The notwithstanding mechanism and public discussion: Lessons from the ignored practice of section 33 of the charter

Canadian Public Administration

Volumn 44, Issue 3, 2001, Pages 255-291

  Kahana, Tsvi ^a  

^a UNIVERSITY OF ALBERTA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0040754380     PISSN: 00084840     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1754-7121.2001.tb00891.x     Document Type: Article

References (127)

1. See Act Respecting the Constitution Act, 1982, S.Q. 1982, c. 21. This act repealed all Quebec legislation and re-enacted it with notwithstanding declarations. In addition, the Quebec national assembly included a notwithstanding declaration in every law it passed in the following three years. This stopped in December of 1985, following the election of a Liberal government in Quebec. See Peter Hogg, Constitutional Law of Canada, loose-leaf edition, vol. 2 (Toronto: Carswell, 1997) at section 36.2, p. 36-3. I do not discuss these uses of the notwithstanding mechanism (NM) in this article because it was not aimed at protecting a specific piece of legislation but was instead an act of political protest against the fact that the Charter was entrenched without the Government of Quebec's consent. For an analysis of the Act Respecting the Constitution Act and the Supreme Court of Canada's decision upholding it, see Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712. See also Lorraine Weinrib, "Learning to live with the override," McGill Law Journal 35, no 3 (May 1990), pp. 541-71.
2. See Act Respecting the Constitution Act, 1982, S.Q. 1982, c. 21. This act repealed all Quebec legislation and re-enacted it with notwithstanding declarations. In addition, the Quebec national assembly included a notwithstanding declaration in every law it passed in the following three years. This stopped in December of 1985, following the election of a Liberal government in Quebec. See Peter Hogg, Constitutional Law of Canada, loose-leaf edition, vol. 2 (Toronto: Carswell, 1997) at section 36.2, p. 36-3. I do not discuss these uses of the notwithstanding mechanism (NM) in this article because it was not aimed at protecting a specific piece of legislation but was instead an act of political protest against the fact that the Charter was entrenched without the Government of Quebec's consent. For an analysis of the Act Respecting the Constitution Act and the Supreme Court of Canada's decision upholding it, see Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712. See also Lorraine Weinrib, "Learning to live with the override," McGill Law Journal 35, no 3 (May 1990), pp. 541-71.
3. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
4. The literature often refers to a "notwithstanding clause." This term is confusing because it has three different meanings in the literature. It refers to 1) the text of section 33, 2) the mechanism that section creates, and 3) a clause in an act stating that the act shall operate notwithstanding the Charter. I use the term "notwithstanding clause" exclusively to refer to the text of section 33. (Similarly, "the limitation clause" denotes section 1 of the Charter.) In this article, the mechanism that the notwithstanding clause establishes is termed the "notwithstanding mechanism," a declaration in an act that the act or a provision thereof operates notwithstanding the Charter is called "a notwithstanding declaration," and an act in which a notwithstanding declaration appears is "a notwithstanding act." Many refer to the NM as the "legislative override." Unlike the term "notwithstanding," the term "override" does not appear in section 33, and therefore I prefer to utilize the former term.
5. This statement is based on information I received from provincial and territorial officials in the various ministries of justice and ministries of the attorney general.
6. The Act Respecting the Teachers Pension Plan sets out (at sections 32 and 51) differential pension eligibility requirements for male and female teachers, thereby potentially offending the equality provisions of the Canadian Charter and the Quebec Charter of Human Rights and Freedoms (R.S.Q. c. C-12). Male teachers may generally receive benefits at age sixty-five, as compared with pension eligibility at age sixty for female teachers. Alternatively, after ten years of teaching service, minimum ages for pension eligibility are sixty-two and fifty-eight for male and female teachers, respectively. In addition, this act potentially violates the Quebec and Canadian charters through its incorporation (at section 28) of the pension eligibility distinctions of Part VIII of the Education Act (R.S.Q. 1964 c. 235), which date back to 1941. Part VIII of the Education Act provided (at section 519) for pension benefits to accrue after twenty years of service, with male teachers becoming eligible at age sixty, in contrast with female eligibility at age fifty-six. Similarly, the Act Respecting the Civil Service Superannuation Plan may violate sections 10 and 15 of the Quebec and Canadian charters, respectively, in that its pension requirements for male civil servants are different from those for female employees. Benefits may be paid to male civil servants who reach the age of sixty-two after at least ten years of service. In contrast, the minimum age for female workers is sixty. Deferred benefits may be paid to males at age sixty-five, in comparison with a minimum age of sixty for females under the pension plan created by the act. The notwithstanding declaration contained in the Act Respecting the Pension Plan of Certain Teachers applies to all of the provisions of the act, many of which may violate sections 10 and 15 of the Quebec and Canadian charters. The act sets out (at section 19) different pension eligibility requirements for males and females. Several other sections refer to, and incorporate, the pension eligibility criteria of the abovementioned acts and are thus potentially open to Charter equality challenges on the basis of the gender distinctions regarding eligibility that are set out in these acts. Finally, the Act Respecting the Government and Public Employees Retirement Plan and the Act Respecting the Pension Plan of Management Personnel may be the subject of Quebec and Canadian charter equality challenges in that the acts provide (at sections 98, 115.4 and 139, 148, respectively) for pension payments on the basis of the pension plans established in the first two acts mentioned, which themselves potentially contain violations of both charters.
7. The first five acts in Table 2 deal with the system of separate Catholic and Protestant education in Quebec and contain similarly worded notwithstanding declarations. Each of these acts contributes distinct elements to the separate educational scheme. Their notwithstanding declarations refer to the provisions of the acts that "grant rights and privileges to religious confessions." The Act Respecting the Conseil supérieur de l'Éducation creates the conseil, and mandates (at section 2) that its members must be drawn in specific proportions primarily from the Catholic and Protestant communities. In addition, the Education Act for Cree, Inuit and Naskapi Native Persons grants special privileges for the inspection of schools (at section 23) and the establishment of school boards (at section 39) by Catholics and Protestants or by officials from these groups. Further, the Act Respecting the Ministère de l'Éducation mandates that the minister is to consult with Catholic and Protestant groups (at section 7) and must uphold and "respect" Quebec's separate religious educational scheme (at section 8). As well, the Education Act confers (at section 6) special privileges for Catholic or Protestant religious "care and guidance." The Act Respecting School Elections grants no explicit rights and privileges to religious "confessions" or denominations. However, the government appears to have anticipated Charter scrutiny of this act, perhaps because it is generally a component of, and makes reference to, the Quebec separate schooling regime. Finally, the Act Respecting Private Education potentially violates sections 15 and 10 of the Canadian and Quebec charters, respectively, by submitting private school education to the general rules concerning Catholic and Protestant education set out under other notwithstanding education acts described in this note. The Act Respecting Private Education incorporates the general rules governing Catholic and Protestant education in provisions, such as section 58, which instruct that the Catholic and Protestant committees should have the authority to approve certain educational programs.
8. This fear might not have been justified due to section 15(2) of the Charter, which allows for affirmative action, and section 25, which states that the Charter's provisions are not to be construed as limiting the rights of the aboriginal peoples of Canada.
9. I thank Sydney Horton, legislative counsel in the Department of Justice, Yukon, for this information.
10. th) 268, the Yukon Territory Supreme Court suggested at p. 275 that in matters "under the legislative authority of the legislative body of the Yukon Territory," the Canadian Bill of Rights did not apply.
11. The dates on which these acts were enacted are as follows: 19 June 1986 (acts "A" and no. 12)-6 June 1991 (act "B"); 12 June 1996 (act "C"); 21 June 2001 (act "D"); 29 May 1986 (act "E"); 23 December 1988 (act "F"); 7 June 1994 (act "G"); 17 June 1999 (act "H"); 14 June 2000 (act "I"); 21 June 1989 (act no. 10); 18 December 1992 (act no. 11). The issues of Montreal's The Gazette and Quebec City's Le Soleil that were reviewed were those published on the three days following the ten dates on which the third readings of these eleven acts took place (acts "A" and no. 12 were passed on the same day). Where a Sunday or a holiday fell within these three days, only two issues were examined.
12. The dates on which these acts were enacted are as follows: 19 June 1986 (acts "A" and no. 12)-6 June 1991 (act "B"); 12 June 1996 (act "C"); 21 June 2001 (act "D"); 29 May 1986 (act "E"); 23 December 1988 (act "F"); 7 June 1994 (act "G"); 17 June 1999 (act "H"); 14 June 2000 (act "I"); 21 June 1989 (act no. 10); 18 December 1992 (act no. 11). The issues of Montreal's The Gazette and Quebec City's Le Soleil that were reviewed were those published on the three days following the ten dates on which the third readings of these eleven acts took place (acts "A" and no. 12 were passed on the same day). Where a Sunday or a holiday fell within these three days, only two issues were examined.
13. The Yukon's notwithstanding act passed its third reading on 6 December 1982. The Whitehorse Star is published three times a week, and the issues checked were those of 8 and 10 December 1982. Both issues included a column entitled "At the Legislature" in which the paper reported on legislative developments. The journalist who prepared this section apparently did not find the use of the NM interesting or important enough to report but did report that a minister had confirmed that the "beer price rose" and that another minister had confirmed that "licence plate fees will be increased." See, respectively, n.a., "At the Legislature," The Whitehorse Star, 8 December 1982, p. 24, and n.a., "At the Legislature," Whitehorse Star, 10 December 1982, p. 6.
14. The Yukon's notwithstanding act passed its third reading on 6 December 1982. The Whitehorse Star is published three times a week, and the issues checked were those of 8 and 10 December 1982. Both issues included a column entitled "At the Legislature" in which the paper reported on legislative developments. The journalist who prepared this section apparently did not find the use of the NM interesting or important enough to report but did report that a minister had confirmed that the "beer price rose" and that another minister had confirmed that "licence plate fees will be increased." See, respectively, n.a., "At the Legislature," The Whitehorse Star, 8 December 1982, p. 24, and n.a., "At the Legislature," Whitehorse Star, 10 December 1982, p. 6.
15. The two writers who did mention the ignored Quebec uses, Ann Bayefsky and Lois MacDonald, did not offer a full account of them. Bayefsky, who wrote in 1987, mentioned the Act Respecting the Pension Plan of Certain Teachers and Amending Various Legislation Respecting the Pension Plans of the Public and Parapublic Sector (act "A"), but her reference cites only one of the three notwithstanding declarations that had been inserted into three different acts by act "A." See Anne Bayefsky, "The judicial function under the Canadian Charter of Rights and Freedoms," McGill Law Journal 32 (1987), pp. 791-833, at p. 824. MacDonald, who probably relied on Bayefsky's reference, not only copied the oversight but did not update her account with information concerning what had happened between 1987 and 1994, the year her paper was published. She consequently omitted mention of the renewals of acts nos. 1 to 4 by acts "B" and "C," the renewals of acts nos. 6 to 8 by act "E," the enactments of acts nos. 10 and 12, and the repealing of act no. 11 (tables 1 and 2). See Lois MacDonald, "Promoting social equality through the legislative override," National Journal of Constitutional Law 4 (December 1993), pp. 1-27, at p. 21. The point of this comment is not to highlight the oversights of other scholars. The point is made only to demonstrate that the enactment of a notwithstanding act is not necessarily a widely noticed event in the Canadian legal and political communities.
16. The two writers who did mention the ignored Quebec uses, Ann Bayefsky and Lois MacDonald, did not offer a full account of them. Bayefsky, who wrote in 1987, mentioned the Act Respecting the Pension Plan of Certain Teachers and Amending Various Legislation Respecting the Pension Plans of the Public and Parapublic Sector (act "A"), but her reference cites only one of the three notwithstanding declarations that had been inserted into three different acts by act "A." See Anne Bayefsky, "The judicial function under the Canadian Charter of Rights and Freedoms," McGill Law Journal 32 (1987), pp. 791-833, at p. 824. MacDonald, who probably relied on Bayefsky's reference, not only copied the oversight but did not update her account with information concerning what had happened between 1987 and 1994, the year her paper was published. She consequently omitted mention of the renewals of acts nos. 1 to 4 by acts "B" and "C," the renewals of acts nos. 6 to 8 by act "E," the enactments of acts nos. 10 and 12, and the repealing of act no. 11 (tables 1 and 2). See Lois MacDonald, "Promoting social equality through the legislative override," National Journal of Constitutional Law 4 (December 1993), pp. 1-27, at p. 21. The point of this comment is not to highlight the oversights of other scholars. The point is made only to demonstrate that the enactment of a notwithstanding act is not necessarily a widely noticed event in the Canadian legal and political communities.
17. The reason the statement refers to works published in English only is because 1 do not read French. I have no information regarding works published in French that deal with either the twelve ignored Quebec uses or the Yukon use.
18. Jennifer Robinson, "National Assembly on summer break as labor woes, welfare issue unsolved," The Gazette (Montreal), 20 June 1986, p. A4. Interestingly, nine of the eleven dates appearing in note 10 above are between 29 May and 21 June. These dates are close to when the Quebec national assembly usually ends its session.
19. th Session, vol. 29, no. 46, 16 June 1986 (Quebec: National Assembly, 1986), p. 2873.
20. The same thing happened almost exactly four years later. On 14 June 2000, the Quebec national assembly passed An Act to Amend Various Legislative Provisions Respecting Education as Regards Confessional Matters (act "J"), which renewed the notwithstanding declaration in two of the education acts (acts nos. 8 and 9 in Table 2). Three days later, The Gazette reported that "[s]ome 37 bills were adopted in the sitting. … The assembly adopted laws on confessional schools, law enforcement, fire safety, traffic safety and municipal reform." On the same day Le Soleil reported that "in the course of the spring session, legislators adopted 37 bills. Legislators also passed a law creating a youth-fund; a law on cinemas and law 118 on denominationalism in the education sector." In other words, both papers did report the enactment of act "J," but did not mention the use of the NM in it, even though The Gazette did realize that some of the bills were "contested." See, respectively, Sean Gordon, "PQ rams through contested bills," The Gazette (Montreal), 17 June 2000, p. A5, and n.a., "Le gouvernement péquiste se donne des outils," Le Soleil (Quebec City), 17 June 2000, p. A22. The original French of the report in Le Soleil reads: "Au cours de cette session printaniere, les parlementaires ont adopté 37 projets de loi. Les parlementaires ont aussi voté une loi créant le Fonds-jeunesse; une loi sur le cinéma et la loi 118 sur la confessionnalité dans le secteur de l'éducation." (I thank Matthew Woodley for research in French and for translation into English.)
21. The same thing happened almost exactly four years later. On 14 June 2000, the Quebec national assembly passed An Act to Amend Various Legislative Provisions Respecting Education as Regards Confessional Matters (act "J"), which renewed the notwithstanding declaration in two of the education acts (acts nos. 8 and 9 in Table 2). Three days later, The Gazette reported that "[s]ome 37 bills were adopted in the sitting. … The assembly adopted laws on confessional schools, law enforcement, fire safety, traffic safety and municipal reform." On the same day Le Soleil reported that "in the course of the spring session, legislators adopted 37 bills. Legislators also passed a law creating a youth-fund; a law on cinemas and law 118 on denominationalism in the education sector." In other words, both papers did report the enactment of act "J," but did not mention the use of the NM in it, even though The Gazette did realize that some of the bills were "contested." See, respectively, Sean Gordon, "PQ rams through contested bills," The Gazette (Montreal), 17 June 2000, p. A5, and n.a., "Le gouvernement péquiste se donne des outils," Le Soleil (Quebec City), 17 June 2000, p. A22. The original French of the report in Le Soleil reads: "Au cours de cette session printaniere, les parlementaires ont adopté 37 projets de loi. Les parlementaires ont aussi voté une loi créant le Fonds-jeunesse; une loi sur le cinéma et la loi 118 sur la confessionnalité dans le secteur de l'éducation." (I thank Matthew Woodley for research in French and for translation into English.)
22. The same thing happened almost exactly four years later. On 14 June 2000, the Quebec national assembly passed An Act to Amend Various Legislative Provisions Respecting Education as Regards Confessional Matters (act "J"), which renewed the notwithstanding declaration in two of the education acts (acts nos. 8 and 9 in Table 2). Three days later, The Gazette reported that "[s]ome 37 bills were adopted in the sitting. … The assembly adopted laws on confessional schools, law enforcement, fire safety, traffic safety and municipal reform." On the same day Le Soleil reported that "in the course of the spring session, legislators adopted 37 bills. Legislators also passed a law creating a youth-fund; a law on cinemas and law 118 on denominationalism in the education sector." In other words, both papers did report the enactment of act "J," but did not mention the use of the NM in it, even though The Gazette did realize that some of the bills were "contested." See, respectively, Sean Gordon, "PQ rams through contested bills," The Gazette (Montreal), 17 June 2000, p. A5, and n.a., "Le gouvernement péquiste se donne des outils," Le Soleil (Quebec City), 17 June 2000, p. A22. The original French of the report in Le Soleil reads: "Au cours de cette session printaniere, les parlementaires ont adopté 37 projets de loi. Les parlementaires ont aussi voté une loi créant le Fonds-jeunesse; une loi sur le cinéma et la loi 118 sur la confessionnalité dans le secteur de l'éducation." (I thank Matthew Woodley for research in French and for translation into English.)
23. Indeed, on the day following the passage of act "F," The Gazette mentioned the use of the NM in Bill 178 but never mentioned the use of the NM in act "F." See Nancy Wood, "Law 'barely changes' Bill 101: premier," The Gazette (Montreal), 24 December 1988, p. A1.
24. th Session, Alberta, 2000. The bill passed its first and second readings on 23 February 1999, and third reading on 15 March 2000. Egan v. Canada, [1995] 2 S.C.R. 418; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., (1998) 142 D.L.R. (4th) (Ont. C.A.). The Supreme Court heard arguments for the latter case in March 1998 before the tabling of the bill and issued its decision, upholding the ruling, in May 1999, between the first and second reading thereof. See M. v. H., [1999] 2 S.C.R. 3.
25. Constitution Act, 1867 (U.K.), 30-31 Vict., c. 3, s. 91(26).
26. See Kelly Harris, "New law to ban same-sex marriage," Calgary Herald, 16 March 2000, p. A1, and James Cudmore, "Alberta bill bans same-sex marriages," National Post, 17 March 2000, p. A6. Perhaps the reason for the lack of criticism of the marriage law on behalf of the gay and lesbian community is that since the act was practically meaningless, the members of that community did not want to waste their public support reserves on such a matter.
27. See Kelly Harris, "New law to ban same-sex marriage," Calgary Herald, 16 March 2000, p. A1, and James Cudmore, "Alberta bill bans same-sex marriages," National Post, 17 March 2000, p. A6. Perhaps the reason for the lack of criticism of the marriage law on behalf of the gay and lesbian community is that since the act was practically meaningless, the members of that community did not want to waste their public support reserves on such a matter.
28. Howard Leeson, "Section 33, the notwithstanding clause: A paper tiger?" Choices - Courts and Legislatures 6, no. 4 (2000), pp. 1-22, at p. 14. June 2000 is the date on the cover page of the publication.
29. Donna Greschner and Ken Norman, "The courts and section 33," Queen's Law Journal 12, no. 2 (Fall 1987), pp. 155-98, at pp. 155-56.
30. S.S. 1979, c. 24.1.
31. RWDSU v. Govt. of Saskatchewan, [1985] 19 D.L.R. (4th) 609 (Sask. C.A).
32. RWDSU v. Govt. of Saskatchewan, [1987] 1 S.C.R. 460.
33. See Hogg, Constitutional Law of Canada, s. 36.2, p. 36-4.
34. See Frederick L. Morton, "The political impact of the Canadian Charter of Rights and Freedoms," Canadian Journal of Political Science 20, no. 1 (March 1987), pp. 31-55, at p. 47; Greschner and Norman, "The courts," Queen's Law Journal, p. 191, footnote 84; Leeson, "Paper tiger," Choices, p. 15.
35. See Frederick L. Morton, "The political impact of the Canadian Charter of Rights and Freedoms," Canadian Journal of Political Science 20, no. 1 (March 1987), pp. 31-55, at p. 47; Greschner and Norman, "The courts," Queen's Law Journal, p. 191, footnote 84; Leeson, "Paper tiger," Choices, p. 15.
36. See Frederick L. Morton, "The political impact of the Canadian Charter of Rights and Freedoms," Canadian Journal of Political Science 20, no. 1 (March 1987), pp. 31-55, at p. 47; Greschner and Norman, "The courts," Queen's Law Journal, p. 191, footnote 84; Leeson, "Paper tiger," Choices, p. 15.
37. Morton, "Political impact," Canadian Journal of Political Science, p. 47.
38. Ford v. Quebec (A.G.), p. 768-87.
39. Janet Hiebert argues that Bill 178 was not necessarily in conflict with the Ford decision, and she suggests that its use of the NM was pre-emptive rather than remedial. See Janet Hiebert, Limiting Rights - the Dilemma of Judicial Review (Montreal and Kingston: McGill-Queen's University Press, 1996). Hiebert argues that because the court found that the purpose of preserving French dominance in Quebec was constitutional and it was only the means that were not the least drastic, it is possible that the inside-outside compromise "might [have been] interpreted by the Court as a reasonable attempt to ensure that the promotion of the policy objective did not impose an overly severe restriction on freedom of expression," pp. 143-44. I disagree with this analysis. The court did not suggest that the package created by the legislation was unconstitutional. What it said was that the specific means of French-only signs was unconstitutional since it was unnecessary in achieving the legitimate goal of preserving French dominance in Quebec. The French-only requirement for signs would have therefore remained unconstitutional, whether it applied to certain kinds of signs or all signs. Hiebert would have been right had the court struck down the sign policy based on the proportionality part of the Oakes test, where the court weighs the overall benefit of the legislation against the cost to rights protection. (See R. v. Oakes, [1986] 1 S.C.R. 138.) If that were the case, the fact that the new sign law was less restrictive of rights might have been relevant in considering the overall impact of the legislation. But, since the policy was struck down on minimal impairment grounds (the third stage of the Oakes test, Ibid.), the fact that the new act was less restrictive of rights is irrelevant.
40. See Patrick Monahan, Meech Lake - The Inside Story (Toronto: University of Toronto Press, 1991), pp. 159-60; Andrew Cohen, A Deal Undone - the Making and Breaking of the Meech Lake Accord (Vancouver: Douglas & McIntyre, 1990), p. 200.
41. See Patrick Monahan, Meech Lake - The Inside Story (Toronto: University of Toronto Press, 1991), pp. 159-60; Andrew Cohen, A Deal Undone - the Making and Breaking of the Meech Lake Accord (Vancouver: Douglas & McIntyre, 1990), p. 200.
42. Ibid. The text of the Meech Lake Accord appears at p. 297.
43. Ibid., p. 4.
44. nd edition (Toronto: Oxford University Press, 2001), pp. 186-87; Hiebert, Limiting Rights, pp. 140-41.
45. nd edition (Toronto: Oxford University Press, 2001), pp. 186-87; Hiebert, Limiting Rights, pp. 140-41.
46. nd edition (Toronto: Oxford University Press, 2001), pp. 186-87; Hiebert, Limiting Rights, pp. 140-41.
47. nd edition (Toronto: Oxford University Press, 2001), pp. 186-87; Hiebert, Limiting Rights, pp. 140-41.
48. th Sess., UN Doc. CCPR/47/D/359/1989 and 385/1989. This document is a communication of opinions submitted by John Ballantyne, Elizabeth Davidson and Gordon McIntyre and was adopted on 31 March 1993.
49. nd Session, Quebec, 1993. The non-renewal of the notwithstanding declaration was not mentioned in the explanatory notes.
50. In La Procureur générale du Québec c. Les Enterprises W.F.H. Itée, [1999] J.Q. No. 4586 (QL), it was held that Ford's approval of the predominantly French requirement was no longer in force since, ten years after Ford, the government had an obligation to reintroduce evidence that the status of the French language remained vulnerable in Quebec. Since no such evidence was presented, the court struck down section 58. The Quebec minister of justice announced that the province would appeal, but the option of using the NM was not even mentioned. See Campbell Clark, "Judge strikes down key part of language law," National Post, 21 October 1999, p. A1; Ingrid Peritz, "Sign rules struck down in Quebec," The Globe and Mail, 21 October 1999, p. A1. The decision was reversed on appeal. See [2000] J.Q. No.1165 (QL).
51. In La Procureur générale du Québec c. Les Enterprises W.F.H. Itée, [1999] J.Q. No. 4586 (QL), it was held that Ford's approval of the predominantly French requirement was no longer in force since, ten years after Ford, the government had an obligation to reintroduce evidence that the status of the French language remained vulnerable in Quebec. Since no such evidence was presented, the court struck down section 58. The Quebec minister of justice announced that the province would appeal, but the option of using the NM was not even mentioned. See Campbell Clark, "Judge strikes down key part of language law," National Post, 21 October 1999, p. A1; Ingrid Peritz, "Sign rules struck down in Quebec," The Globe and Mail, 21 October 1999, p. A1. The decision was reversed on appeal. See [2000] J.Q. No.1165 (QL).
52. In La Procureur générale du Québec c. Les Enterprises W.F.H. Itée, [1999] J.Q. No. 4586 (QL), it was held that Ford's approval of the predominantly French requirement was no longer in force since, ten years after Ford, the government had an obligation to reintroduce evidence that the status of the French language remained vulnerable in Quebec. Since no such evidence was presented, the court struck down section 58. The Quebec minister of justice announced that the province would appeal, but the option of using the NM was not even mentioned. See Campbell Clark, "Judge strikes down key part of language law," National Post, 21 October 1999, p. A1; Ingrid Peritz, "Sign rules struck down in Quebec," The Globe and Mail, 21 October 1999, p. A1. The decision was reversed on appeal. See [2000] J.Q. No.1165 (QL).
53. th) 695 (Alta. Q.B.). The report was endorsed by the court (pp. 721-23) and was included at p. 744 as Appendix "A" to the judgement. See also p. 745.
54. Ibid., p. 744.
55. Ibid., pp. 721-22.
56. Ibid., pp. 722-23.
57. The exact amount was $740,780 but this figure did not include costs or certain interest items. See Muir v. Alberta, p. 699. The government of Alberta states that the amount was "approximately $1,000,000 in damages, interest and costs." See Alberta, Ministry of Justice, News Release, "Background Information" for the Institutional and Sexual Sterilization Compensation Act, 10 March 1998 (Edmonton: Ministry, 1998).
58. nd Session., Alberta, 1998.
59. nd Session., Alberta, 1998.
60. Ibid., s. 4 (1).
61. Ibid., s. 4(2).
62. Ibid., ss. 4(3), 4(4).
63. Ibid., s. 5(1).
64. Ibid., ss. 5(2), 5(3).
65. Ibid., s. 6.
66. Ibid., s. 8.
67. R.S.A. 1980, c. A-16.
68. Ken Nelson, a sterilization victim, said to the media, "I stood in the legislature gallery today and watched the Premier of Alberta take the rights away from 700 hundred people" (cited in Larry Johnsrude, "Province revokes rights," The Edmonton Journal, 11 March 1998, p. A1). It seems that the opposition parties, who knew in advance about the tabling of the bill, made sure that some sterilization victims would be present at the legislature. Mr. Nelson later appeared with his story on national television (Jeffs and Thomson, "Victims anger moved Klein," Edmonton Journal, p. A5). One politician stated that it was this television appearance that made Klein question the bill (Ibid.).
69. Ken Nelson, a sterilization victim, said to the media, "I stood in the legislature gallery today and watched the Premier of Alberta take the rights away from 700 hundred people" (cited in Larry Johnsrude, "Province revokes rights," The Edmonton Journal, 11 March 1998, p. A1). It seems that the opposition parties, who knew in advance about the tabling of the bill, made sure that some sterilization victims would be present at the legislature. Mr. Nelson later appeared with his story on national television (Jeffs and Thomson, "Victims anger moved Klein," Edmonton Journal, p. A5). One politician stated that it was this television appearance that made Klein question the bill (Ibid.).
70. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12), "humiliating" (Ibid.), "frightening" (Ibid.), "legislative tyranny" (Ibid.), "moral emptiness" (Linda Goyette, "Decency doesn't live here anymore," The Edmonton Journal, 11 March 1998, p. A12), "the hard slap that overwhelms other injustices" (Ibid.), "a cheat" (Ibid.), "[saving] bucks at the expense of disabled citizens" (Ibid.), "disgrace" (Ibid.), "bunch of cowards" (Ibid.), "disgusting" (Ibid.), "shrinking the scope of liberal democracy" (Ibid.); "mean, dumb and gutless" (Marc Lisac, "Alberta's Bill 26 is mean, dumb and gutless," The Edmonton Journal, 11 March 1998, p. A13), "chicken-hearted" (Ibid.), "pea-brained"(Ibid.), "the morality of an egg-stealing magpie and the social conscience of a coyote" (Ibid.), "remorselessly" (Ibid.), "a large person shoving a small one onto the floor" (Ibid.). I chose to quote only the short expressions used by the critics. The reports and editorials obviously went beyond these expressions to also attack the legislation on its merits and on the lack of political wisdom displayed by the introduction of such a bill.
71. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12), "humiliating" (Ibid.), "frightening" (Ibid.), "legislative tyranny" (Ibid.), "moral emptiness" (Linda Goyette, "Decency doesn't live here anymore," The Edmonton Journal, 11 March 1998, p. A12), "the hard slap that overwhelms other injustices" (Ibid.), "a cheat" (Ibid.), "[saving] bucks at the expense of disabled citizens" (Ibid.), "disgrace" (Ibid.), "bunch of cowards" (Ibid.), "disgusting" (Ibid.), "shrinking the scope of liberal democracy" (Ibid.); "mean, dumb and gutless" (Marc Lisac, "Alberta's Bill 26 is mean, dumb and gutless," The Edmonton Journal, 11 March 1998, p. A13), "chicken-hearted" (Ibid.), "pea-brained"(Ibid.), "the morality of an egg-stealing magpie and the social conscience of a coyote" (Ibid.), "remorselessly" (Ibid.), "a large person shoving a small one onto the floor" (Ibid.). I chose to quote only the short expressions used by the critics. The reports and editorials obviously went beyond these expressions to also attack the legislation on its merits and on the lack of political wisdom displayed by the introduction of such a bill.
72. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12), "humiliating" (Ibid.), "frightening" (Ibid.), "legislative tyranny" (Ibid.), "moral emptiness" (Linda Goyette, "Decency doesn't live here anymore," The Edmonton Journal, 11 March 1998, p. A12), "the hard slap that overwhelms other injustices" (Ibid.), "a cheat" (Ibid.), "[saving] bucks at the expense of disabled citizens" (Ibid.), "disgrace" (Ibid.), "bunch of cowards" (Ibid.), "disgusting" (Ibid.), "shrinking the scope of liberal democracy" (Ibid.); "mean, dumb and gutless" (Marc Lisac, "Alberta's Bill 26 is mean, dumb and gutless," The Edmonton Journal, 11 March 1998, p. A13), "chicken-hearted" (Ibid.), "pea-brained"(Ibid.), "the morality of an egg-stealing magpie and the social conscience of a coyote" (Ibid.), "remorselessly" (Ibid.), "a large person shoving a small one onto the floor" (Ibid.). I chose to quote only the short expressions used by the critics. The reports and editorials obviously went beyond these expressions to also attack the legislation on its merits and on the lack of political wisdom displayed by the introduction of such a bill.
73. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12), "humiliating" (Ibid.), "frightening" (Ibid.), "legislative tyranny" (Ibid.), "moral emptiness" (Linda Goyette, "Decency doesn't live here anymore," The Edmonton Journal, 11 March 1998, p. A12), "the hard slap that overwhelms other injustices" (Ibid.), "a cheat" (Ibid.), "[saving] bucks at the expense of disabled citizens" (Ibid.), "disgrace" (Ibid.), "bunch of cowards" (Ibid.), "disgusting" (Ibid.), "shrinking the scope of liberal democracy" (Ibid.); "mean, dumb and gutless" (Marc Lisac, "Alberta's Bill 26 is mean, dumb and gutless," The Edmonton Journal, 11 March 1998, p. A13), "chicken-hearted" (Ibid.), "pea-brained"(Ibid.), "the morality of an egg-stealing magpie and the social conscience of a coyote" (Ibid.), "remorselessly" (Ibid.), "a large person shoving a small one onto the floor" (Ibid.). I chose to quote only the short expressions used by the critics. The reports and editorials obviously went beyond these expressions to also attack the legislation on its merits and on the lack of political wisdom displayed by the introduction of such a bill.
74. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12), "humiliating" (Ibid.), "frightening" (Ibid.), "legislative tyranny" (Ibid.), "moral emptiness" (Linda Goyette, "Decency doesn't live here anymore," The Edmonton Journal, 11 March 1998, p. A12), "the hard slap that overwhelms other injustices" (Ibid.), "a cheat" (Ibid.), "[saving] bucks at the expense of disabled citizens" (Ibid.), "disgrace" (Ibid.), "bunch of cowards" (Ibid.), "disgusting" (Ibid.), "shrinking the scope of liberal democracy" (Ibid.); "mean, dumb and gutless" (Marc Lisac, "Alberta's Bill 26 is mean, dumb and gutless," The Edmonton Journal, 11 March 1998, p. A13), "chicken-hearted" (Ibid.), "pea-brained"(Ibid.), "the morality of an egg-stealing magpie and the social conscience of a coyote" (Ibid.), "remorselessly" (Ibid.), "a large person shoving a small one onto the floor" (Ibid.). I chose to quote only the short expressions used by the critics. The reports and editorials obviously went beyond these expressions to also attack the legislation on its merits and on the lack of political wisdom displayed by the introduction of such a bill.
75. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12), "humiliating" (Ibid.), "frightening" (Ibid.), "legislative tyranny" (Ibid.), "moral emptiness" (Linda Goyette, "Decency doesn't live here anymore," The Edmonton Journal, 11 March 1998, p. A12), "the hard slap that overwhelms other injustices" (Ibid.), "a cheat" (Ibid.), "[saving] bucks at the expense of disabled citizens" (Ibid.), "disgrace" (Ibid.), "bunch of cowards" (Ibid.), "disgusting" (Ibid.), "shrinking the scope of liberal democracy" (Ibid.); "mean, dumb and gutless" (Marc Lisac, "Alberta's Bill 26 is mean, dumb and gutless," The Edmonton Journal, 11 March 1998, p. A13), "chicken-hearted" (Ibid.), "pea-brained"(Ibid.), "the morality of an egg-stealing magpie and the social conscience of a coyote" (Ibid.), "remorselessly" (Ibid.), "a large person shoving a small one onto the floor" (Ibid.). I chose to quote only the short expressions used by the critics. The reports and editorials obviously went beyond these expressions to also attack the legislation on its merits and on the lack of political wisdom displayed by the introduction of such a bill.
76. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12)
77. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12), "humiliating" (Ibid.), "frightening" (Ibid.), "legislative tyranny" (Ibid.), "moral emptiness" (Linda Goyette, "Decency doesn't live here anymore," The Edmonton Journal, 11 March 1998, p. A12), "the hard slap that overwhelms other injustices" (Ibid.), "a cheat" (Ibid.), "[saving] bucks at the expense of disabled citizens" (Ibid.), "disgrace" (Ibid.), "bunch of cowards" (Ibid.), "disgusting" (Ibid.), "shrinking the scope of liberal democracy" (Ibid.); "mean, dumb and gutless" (Marc Lisac, "Alberta's Bill 26 is mean, dumb and gutless," The Edmonton Journal, 11 March 1998, p. A13), "chicken-hearted" (Ibid.), "pea-brained"(Ibid.), "the morality of an egg-stealing magpie and the social conscience of a coyote" (Ibid.), "remorselessly" (Ibid.), "a large person shoving a small one onto the floor" (Ibid.). I chose to quote only the short expressions used by the critics. The reports and editorials obviously went beyond these expressions to also attack the legislation on its merits and on the lack of political wisdom displayed by the introduction of such a bill.
78. Brian Laghi, "Alberta to limit compensation for eugenics victims," The Globe and Mail, 11 March 1998, p. A1; Steve Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, 11 March 1998, p. A1. See Johnsrude, "Province revokes rights, " Edmonton Journal. The March 11 issue of The Edmonton Journal is a good reflection of the public outrage surrounding the bill. The newspaper dedicated a large amount of space to reports, editorials and accounts of the horrors the victims suffered. The stories and editorials were replete with charged language such as "a black day for Alberta," "blatant disrespect for its citizens," "an arrogant move," and "robbery of handicapped people" (Ibid.). Other examples of this type of reaction in the same issue: "absolutely draconian" (Conservative Senator Ron Ghitter, a spokesman for the Alberta Dignity Foundation and a former Conservative MLA, as quoted in Ibid.), "terribly repugnant" (Ibid.), "a totalitarian regime" (Ibid.), "mean-spirited"(Ibid.), "heavy-handed" (lawyers for the victims as quoted in Ibid., p. A16), "draconian" (Ibid.). Although the government withdrew the bill from the legislature on 11 March, the 12 March issue of The Edmonton Journal continued its fierce attack, using expressions such as "the nightmare scenario" (Kathleen Mahoney, a University of Calgary law professor, as quoted in Tom Arnold, "Use of 'sledgehammer' law condemned," The Edmonton Journal, 11 March 1998, p. A5), "like … in banana republics and repressive dictatorial regimes" (Ibid), "[a] strong-arm tactic" (Ibid.), "big, bullying, paternalistic government at its worst" ("Editorial: An outrage, and an abuse of power," The Edmonton Journal, 11 March 1998, p. A12), "humiliating" (Ibid.), "frightening" (Ibid.), "legislative tyranny" (Ibid.), "moral emptiness" (Linda Goyette, "Decency doesn't live here anymore," The Edmonton Journal, 11 March 1998, p. A12), "the hard slap that overwhelms other injustices" (Ibid.), "a cheat" (Ibid.), "[saving] bucks at the expense of disabled citizens" (Ibid.), "disgrace" (Ibid.), "bunch of cowards" (Ibid.), "disgusting" (Ibid.), "shrinking the scope of liberal democracy" (Ibid.); "mean, dumb and gutless" (Marc Lisac, "Alberta's Bill 26 is mean, dumb and gutless," The Edmonton Journal, 11 March 1998, p. A13), "chicken-hearted" (Ibid.), "pea-brained"(Ibid.), "the morality of an egg-stealing magpie and the social conscience of a coyote" (Ibid.), "remorselessly" (Ibid.), "a large person shoving a small one onto the floor" (Ibid.). I chose to quote only the short expressions used by the critics. The reports and editorials obviously went beyond these expressions to also attack the legislation on its merits and on the lack of political wisdom displayed by the introduction of such a bill.
79. Brian Laghi, "Klein retreats in rights scrap," The Globe and Mail, 12 March 1998, p. A1.
80. The Edmonton Journal stated that Premier Klein's office received about 250 calls and that this brought home to him the extent of the public's anger (Allyson Jeffs, "About face," The Edmonton Journal, 12 March 1998, p. A1). See also Graham Thomson, "Victims," The Edmonton Journal, 12 March 1998, p. A5; Allyson Jeffs and Graham Thomson, "Victim's anger moved Klein," The Edmonton Journal, 12 March 1998, p. A5; Larry Johnsrude, "A problem of perception," The Edmonton Journal, 12 March 1998, p. A5.
81. The Edmonton Journal stated that Premier Klein's office received about 250 calls and that this brought home to him the extent of the public's anger (Allyson Jeffs, "About face," The Edmonton Journal, 12 March 1998, p. A1). See also Graham Thomson, "Victims," The Edmonton Journal, 12 March 1998, p. A5; Allyson Jeffs and Graham Thomson, "Victim's anger moved Klein," The Edmonton Journal, 12 March 1998, p. A5; Larry Johnsrude, "A problem of perception," The Edmonton Journal, 12 March 1998, p. A5.
82. The Edmonton Journal stated that Premier Klein's office received about 250 calls and that this brought home to him the extent of the public's anger (Allyson Jeffs, "About face," The Edmonton Journal, 12 March 1998, p. A1). See also Graham Thomson, "Victims," The Edmonton Journal, 12 March 1998, p. A5; Allyson Jeffs and Graham Thomson, "Victim's anger moved Klein," The Edmonton Journal, 12 March 1998, p. A5; Larry Johnsrude, "A problem of perception," The Edmonton Journal, 12 March 1998, p. A5.
83. The Edmonton Journal stated that Premier Klein's office received about 250 calls and that this brought home to him the extent of the public's anger (Allyson Jeffs, "About face," The Edmonton Journal, 12 March 1998, p. A1). See also Graham Thomson, "Victims," The Edmonton Journal, 12 March 1998, p. A5; Allyson Jeffs and Graham Thomson, "Victim's anger moved Klein," The Edmonton Journal, 12 March 1998, p. A5; Larry Johnsrude, "A problem of perception," The Edmonton Journal, 12 March 1998, p. A5.
84. nd Session, no. 23, 11 March 1998 (Edmonton: Queen's Printer, 1998), pp. 812-13.
85. Jeffs, "About face," The Edmonton Journal.
86. Alberta, Legislative Assembly, Debates, 11 March 1998, pp. 854-55.
87. A question that I am not addressing here is what it was that made the public respond negalively to the uses of the NM in the sign law and in the sterilization bill. Was it the very invocation of the NM? Was it the way in which it was invoked? Was it the specific policy enacted in the notwithstanding acts? Can these factors be isolated from each other? For a discussion of these points, see Tsvi Kahana, "The Partnership Model of the Canadian Notwithstanding Mechanism - Failure and Hope" (S.J.D. diss., Faculty of Law, University of Toronto, 2000), pp. 216-26.
88. The reason for this decision is probably that the backlash from the sterilization bill made the Alberta government very apprehensive about proposing to use the NM again. See Kahana, "Partnership Model" (diss.), pp. 221-25.
89. The suspicion that the public was generally unaware of this legislation is supported by the following episode. On 22 March, only one week after the passage of the marriage law in the Alberta legislature, a similar incident took place in the federal Parliament. The government amended the bill that extends benefits to same-sex couples, to make it explicit that the bill does not change the definition of marriage as a union between a woman and a man. This amendment created controversy in Parliament, and a report on this controversy was the first item on the CBC'S evening news program, The National (22 March 2000). Obviously, what happened in Alberta a week prior would have been a very interesting thing to include in the report since both legislative developments dealt with exactly the same thing: same-sex marriage. Nevertheless, Alberta's week-old legislation was not mentioned in the report. The suspicion that indeed the CBC news desk was unaware of the Alberta marriage law is enhanced by the fact that the Alberta marriage law was not reported by the CBC'S The National in the five days following its enactment (available online at: http://cbc.ca/national/trans/index.html).
90. Muir v. Alberta, p. 735 (emphasis added).
91. Ibid., pp. 734-35.
92. Current case law (which has not changed since the tabling of the sterilization bill in March 1998) would not be in favour of the victims, either on the section 7 front or on the section 15 front. Two section 7 arguments that are relevant to the sterilization matter were rejected by the courts. The first was the argument that since damages in tort are intended to make the victim whole again, limiting the compensation amount curtails the victim's ability to fully heal. Another possible argument would be more practical to suggest that since damages are awarded to help the victim pay for the care and assistance they now require, limiting their amount limits the victim's liberty and security. Both these arguments were rejected since the courts refused to read the protection of economic interests into section 7. See Whitbread v. Walley, [1988] B.C.J No.733; aff'd [1990] 3 S.C.R. 1273.A. Section 15 arguments would also not necessarily succeed. In Re Workers' Compensation Act 1983 (Newfoundland) ss. 32 & 34, [1989] 1 S.C.R. 922, the Supreme Court of Canada found that the Newfoundland Workers' Compensation Act, 1983 did not infringe on section 15 even though it denied workers and their families the right of action against their employer and any resulting compensation for injuries received at work. The court ruled that the status of workers under this act was not a ground analogous to those listed section 15(1) and therefore such a limitation on these workers' rights of action was not discrimination within the meaning of section 15. It might be argued, of course, that there is a difference between workers and sterilization victims. Being a sterilization victim is "personal and immutable" whereas workers can leave their jobs whenever they want. Therefore, there is a better reason to consider their disability as an "analogous ground." See Hogg, Constitutional Law of Canada, s. 52.7(b), p. 52-18 and s. 52.7(e), p. 52-9. Hogg's argument, however, has not yet been adopted in the case law. In fact, in Hernandez v. Palmer, [1992] O.J. No. 2648 (Gen. Div.), the Ontario Court of Justice, citing the Workers' Compensation Reference (1983), noted that being the victim of a particular kind of tort is not an analogous ground of discrimination.
93. Current case law (which has not changed since the tabling of the sterilization bill in March 1998) would not be in favour of the victims, either on the section 7 front or on the section 15 front. Two section 7 arguments that are relevant to the sterilization matter were rejected by the courts. The first was the argument that since damages in tort are intended to make the victim whole again, limiting the compensation amount curtails the victim's ability to fully heal. Another possible argument would be more practical to suggest that since damages are awarded to help the victim pay for the care and assistance they now require, limiting their amount limits the victim's liberty and security. Both these arguments were rejected since the courts refused to read the protection of economic interests into section 7. See Whitbread v. Walley, [1988] B.C.J No.733; aff'd [1990] 3 S.C.R. 1273.A. Section 15 arguments would also not necessarily succeed. In Re Workers' Compensation Act 1983 (Newfoundland) ss. 32 & 34, [1989] 1 S.C.R. 922, the Supreme Court of Canada found that the Newfoundland Workers' Compensation Act, 1983 did not infringe on section 15 even though it denied workers and their families the right of action against their employer and any resulting compensation for injuries received at work. The court ruled that the status of workers under this act was not a ground analogous to those listed section 15(1) and therefore such a limitation on these workers' rights of action was not discrimination within the meaning of section 15. It might be argued, of course, that there is a difference between workers and sterilization victims. Being a sterilization victim is "personal and immutable" whereas workers can leave their jobs whenever they want. Therefore, there is a better reason to consider their disability as an "analogous ground." See Hogg, Constitutional Law of Canada, s. 52.7(b), p. 52-18 and s. 52.7(e), p. 52-9. Hogg's argument, however, has not yet been adopted in the case law. In fact, in Hernandez v. Palmer, [1992] O.J. No. 2648 (Gen. Div.), the Ontario Court of Justice, citing the Workers' Compensation Reference (1983), noted that being the victim of a particular kind of tort is not an analogous ground of discrimination.
94. Current case law (which has not changed since the tabling of the sterilization bill in March 1998) would not be in favour of the victims, either on the section 7 front or on the section 15 front. Two section 7 arguments that are relevant to the sterilization matter were rejected by the courts. The first was the argument that since damages in tort are intended to make the victim whole again, limiting the compensation amount curtails the victim's ability to fully heal. Another possible argument would be more practical to suggest that since damages are awarded to help the victim pay for the care and assistance they now require, limiting their amount limits the victim's liberty and security. Both these arguments were rejected since the courts refused to read the protection of economic interests into section 7. See Whitbread v. Walley, [1988] B.C.J No.733; aff'd [1990] 3 S.C.R. 1273.A. Section 15 arguments would also not necessarily succeed. In Re Workers' Compensation Act 1983 (Newfoundland) ss. 32 & 34, [1989] 1 S.C.R. 922, the Supreme Court of Canada found that the Newfoundland Workers' Compensation Act, 1983 did not infringe on section 15 even though it denied workers and their families the right of action against their employer and any resulting compensation for injuries received at work. The court ruled that the status of workers under this act was not a ground analogous to those listed section 15(1) and therefore such a limitation on these workers' rights of action was not discrimination within the meaning of section 15. It might be argued, of course, that there is a difference between workers and sterilization victims. Being a sterilization victim is "personal and immutable" whereas workers can leave their jobs whenever they want. Therefore, there is a better reason to consider their disability as an "analogous ground." See Hogg, Constitutional Law of Canada, s. 52.7(b), p. 52-18 and s. 52.7(e), p. 52-9. Hogg's argument, however, has not yet been adopted in the case law. In fact, in Hernandez v. Palmer, [1992] O.J. No. 2648 (Gen. Div.), the Ontario Court of Justice, citing the Workers' Compensation Reference (1983), noted that being the victim of a particular kind of tort is not an analogous ground of discrimination.
95. Current case law (which has not changed since the tabling of the sterilization bill in March 1998) would not be in favour of the victims, either on the section 7 front or on the section 15 front. Two section 7 arguments that are relevant to the sterilization matter were rejected by the courts. The first was the argument that since damages in tort are intended to make the victim whole again, limiting the compensation amount curtails the victim's ability to fully heal. Another possible argument would be more practical to suggest that since damages are awarded to help the victim pay for the care and assistance they now require, limiting their amount limits the victim's liberty and security. Both these arguments were rejected since the courts refused to read the protection of economic interests into section 7. See Whitbread v. Walley, [1988] B.C.J No.733; aff'd [1990] 3 S.C.R. 1273.A. Section 15 arguments would also not necessarily succeed. In Re Workers' Compensation Act 1983 (Newfoundland) ss. 32 & 34, [1989] 1 S.C.R. 922, the Supreme Court of Canada found that the Newfoundland Workers' Compensation Act, 1983 did not infringe on section 15 even though it denied workers and their families the right of action against their employer and any resulting compensation for injuries received at work. The court ruled that the status of workers under this act was not a ground analogous to those listed section 15(1) and therefore such a limitation on these workers' rights of action was not discrimination within the meaning of section 15. It might be argued, of course, that there is a difference between workers and sterilization victims. Being a sterilization victim is "personal and immutable" whereas workers can leave their jobs whenever they want. Therefore, there is a better reason to consider their disability as an "analogous ground." See Hogg, Constitutional Law of Canada, s. 52.7(b), p. 52-18 and s. 52.7(e), p. 52-9. Hogg's argument, however, has not yet been adopted in the case law. In fact, in Hernandez v. Palmer, [1992] O.J. No. 2648 (Gen. Div.), the Ontario Court of Justice, citing the Workers' Compensation Reference (1983), noted that being the victim of a particular kind of tort is not an analogous ground of discrimination.
96. The possibility that the bill might not have infringed any Charter rights was mentioned neither by the media nor even by the politicians who supported the bill. In fact, as much as the discussion in the press concentrated on "human rights" and on the Charter, there was hardly any reference to actual Charter rights. The two exceptions were 1) the text of section 15 was mentioned in an article reporting what a lawyer for some of the victims had said (Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, p. A2); and 2) a report citing a comment by Premier Klein to the effect that the legal advice the government received cautioned that the bill might violate "legal rights" (Steve Chase, "Klein says goal was to spare tax-payers," Calgary Herald, 12 March 1998, p. A3).
97. The possibility that the bill might not have infringed any Charter rights was mentioned neither by the media nor even by the politicians who supported the bill. In fact, as much as the discussion in the press concentrated on "human rights" and on the Charter, there was hardly any reference to actual Charter rights. The two exceptions were 1) the text of section 15 was mentioned in an article reporting what a lawyer for some of the victims had said (Chase, "Sterilized Albertans irate over cash deal," Calgary Herald, p. A2); and 2) a report citing a comment by Premier Klein to the effect that the legal advice the government received cautioned that the bill might violate "legal rights" (Steve Chase, "Klein says goal was to spare tax-payers," Calgary Herald, 12 March 1998, p. A3).
98. nd Session, no. 26, 12 March 1998 (Edmonton: Queen's Printer, 1998), p. 855. The government refused to release these opinions (Ibid.). A possible line of argument in favour of invoking the NM with the enactment of the bill without waiting for a judicial decision could have been the following: if the bill had been enacted without a notwithstanding declaration, the victims would have sued for more than $150,000 and would have asked the court to declare the $150,000 cap unconstitutional. If indeed the court had found that this cap constituted a limit on a Charter right and was not justified under section 1, it would have been too late to use the NM, since the Ford case ruled that section 33 cannot be used retroactively. Thus, invoking the NM after actions had been filed would have meant that the government would have had to pay more than $150,000 to the victims who filed their claims before the invocation of the NM, and the purpose of the legislation would have been undermined. The desire to ensure that the legislation was valid at all costs probably explains why the notwithstanding declaration (section 3) referred to all available Charter rights (sections 2 and 7 to15) even though the bill clearly did not violate most of these rights (e.g., freedom of association [section 2(d)] and the right to an interpreter in court proceedings [section 14]).
99. This is especially clear in the sign law example. The courts phrased the question as a minimal impairment question and asked whether the French-only sign policy was necessary for the survival of the French language in Quebec. The question was discussed by many Quebec legislators as a purely political question regarding the relations between two groups of people (i.e., should anglophone Quebeckers have the right to post their signs in English, or would this be too great a concession?). For the debate in the Quebec national assembly regarding Bill 178, see Kahana, "Partnership Model" (diss.), pp. 207-14.
100. See R.S.A. c. M-6, s. 1.1; R.S.Q. c. C-11.
101. 1986 21 D.L.R. (4th) 354 (Que. C.A.). This decision was overruled by the Supreme Court of Canada in Fora v. Quebec (A.G.).
102. Aside from acts "G" and "H" (Table 2), there is another act among the thirteen ignored Quebec notwithstanding acts that dealt mainly, but not exclusively, with the renewal of notwithstanding declarations. This was the Act to Amend the Charter of Human Rights and Freedoms and Other Legislative Provisions (act "C" in Table 1). Four of the eleven sections of this two-page act dealt with renewing the notwithstanding declarations in four of the pension plan acts. Even the other sections of this act, which included amendments to the Quebec Charter of Human Rights and Freedoms, involved pensions and retirement or insurance plans. This act was also ignored. It should be noted, however, that while the strategy of making the enactment or renewal of the notwithstanding declaration the sole or main part of the act did not seem to affect the level of public awareness, it did seem to increase the notice paid to the acts by the drafters of the legislation. The explanatory notes to three acts -"C," "G" and "H" - mention the renewal of the notwithstanding declaration. However, the explanatory notes attached to the other notwithstanding acts do not. This is significant because the explanatory notes represent what the drafters felt were the most important and relevant features for legislators to know.
103. rd Session, Alberta, 1999 (first reading 29 April 1999, second reading 11 November 1999). This bill was tabled after the sterilization bill fiasco. Ironically, the bill explicity states that the referendum requirement does not apply to "a Bill or a provision of a Bill within the jurisdiction of the Legislature that relates to who may marry" (section 2.1[3]). In other words, even if this proposal were law, the Alberta marriage law would have been exempt from the otherwise required referendum, which would surely provoke angry responses from Albertans and other Canadians.
104. rd Session, Alberta, 1999 (first reading 29 April 1999, second reading 11 November 1999). This bill was tabled after the sterilization bill fiasco. Ironically, the bill explicity states that the referendum requirement does not apply to "a Bill or a provision of a Bill within the jurisdiction of the Legislature that relates to who may marry" (section 2.1[3]). In other words, even if this proposal were law, the Alberta marriage law would have been exempt from the otherwise required referendum, which would surely provoke angry responses from Albertans and other Canadians.
105. See Manfredi, Judicial Power, pp. 191-92.
106. See Paul C. Weiler, "Of judges and rights, or should Canada have a constitutional bill of rights?" Dalhousie Review 60 (1980-81), pp. 205-39, at pp. 221-27 and 231-36; Paul C. Weiler, "Rights and judges in a democracy: A new Canadian version," University of Michigan Journal of Law Reform 18, no. 1 (Fall 1984), pp. 51-92, at pp. 64-5; Peter Russell, "Standing up for notwithstanding," Alberta Law Revieiv 29, no. 2 (Winter 1991), pp. 293-309, at pp. 295-99. Weiler's 1980 paper, which is a pre-Charter proposal for a NM to override judicial decisions, does not even discuss the possibility of using such a mechanism pre-emptively. Neither Weiler's 1984 paper nor Russell's paper explicitly states that the NM should only be used remedially, but their talk of the NM as a mechanism for the correction of judicial errors necessarily implies that the NM should be used only after the Supreme Court has ruled on a matter and erred. Manfredi explicitly suggests amending section 33 such that it allows only for remedial uses of the NM. See Manfredi, Judicial Power, pp. 192-93.
107. See Paul C. Weiler, "Of judges and rights, or should Canada have a constitutional bill of rights?" Dalhousie Review 60 (1980-81), pp. 205-39, at pp. 221-27 and 231-36; Paul C. Weiler, "Rights and judges in a democracy: A new Canadian version," University of Michigan Journal of Law Reform 18, no. 1 (Fall 1984), pp. 51-92, at pp. 64-5; Peter Russell, "Standing up for notwithstanding," Alberta Law Revieiv 29, no. 2 (Winter 1991), pp. 293-309, at pp. 295-99. Weiler's 1980 paper, which is a pre-Charter proposal for a NM to override judicial decisions, does not even discuss the possibility of using such a mechanism pre-emptively. Neither Weiler's 1984 paper nor Russell's paper explicitly states that the NM should only be used remedially, but their talk of the NM as a mechanism for the correction of judicial errors necessarily implies that the NM should be used only after the Supreme Court has ruled on a matter and erred. Manfredi explicitly suggests amending section 33 such that it allows only for remedial uses of the NM. See Manfredi, Judicial Power, pp. 192-93.
108. See Paul C. Weiler, "Of judges and rights, or should Canada have a constitutional bill of rights?" Dalhousie Review 60 (1980-81), pp. 205-39, at pp. 221-27 and 231-36; Paul C. Weiler, "Rights and judges in a democracy: A new Canadian version," University of Michigan Journal of Law Reform 18, no. 1 (Fall 1984), pp. 51-92, at pp. 64-5; Peter Russell, "Standing up for notwithstanding," Alberta Law Revieiv 29, no. 2 (Winter 1991), pp. 293-309, at pp. 295-99. Weiler's 1980 paper, which is a pre-Charter proposal for a NM to override judicial decisions, does not even discuss the possibility of using such a mechanism pre-emptively. Neither Weiler's 1984 paper nor Russell's paper explicitly states that the NM should only be used remedially, but their talk of the NM as a mechanism for the correction of judicial errors necessarily implies that the NM should be used only after the Supreme Court has ruled on a matter and erred. Manfredi explicitly suggests amending section 33 such that it allows only for remedial uses of the NM. See Manfredi, Judicial Power, pp. 192-93.
109. See Paul C. Weiler, "Of judges and rights, or should Canada have a constitutional bill of rights?" Dalhousie Review 60 (1980-81), pp. 205-39, at pp. 221-27 and 231-36; Paul C. Weiler, "Rights and judges in a democracy: A new Canadian version," University of Michigan Journal of Law Reform 18, no. 1 (Fall 1984), pp. 51-92, at pp. 64-5; Peter Russell, "Standing up for notwithstanding," Alberta Law Revieiv 29, no. 2 (Winter 1991), pp. 293-309, at pp. 295-99. Weiler's 1980 paper, which is a pre-Charter proposal for a NM to override judicial decisions, does not even discuss the possibility of using such a mechanism pre-emptively. Neither Weiler's 1984 paper nor Russell's paper explicitly states that the NM should only be used remedially, but their talk of the NM as a mechanism for the correction of judicial errors necessarily implies that the NM should be used only after the Supreme Court has ruled on a matter and erred. Manfredi explicitly suggests amending section 33 such that it allows only for remedial uses of the NM. See Manfredi, Judicial Power, pp. 192-93.
110. See Leeson, "Paper tiger," Choices, p. 15.
111. Manfredi seems to be making the same argument using different language. He suggests that using the NM in a pre-emptive fashion amounts to legislative supremacy because "[t]he doctrine of constitutional supremacy includes an important review function for the courts" (Manfredi, Judicial Power, p. 192). However, Manfredi's emphasis on the court's "important function" and not on the individual's right to air her rights claim misses the point. The fact that a few individual acts invoke the NM pre-emptively and thus prevent judicial review does nothing to the court's "important review function" since in the vast majority of cases the NM is not invoked and the court may perform a review. In contrast, if we look at the matter from the individual's perspective, pre-emptive uses of the NM block access to the courts and the individual therefore loses the chance to air her grievances: it does not matter that in most other cases individuals have access to justice.
112. Greschner and Norman, "The courts," Queen's Law Journal, p. 193.
113. Ibid., pp. 191-92. For this argument, see also Janet L. Hiebert, "Why must a bill of rights be a contest of political and judicial wills? - The Canadian alternative," Public Law Review 10, no. 1 (March 1999), pp. 22-36, at p. 33. The argument that a remedial use of the NM is likely to produce a better public discussion assumes - rather than demonstrates - that judicial review will generate public discussion and that the court has the ability to educate the public. Needless to say, this assumption is not uncontested. Many believe that a judicially enforced rights-protecting constitutional regime sterilizes politics, constrains deliberation, and moves the discussion of important political issues out of the political institutions and into the courts. This important theoretical disagreement is beyond the scope of this article. I should say, however, that even critics of the Supreme Court of Canada believe that the court does have the power to educate the public and has done so in the past. See Weiler, "Rights and judges in a democracy," University of Michigan Journal of Law Reform, pp. 76-7; Russell, "Standing up," Alberta Law Review, pp. 300-301. Hiebert, "Why must a bill of rights be a contest?" Public Law Review, pp. 25-9. For a discussion of the ways in which a remedial NM can contribute to public discussion, see Mark Tushnet, "Policy distortion and democratic debilitation: Comparative illumination of the countermajoritarian problem," Michigan Law Review 94, no. 2 (November 1995), pp. 245-301.
114. Ibid., pp. 191-92. For this argument, see also Janet L. Hiebert, "Why must a bill of rights be a contest of political and judicial wills? - The Canadian alternative," Public Law Review 10, no. 1 (March 1999), pp. 22-36, at p. 33. The argument that a remedial use of the NM is likely to produce a better public discussion assumes - rather than demonstrates - that judicial review will generate public discussion and that the court has the ability to educate the public. Needless to say, this assumption is not uncontested. Many believe that a judicially enforced rights-protecting constitutional regime sterilizes politics, constrains deliberation, and moves the discussion of important political issues out of the political institutions and into the courts. This important theoretical disagreement is beyond the scope of this article. I should say, however, that even critics of the Supreme Court of Canada believe that the court does have the power to educate the public and has done so in the past. See Weiler, "Rights and judges in a democracy," University of Michigan Journal of Law Reform, pp. 76-7; Russell, "Standing up," Alberta Law Review, pp. 300-301. Hiebert, "Why must a bill of rights be a contest?" Public Law Review, pp. 25-9. For a discussion of the ways in which a remedial NM can contribute to public discussion, see Mark Tushnet, "Policy distortion and democratic debilitation: Comparative illumination of the countermajoritarian problem," Michigan Law Review 94, no. 2 (November 1995), pp. 245-301.
115. Ibid., pp. 191-92. For this argument, see also Janet L. Hiebert, "Why must a bill of rights be a contest of political and judicial wills? - The Canadian alternative," Public Law Review 10, no. 1 (March 1999), pp. 22-36, at p. 33. The argument that a remedial use of the NM is likely to produce a better public discussion assumes - rather than demonstrates - that judicial review will generate public discussion and that the court has the ability to educate the public. Needless to say, this assumption is not uncontested. Many believe that a judicially enforced rights-protecting constitutional regime sterilizes politics, constrains deliberation, and moves the discussion of important political issues out of the political institutions and into the courts. This important theoretical disagreement is beyond the scope of this article. I should say, however, that even critics of the Supreme Court of Canada believe that the court does have the power to educate the public and has done so in the past. See Weiler, "Rights and judges in a democracy," University of Michigan Journal of Law Reform, pp. 76-7; Russell, "Standing up," Alberta Law Review, pp. 300-301. Hiebert, "Why must a bill of rights be a contest?" Public Law Review, pp. 25-9. For a discussion of the ways in which a remedial NM can contribute to public discussion, see Mark Tushnet, "Policy distortion and democratic debilitation: Comparative illumination of the countermajoritarian problem," Michigan Law Review 94, no. 2 (November 1995), pp. 245-301.
116. Ibid., pp. 191-92. For this argument, see also Janet L. Hiebert, "Why must a bill of rights be a contest of political and judicial wills? - The Canadian alternative," Public Law Review 10, no. 1 (March 1999), pp. 22-36, at p. 33. The argument that a remedial use of the NM is likely to produce a better public discussion assumes - rather than demonstrates - that judicial review will generate public discussion and that the court has the ability to educate the public. Needless to say, this assumption is not uncontested. Many believe that a judicially enforced rights-protecting constitutional regime sterilizes politics, constrains deliberation, and moves the discussion of important political issues out of the political institutions and into the courts. This important theoretical disagreement is beyond the scope of this article. I should say, however, that even critics of the Supreme Court of Canada believe that the court does have the power to educate the public and has done so in the past. See Weiler, "Rights and judges in a democracy," University of Michigan Journal of Law Reform, pp. 76-7; Russell, "Standing up," Alberta Law Review, pp. 300-301. Hiebert, "Why must a bill of rights be a contest?" Public Law Review, pp. 25-9. For a discussion of the ways in which a remedial NM can contribute to public discussion, see Mark Tushnet, "Policy distortion and democratic debilitation: Comparative illumination of the countermajoritarian problem," Michigan Law Review 94, no. 2 (November 1995), pp. 245-301.
117. Ibid., pp. 191-92. For this argument, see also Janet L. Hiebert, "Why must a bill of rights be a contest of political and judicial wills? - The Canadian alternative," Public Law Review 10, no. 1 (March 1999), pp. 22-36, at p. 33. The argument that a remedial use of the NM is likely to produce a better public discussion assumes - rather than demonstrates - that judicial review will generate public discussion and that the court has the ability to educate the public. Needless to say, this assumption is not uncontested. Many believe that a judicially enforced rights-protecting constitutional regime sterilizes politics, constrains deliberation, and moves the discussion of important political issues out of the political institutions and into the courts. This important theoretical disagreement is beyond the scope of this article. I should say, however, that even critics of the Supreme Court of Canada believe that the court does have the power to educate the public and has done so in the past. See Weiler, "Rights and judges in a democracy," University of Michigan Journal of Law Reform, pp. 76-7; Russell, "Standing up," Alberta Law Review, pp. 300-301. Hiebert, "Why must a bill of rights be a contest?" Public Law Review, pp. 25-9. For a discussion of the ways in which a remedial NM can contribute to public discussion, see Mark Tushnet, "Policy distortion and democratic debilitation: Comparative illumination of the countermajoritarian problem," Michigan Law Review 94, no. 2 (November 1995), pp. 245-301.
118. Ibid., pp. 191-92. For this argument, see also Janet L. Hiebert, "Why must a bill of rights be a contest of political and judicial wills? - The Canadian alternative," Public Law Review 10, no. 1 (March 1999), pp. 22-36, at p. 33. The argument that a remedial use of the NM is likely to produce a better public discussion assumes - rather than demonstrates - that judicial review will generate public discussion and that the court has the ability to educate the public. Needless to say, this assumption is not uncontested. Many believe that a judicially enforced rights-protecting constitutional regime sterilizes politics, constrains deliberation, and moves the discussion of important political issues out of the political institutions and into the courts. This important theoretical disagreement is beyond the scope of this article. I should say, however, that even critics of the Supreme Court of Canada believe that the court does have the power to educate the public and has done so in the past. See Weiler, "Rights and judges in a democracy," University of Michigan Journal of Law Reform, pp. 76-7; Russell, "Standing up," Alberta Law Review, pp. 300-301. Hiebert, "Why must a bill of rights be a contest?" Public Law Review, pp. 25-9. For a discussion of the ways in which a remedial NM can contribute to public discussion, see Mark Tushnet, "Policy distortion and democratic debilitation: Comparative illumination of the countermajoritarian problem," Michigan Law Review 94, no. 2 (November 1995), pp. 245-301.
119. Greschner and Norman, "The courts," Queen's Law Journal, p. 192.
120. Brian Slattery, "Canadian Charter of Rights and Freedoms - Override clauses under s. 33 -whether subject to judicial review under section 1," Canadian Bar Review 16, no. 1 (March 1983), pp. 391-97, at p. 397. See also John D. Whyte, "On not standing for notwithstanding," Alberta Law Review 28, no. 2 (Winter 1990), pp. 347-57, at pp. 354-57.
121. Brian Slattery, "Canadian Charter of Rights and Freedoms - Override clauses under s. 33 - whether subject to judicial review under section 1," Canadian Bar Review 16, no. 1 (March 1983), pp. 391-97, at p. 397. See also John D. Whyte, "On not standing for notwithstanding," Alberta Law Review 28, no. 2 (Winter 1990), pp. 347-57, at pp. 354-57.
122. See Weiler, "Of judges and rights," Dalhousie Review, p. 234, and Weiler, "Rights and judges," University of Michigan Journal of Law Reform, p. 81.
123. See Weiler, "Of judges and rights," Dalhousie Review, p. 234, and Weiler, "Rights and judges," University of Michigan Journal of Law Reform, p. 81.
124. For how the passage of time can influence people's and legislators' preferences, see Tushnet, "Policy distortion," Michigan Law Review, pp. 293-94.
125. This argument would obviously weaken if the lower court struck down the law unanimously, while the Supreme Court ruling was a majority decision. In this case, the Supreme Court decision would make it easier for the legislature to invoke the NM since it could argue that rather than acting against rights protection, it adopted the judicial opinion of the dissent. In other words, a divided Supreme Court decision might actually legitimize the use of the NM.
126. For the problem of "democratic debilitation" created by legislative and popular reliance on the judiciary to deliberate on important issues, see Ibid., pp. 245-49 and 275-77.
127. There was, of course, an element of the courts-legislatures relationship in the bill, since the bill's purpose was to limit the amount courts could award in certain cases. Indeed, Opposition Leader Pam Barrett criticized the bill, among other reasons for "interfering with the judiciary" (Alberta, Legislative Assembly, Debates, 10 March 1998, p. 780). However, the bill itself was not enacted in response to a court's decision, nor did it stand in direct opposition to such a decision.