I note this comment from that thread:
Not all that unlikely, as it turns out.
Nothing to celebrate while the notwithstanding clause remains. Provincial and federal assemblies can–and the Quebec government does–ignore the bill of rights, just by saying notwithstanding.
Specifically, of the twenty times the nothwithstanding clause has been invoked, not always successfully, fifteen have been by Quebec. I think it a weakness, unique to Canada as far as my knowledge of constitutions goes. But one arguably “necessary” in Canada to get provincial agreement to important legislation like the Charter. At least, given the usual general sensitivity, distrust and adversarial nature of federal-provincial politics.
Nitpicking here, but while Canada does have a Canadian Bill of Rights, S.C. 1960, c. 44; it is in no way alike to the American Bill of Rights. The Canadian Bill of Rights is a simple law, passed by Parliament (i.e. not a part of our Constitution), binding only on the federal Parliament, and not binding on the provinces. Further, it also contains a Notwithstanding Clause, so the Feds can opt out of it. In other words, it’s pretty toothless.
It was necessary forty years ago, to get the agreement needed. I wonder if it is now.
It was certainly well-intentioned, but the implementation left a lot to be desired. When Quebec used it to opt out of Charter s. 2(b) “freedom of expression” clause, who could have foreseen that the Office de la Langue Francaise would be so petty as to shut down the expression of an Italian restaurant to print its menus in Italian? Cite:
Or when a restaurant’s chef’s shopping list (a simple shopping list, fercryingoutloud!) must change “steak” to “bifteck”:
I’d suggest that the Notwithstanding Clause does have a use, but its intended use is not to allow a province to behave like this. Problem is, that reopening the Constitution to make changes will invite all provinces to demand changes having nothing to do with the Notwithstanding Clause. Meech Lake and Charlottetown taught us that no matter the amending formula, amending our Constitution is effectively impossible…
Pretty much everyone who ever paid any attention to Quebec’s language laws? Forget banning Italian, how many English businesses had to drop their apostrophes? ““Bob’s Burgers”? That apostrophe is English, and is destroying Quebec!”
It’s also the date of my wedding!
Well, the Charter might be so influenced; most of Canada’s rather unique Constitution obviously cannot be.
All such “bill of rights” documented are pretty clearly influenced in turn by the Napoleonic Code and U.S. Bill of Rights.
There were probably laws before Hammurabi or lex talionis. The Charter has developed a great deal in forty years and mostly gone in a very reasonable and Canadian direction. The concern that “unelected bodies” (the judiciary) are creating laws was (and is) real. But the elected bodies sometimes seem to be passing precious few of them, despite election promiseering, or much satisfying stakeholders when they do try to.
At the time, it was viewed here mostly as something of a nuisance - here we are taking up Parliamentary time just to legislate for weird Canadian shit when the time could have been devoted to domestic legislating.
{sniffy English voice}
"Those colonials! One must be civil, but one thought they would nevah leave!
{/sniffy English voice}
This is a good point, and I’ve heard Roy Romanow say the same thing. It was a complex package, not just the Charter, and he said that in retrospect, he was amazed they managed to hold it all together. When asked if there was anything about the deal he would change, he replied: “Not a thing.” It was a complex package and everything had a part.
(not that there’s any Godly force that could ever stop the British public from feeling nuisanced, but…) The whole reason for UK’s Parliament to pass the Canada Act 1982 was to relinquish its powers in amending Canada’s Constitution and end any future legislation from the British Parliament.
Complaining about needing to legislate this final Act, on those stated grounds, is about as logical as a suicidal man arguing about the price of the rope with which he wants to hang himself.
The cost is what it is, just pay it.
To say it explicitly for those who dislike links, quoted from the above National Post (letters to the editor) by Peckford:
“[The Constitution] was just not minority language rights. There were Aboriginal rights, regional disparities and equalization guarantees, and an amending formula without which there would be no Charter or Constitution Act in the first place.
The Charter and the whole 61 items of the Agreement/Act [of which 34 were the Charter] was the collective effort of 11 First Ministers over 17 months and a Supreme Court of Canada decision, with, in the end, Quebec refusing to sign…
In my talks with people all over the country in the past year it has been apparent that they respect and honour the Charter’s individual freedoms and rights and are adamant that governments and the courts respect and honour them, too. That’s where the issue really is right now — an unease by the public that our democracy is failing, led by the very institutions that are supposed to uphold those rights and freedoms.
The Patriation Agreement /Constitution Act 1982… is a victory for people everywhere in Canada, with their individual rights and freedoms being enshrined in our Constitution, our most sacred document. And it is a victory for Aboriginal peoples to be identified and recognized for who they are, Inuit, Innu and Métis, and their existing treaties recognized, and a victory for have-not regions of the country to be acknowledged and supported, and for a Constitution that is now ours…”