Quote:
Originally Posted by CorsiHockeyLeague
That is how it’s supposed to work. SCC strikes down a law as unconstitutional and explains why it is so, parliament fixes the law so it’s constitutional. No need for the notwithstanding clause.
|
Just to add to this, it is common that when the SCC declares a law unconstitutional, they 'suspend' the declaration of invalidity for the express purpose of allowing Parliament to have time to pass new legislation to take its place.
It is a process that has served Canadian's very well for decades.
As a 'from the front lines' example, I filed a brief a couple of weeks ago on whether a client deserved an exemption from the requirement to register as a sex offender. The current legal test in the Criminal Code is a fairly strict and carefully crafted list of criteria that was built by government using the specifics from a prior SCC decision as a blueprint.
In that decision - R v Ndhlovu - through careful and principled analysis, the SCC suspended the effect of the declaration of invalidity for 12 months. A quote from the decision serves as a helpful contrast to the chicken with its head cut off approach that the UCP has suddenly decided is an appropriate way to manage competing fundamental rights and freedoms in our democracy [emphasis added]:
https://decisions.scc-csc.ca/scc-csc...19538/index.do
Quote:
Declarations should be suspended when the government demonstrates that “an immediately effective declaration of invalidity would endanger an interest of such great importance that, on balance, the benefits of delaying the effect of that declaration outweigh the cost of preserving an unconstitutional law that violates Charter rights” (G, at para. 117; see also paras. 133, 139 and 156). Declaring s. 490.012 to be of no force or effect immediately would effectively preclude courts from imposing SOIRA orders on any offenders, including those at high risk of recidivism. Granting an immediate declaration could therefore endanger the public interest in preventing and investigating sexual offences committed by high-risk offenders, undermining public safety. Balanced against this consideration is the significance of the rights violation that the suspension would temporarily prolong. Granting a suspension also runs counter to the public’s interest in legislation that complies with the Constitution. On balance, however, the circumstances justify a suspension of the declaration of invalidity for 12 months.
A declaration of invalidity is presumed to operate retroactively (R. v. Albashir, 2021 SCC 48, [2021] 3 S.C.R. 531, at paras. 34 and 38). However, in this case, a retroactive application of the declaration at the conclusion of the suspension could frustrate the compelling public interests that require a period of transition, creating uncertainty and removing the protection that justifies the suspension in the first place (paras. 46, 52 and 72). Specifically, a retroactive declaration would undermine the purpose of the suspension (i.e., ensuring high-risk offenders are registered on SOIRA for public safety). Moreover, a prospective declaration of invalidity would not unduly prejudice offenders who have been registered since 2011 but whose rights under s. 7 are still violated. Those offenders will be able to ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012.
|
Then when the federal government legislates in response to an SCC ruling, the citizen also benefits from a detailed articulation of why and how the government is addressing the situation:
https://www.justice.gc.ca/eng/csj-sj...harte/s12.html
It remains to be seen if the SCC will conclude a preemptive use of the notwithstanding clause is actually itself unconstitutional. But assume for the moment that it does not say that and preemptive declarations are lawful.
In the vast majority of situations, making yourself willfully blind to the careful balancing of rights that a court analysis can provide (based on a full evidentiary record argued by well-informed adversaries) and preemptively wiping out wide swaths of fundamental freedoms and human rights by declaring an 'emergency' is just not smart and entirely unnecessary. It reveals a government whose individual elected members place political expediency above all else, including that they are prepared to openly abuse fellow citizens so they can get whatever political outcomes they want.
To help emphasize my point, when the Alberta government legislated the teachers back to work, they did so not by invoking the notwithstanding clause narrowly so as to only override the 'required' rights of teachers (freedom of association that would back their right to collective bargaining, freedom of peaceful assembly for strike picketing). Instead someone in a copy and paste like fashion just dropped in an override of ALL possible rights and freedoms that section 33 can ever apply to and made sure to indiscriminately include all provincially recognized rights and freedoms as well.
This is the actual section from the
Back to School Act:
Quote:
Declaration re Charter, Bill of Rights and Human Rights Act
3 This Act shall operate notwithstanding
(a) sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms,
(b) the Alberta Bill of Rights, and
(c) the Alberta Human Rights Act.
|
So why, for instance, would the Act forcing teachers back to school purportedly so kids can be saved from irreparable harm of missing school, have to operate notwithstanding a individual teacher's right to freedom of expression in section 2? To life and liberty in section 7? To be free from unreasonable search and seizure in section 8? What otherwise illegal searches does the government intend to do to enforce this Act?
Why does this Act - which creates offences that can result in financially crippling fines - have to operate notwithstanding an individual's rights to:
- not be arbitrarily detained - section 9
- to be informed of the reason for being detained - section 10(a)
- to retain and instruct counsel without delay - section 10(b)
- to a review of the lawfulness of detention and to be ordered released if the detention is not lawful - section 10(c)
- if charged with an offence to:
- be informed without reasonable delay of the specific offence - section 11(a)
- be tried within a reasonable time - section 11(b)
- not be compelled as a witness against themselves - section 11(c)
- the presumption of innocence and a fair and public tribunal - section 11(d)
- not be denied reasonable bail without just cause - section 11(e)
- not be subjected to cruel and unusual treatment or punishment - section 12
- the right against self-incrimination - section 13
- the right to an interpreter - section 14
As long as the government claims to be acting under the authority of the Back to School Act (and soon to be the series of three transgender rights related laws because they are employing the exact same indiscriminate blanket override of all rights) then an individual cannot bring forward violations of any of the above to be decided by a court of law, and can seek no compensation or remedy for any breaches of the overridden rights.
That is the Alberta that so-called freedom loving libertarian Albertans want to live in?
I much prefer the way the federal government is approaching this issue and will be very interested to see what specific measures they take to comply with the SCC ruling while re-instating mandatory minimums. Presumably there will be a carve-out so that the minimum will not apply to someone within the reasonable hypothetical that the SCC described in its decision.
