A Distinctive Quebec Theory and Practice of the Notwithstanding Clause: When Collective Interests Outweigh Individual Rights
Year:
2017
Author :
Volume and number:
, 47(2)
Publishing Company:
, Faculté de droit, Section de droit civil, Université d'Ottawa
Journal:
, Revue générale de droit
Pages :
, 343-431
Abstract
The fundamental human rights recognized by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms supersede other rules of law. As such, any legislative measure conflicting with their content can be invalidated by Canadian tribunals. Yet, to ensure parliamentary sovereignty, both Charters feature an override mechanism, the “notwithstanding clause,” that can be invoked by a legislator to withdraw a given law from judicial scrutiny under charter rights.
Beyond formal and substantive requirements, according to Quebec prominent doctrinal trends and National Assembly, in what circumstances, and to what end, can the legislator invoke a notwithstanding clause?
A review of leading academic conceptions of charter rights in Quebec reveals a distinctive theoretical approach to notwithstanding mechanisms than that of leading Anglo-Canadian authorities. Quebec leading doctrinal trends, distinctly, seem to conceive that legislative overrides can be legitimately made preemptively by a legislature when dealing with matters of collective interests, such as social objectives and national identity, which, in the name of greater good, should not be fettered by private interests. This distinctive reality is also sharply reflected in legislative practice: as Quebec invoked the notwithstanding clause of the Canadian Charter 61 times (in addition to 45 references to the notwithstanding clause of the Quebec Charter) compared to 3 times in the rest of Canada over the same period, overwhelmingly for considerations of social objectives or national identity. This situation could be explained by a distinctive conception of parliamentary sovereignty and of power dynamics between elected legislature and appointed judges in Quebec.
Beyond formal and substantive requirements, according to Quebec prominent doctrinal trends and National Assembly, in what circumstances, and to what end, can the legislator invoke a notwithstanding clause?
A review of leading academic conceptions of charter rights in Quebec reveals a distinctive theoretical approach to notwithstanding mechanisms than that of leading Anglo-Canadian authorities. Quebec leading doctrinal trends, distinctly, seem to conceive that legislative overrides can be legitimately made preemptively by a legislature when dealing with matters of collective interests, such as social objectives and national identity, which, in the name of greater good, should not be fettered by private interests. This distinctive reality is also sharply reflected in legislative practice: as Quebec invoked the notwithstanding clause of the Canadian Charter 61 times (in addition to 45 references to the notwithstanding clause of the Quebec Charter) compared to 3 times in the rest of Canada over the same period, overwhelmingly for considerations of social objectives or national identity. This situation could be explained by a distinctive conception of parliamentary sovereignty and of power dynamics between elected legislature and appointed judges in Quebec.
Theme :
Language ManagementQuebec AnglophonesCanadaRightFrancophones Outside QuebecJusticeOfficial languages
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