York U.'s Osgoode Hall Law School Study Finds "Limited" Justification In Legislatures Using ëNotwithstanding Clause'

TORONTO, April 8, 1999 -- A new study of the Supreme Court of Canada's constitutional cases suggests legislatures have limited justification to invoke the Charter of Rights' ënotwithstanding clause,' according to the principal author of the study, to be released next week.

Professor Patrick Monahan, Director of the York University Centre for Public Law and Public Policy at Osgoode Hall Law School, examines the Supreme Court of Canada's constitutional cases handed down in the 1998 calendar year, and compares them with decisions released over the past decade.

The study reveals that over the past three years, the Supreme Court of Canada has ruled parts of 12 different statutes to be unconstitutional. Between 1996 and 1998, the High Court released 98 constitutional opinions, including 76 decisions involving the Charter of Rights. (Details of the 13 cases in which statutory provisions were ruled invalid are attached.)

"Our findings indicate that the Supreme Court has not been cutting a large swath through the federal and provincial statute books," said Monahan. "The Court has forced politicians to rewrite laws in only a handful of recent cases, and the Court has usually given guidance as to how the legislation could be rewritten to conform to constitutional requirements," he added.

The complete Osgoode Hall Law School study, including a comprehensive analysis of the Court's recent constitutional cases, will be released at the annual Osgoode Hall Constitutional Cases Conference, to be held Friday, April 16, at the Sheraton Centre Toronto Hotel, 123 Queen Street West, Toronto. Each spring, this conference brings together leading experts from across the country to debate the Court's constitutional decisions of the previous year. Among the speakers at this year's conference: Osgoode Hall Law School Dean Peter Hogg; Toronto lawyers Mary Eberts and Michael Code; Bloc QuÈbÈcois MP Daniel Turp; University of Calgary political scientist and Alberta Senate nominee Ted Morton; and leading counsel from the federal and provincial governments.

Monahan said the Court's 1998 Vriend decision was by far the most controversial of the dozen cases in which statutes have been ruled invalid over the past three years. In it, the Court ruled that Alberta's human rights legislation was unconstitutional because it failed to prohibit discrimination on grounds of sexual orientation. That decision provoked a spirited debate in Alberta over whether the notwithstanding clause ought to be used to overturn the Court's ruling, with Premier Ralph Klein ultimately deciding that the notwithstanding clause ought not to be used because the Court's opinion was right.

Aside from the Vriend case, however, the Osgoode Hall study concludes it is difficult to see undue judicial activism in the remaining 12 cases. The most far-reaching of them are the three 1997 cases which ruled that legislation rolling back the salaries of provincial court judges in Alberta, Manitoba and Prince Edward Island was invalid because it interfered with judicial independence. The Supreme Court also ruled that each province must establish a commission to recommend provincial court judges' salaries. Monahan said the commissions' recommendations will likely lead to somewhat higher judicial salaries over the medium to long-term, adding that the increases will be relatively insignificant in the context of overall provincial budgets.

In other cases, even though the Supreme Court ruled an existing law to be unconstitutional, it guided the legislatures to remedy the defect with only modest changes. In the 1997 Libman case, for example, the Court ruled that Quebec's referendum legislation was unconstitutional since it prohibited expenditures during a referendum campaign except through provincial "yes" and "no" committees. But the Court countered by suggesting that this defect could be addressed by allowing individuals to spend only very modest amounts. The Quebec National Assembly has modified the legislation to bring it into line with the Court's suggestions, producing a law that is very similar to the former invalid legislation.

About half of the Supreme Court's Charter docket does not even deal with the validity of statutes or regulations. Rather, they focus on whether specific actions of government officials or the police violate the Charter. Even when the Court rules that a Charter violation has occurred, new legislation can often obviate the difficulty for future cases. In the well-known 1997 Feeney case, the Court ruled that police needed a search warrant before entering a private residence to make an arrest. But at the time no Criminal Code procedure for obtaining such a warrant existed. Since police officers in Feeney had entered a murder suspect's home without a warrant, their evidence was excluded and the accused murderer was set free. Within six months of the decision, Parliament amended the Criminal Code to establish a procedure for obtaining search warrants to enter private residences to make an arrest. Thus, while the accused murderer in Feeney was set free, police in future cases will now be able to effectively pursue and arrest murder suspects.

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For more information, interviews or a complete conference agenda, please contact:

Sine MacKinnon
Senior Advisor for Media Relations
York University
(416) 736-2100 ext. 22087

Professor Patrick J. Monahan
Osgoode Hall Law School
York University
(416) 736-5568
YU/035/99

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BACKGROUNDER
SUPREME COURT DECISIONS DECLARING STATUTES UNCONSTITUTIONAL
1996-98

1998

Re Eurig Estate: Regulation under the Ontario Administration of Justice Act providing for probate fees ruled unconstitutional

Vriend v. Alberta: Provincial human rights code unconstitutional for failing to prohibit discrimination on basis of sexual orientation

Thomson Newspapers v. Canada: Provision in Canada Elections Act prohibiting publication of polls for 72 hours prior to election date ruled invalid

R v. Lucas: Part of defamatory libel provision in Criminal Code ruled unconstitutional as unjustified limit on free expression

1997

Godbout v. City of Longueuil: Residency requirement by municipality of Longueuil ruled unconstitutional; infringement of liberty under s.7

Re Remuneration of Provincial Court Judges
(Manitoba, Alberta, PEI : 3 separate cases) Legislation reducing salaries of provincial court judges ruled unconstitutional in three provinces as infringing judicial independence; provinces required to set up independent commissions to recommend provincial court salaries

Libman v. Quebec: Spending limits in Quebec referendum legislation ruled unconstitutional; limit on freedom of expression

Benner v. Canada: Provision in federal Citizenship Act requiring children born abroad of a Canadian mother prior to 1977 to undergo a security check ruled unconstitutional; violation of equality rights

1996

R. v. Nikal: Certain conditions attached to a fishing license under B.C. fishing regulations violate aboriginal right to fish for food under s.35(1).

R. v. Cote; and R. v. Adams: Regulations under Quebec Fisheries Act violate s.35 aboriginal rights