A rule-of-law compliant reading of section 33: The continuing relevance of Lorraine Weinrib’s public law scholarship

Lorraine Weinrib has contributed greatly both as a scholar and as a litigator to Canada’s jurisprudence on section 33 of the Canadian Charter of Rights and Freedoms. Section 33 empowers legislatures to ‘override’ certain Charter rights by declaring that legislation will continue to be operative ‘notwithstanding’ its inconsistency with the provisions of the Charter guaranteeing those rights. Weinrib has maintained for many years that, while section 33 does not empower courts to inquire into the substantive justifiably of a legislature’s invocation of section 33, the logic of the Constitution as a whole demands that legislatures offer public justifications to the very constituents whom a democratically elected legislature is meant to serve. This article argues that Weinrib’s work is as relevant now as ever during a period when provincial governments seem more willing to invoke section 33. Moreover, the article argues that the constitutional principle of the rule of law demands precisely the kind of public discourse and discussion that Weinrib argues is integral to section 33. The rule of law demands that exercises of power must be shown to be justifiable against rules of law or, in hard cases, against the normative principles that we have committed to as a political community. Public justification for invocations of section 33 is important, then, for rule-of-law reasons, but, as Weinrib has argued over a four-decade career in the law, it is by upholding the principle of the rule of law – by explaining to the people why it is a good thing to override rights in specific circumstances – that governments can uphold Canada’s constitutional commitments to both democracy and constitutional rights.