The Rule of the Courts

M. Akram Faizer

the U.K. parliament’s ability to amend the Canadian Constitution and created a judicially enforceable Canadian Charter of Rights and Freedoms. 125 The 1982 constitutional changes were eventually supported by Canada’s nine English speaking provinces but not by the French speaking province of Quebec, which wanted and did not get constitutional recognition that it was a co-equal Founding Society of Canada. 126 Calabresi writes that Canadian judicial review was deliberately expanded from the umpiring context before 1982 to the rights context for two reasons, namely Trudeau having experienced discrimination from English-speaking Canadians in his youth and his great admiration for the U.S. Warren Court’s judicial activism that he wanted Canada to emulate. 127 The Charter went into effect when the Canadian Supreme Court ruled that provincial consent to the new Constitution Act of 1982 did not require unanimous approval among the provinces. However, in keeping with Parliamentary Supremacy and Canadian notions of federalism, the Charter allowed the federal and provincial parliaments to use the NWC to override specific provisions of the constitution and to enact legislation which conflicts with specific rights guaranteed by the Charter as interpreted by the Canadian Supreme Court. 128 In the most notable use of the NWC, Quebec, in 1988, used this power to prevent the Canadian Supreme Court from striking down the parts of its language laws which allowed French-only street signs for businesses. 129 While Quebec saw the federal Supreme Court decision as a

125 Calabresi, supra note 121 at 436. 126 Calabresi, supra note 121 at 436. 127 Id.

128 Miller, supra note 60 at 55 citing Canadian Charter of Rights and Freedoms § 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K.). Section 33 gives the Canadian Parliament and provincial legislatures the power to “expressly declare in an Act... that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” Id. § 33(1). Following such a declaration, the Act “shall have such operation as it would have but for the provision of this Charter referred to in the declaration.” Id. § 33(2). Any such declaration “shall cease to have effect five years after it comes into force,” id. § 33(3), but the legislature can reenact them, with each subsequent reenactment again subject to the five-year sunset, id. § 33(4)–(5).

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