Speaker: Lorraine Weinrib, Law, U of T Talk: “The Charter at 40”

Talks for Fall 2022: Wednesdays at 10 am (in person at Faculty Club and on ZOOM)

Registration will open a few weeks before the event.

Speaker: Lorraine Weinrib, Law, U of T

Talk: “The Charter at 40”

Introducer: Linda Corman

Abstract:  What is the Canadian Charter of Rights and Freedoms (1982) today at 40?  This talk will trace the complex developments that mark the dramatic juridical and legislative shift of the Charter away from its remedial purposes and its final substantive and institutional design. Tracing the people and politics behind the penultimate first draft (offering no rights protection), it will explore how the final text amalgamated the theory, principles and historical lessons that inspired the post-WWII human rights movement to create a novel constellation of substantive norms, guaranteed by a sophisticated interplay of institutional powers and duties. The strong public participation and support that produced this final text prompted 7 provincial premiers to abandon their previous rejectionist stance, demanding instead an exceptional, targeted legislative power to override the rights deemed most controversial, with constraints designed to exact a high political price for its implementation – the s. 33 override or notwithstanding clause. This distinctive combination of the normative formulation of rights and the justified limitation clause, drafted in televised sessions of the Special Joint Committee, with broad public participation, on the one hand, and the notwithstanding clause, championed by the Charter-rejecting premiers, on the other, delineated a complex structure of rights-protection.

For a significant period, the courts interpreted the scope and strength of the rights purposively and applied the limitation clause strictly, in fidelity to the text embodying the final compromise. More recently, both the courts and the legislatures have reverse-engineered the Charter’s final structure of rights protection and the exceptionality of the override power. The Supreme Court has introduced more restrictive readings of the rights and a wider, less principled balancing test for justified limitations upon them. These changes produce greater deference to legislative supremacy and majoritarian policy preferences. A number of provincial legislatures have invoked the notwithstanding clause, often without full public and legislative debate, without public consultation, and without acknowledgement of, or consultation with, the individuals and groups deleteriously affected … and, worse still,  even retroactively.  At 40 years, the Charter has dramatically shifted away from its remedial purposes towards the preferences of those who opposed its adoption — legislative supremacy and majoritarian preferences.

Bio:  Lorraine E. Weinrib holds law degrees from U of T and Yale University. After her call to the bar, she worked in the Ministry of the Attorney General of Ontario for over a decade, rising to the position of Deputy Director of Constitutional Law & Policy. Her responsibilities included constitutional policy in the years leading up to the Charter’s adoption, which Ontario supported. She also represented Ontario in numerous constitutional cases, at all levels of court, including many appearances in the Supreme Court of Canada.  (In particular, when she represented Ontario in Ford (1988), the SCC’s sole case interpreting s. 33 of the Charter — the notwithstanding or override clause — she persuaded the Court that this clause did not permit retroactive operation. This ruling stands as the sole judicially imposed constraint on its exercise to date.) When appointed to the Faculty of Law in 1988, she specialized in Canadian constitutional law, comparative constitutional law, as well as constitutional litigation and advocacy. Her academic writing emphasizes the theoretical and institutional coherence of the Charter’s distinctive model of rights protection, with emphasis upon its historical and political development, on the one hand, and its affirmation of the theoretical and analytic structure of post-WWII international human rights protection. She has taught at universities in the U.S., South Africa and Israel. In addition, she consulted extensively with academics, members of the judiciary and the legal profession in South Africa and in Israel, in support of their adoption of rights-protecting systems modelled on Canada’s Charter.

The link to register is https://forms.office.com/r/tDpxSitMGS

The deadline to register is the Monday before the event at noon. The Zoom link will be sent to registrants only.