A Federal State
the Charter. This is something with which the
Americans, with their Bill of Rights entrenched
in their Constitution, have been familiar for over
200 years. For us, it was almost completely new.
Plainly, this enormously widens the jurisdiction
of the courts. Before the Charter, Parliament
and the provincial legislatures, ?within the
limits of subject and area? prescribed by the
Constitution Act, 1867, enjoyed ?authority as
plenary and as ample as the Imperial Parliament
in the plenitude of its power possessed and
could bestow.? In other words, within those
limits, they could do anything. They were
sovereign. The Charter ends that. It imposes
new limits.
Section 1 of the Charter itself provides some
leeway for Parliament and the legislatures.
It says that the rights the Charter guarantees
are ?subject only to such reasonable limits
prescribed by law as can be demonstrably
justifi ed in a free and democratic society.? The
Delivery of health services is the responsibility of
courts decide the meaning of ?reasonable,?
provincial and territorial governments, except in the case
?limits,? ?demonstrably justifi ed? and ?a free
of those groups that fall under federal jurisdiction, such
and democratic society.? Their decisions have
as aboriginal peoples, the Canadian forces and veterans.
restricted how Parliament and the legislatures
may use the powers they had before the Charter
year). The only ground on which the courts
came into eff ect, and the jurisprudence is still
could declare either a federal or a provincial law
evolving.
unconstitutional (that is, null and void) was
that it intruded into the jurisdictional territory
The fundamental, legal and equality rights in the
of the other order of government (or, of course,
Charter are also subject to a ?notwithstanding?
had violated one of the four entrenched rights).
clause. This allows Parliament or a provincial
legislature to pass a law violating any of
The Charter has radically changed the situation.
these rights (except the equality right that
Parliament and the legislatures are, of course,
prohibits discrimination based on sex) simply
still not allowed to jump the fence into each
by inserting in such law a declaration that it
other?s gardens. But both federal and provincial
shall operate notwithstanding the fact that it is
laws can now be challenged, and thrown out
contrary to this or that provision of the Charter.
by the courts, on the grounds that they violate
Any such law can last only fi ve years, but it can
A Federal State
17
How Canadians Govern Themselves
be re-enacted for further periods of fi ve years.
and the Ontario Court of Appeal ruled: ?The
Any such legislation must apply equally to
prohibition ?Thou shalt not steal? has no legal
men and women. The notwithstanding clause
force upon the sovereign body. And there
allows a partial restoration of the sovereignty of
would be no necessity for compensation to be
Parliament and the provincial legislatures, but
given.? The Charter does not change this. The
has seldom been used because of the political
