The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

Judicial review also directly checks NWC abuses. To illustrate, when Ontario’s Bill 307 changed its campaign finance laws right before an election, the Court of Appeals upheld Ontario’s invocation of the NWC but also concluded that Bill 307 violated Canadians’ democratic rights under Charter § 3, which is NOT subject to the NWC. 232 As detailed by Professor Lorraine Weinrib, the NWC has encouraged more fruitful discourse about the Charter in three ways. 233 First, it encourages greater deliberation and negotiation within the legislative process as to the scope of rights. 234 Second, it facilitates the entrenchment of constitutional norms with the public as evidenced by the Ontario public’s reaction to anti-strike legislation. 235 Third, it encourages legal dialogue, compromise, and evolution between the legislatures and courts. 236 For example, after the Supreme Court of Canada concluded that Quebec’s sign law violated the Charter, Quebec responded by limiting the French only requirement to exterior signs alone and this amended version of the law remained on the books until 1993, when the United Nations Human Rights Committee (UNHRC) concluded that the Quebec law contravened the International Covenant on Civil and Political Rights. 237 Although the UNHRC decision was nonbinding, Quebec amended the law again, this time to allow bilingual exterior signs as long as the French part of the sign 231 The Constrained Override, supra note 189 at 1734 citing Kahana, supra note 198, at 40–41. 232 The Constrained Override, supra note 189 at 1734-5 citing Working Fams. Coal. (Can.) Inc. v. Ontario (Att’y Gen.), 2023 ONCA 139, paras. 56–57 (Can. Ont. C.A.). 233 The Constrained Override, supra note 189 at 1737 citing Lorraine E. Weinrib, The Canadian Charter’s Override Clause: Lessons for Israel , 49 ISR. L. REV. 67, 82 (2016); see also Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty , 94 MICH. L. REV. 245, 284 (1995)(noting that the NWC “might actually invigorate majoritarian politics by providing the people and their representatives with a way of engaging in direct discussion of constitutional values in the ordinary course of legislation”).

234 Id. 235 Id. 236 Id. 237 The Constrained Override, supra note 189 at 1737-38.

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