Since 1982 there has been a vigorous debate in Canada about whether the judiciary poses a threat to our democratic form of government. With the enactment of the Canadian Charter of Rights and Freedoms and other provisions of the Constitution Act, 1982, the judicial role in policy-making has increased considerably consistent with a significant, even dramatic, shift in the Canadian constitutional framework. Canada is no longer governed by the principle of parliamentary or legislative supremacy, but rather by constitutionalism.² And that dictates greater intervention by the courts into legislative decision-making.

I maintain that constitutionalism requires a partnership between the legislative and judicial branches which has the potential to result in a fuller exercise of "citizenship" by more people than occurred when the legislatures had, more or less, the last word. It is not my intention to focus on how successful majority women, differently abled persons, gays and lesbians, visible minority men and women and aboriginal peoples have been in advancing their interests within this new constitutional paradigm, or about the financial and other costs of adjudication or lobbying, all of which are also relevant to the discussion, but rather to discuss why I believe that the enhanced power of the judiciary not only does not threaten democracy but also may in fact enhance it. The concern about the power of the judiciary stems, in my view, from a misunderstanding about the nature of democracy.

The debate about the relationship between the powers, jurisdiction, roles or mandates of Canadian legislatures and courts has perhaps been most graphically defined by the internal dispute among the judiciary themselves, as reflected in the exchange between judges in the Alberta case of Vriend.³ Delwin Vriend lost his teaching job at a religious college because he is gay. He was unable to file a complaint of discrimination because Alberta’s Individual’s Rights Protection Act (now the Human Rights, Citizenship and Multiculturalism Act) did not include "sexual orientation" as a protected ground. Vriend challenged this omission under section 15 of the Charter and was ultimately successful at the Supreme Court of Canada. The case prompted some colourful comments from McClung J.A. at the Alberta Court of Appeal who described it as lying "at the uneasy junction of the autonomy of the Legislative Assembly of the Province of Alberta and the implementation of minority, here homosexual, rights." He referred to what he termed Sopinka J.'s "curial alert" that courts should remember that the legislatures and the courts have distinct roles to play which McClung J.A. said applies "when legisceptical Canadian judges decide to strike down constitutionally assembled laws in favour of their own, substituting their vision of the ideal statute in place of that which has been democratically endorsed by the electors," raising "the spectre of constitutionally-hyperactive judges in the future pronouncing all of our emerging rights laws and according to their own values; judicial appetites, too, grow with the eating." He was also critical of legislatures who hide behind the courts, failing to exercise their responsibility to make difficult political decisions.⁴

At the Supreme Court of Canada, Cory J. responded by articulating his understanding of the relationship between the legislatures and the courts and the source of the courts’ power:

Major J., while agreeing that Alberta’s legislation contravened the Charter maintained that judicial restraint required the Court to give time to the legislature to decide the course it wished to take (including eliminating the entire legislation rather than give protection on the ground of sexual orientation).⁵

Some commentators have emphasised that to some extent courts have always been involved in public policy. Madame Justice Abella, for instance, suggesting that the courts are doing little that they did not do before 1982, identifies cases in which judges had taken into account social values, including the Persons case.⁶ Indeed, it should be added, it was not unknown for judges to interpret legislation in a way that was apparently at odds with legislative intent, although it may well be argued that to do so was outside their mandate and jurisdiction and therefore grounds for appeal.

Among those who argue that there has been a significant change in the courts’ jurisdiction, opinion varies about whether the result is desirable or not. There are several reasons why some commentators view the change as being undesirable.

Professor F.L. Morton, for example, has expressed concern about the politicization of the courts and the appointment process, fearing that Canada may follow the United States where, he suggests, "the meaning of the American constitution can now be controlled by controlling judicial appointments to the Supreme Court and this politicization threatens or undermines "[o]ne of the central pillars of the ‘rule of law’ tradition – judicial independence."⁷ Professor Morton also believes that those who favour the increased power of the courts are operating on a faulty premise, that the courts are more likely to be progressive than legislatures.⁸

A second objection to the enhanced power of the courts which reaches its apex in the Supreme Court of Canada is that it represents the epitome of centralization to Quebec, particularly galling because the Constitution Act, 1982 came into effect without Quebec’s agreement in 1982. ⁹

The main criticism, however, has been that the unelected, non-accountable (to the people) courts have usurped the role of the elected legislatures and that this is quite simply undemocratic. I return to this criticism below.

Yet other commentators have acknowledged a shift in mandate -- or a redistribution of power -- between the courts and the legislatures, but have considered this a positive development. It has been argued that the courts’ consideration of public policy is free from some of the perhaps undesirable aspects of legislative policy-making, since "it is impervious to electoral judgment, unrestricted by the constraints of partisan ideologies, and relatively immune to the requirement of compromise." ¹⁰

Martha Jackman has suggested that "judicial review on Charter grounds has the potential to contribute to democratic objectives."¹¹   And Professor Alan Cairns has vigorously presented the "new" constitution as signifying a departure from previous constitutional practice in favour of greater democratisation, arguing that the "previous constitution could be thought of as the governments’ constitution because its main concerns of parliamentary government and federalism were especially salient for governing elites," while "[t]he contemporary constitution . . . has a citizen base derived from the Charter and Aboriginal constitutional clauses, reinforced by the history of citizens’ constitutional participation over the last decade and a half." ¹² Indeed, in Cairns’ view, the new constitution provides "a democratic legitimation for the entire constitutional order." ¹³

While I believe that Professor Cairns may be overstating the case, I think he is on the right track. With Professor Jackman, however, I want to emphasise that we are talking about potential. Judicial consideration of rights claims has been erratic and the promise is often greater than the reality.¹⁴ While generally agreeing with these commentators, I want to add to the debate a consideration of how the Quebec Secession Reference, decided by the Supreme Court in August 1998, ostensibly a decision about whether Quebec has the constitutional right to separate unilaterally, represents a significant contribution to this question of the judicial role in the new constitutional order. First, however, I will explain why I believe that at least some of the concern about the increase in judicial power stems from a misunderstanding of democracy.

I return to the main criticism of the increased power of the courts that they are not elected, yet they have the capacity to strike down or otherwise influence the legislation enacted by democratically elected legislatures. This criticism, in my view, confuses the mechanics of democracy with its substantive meaning and, even at the level of mechanics, overstates the extent to which Canadian legislatures are "democratic." The flaw in the argument, in other words, is not that judges are representative – they are not – but that legislatures are less representative than the proponents of this view would like us to believe.

I use the term "democracy" to refer to a political system which stresses citizen participation in decision-making, whether directly or through representatives. By the term "citizenship" I mean the opportunity to participate in or affect policy-making about how society’s goods and resources are distributed or how priorities are established. In a democracy, these decisions are made by the elected representatives and therefore status as an elector is important. But the word "democracy" alone does not tell us everything, for the term has been used to describe not only our modern systems with "universal" suffrage, but also systems in which major groups of people have been excluded, such as slaves, white women, black, Asian and Aboriginal people and members of the working (non-property owning) class. The process of enfranchisement in Canada has been completed only within the last 35 years (here I do not include the fact that non-citizens cannot vote because for the most part non-citizens can choose to become citizens and thereby become enfranchised), yet we called Canada a "democracy" long before that time.¹⁵ Today anyone meeting the age requirement is able to vote except those who have not yet become citizens, a status available to anyone who wishes it after living in Canada for the required period.

Yet "the vote," important though it may be when freely cast, has limitations. Most obviously in our system of "winner takes all" the popular vote does not translate into an equivalent number of seats.¹⁶ It is quite common and indeed usual for the party with the most number of seats not to have received a majority of the popular vote. Furthermore, certain groups have less impact on policy-making than do others; their voices are less likely to be heard in the legislatures than are those of established groups. Demographic concentrations or lack of them also affect the likelihood that particular groups will be able to ensure the election of representatives from among themselves.¹⁷ Thus even while the composition of our legislatures is in fact unlikely to represent the majority of voters in proportion to their voting preferences, in another respect one may speak of the legislatures as being "majoritarian," that is, they represent the dominant groups in society.

One of the purposes of a written constitution which contains a bill of rights, as is now the case in Canada, is that it serves as a counterbalance to the majoritarian nature of the legislatures.¹⁸ While legislators are expected -- and actually may -- take into account the requirements of a bill of rights, the real responsibility for determining whether those requirements have been met lies with the courts. It is the courts which determine whether the legislation enacted by the legislature has satisfied the need to take into account the needs and rights of emerging groups. It is through recourse to the courts that emerging groups may therefore exercise an influence on policy. It is this combination of responsibilities in the legislatures and the courts, I would argue, that may result in enhanced participation by certain members of the society and therefore in an increased realization of democracy.

In short, this notion of democracy may be seen as synonymous with an operational definition of equality: it is one goal of equality endeavours to enhance involvement in societal decision-making by marginalized or previously excluded communities. I would add to this the important – crucial – notion that this involvement must take into account the different needs and self-definitions of these communities.

In the Quebec Secession Reference, the Supreme Court of Canada showed itself to be the guardian of a civic democracy. The Court indicates that democracy should be seen more broadly than as majority rule (however that might be defined). Democracy, said the Court, is "fundamentally connected to substantive goals, most importantly, the promotion of self-government" and it "accommodates cultural and group identities."¹⁹  Democracy is highly related to how the inhabitants of a country, perhaps especially its more vulnerable citizens, are to be treated; to make this point, the Court drew on comments made by Chief Justice Dickson in the context of the Charter of Rights and the requirement that limitations on rights must be consistent with the attributes of a free and democratic society: the non-exhaustive list of values "essential to a free and democratic society" include "respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society." ²⁰ While one might ague that some of these characteristics would be more appropriately considered definitive of liberalism than of democracy, in fact it is difficult to imagine our believing that a society which lacks them – but which has nevertheless instituted the formal mechanisms of voting – to be truly a democratic society.

Thus in the Court’s view democracy is a complex matter; for example, even with respect to the most common understanding of the term ---- elections to representative legislatures ----, there will not be one majority, but a number of them, and they are "equally legitimate" in a federal system.²¹ Significantly, however, majority rule is not sufficient, for in a democracy, the law must accord with moral values which play a part in determining whether action has been legitimate: "It would be a grave mistake to equate legitimacy with the ‘sovereign will’ or majority rule alone, to the exclusion of other constitutional values."²² Democracy is about defining the majority that must be consulted before there can be fundamental change.²³

Furthermore, "democracy requires a continuous process of discussion" and "the need to build majorities necessitates compromise, negotiation, and deliberation." While conforming to the liberal laissez-faire belief that "our system is predicated on the faith that in a marketplace of ideas, the best solutions to public problems will rise to the top," the Court is clear that a government must take account of "dissenting voices" in enacting laws affecting everyone in the community.²⁴

Canadian democracy today is governed by constitutionalism and consequently there can be no dispute that the courts have more impact than they used to (although how much more may still be debatable) as a consequence of the change from parliamentary supremacy to constitutional supremacy as the overriding principle of our constitutional framework. The enactment of the Constitution Act, 1982, including and especially the Canadian Charter of Rights and Freedoms, was of course the pivotal event in our transformation from a parliamentary to a constitutional democracy. In the over fifteen years since then, the courts have grappled with the exercise of their mandate until the release of the Quebec Secession Reference in August 1998 has indicated the extent to which Canada has acquired the characteristics of constitutionalism. Put another way, the Quebec Secession Reference gives us a good indication of how the Supreme Court of Canada sees its role in governing Canada and the extent to which "the people" of Canada can affect policy-making and Canada’s constitutional direction.

In general, constitutionalism means that the legislatures are not (more or less) free to act as they wish but must conform to express constitutional requirements. In particular, it gives greater importance to the interpretation of law by the courts (as opposed to the making or enacting of law by the legislatures) as a means by which equality-seeking groups can assert their rights than does parliamentary supremacy.²⁵

There are some characteristics of constitutionalism which it shares with other regimes. For example, civilian control of the military and control of the police by law and judicial control have characterized Canada since its inception. Checks and balances among our different government branches existed prior to 1982, as well, with the executive dependent on the support of the legislature, for example. Independence of the judiciary was guaranteed through the provisions of the Constitution Act, 1867 by which judges are appointed, paid and dismissed and as a basic constitutional principle inherited from Great Britain. Even without constitutionalism, there have been some limits on Canadian government through the requirements of federalism and through the principles of the rule of law and democracy, both of which not only are indicia of constitutionalism but have been salient principles of governance in Canada since 1987.

One of the most telling indicia distinguishing constitutionalism from (in the case of Canada) parliamentary supremacy is that the constitution tells government what it ought to do (it is prescriptive and not merely descriptive) and it is the supreme law. This is in fact expressly stated in subsection 52(1) of the Constitution Act, 1982. It is the constitution and not the legislatures which is supreme.

While the constitution may derive from a number of sources, it is often thought, as a result of the influence of the American constitutional model, that under constitutionalism, "the people" are the source of authority. Even in the United States where the new country was considered to be a manifestation of "We, the People," this assertion is rather more complicated than it might seem, but that is another talk.²⁶ In the Canadian context it is a relatively new idea. It had no place in the Canada of 1867 when the new (con)federation was very much the product of the political and financial elites who negotiated with each other to form a new country for primarily practical reasons and had no greater part to play by 1982 when the new constitutional framework was developed. Since then, however, there has been an increase in public involvement in constitutional change to the extent that the Charlottetown Accord was put to the Canadian people in two referenda (one in Quebec and one in the rest of Canada) in 1992 and did not survive rejection by the majority of voters. Similarly in Quebec, it is understood that a new sovereign regime would have to be based on the initial support of "the people" in Quebec as expressed in a referendum.

Significantly, in the Quebec Secession Reference the Supreme Court simply assumes that the Canadian constitution derives from the people. The Court identifies the constitution as "the expression of the sovereignty of the people of Canada," although to bring about changes to the constitution the people will act through their governments. This is not the first time the Court had said such a thing, as the Court itself indicates,²⁷ but it has enormous implications in the context of the Quebec Secession Reference. This relatively casual statement veils a significant change in Canada’s constitutional authority. It is, then, important to realize that when the Court interprets the Constitution in some sense it is doing so with this principle in mind. The people thus supercede governments or legislatures as being the source of constitutional expression. I might say that this to a large extent appears to vindicate Professor Cairns’ analysis of the evolution of the Canadian constitutional framework to which I previously referred, although it is still wise to distinguish rhetoric from reality and the convenience of this view to the Supreme Court in considering Quebec claims to sovereignty.

Related to the view that the source of authority lies in the people there may also be respect for self-determination, the right of people to choose, change or terminate their political affiliation or constitutional arrangements. This was of course the subject of the Quebec Secession Reference which while rejecting the existence of a right in any absolute terms, does legitimate the claim to self-determination which must be balanced with other rights. There are those who argue that section 35 of the Constitution Act, 1982 provides for extensive aboriginal self-government and this argument is, I think, bolstered by the Quebec Secession Reference; indeed, even if section 35 were not interpreted in that way, the Quebec Secession Reference might support aboriginal claims to autonomy or some limited form of self-government, a direction in which Canada is already proceeding.

Most significantly it is fundamental to constitutionalism that the government must respect and ensure individual rights: while in recent years Canadian culture has tended to promote this goal, the fact is that we have had our share of denial of individual rights with little recourse and it was only with the enactment of the Charter of Rights that we could say that government must indeed respect and ensure individual rights, one of the hallmarks of constitutional democracy and one of the most extensive limitations on government action, both legislative and bureaucratic. While the Charter is the locus of individual (and some group rights), it should not be thought that it is the only place by which rights can be advanced under constitutionalism, especially as it has been considered by the Supreme Court; for example, I discuss later the role of the broad constitutional principles which underlie the written constitution, including the principle of respect for minority interests and, whether included within minority rights, or preferably standing independently, respect for aboriginal interests. ²⁸

Inevitably, there must be an institution which ascertains adherence to the constitution and this is, of course, the courts. One of the major distinctions between a country with parliamentary supremacy and one which is characterized by constitutionalism is that in the latter the courts will have enhanced jurisdiction to judge the actions of the government or legislature. While this enhanced jurisdiction is not limited to ensuring conformity with the charter of rights, it will constitute a significant aspect of the interaction between courts and government under constitutionalism. Thus courts are charged with ensuring that legislatures adequately consider the interests of those who might receive less consideration, intentionally or otherwise, when the legislatures are more likely to be guided by their sense of public opinion or by those to whom they seem to owe their power. The real question, then, is the implications this new relationship between courts and the legislatures -- dictated by our constitutional regime -- has for democracy.

List of Footnotes

1. Mary Louise Lynch Chair in Women and Law, Faculty of Law, University of New Brunswick. This text provided the basis for talk presented at the University of Waterloo on March 18, 1999.
2. Quebec Secession Reference, [1998] 2 S.C.R. 217; [1998] S.C.J. No. 61 (Q.L.), para. 72. (Subsequent references to this and other cases are to the electronic Q.L. version.)
3. Vriend v. Alberta, [1998] 1 S.C.R. 493, [1998] S.C.J. No. 29 (Q.L.); reversing [1996] A.J. No. 182 (Alta. C.A.) (Q.L.).
4. Vriend (C.A.), at paras. 23-25. A survey of Canadian judges suggested some unease with their own power: Kirk Makin, "Many judges uneasy with Charter powers," The Globe and Mail (December 22, 1998) A1, A7.
5. Vriend (S.C.C.), supra note 2, paras. 196-199. In the Egan case, dealing with the inequality of gays and lesbians with respect to spousal benefits under old age security legislation, Sopinka J. had held that while the provision was discriminatory, it was justifiable under section 1 of the Charter because "government must be accorded some flexibility in extending social benefits and does not have to be pro-active in recognizing new social relationships" and because this was the first case in which the Supreme Court of Canada had recognized sexual orientation as an analogous ground: Egan v. Canada [1995] 2 S.C.R. 513, [1995] S.C.J. No. 43 (Q.L.), paras. 104-109.
6. Rosalie Silberman Abella, "Public Policy and the Judicial Role" in Marian C. McKenna, ed., The Canadian and American Constitutions in Comparative Perspective (Calgary: University of Calgary Press, 1993)167, 177-178. The Persons case, which concerned whether the Governor-General could call women to the Senate, is of particular interest because the Supreme Court of Canada and the Judicial Committee of the Privy Council (the British body which at that time ruled on appeals from the Supreme Court of Canada) both relied on public policy and values to interpret the word "persons" in section 24 of the British North America Act, 1867, but reached different results in doing so: the Supreme Court ruled that women were not included in the term "persons," while the JCPC held that they were. See Mary Jane Mossman, "Feminism and Legal Method: The Difference it Makes" in Martha Albertson Fineman and Nancy Sweet Thomadsen, eds., At the Boundaries of Law: Feminism and Legal Theory (New York: Routledge, 1991) 283 for a discussion of the approaches taken by the courts in the Persons case.
7. F.L. Morton, "The Politics of Rights: What Canadians Should Know About the American Bill of Rights" in McKenna, ed., ibid.,107, 113. For a summary of objections to the enhanced power of the courts, see Robert Vandycke, "The 1982 Constitution and the Charter of Rights: A View from Québec" in François Rocher and Miriam Smith, New Trends in Canadian Federalism (Peterborough, Ont: Broadview Press, 1995) 133, 137ff.
8. Morton argues that those who believe judicial review is progressive have misread the history of American jurisprudence in the area: ibid., 122.
9. Vandycke, supra note 6, passim. The decision of the Court in the Quebec Secession Reference may require a reconsideration of this objection, however, although this is not the place for that reconsideration.
10. Abella, supra note 5, 170. Madame Justice Abella herself makes this comment in the context of maintaining that the courts’ use of public policy considerations since 1982 is a continuation of what they did prior to 1982.
11. Martha Jackman, "Separate but not Apart: The Role of the Courts in Canada’s Post-Charter Democracy" in Denis N. Magnusson and Daniel A. Soberman, eds., Canadian Constitutional Dilemmas Revisited (Kingston, Ont: Institute of Intergovernmental Relations, 1997) 31, 32.
12. Alan Cairns, "The Constitutional World We Have Lost," in Douglas E. Williams, ed., Reconfigurations: Canadian Citizenship and Constitutional Change. Selected Essays by Alan C. Cairns (Toronto: McClelland & Stewart, 1995) 97, 115.
13. Ibid.
14. David Schneiderman and Kate Sutherland, "Conclusion: Towards an Understanding of the Impact of the Charter of Rights on Canadian Law and Politics" in Schneiderman and Sutherland, eds., Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 343, 344. In the same volume, see Didi Herman, "The Good, the Bad, and the Smugly: Sexual Orientation and Perspectives on the Charter", 200; Kathleen A. Lahey, "The Impact of the Canadian Charter of Rights and Freedoms on Income Tax Law and Policy," 109 and John Borrows, "Contemporary Traditional Equality: The Effect of the Charter on First Nations Politics," 169.
15. From 1867 to 1884 one had to own property to vote. The first women in Canada to attain a provincial franchise were white women who gained it in Manitoba in 1916 (Quebec women did not receive it until 1940); federally women obtained the right to vote in 1918, except for female relatives of servicemen who had received it in 1916 when it was also extended to native servicemen. Non-status "Indians" first received the vote in British Columbia in 1949 and finally in Quebec in 1965. Inuit were able to vote as of 1950, but "Indians" were disenfranchised federally until 1960. It was not until 1948 that citizens of Asian heritage did not suffer some form of disenfranchisement. See John C. Courtney, "Franchise" in The Canadian Encyclopedia, vol.2, 834 for this brief history. Also see Allison Prentice, et al, Canadian Women: A History (Toronto: HBJ-Holt Canada, 1988) and Bruce Ryder, "Racism and the Constitution: The Constitutional Fate of British Columbia Anti-Asian Legislation" (1991) 29 OHLJ 619.
16. The most recent example of this is the Quebec election held on November 30, 1998; although the Liberal Party won slightly more votes than did the Parti Québecois, it won far fewer seats because its vote is more concentrated than that of the PQ. The Liberals won 43.7% of the popular vote, compared to 42.7% for the PQ (and 11.8% for the Action Démocratique), yet the Liberals won only 48 seats compared to the PQ’s 75 (and the AD’s 1): The Globe and Mail (December 2, 1998) A12. Seen another way, even though 55.5% of the voters did not want the PQ, that party still enjoyed a margin of 26 seats over the other two parties. This is, of course, a particularly significant example because of the ramifications for the holding of a referendum and the pursuing of Quebec sovereignty.
17. In Reference re Provincial Electoral Boundaries (Saskatchewan), a case about the relative parity of voting power, the Supreme Court of Canada talked about how electoral constituencies should "reflect the diversity of our social mosaic:" [1991] 2 S.C.R. 158.
18. I note as well that non-citizens may sometimes benefit from applications to court to assert individual rights). No doubt the counterbalancing of majoritarian decision-making underlies the objection of some to the enhancement of the courts’ jurisdiction: they bemoan in reality less the increase in the courts’ power than the perceived loss of their own power or centrality to policy-making.
19. Quebec Secession Reference, supra note 1, para. 64.
20. R. v. Oakes, [1986] 1 S.C.R. 103, at 136, cited in ibid.
21. Quebec Secession Reference, supra note 1, para. 66.
22. Ibid., para. 67.
23. Ibid., para. 76.
24. Ibid., para. 68. It is not clear, however, the extent to which this applies to individuals or to institutional entities, specifically provinces, since the Court adds that the right to be considered is reflected in the right to initiate constitutional change and the obligation "to engage in constitutional discussions in order to acknowledge and address democratic expressions of desire for change in other provinces:" para. 69.
25. I rely heavily for the indicia of "constitutionalism" on Louis Henkin, "A New Birth of Constitutionalism: Genetic Influences and Genetic Defects," in Michel Rosenfeld, eds., Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Durham and London: Duke University Press, 1994) 39, 42. Professor Henkin as an American academic takes the American constitutional system as his model. While I believe we should be wary of assuming that that model is universally appropriate, the reality is that it has had considerable influence and must be considered in any assessment of a Canadian form of constiutionalism.
26. The principle of the sovereignty of the people has not always been applied in the same way in the United States: see Christian G. Fritz, "Alternative Visions of American Constitutionalism: Popular Sovereignty and the Early American Constitutional Debate" (1997) 24 Hastings Constitutional L. Quarterly 287.
27. It identified the Constitution as "a statement of the will of the people" in the Manitoba Language Rights Reference, [1992] 1 S.C.R. 212, [1992] S.C.J. No. 2 (Q.L.), p. 48.
28. See infra note 27.
29. Section 33 of the Charter permits Parliament and provincial legislatures to exempt legislation from the application of certain provisions of the Charter; a declaration to that effect in the legislation at issue will have effect for a maximum of five years when it may be re-enacted. Except for Quebec’s initial use of section 33 as a response to the fact that it had not agreed to the Charter, there has been little resort to it. Section 1 provides that the guarantees in the Charter are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
30. Ford v. Quebec, [1988] 2 S.C.R. 712, [1988] S.C.J. No. 88 (Q.L.): the Supreme Court of Canada indicated that it would give only minimal scrutiny to the use of section 33. See R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 (Q.L.) for the Supreme Court’s first consideration of section 1, Irwin Toy v. Quebec, [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36 (Q.L.) for a discussion of the different degree of scrutiny and RJR-MacDonald v. Canada, [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68 (Q.L.) for a more recent discussion of the flexibility of the review.
31. The most cited convention is that of the position of prime minister which is nowhere referred to in the constitutional documents. For a discussion of conventions and the determination that the federal government could not unilaterally patriate the constitution because there was a convention that the substantial provincial agreement was required for constitutional change affecting the provinces, see the Patriation Reference, [1981] 1 S.C.R. 753. Because conventions do not have the status of law, the sanction for any government’s failing to observe a convention is through the political process rather than by legal enforcement.
32. Quebec Secession Reference, supra note 1, para. 49.
33. Ibid., paras. 79-81. Somewhat surprisingly, the Court suggests that protection for aboriginal rights might either be part of the concern with minority rights or "looked at in their own right." Either way, "[t]he protection of these rights, so recently and arduously achieved . . . reflects an important underlying constitutional value:" para. 82. Confusion of aboriginal rights with those of "minorities" is a serious flaw in the Court’s decision. It is not unreasonable to expect that in a future case when the issue must be decided the Court will clarify that aboriginal people are in a different position from other groups in society and that protection of their interests warrants a distinct foundational principle which will interrelate with other principles, including federalism, democracy, the rule of law and constitutionalism.
34. At paras. 57-59 of the Quebec Secession Reference the Supreme Court observes that "federalism is a political and legal response to underlying social and political realities" which "recognizes the diversity of the component parts of Confederation." Federalism concerns more than geographically or politically identified territory, however; it also "facilitates the pursuit of collective goals by cultural and linguistic minorities which form a majority within a particular province." See ibid.
35. Ibid., para. 74.
36. For example, although the Supreme Court’s decision in Vriend was not well met in Alberta, the government accepted it. On the other hand, the Alberta Premier, Ralph Klein, has served notice that if the Court decides that same-sex (legal) marriages are to be recognized, the government will invoke the notwithstanding clause and will provide for recognition of same-sex partnerships in other ways.
37. Daniel LeBlanc, "Civil service to get same-sex benefits" The Globe and Mail (March 16, 1999) A1, A8.
38. The Court was unanimous in Ewanchuk in finding that there is no defence of implied consent in sexual assault law, although there was some disagreement in the judges’ reasons: R. v. Ewanchuk, [1999] S.C.J. No. 10 (Q.L.).

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