"1.
Parliament or the legislature of a
province may expressly declare in an act of
Parliament or of the legislature, as the case may be,
that the Act or a provision thereof shall operate
notwithstanding a provision included in section 2
or sections 7 to 15 of this Charter.
Judicial remedies. It explained that, firstly,
extraordinary conditions limit the use of section 33.
Secondly, section 33 is said to reflect a balance
between the roles of elected representatives and courts
in interpreting rights:
"2.
An act or a provision of an act in
respect of which a declaration made under this
section is in effect shall have such operation as it
would have but for the provision of this Charter
referred to in the declaration.
"A system in which the judiciary is given
full and final say on all issues of rights adversely
impacts on a key tenet of democracy – that is,
participation of citizens in a forum of elected and
publicly accountable legislatures on questions of
social and political justice ... The 'notwithstanding'
clause provides a limited legislative counterweight
in a system which otherwise gives judges final say
over rights issues".
"3.
A
declaration
made
under
subsection (1) shall cease to have effect five years
after it comes into force or on such earlier date as
may be specified in the declaration.
5.4 Lastly, the Government affirmed that the
existence of section 33 per se is not contrary to article
4 of the Covenant, and that the invocation of section
33 does not necessarily amount to an impermissible
derogation under the Covenant: "Canada's obligation
is to ensure that section 33 is never invoked in
circumstances which are contrary to international law.
The Supreme Court of Canada has itself stated that
'Canada's international human rights obligations
should [govern] ... the interpretation of the content of
the rights guaranteed by the Charter'". Thus, a
legislative override could never be invoked to permit
acts clearly prohibited by international law.
Accordingly, the legislative override in section 33 was
said to be compatible with the Covenant.
"4.
Parliament or the legislature of a
province may re-enact a declaration made under
subsection (1).
"5.
Subsection (3) applies in respect of
a re-enactment made under subsection (4)."
The State party's information and observations
5.1 The communication was transmitted to the
State party under rule 91 of the Committee's rules of
procedure on 5 August 1991. In its submission of
6 March 1992 (which also related to communications
Nos. 359/1989 and 385/19891), the State party noted
that a number of litigants had challenged the validity
of Bill No. 178 before the Quebec courts, and that
hearings on the issue before the Court of Quebec were
held on 14 January 1992. The proceedings continued,
and lawyers for the provincial government of Quebec
were scheduled to present the point of view of Quebec
on 23 and 24 March 1992.
5.5 The State party therefore requested the
Committee to declare the communication inadmissible.
6.1 In his comments, the author contended that
his case is against Bill No. 101 and not against Bill
No. 178, and that it is based upon the State party's
perceived violations of the provisions of the
Constitution Act of Canada 1867, and not on the
Constitution Act of 1982. He argued that any
challenge of the contested legislation would be
futile, in the light of the decision of the government
of Quebec to override the Supreme Court's
judgement of 15 December 1988 by enactment of
Bill No. 178 a week later.
5.2 The State party contended that Quebec's Code
of Civil Procedure entitles the author to apply for a
declaratory judgement that Bill No. 178 is invalid,
and that this option is open to him regardless of
whether criminal charges have been instituted
against him or not. It argued that consistent with the
well-established principle that effective domestic
remedies must be exhausted before the jurisdiction
of an international body is engaged, Canadian courts
should have an opportunity to rule on the validity of
Bill No. 178, before the issue is considered by the
Human Rights Committee.
6.2 The author claimed that the "notwithstanding"
clause of section 33 of the Canadian Charter of Rights
and Freedoms does not apply to this case, as he had
been charged for violating the Charter of the French
Language in 1978, before section 33 took effect. In
this context, he argued that no Canadian Government
can abrogate or supplant freedoms that were in
existence before the Charter came into being, and that
under the Canadian tradition of civil liberties, rights
may be extended but cannot be curtailed.
5.3 The State party further argued that the
"notwithstanding" clause in section 33 of the
Canadian Charter of Rights and Freedoms is
compatible with Canada's obligations under the
Covenant, in particular with article 4 and with the
obligation, under article 2, to provide its citizens with
1
Official Records of the General Assembly, Fortyeighth Session, Supplement No. 40 (A/48/40), annex
XII.P, communications Nos. 359/1989 (Ballantyne and
Davidson v. Canada) and 385/1989 (McIntyre v.
Canada), Views adopted on 31 March 1993 at the
Committee's forty-seventh session.
6.3 Finally, the author asserted that the
"notwithstanding" clause of section 33 is a negation
of the rights enshrined in the Charter, as it allows
(provincial) legislatures to "attack minorities and
suspend their rights for a period of five years".
80
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