Der Justizminister schließt eine Rücknahme der rechtlichen Stellungnahme zur Abweichungsklausel aus
https://www.thestar.com/politics/federal/justice-minister-rules-out-withdrawing-legal-submission-on-notwithstanding-clause/article_02956813-979b-5936-8939-5e1c098e83ce.html
3 Kommentare
Entirely reasonable. We’re talking about our fundamental rights, and how they interact with a clause explicitly intended to suspend them. I definitely want it to be clearly understood whether decisions and actions that take place during the suspension of a charter right can be understood to hold *after* section 33 goes out of effect.
These are rights like … The right to life, liberty and security; freedom from unreasonable search and seizure; freedom from arbitrary imprisonment; access to legal counsel *and a trial*; *the presumption of innocence*; to not be subject to cruel and unusual punishment; to not be forced to incriminate oneself; to have an interpreter at trial; *to be treated equally*.
If someone is *arbitrarily detained* without trial, and held in cruel and unusual conditions, because of who they are or what they believe… Should they not be able to demand their release *after* the rights that normally would protect them are back in effect?
It is time for the premiers (and the provinces) to understand that you should not (and cannot) bypass the Charter of Rights with the excuse that it’s better for your society to do so.
It’s NEVER better for a society to diminish the rights and freedoms of a minority in order to benefit a majority. This is the slippery slope that has led to atrocities countless of times in human history.
If a government (and a society) feels it is needed to use the NWC preemptively, it should be a red flag that what you’re about to do is WRONG.
To clarify, the Federal DOJ’s position is modest in comparison to how it’s been represented by many commentators (they don’t even take a position as to whether Bill 21 is Constitutional or not) and can be summarized as follows:
1. As stated in its text, the NWC can only be used to override ss. 2 and 7-15
2. Because it has only a temporary effect (with each use expiring after 5 years) the NWC cannot be used in a way that permanently destroys a right at issue, to the extent it would be unrecoverable after 5 years.
3. The NWC does not prevent a court from reviewing a law invoking its use and declaring that it violates a Charter right, only from striking it down as unconstitutional.
My hottest take on this subject is that if Provinces are going to keep using the NWC to shield blatantly unconstitutional legislation from review, the Feds should respond by bringing out another long-dormant tool of Canada’s „political constitutionalism“ and start disallowing such laws under Sections 55 and 90 of the *Constitution Act 1867*.
Disallowance of Provincial legislation is a core federal power, and it may be the only protection available for the rights and freedoms of Canadians in provinces with a myopic view towards them.