower their quality." [18]

Critics of section 33 claim that it contradicts the rule of law. But as the earlier quotation from Abraham Lincoln points out, the rule of law requires only the acquiescence of the "parties to a suit, as to the object of that suit." The rule of law does not require that elected governments passively accept the larger and more enduring constitutional (mis)interpretation of the Court.

Lincoln's distinction was recently re-affirmed by Justice Gerald LaForest in an interview upon his retirement from the Supreme Court in September, 1997. In reference to Parliament's reversal of the Supreme Court's decisions in the area of drunkenness (Daviault) and sexual assault (O'Conner), Justice La Forest was asked if he was concerned that "Parliament doesn't show enough deference to the Supreme Court?" "Not a bit," he responded. Justice La Forest's response acknowledges judicial fallibility and the desirability of a shared judicial-legislative responsibility for Charter development:

"I'm glad to see the dialogue. I don't think we or Parliament are the final repositories of wisdom. To me, it is all process. We are forever reaching out for a balance which is best for the common good.When you get to the O'Connor case, Parliament said that we [the minority judges] were right." [19]

4.2 The core-periphery distinction

A second argument in support of section 33 is that actual Charter cases raise issues of public policy design rather than issues of fundamental justice. As Russell has pointed out: "the kind of questions courts typically deal with in interpreting and applying a constitutional charter of rights . . . are questions not about the validity of the core values enshrined in the general language of the Charter, but about the proper limits of rights based on these values." [20] The "free and democratic" character of Canadian society does not hang in the balance in Charter cases. A survey of other Western democracies reveals a diversity of approaches on almost all policy issues raised by Charter cases.

Patrick Monahan has endorsed the override for similar reasons: Section 33 does not "legitimate tyranny" but rather ensures "that the political process will not be subject to unreasonable or perverse judicial interpretations." [21] Manfredi makes much the same point: "the principal issue in an overwhelming majority of Charter cases is not legislative abrogation of rights, but the constitutional validity of a shifting balance in the relative importance attached to competing rights. . . . [S]ection 33 does not does not permit legislatures to override rights, but to override the judicial interpretation of what constitutes a reasonable balance between rights." [22]

The political character of Charter cases becomes evident when we look at who initiates most (non-criminal) Charter cases: interest groups. The rights-claiming stimulated by the Charter is best understood as an extension of - not an alternative to - interest group politics. The objective of these new rights advocacy groups is not to protect rights traditionally understood, but to enlist the moral authority of the right claimed as a means of persuading judges to change the policy status quo.

The core/periphery argument received a significant new elaboration in a 1996 study of public and elite opinion toward the Charter led by Professor Paul Sniderman of Stanford University. Sniderman posed the paradox of rights litigation as follows:

"Why do we find ourselves arguing so vehemently and so often about the very core of what we have, as participants in a democratic polity, long since presumably agreed on?" [23]

That is, constitutions are supposed to articulate those core values upon which there is such wide consensus that we want to put them "beyond the reach" of ordinary, day-to-day political scrapping. But if such a consensus exists, why is there so much litigation contesting the meaning of these fundamental values?

The answer is not that our consensus has dissolved, but that there is a fundamental difference between core rights and the rights claims that are taken to the courts. As Sniderman points out, "typically it is not the hard, inner consensual core of a democratic right that is at issue but its outer margins, where it comes squarely into collision with another cherished right or freedom." [24] Elsewhere, he explains: "Disagreements over [the practical application of fundamental rights are often genuine disagreements: reasonable people knowledgeable about individual rights frequently disagree about what ought to be done." [25] He concludes: "The crux of the politics of democratic rights--indeed, what makes for a politics of rights--is that rights, even fundamental rights, are intrinsically contestable." [26] This view of the intrinsic contestability of rights-claims leads him to give high praise to section 33: "[Section 33] calls attention unmistakably to our most fundamental theme: the inescapable and essential pluralism of values in liberal democracy." [27] He concludes: "The Charter in its final form, then, and most specifically with the inclusion of section 33, represented an ingenious compromise between two sharply conflicting visions of governance." [28]

4.3 Superior to alternatives of formal amendment or court packing

In theory, the most direct way to reverse an incorrect or unacceptable Supreme Court ruling is through a formal amendment to the constitution. In practice, this rarely works. In the US, the nation with the most experience with judicial activism, there have been over one thousand amendments proposed, but only 27 approved. The US constitution requires a two-thirds majority in Congress and approval by three-fourths of the states to amend the constitution--a high threshold. The new "7/50" Canadian amending formula is equally daunting. As Paul Weiler has pointed out, if formal amendment were the only way of reversing incorrect or unacceptable judicial decisions, "a tiny minority could hold the nation in a constitutional vice." [29]

The response in the US has been to use "court packing" - the partisan use of judicial appointments by the President - to curb unpopular judicial activism. Court packing also has its problems. Like amendments, it is difficult to achieve. But when it does work, it means a total remaking of the Court based on the ideological criteria and legislative program of the President and his supporters in Congress. Such overt politicization of the Court undermines judicial independence and the public's confidence in the Court. The media circus atmosphere associated with the Judge Bork and Thomas nominations are only the two most recent examples. Thus, court packing is no more satisfactory than constitutional amendment. American constitutional scholar John Agresto has described a solution to the Americans' dilemma as follows:

"the perfect constitutional solution to the problem of intepretative finality and judicial imperialism would have been for the judiciary to possess the same legislative relationship to Congress as that which governs the executive. Just as Congress, by special majority, can override a presidential veto, a similar process could from the outset have been established to review judicial objections. To have subjected judicial "vetoes" to the same process of review as that to which the Constitution subjects presidential vetoes would have been the most unobjectionable method of combining the benefit of active judicial reasoning and scrutiny with final democratic oversight. It would have been the perfect balancing of the principle of constitutionalism with active popular sovereignty." [30]

Agresto's "dream solution" to the American dilemma is a reality in Canada in the form of section 33. As Peter Russell has observed, "There should be some process, more reasoned than court packing and more accessible than constitutional amendment, through which the justice and wisdom of these decisions can be publicly discussed and possibly rejected. A legislative override clause provides such a process." [31]

4.4 Federalism

A fourth component of the defence of section 33 is federalism, and by extension, national unity. Federalism is itself a form of minority rights, in as much as each province is a minority within the larger national population. Policies that may be popular in Metro Toronto may be unpopular in Nova Scotia or Alberta. This is why at Confederation the provinces were given "the most culturally relevant jurisdictions." [32] Federalism is thus a defense of community - the ability of regional societies to define their respective political environments in a manner that reflects and reinforces their shared culture. This is what makes each province more than just an aggregation of strangers.

Quebec has always defended respect for provincial rights - and thus, provincial differences - as essential to its self-determination within Canada. Studies have documented how the Charter has eroded this diversity, as judges announce new constitutional norms that must be applied uniformly in all ten provinces. [33] As Russell observes, "The Charter does have a centralizing effect on Canadian federalism. . . . [This] may reduce the policy pluralism and diversity that many of us value in federalism." [34] As anticipated by Lougheed and the other original supporters of section 33, the override power allows each province to defend what its voters consider distinctive about their regional societies. This has been most clearly the case with Quebec, but applies with equal force to the other nine provinces.

Regional diversity is as significant as other forms of diversity. Indeed, the much touted "Charter diversity" is fast becoming a pseudo-diversity of court-ordered uniformity to the cultural preferences of downtown Toronto. Federalism respects and protects regional diversity and the community-building this allows. The Charter erodes both. Where is it written that Charter rights should trump provincial rights? Section 33 says just the opposite. As Sniderman has observed: "The inclusion of section 33 has placed into the hands of the provincial legislatures a substantial constitutional instrument to counterbalance the nationalizing influence of the powers given to courts under the Charter." [35]

4.5 Government by Discussion

Another reason Russell values section 33 because it secures a role for democratic participation in the formulation of public policy. The fact of participation is itself an important "process value," quite apart from whether the process yields the right answers to complex public policy issues. "Giving judges the last word, the definitive say, on issues of social and political justice is to exclude citizens from participation in the essential activity of a political community," writes Russell. "In a democracy that aspires to government by discussion and full participation of its citizens in questions of social and political justice, court decisions should not close off further debate and decision-making in elected and publicly accountable legislatures." [36]

4.6 Constitutional checks and balances

Contrary to its critics, section 33 actually is consistent with the first principle of liberal constitutionalism: "the subordination of all political power, including judicial power, to procedural and substantive constitutional rules." Liberal constitutionalism assumes not just the fallibility of public officials, but also the influence of ambition. No office or person should be unchecked. "Liberal constitutionalism does not establish a judicial monopoly over the process of adapting constitutional language to changing social circumstances," Manfredi observes. "It is both unrealistic and inconsistent with liberal constitutionalism to expect judges to be self-restrained in the exercise of political power in the context of constitutional review." [37] Just as there is a need to check the abuse of legislative power, so there is a need to check the abuse of judicial power. Section 33 provinces that check.

5. Conclusion

There is compelling support for section 33 across a broad spectrum of political parties and constitutional scholars. The legitimacy of its use must be determined on a case by case basis. And of course there will be disagreement. But there can be no doubt that section 33 is as important and as integral a part of the Charter as every other clause. In the final analysis, the issue is quite simple. It comes down to what Peter Lougheed told the Alberta Legislature in November, 1983: "[W]e did not [want] to be in a position where public policy was being made dictated or determined by non-elected people." It is a sad but telling commentary that such a simple principle has been twisted into the rhetoric of "sledgehammers, banana republics and matters of national emergency." Why is "government based on the consent of the governed" no longer good enough?

NOTES

[1] Peter H. Russell, "Standing Up for Notwithstanding." Alberta Law Review 29 (1991), 293-309.

[2] Peter Lougheed, "The Merv Leitch, Q.C., Memorial Lecture, Inaugural Lecture" (Nov. 20, 1991, The University of Calgary), 10.

[3] Ibid., 11.

[4] Transcript, "Interview on the Charter of Rights and Freedoms. Honourable Allan E. Blakeney, Premier of Saskatchewan (1971-82); Interviewed by Professor Howard McConnell, College of Law, Saskatoon, Tuesday, July 22, 1997," 6.

[5] House of Commons Debates, 20 Nov. 1981, 13042-43 (Jean Chretien)

[6] Russell, "Standing Up for Notwithstanding," 477.

[7] Paul Sniderman, Joseph F. Fletcher, Peter H. Russell, and Philip Tetlock. The Clash of Rights: Liberty, Equality, and Legitimacy in Pluralist Democracy (Yale University Press, 1996), 160.

[8] R. v. Mercure, [1988] 1 SCR 234.

[9] Peter H. Russell, "The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources," Canadian Public Policy 11:2 (1985) 161

[10] Patrick Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Carswell, 1987), ch.10.

[11] CIGOL v. Saskatchewan [1977] 2 S.C.R. 545, in Monahan, Politics and the Constitution, p.234-39.

[12] Russell, "Standing Up for Notwithstanding." Alberta Law Review 29 (1991), 293-309; Russell, Peter H. and Paul Weiler.

"Don't scrap override clause--its a very Canadian solution." Toronto Star, June 4, 1989, B3.

[13] Paul Weiler, "Rights and Judges in a Democracy: A New Canadian Version," Michigan Review of Law Reform 18:1 (1984), 70.

[14] Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, (McClelland & Stewart, 1992), esp. pp. 205-211.

[15] Patrick Monahan, Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada, (Carswell/Methuen, 1987).

[16] Manfredi, Judicial Power and the Charter, 211.

[17] Blakeney, "Interview," 7.

[18] John Richards, Retooling the Welfare State: What's Right, What's Wrong, What's to Be Done, (C.D. Howe Institute, 1997), 240.

[19] Christin Schmitz, "Mr. Justice Gerard La Forest," Lawyers Weekly, Sept. 26, 1997.

[20] Russell, "Standing Up for Notwithstanding,"476.

[21] Monahan, Politics and the Constitution, 211.

[22] Manfredi, Judicial Power and the Charter, 207.

[23] Sniderman, Clash of Rights, 52.

[24] Ibid., 9.

[25] Ibid., 53.

[26] Ibid., 54.

[27] Ibid., 8.

[28] Ibid., 161

[29] Weiler, Rights and Judges, .__.

[30] John Agresto, The Supreme Court and Constitutional Democracy, (Ithaca, New York: Cornell University Press, 1984), 134.

[31] Russell, "Standing Up for Notwithstanding," 476.

[32] Archer, Gibbins, Knopff and Pal, Parameters of Power, 79.

[33] See F.L. Morton, "The Effect of the Charter of Rights on Canadian Federalism," Publius 25:3 (Summer, 1995), 173-188.

[34] Russell, "Standing Up for Notwithstanding," 476.

[35] Sniderman, Clash of Rights, 161.

[36] Russell, "Standing Up for Notwithstanding," 476.

[37] Manfredi, Judicial Power and the Charter, 209, 211


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