Xref: utzoo can.politics:2031 can.francais:110
Path: utzoo!utgpu!attcan!lsuc!dave
From: dave@lsuc.uucp (David Sherman)
Newsgroups: can.politics,can.francais
Subject: Re: Notwithstanding clause -- truly a sad day for Canada
Summary: Parliament is supreme
Message-ID: <1988Dec28.192549.18372@lsuc.uucp>
Date: 29 Dec 88 00:25:48 GMT
References: <2052@van-bc.UUCP>
Distribution: can
Organization: Law Society of Upper Canada, Toronto
Lines: 36

In article <2052@van-bc.UUCP> sl@van-bc.UUCP (pri=-10 Stuart Lynne) writes:
>  What I'd like to know is whether it would be possible to challenge
>the validity of the notwithstanding clause in the supreme court. Anybody
>like to comment.

Not Likely.

Before 1982 there was a body of law in Canada called constitutional
law.  It still exists but has almost been forgotten with all of
the Charter stuff.  The only real issue was whether a particular
piece of legislation was within provincial or federal jurisdiction
under the BNA Act (now the Constitution Act, 1982).

Essentially, Parliament is supreme, subject to the areas of
provincial jurisdiction.  Some provincial legislation was
struck down in the past because it infringed on the exclusive
federal jurisdiction in criminal law, for example.  The federal
Lord's Day Act, although allegedly enacted in the criminal sphere,
was struck down because its real purpose is to legislate controls
over business hours, which is within provincial jurisdiction.

So the only way to strike down Quebec's language legislation
would be to find that it infringed on an area of federal
jurisdiction.  Offhand, I don't see a good argument to make
along those lines.

There's also the old Bill of Rights, but it was basically emasculated
by the Supreme Court of Canada long ago.  The Court determined that
the Bill is to be used only as an aid to interpretation, and if the
legislation is clear and unambiguous, it doesn't apply.

David Sherman
Toronto
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