SECTION 33 AND THE RELATIONSHIP BETWEEN LEGISLATURES AND COURTS

The Honourable Mr. Justice Michel Bastarache

Abstract


The introduction of the Constitution Act, 19821 was greatly debated. While many of the substantive provisions received considerable attention by various committees and interested organizations, the limitation provisions, sections 1 and 33 were particularly contentious. Today, I would like to discuss the early vision of the new relationship to be forged between the judicial and legislative branches of government.2 Sections 1 and 33 were intended to strike an appropriate balance between law-maker and law-reviewer. Each safeguarded abuse by the other. Throughout the drafting period, however, many expressed concern about shifting Canada’s political system from a parliamentary supremacy to a constitutional one. Specifically, how each would respond to their new roles in light of sections 1 and 33. To determine whether these concerns have materialized, I will compare these suspicions with the actual relationship that has evolved between the courts and legislatures since the entrenchment of the Constitution Act, 1982.


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