Legislated Rights as Trumps: Why the Notwithstanding Clause Overrides Judicial Review

Authors

Geoffrey Sigalet, UBC Okanagan

Document Type

Article

Abstract

This article argues that the Charter’s notwithstanding clause makes exception to judicial review. In the counter-factual world where laws “shall operate” as they “would have but for” Charter provisions, courts may not question the consistency of laws with selected Charter rights. Courts must legally treat such laws as though selected Charter provisions do not exist to be applied to them; but of course, they continue to exist. Because the provisions do exist, judgements about their consistency with statutes invoking section 33 are left to the political process. This reading is grounded in the subjunctive mood (conditionnel passé) of the text. It aligns with Alan Blakeney’s and Peter Lougheed’s historical purpose for the clause in 1982: to allow legislated rights as trumps against judicial review. This is justifiable as a matter of political morality because it offers a standard for holding legislators accountable for using the clause to protect rather than trump rights.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Sigalet, Geoffrey. "Legislated Rights as Trumps: Why the Notwithstanding Clause Overrides Judicial Review." Osgoode Hall Law Journal 61.1 (2024) : 63-97.
DOI: https://doi.org/10.60082/2817-5069.3978
https://digitalcommons.osgoode.yorku.ca/ohlj/vol61/iss1/2

References

1. My title pays homage to the multi-authored book Legislated Rights. This essay is heavily indebted to the insightful argument of this landmark work in theory of rights: Grégoire Webber et al, Legislated Rights (Cambridge University Press, 2018), DOI: .

2. Assistant Professor of Political Science, UBC Okanagan; Director, UBC Centre for Constitutional Law and Legal Studies. Many thanks to my RA Neelesh Thakur for excellent research support. I am also indebted to Bradley Miller, Grant Huscroft, Dwight Newman, Gerard Kennedy, Asher Honickman, Maxime St-Hilaire, Xavier Focroulle Ménard, Jacob Levy, Hoi Kong, Christopher Manfredi, Michael Da Silva, Ben Woodfinden, David Jo, Emmanuelle Richez, Mark Harding, Dave Snow, Erin Crandall, Emmett Macfarlane, Robert Leckey, and others for comments and conversations about this article. A special note of thanks to Grégoire Webber for his patience and wisdom in helping me to develop my argument in opposition to his own.

3. Canadian Charter of Rights and Freedoms, s 33(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. Given the importance of the wording of the English and French versions of subsections 33(1) and (2) of the notwithstanding clause for my argument, I here set them out in full:

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (1) Le Parlement ou la législature d'une province peut adopter une loi où il est expressément déclaré que celle-ci ou une de ses dispositions a effet indépendamment d'une disposition donnée de l'article 2 ou des articles 7 à 15 de la présente charte.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration (ibid). (2) La loi ou la disposition qui fait l'objet d'une déclaration conforme au présent article et en vigueur a l'effet qu'elle aurait sauf la disposition en cause de la charte (ibid).

4. [1988] 2 SCR 712 at para 33 [Ford].

5. Act Respecting the Laicity of the State, CQLR c L-0.3 [Loi 21] (see section 6 of the Act for the ban on some civil servants wearing religious symbols and section 8 for the prohibition on most officials exercising their functions with covered faces).

6. See QCCS 1466 [Hak]. Another exception (released after the submission of this article for peer review) is the recent Supreme Court of Canada case of Toronto (City) v Ontario (Attorney General), 2021 SCC 34, where Wagner CJ and Brown J discussed how section 33 enables a legislature to "give continued effect to its understanding of what the Constitution requires" (at para 60).

7. Hak, supra note 6 at para 4. The court also held that the section 28's equal guarantee of all rights to both sexes is an interpretive clause that cannot be used to trump section 33 (ibid at paras 869, 874-75).

8. See Grégoire Webber, Eric Mendelsohn & Robert Leckey, "The faulty wisdom around the notwithstanding clause" (10 May 2019), online: Policy Options [perma.cc/7DUH-98MF]. Léonid Sirota quickly posted his agreement with this early version of the argument. See Léonid Sirota "Concurring Opinion" (23 May 2019), online (blog): Double Aspect [perma.cc/Q94E-SCP5].

9. See Robert Leckey & Eric Mendelsohn, "The Notwithstanding Clause: Legislatures, Courts, and the Electorate" (2022) 72 UTLJ 189, DOI: <https://doi.org/10.3138/utlj-2020-0135>.

10. Grégoire Webber, "Notwithstanding Rights, Review, or Remedy? On the Notwithstanding Clause and the Operation of Legislation" (2021) 71 UTLJ 510, DOI: <https://doi.org/10.3138/utlj-2020-0066> [Webber, "Notwithstanding Rights, Review, or Remedy?"].

11. Hak, supra note 6 at para 795.

12. See "Nothing to Declare: A Response to Grégoire Webber, Eric Mendelsohn, Robert Leckey, and Léonid Sirota on the Effects of the Notwithstanding Clause" (2020) 29 Const Forum Const 38, DOI: . I should note that Ménard has recently joined two other co-authors to revise his view of section 33 as a means of specifying rights in relation to the common-good. This view is very much compatible with the reading of the text offered in this article. See Kerry Sun, Stéphane Séraphin & Xavier F Ménard, "Notwithstanding the Courts? Directing the Canadian Charter toward the Common Good" (1 July 2021), online: Ius & Iustitium [perma.cc/LVP6-TSQJ]. Even more recently (well after this article was first submitted for peer review), Sérafin, Sun & Ménard have done an admirable job of expanding their view that section 33 stands for the coordinate ability of legislatures to specify Charter rights in "Notwithstanding Judicial Specification: The Notwithstanding Clause within a Juridical Order" 110 SCLR 135, DOI: < https://dx.doi.org/10.2139/ssrn.4123003>.

13. Hak, supra note 6 at para 761.

14. Ibid at para 771.

15. Ibid at paras 795-96.

16. St-Hilaire & Ménard, supra note 12 at 40-41.

17. See Webber, "Notwithstanding Rights, Review, or Remedy?" supra note 10 at 510-11.

18. Ibid.

19. John Whyte, "Sometimes Constitutions are Made in the Streets: The Future of the Charter's Notwithstanding Clause" (2007) 16 Const Forum Const 79 at 83, DOI: <https://doi.org/10.21991/C9ZQ18>.

20. Peter W Hogg, "Override of Rights" in Constitutional Law of Canada, Student Edition (Thomson Reuters Canada, 2020) 39-1.

21. St-Hilaire & Ménard, supra note 12 at 43.

22. Tsvi Kahana, "What Makes for a Good Use of the Notwithstanding Mechanism" (2004) 23 SCLR 191 at para 10. For the description of the clause as a legislative "trump of judicial decisions," see Tsvi Kahana, "Understanding the Notwithstanding Mechanism" (2002) 52 UTLJ 221 at 252, DOI: <https://doi.org/10.2307/825966>

Lorraine E Weinrib, "The Supreme Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights under Canada's Constitution" (2001) 80 Can Bar Rev 699 at 724-25.

23. Grégoire Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009) at 50, DOI: <https://doi.org/10.1017/CBO9780511691867>. Professor Webber has changed his view since his impressive and convincing early work.

24. "Some Models of Dialogue Between Judges and Legislators" (2004) 23 SCLR 7 at para 60.

25. Ibid.

26. See Paul D Halliday & G Edward White, "The Suspension Clause: English Text, Imperial Contexts, and American Implications" (2008) 94 Va L Rev 575 at 615-16. The King's suspending power "erased the action of the law altogether," while the dispensing power "excepted named persons from the action of law in specific cases" (ibid at 615).

27. See "English Bill of Rights 1689," online: The Avalon Project at Yale Law School [perma.cc/6UXD-22MU].

28. Commentaries on the Laws of England (Clarendon Press, 1765) reprinted in William Blackstone, Commentaries on the Laws of England (William S. Hein & Co, 1992) at 331.

29. Supra note 27. This meaning was echoed in the constitutional theory of the age. For example, in Thomas Hobbes' Leviathan the "laws of nature" specifically apply to the state of nature, yet he says "notwithstanding the laws of nature (which every one hath then kept, when he has will to keep them, when he can do it safely), if there be no power erected, or not great enough for our security, every man will, and may lawfully rely on his own strength and art, for caution against all other men" (Leviathan (Hackett, 1994) at 106). Hobbes does not mean that the laws of nature are "suspended" by the lack of a sovereign power, but rather that the laws of nature can minimize but not guarantee the right of men to self-preservation in the state of nature.

30. See Ruth Sullivan, Statutory Interpretation, 2nd (Irwin Law, 2007) at 304-05.

31. Ibid at 305.

32. See Asher Honickman, "Deconstructing Section 28" (29 June 2019), online: Advocates for the Rule of Law < www.ruleoflaw.ca/deconstructing-section-28> [perma.cc/6W32-KVDG].

33. See Malcolm Lavoie, "R. v. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union" (2017) 40 Dal LJ 189 at 216-17.

34. See Ontario Hydro v Ontario (Labour Relations Board), [1993] 3 SCR 327; Bank of Montreal v Marcotte, 2014 SCC 55 at para 72.

35. For examples of scholars advocating such amendments, see Richard Albert, "The Desuetude of the Notwithstanding Clause - and How to Revive It" in Emmett Macfarlane, ed, Policy Change, Courts, and the Canadian Constitution (University of Toronto Press, 2018) 146 DOI: <https://doi.org/10.3138/9781487519483-009>.

Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd (Oxford University Press, 2001) at 193 [Manfredi, Judicial Power].

36. This is true even if we follow the distinction between "internal" scope limits and "external" section 1 limits on Charter rights. See Stephen Gardbaum, "Limiting Constitutional Rights" (2007) 54 UCLA L Rev 789 at 801, 806.

37. See Nova Scotia (Workers' Compensation Board) v Martin, 2003 SCC 54 at para 28.

38. See Re Manitoba Language Rights, [1985] 1 SCR 721 at 746-53. The only examples of operable but constitutionally inconsistent laws are "judicially created" cases where courts suspend the formal impact of their conclusion that laws are unconstitutional to prevent the breakdown of the rule of law. Ontario (AG) v G, 2020 SCC 38 at para 239. See also Webber, "Notwithstanding Rights, Review, or Remedy?" supra note 10 at 519-23. Note Webber's reading of section 33 underlines the "all-important" shift in the Supreme Court's early practice of characterizing suspended declarations of invalidity in the language of "deem[ing]…temporarily validity and force and effect" for inconsistent legislation (Re Manitoba Language Rights, supra note 38 at 780) to "suspend[ing] the declaration of invalidity" (Carter v Canada (AG), 2015 SCC 5 at para 128). The Court's current language of suspending the declaration of invalidity adheres to the notion that the court cannot formally hold that the law is invalid but operable. That is why the declaration is "suspended" to a specific future time. Webber's view that normally the operation, consistency, and validity of laws in relation to the supreme Constitution offer courts no discretion aligns with the premise of the argument offered here. Webber's view that section 33(2) severs this connection is at odds with the argument and his view is addressed in Part II(B) below.

39. Borowski v Canada (AG), [1989] 1 SCR 342 at 344.

40. Ibid at 362.

41. Ibid at 365.

42. Reference Re Secession of Quebec, [1998] 2 SCR 217.

43. Ibid at para 217.

44. See Hak, supra note 6 at para 795.

45. Ibid at para 796.

46. See Canada (AG) v Hislop, 2007 SCC 10 at para 84, citing William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) at 69-70.

47. See generally Robert Leckey, Bills of Rights in the Common Law (Cambridge University Press, 2015) at 57-63, DOI: < https://doi.org/10.1017/CBO9781139833912>.

48. (UK), 28 & 29 Vic, c 63, s 2.

49. (UK), 22 Geo V, c 4, s 2(2).

50. Supra note 38 at 746.

51. See e.g. Reference re Remuneration of Judges of the Provincial Court (P.E.I), [1997] 3 SCR 3 at 18.

52. R v Ferguson, 2008 SCC 6 at para 27.

53. Nova Scotia (Workers' Compensation Board) v Martin, supra note 37 at para 28.

54. Ibid.

55. See Wayne A. Davis "Indicative and Subjunctive Conditionals"(1979) 88 The Philosophical Review 544, DOI: <https://doi.org/10.2307/2184844>. "Conditionals appear in either the indicative or the subjunctive mood. 'If I release the glass, it will fall' is an indicative conditional, for its consequent is in the indicative mood. 'If I released the glass, it would fall' is a subjunctive conditional, its consequent being in the subjunctive" (ibid at 545). See also Bas Aarts, "Mood" in Oxford Modern English Grammar (Oxford University Press, 2011) 275.

56. See Aarts, supra note 55.

57. For the Supreme Court's landmark precedent concerning the ratio decidendi and obiter dicta distinction, see R v Henry, 2005 SCC 76 at paras 57-58.

58. The Court may note alleged inconsistencies between law and selected Charter provisions when holding that section 33(2) does not allow them to reason about whether they constitute constitutional inconsistencies, that is, violations or reasonable limits on rights. But that is all.

59. Hak, supra note 6 at para 796.

60. See Charter, supra note 3, s 24.

61. Ibid, s 28.

62. Leckey & Mendelsohn, supra note 9; Sirota, supra note 8.

63. Pace Kerri Froc, "Shouting into the Constitutional Void: Section 28 and Bill 21" (2019) 28:4 Const Forum Const 19 at 19-22, DOI: <https://doi.org/10.21991/cf29391>.

64. See Hak, supra note 6 at paras 785-880.

65. This is partly because the French subjonctif does not signal non-factual modality but is primarily used to express doubts or uncertainty. See Maurice Grevisse & André Goosse, Le Bon Usage, 16th ed (De Boeck Supérieur, 2016).

66. See Office québécois de la langue française, "Conditionnel dans les phrases hypothétiques" (last updated March 2021), online: Banque de dépannage linguistique (BDL) [perma.cc/JE5A-BSGF].

67. See University of Texas "Tex's French Grammar: Past Conditional" (accessed 4 January 2024), online: [perma.cc/7HH4-S5KT].

68. Ford, supra note 4 at para 33. Note that this reading of s 33 does not prohibit the procedural review of whether invocations of s 33 are intra vires.

69. See St-Hilaire & Ménard, supra note 12 at 40. Recall that Ménard has recanted the suspended rights thesis in his more recent work co-authored with Sérafin and Sun (supra note 12).

70. Ibid at 41.

71. Leckey & Mendelsohn, supra note 9 at 1-3.

72. Ibid at 8-10.

73. Webber, "Notwithstanding Rights, Review, or Remedy?" supra note 10 at 519-23.

74. Leckey & Mendelsohn, supra note 9 at 9.

75. Ibid at 10-11.

76. There has been some scholarly debate about the application of s 1 of the Charter to s 33. For example, Brian Slattery has argued that section's "guarantee" that the Charter as a whole ensures that rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" means that rights are not subject to unreasonable limits imposed using the s 33 notwithstanding clause. See Brian Slattery, "Legislation" (1983) 61 Can Bar Rev 391. It seems unlikely that s 1 applies to s 33, because s 1 guarantees rights and freedoms, and s 33 grants neither rights nor freedoms. However, if s 1 applies to s 33 because it applies to the Charter as a whole, then Leckey and Mendelsohn's view implies that the notwithstanding clause can override even the "reasonable limits" authorized by s 1. That would unacceptably imply that s 33 authorizes unreasonable limits on rights in the face of s 1's explicit guarantee of rights and freedoms subject to only to "reasonable limits" (supra note 9).

77. See Richard Ekins, The Nature of Legislative Intent (Oxford University Press, 2012) at 256-61, DOI: < https://doi.org/10.1093/acprof:oso/9780199646999.001.0001> (on the relationship of laws to the mischief they are drafted to address).

78. As many readers will recognize, this article's eponymous phrase "legislated rights as trumps" intentionally subverts a well-known phrase from Ronald Dworkin. See Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2013) at 329.

79. See B(R) v Children's Aid Society of Metropolitan Toronto, [1995] 1 SCR 315, Lamer CJC ("The flexibility of the principles [the Charter] expresses does not give us authority to distort their true meaning and purpose, nor to manufacture a constitutional law that goes beyond the manifest intention of its framers" at 337). As Oliphant and Sirota note, this passage is particularly remarkable because Lamer CJC also authored the anti-originalist dicta in Reference Re BC Motor Vehicle Act, [1985] 2 SCR 486. See Benjamin Oliphant & Léonid Sirota, "Has the Supreme Court of Canada Rejected 'Originalism'?" (2016) 42:1 Queen's LJ 107 at 155, DOI: < https://doi.org/10.2139/ssrn.2749212>.

80. See Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) at 144-45, DOI: < https://doi.org/10.1093/acprof:oso/9780198262138.001.0001>.

81. Michael W McConnell, "Time, Institutions, and Interpretation" (2015) 95 BU L Rev 1745 at 1758 ("But when the function of a text is to direct and constrain future action, the meaning of the text is what the authors of the text 'intend' to direct or constrain, rendering the distinction purely abstract" at 1758).

82. See Dwight Newman, "Canada's Notwithstanding Clause, Dialogue, and Constitutional Identities" in Geoffrey Sigalet, Grégoire Webber & Rosalind Dixon, eds, Constitutional Dialogue: Rights, Democracy, Institutions (Cambridge University Press, 2019) 209 at 224, DOI: <https://doi.org/10.1017/9781108277938.009>.

83. Pierre Elliott Trudeau, Memoirs (McClelland & Stewart, 1995) at 193.

84. "Resolution Respecting Constitution Act, 1981," House of Commons Debates, 32-1, No 12 (20 November 1981) at 13042 (Hon Jean Chrétien).

85. See Janet L Hiebert, "Compromise and the Notwithstanding Clause: Why the Dominant Narrative Distorts Our Understanding" in James Kelly & Christopher Manfredi Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (University of British Columbia Press, 2009) at 110, DOI: https://doi.org/10.59962/9780774816762-007

86. See "Chretien, Romanow and McMurtry attack Ford's use of the notwithstanding clause" (14 September 2018), online: Maclean's [perma.cc/6AX8-N22X].

87. The idea for a non-obstante or notwithstanding clause was first suggested by the Premier of Alberta Peter Lougheed at the February 1979 meeting of First Ministers. See Barry Strayer, "The Evolution of the Charter" in L Harder & S Patten, eds, Patriation and Its Consequences: Constitution Making in Canada (University of British Columbia Press, 2015) 72 at 90, DOI: <https://doi.org/10.59962/9780774828635-005>.

88. Ibid.

89. See Howard A Leeson, The Patriation Minutes (Centre for Constitutional Studies, Faculty of Law, University of Alberta, 2011) at 70. Blakeney and Lougheed were undoubtedly the critical figures in making the notwithstanding clause a condition of patriation, as they, particularly Lougheed, helped bring Premier Lyon (who was even more skeptical of a Charter than the other Western premiers and intentionally antagonized Trudeau) to accept the Charter (ibid at 29, 31, 42, 64). They also resisted Ontario Premier Davis' attempt to limit the notwithstanding clause so that it would not apply to s 2 fundamental freedoms (ibid at 66, 69).

90. The Honourable Peter Lougheed, "Why A Notwithstanding Clause?" (1998) 6 Points of View (Edmonton: Centre for Constitutional Studies, University of Alberta) 1 at 6.

91. See The Honourable Allan Blakeney, "The Notwithstanding Clause, the Charter, and Canada's Patriated Constitution: What I Thought We Were Doing" (2010) 19:1 Const Forum Const 1 at 6, DOI: < https://doi.org/10.21991/C9KD4W > [Blakeney].

92. Whyte, supra note 19 at 83.

93. Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985) at 68.

94. Ibid at 69.

95. Blakeney, supra note 91 at 1, 5.

96. Ibid at 6.

97. See Lorraine Eisenstat Weinrib, "Learning to Live With the Override" (1990) 35 McGill LJ 541 at 567-71.

98. See Manfredi, Judicial Power, supra note 35 at 188-95.

99. The School Choice Protection Act, SS 2018, c 39 [School Choice Protection Act].

100. Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212, 2017 SKQB 109 at paras 451-55 [Good Spirit School Division, 2017].

101. School Choice Protection Act, supra note 99 at s 3.

102. See Mark Mancini & Geoffrey Sigalet, "What Constitutes the Legitimate Use of the Notwithstanding Clause?" (20 January 2020), online: Policy Options Politiques [perma.cc/6DEZ-9839].

103. See Saskatchewan v Good Spirit School Division No 204, 2020 SKCA 34. The Saskatchewan Court of Appeal recently reversed the trial court decision, thereby upholding the Charter consistency of the earlier law. It did this at the invitation of the government's decision to appeal the trial case, and without implying that s 33 violates Charter rights.

104. See Léonid Sirota "Not as advertised" (3 January 2022), online: [perma.cc/GF7W-SUPW]. See also, Léonid Sirota, "Do legislators debate rights when they make laws notwithstanding the Charter?" (article presented to the Canadian Political Science Association's annual conference) [unpublished, on file with the author].

105. Webber et al, supra note 1 at 54. I note here that the interpretation of s 33 offered here also fits nicely with the Supreme Court's dicta about the clause in Toronto (City) v Ontario, supra note 6 at para 60.

106. Webber, "Notwithstanding Rights, Review, or Remedy?" supra note 10 at 538.

107. See R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 336; Mouvement laïque québecois v Saguenay, 2015 SCC 16 at para 72 [Mouvement laïque québecois]; Adler v Ontario, [1996] 3 SCR 609, McLachlin J, dissenting in part.

108. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93(3), reprinted in RSC 1985, Appendix II, No 5.

109. Good Spirit School Division, 2017, supra note 100 at paras 451-55.

110. See Joanna Baron & Geoffrey Sigalet, "Saskatchewan's Brad Wall and the Rehabilitation of the Charter" (19 May 2017), online: Policy Options Politiques [perma.cc/4EQ7-ZGBS].

111. Robert Leckey, "Advocacy Notwithstanding the Notwithstanding Clause" (2019) 28:4 Const Forum Const 1 at 3, DOI: https://doi.org/10.21991/cf29389

112. Contra Leckey & Mendelsohn, supra note 9. I want to emphasize that it remains open to Québec and Québécois to argue that Loi 21 actually comports with a Charter based concern for religious neutrality. Indeed, s 2 of the law mentions concern for religious freedom and freedom of conscience, s 3 uses words "en fait et en apparence" (seemingly lifted right from para 137 the Supreme Court's decision in Movement laïque québécois, supra note 107), and s 4(2) employs language about the right to secular public services. My view is that none of these rights claims can adequately address the free exercise claim that should be part and parcel of any true conception of religious liberty (Loi 21, supra note 5, s 2-4). Interestingly, Léonid Sirota, in his CPSA article (supra note 104), has claimed to find a fairly robust rights discussion leading up to the enactment of Loi 21.

113. Loi 21, supra note 5, s 2. For a helpful overview of the recent uses of s 33 in Saskatchewan, Ontario and Québec, including the media's portrayal of these events, see Eleni Nicolaides & Dave Snow "A Paper Tiger No More? The Media Portrayal of the Notwithstanding Clause in Saskatchewan and Ontario" (2021) 54 Can J Pol Sci 60, DOI: https://doi.org/10.1017/S0008423920000876

see also, Nicolaides & Snow "Notwithstanding the Media" in Kate Puddister & Emmett Macfarlane, eds, Constitutional Crossroads: Reflections on Charter Rights, Reconciliation, and Change (UBC Press, 2022) 120-139, DOI: https://doi.org/10.59962/9780774867931.

114. On this point I agree with Sérafin, Sun, and Ménard, although I dissent from their view that Grégoire Webber's account of s 33 shares positivist-cum-juristocratic assumptions with "orthodox legal constitutionalist" accounts (supra note 12 at 6-7). On the contrary, Webber's argument leaves room for s 33 to be used to legislate about the scope of Charter rights (although he certainly underplays this implication of his argument) and his view that declaratory judicial review remains available is tied primarily to his mistakenly indicative reading of the phrase "shall operate as it would but for" in s 33(2). The proper point of disagreement with Webber is not on the legitimacy of legislated rights, nor the proper relationship between positive law and justice, but whether the positive law of s 33(2) distributes legislative responsibility over rights as trumps against judicial review.

115. Arisotle, Nichomachean Ethics, Bk 6, c 8 1141b25-30, trans by David Ross (Oxford University Press, 2009) at 109.

116. Ibid, Bk 10, c 9, 1180b20-25, at 201.

117. Ibid, Bk 10, c 9, 1180a26-29, at 200.