Would disallowance be an option for the Feds if a Province passed a la

[Rupert S. Lander]

Academic question: suppose, hypothetically, a Provincial Legislature passed a law modeled on North Carolina's Public Facilities Privacy and Security Act and invoked Section 33 of the Canadian Charter of Rights and Freedoms to shield that law from the inevitable Constitutional challenge that would arise.

Would the Federal Parliament technically have the recourse to "disallow" that law or is that power obsolete?

I'm asking this in an academic sense as opposed to making an argument as to what the Federal Government should or shouldn't do if such a hypothetical situation ever arose.

[The_Squid]

The Federal Government doesn't have a veto over Provincial laws (mostly).

http://www.lop.parl.gc.ca/About/Parliament/senatoreugeneforsey/book/chapter_3-e.html

So no provincial legislature can take over powers belonging to the Parliament of Canada. Nor could any provincial legislature pass an Act taking the province out of Canada. No such power is to be found in the written Constitution, so no such power exists.

Similarly, of course, Parliament cannot take over any power of a provincial legislature.
Parliament and the provincial legislatures both have power over agriculture and immigration, and over certain aspects of natural resources; but if their laws conflict, the national law prevails.

Edited April 7, 2016 by The_Squid

[Big Guy]

I would assume that the federal law is the Constitution of Canada. I do not think our constitution would allow that kind of discrimination. And as pointed out above, if federal law conflicts with provincial law then national law prevails.

[The_Squid]

I would assume that the federal law is the Constitution of Canada. I do not think our constitution would allow that kind of discrimination. And as pointed out above, if federal law conflicts with provincial law then national law prevails.

If it's in their scope of powers then Provinces can pass stupid and unconstitutional laws despite what a federal gov't might think.

It's the courts that would overturn the law when challenged.

ETA: If the federal gov't felt strongly about it, they could be the ones to challenge a law like that in court.

Edited April 7, 2016 by The_Squid

[Rupert S. Lander]

If it's in their scope of powers then Provinces can pass stupid and unconstitutional laws despite what a federal gov't might think.

It's the courts that would overturn the law when challenged.

ETA: If the federal gov't felt strongly about it, they could be the ones to challenge a law like that in court.

Wouldn't Section 33 (the Notwithstanding Clause) pretty much squash any plausible court challenge that could be mustered against the law (albeit for only five years at a time)?

I know the NWC doesn't allow provinces to encroach on federal jurisdiction, hence why provinces weren't allowed to use it to override federal same sex marriage laws for example, but I don't think that argument would largely apply to a NC-like law which mainly deals with regulation of schools, hospitals and other such facilities that are clearly provincial jurisdiction in Canada.

Edited April 8, 2016 by Rupert S. Lander

[The_Squid]

Yes, the Notwithstanding clause can overrule the courts for a limited time.

However, using this clause to squash someone's rights may be untenable due to public pressure, unless of course it's an unpopular court decision....

Of course, this has very rarely been used by legislatures for that reason among others.

Edited April 8, 2016 by The_Squid

[cybercoma]

The notwithstanding clause automatically expires; a government would have to pass the legislation every 5 years to keep it active.

[cybercoma]

Yes, the Notwithstanding clause can overrule the courts for a limited time.

It can't be applied retroactively.

[The_Squid]

It can't be applied retroactively.

I guess I should have said it can insulate legislation from court challenges, not overrule the court....

Thanks for the correction.

[Rupert S. Lander]

Yes, the Notwithstanding clause can overrule the courts for a limited time.

However, using this clause to squash someone's rights may be untenable due to public pressure, unless of course it's an unpopular court decision....

Of course, this has very rarely been used by legislatures for that reason among others.

It can't be applied retroactively.

I guess I should have said it can insulate legislation from court challenges, not overrule the court....

Thanks for the correction.

If the scenario was that a court decision was brought down that highly unpopular in a particular province, couldn't their legislature just pass another Bill, identical word for word with the one that was struck down, thus effectively "overruling" the court?

As I read S33 in the charter, you couldn't use it to "resurrect" a previously enacted statute, but that wouldn't stop the legislature from passing a new law (valid for five years) that does exactly the same thing, only with the NWC attached.

Essentially, my original question was that if a province ever did that, would Parliament still have the power to step in and override the legislature.

[cybercoma]

Parliament can't override provincial jurisdiction. On the other hand, If a province passes a law that is in federal jurisdiction it will be considered beyond the province's power and no longer a law. The notwithstanding clause would not apply in that case.

Edited April 8, 2016 by cybercoma

[Rupert S. Lander]

Parliament can't override provincial jurisdiction. On the other hand, If a province passes a law that is in federal jurisdiction it will be considered beyond the province's power and no longer a law. The notwithstanding clause would not apply in that case.

Thanks for the insight. I'm just curious if the "disallowance" power that was frequently invoked by John A. Macdonald is still part of the constitution. It's basically an academic question at this point since I don't think even a hypothetical AB Wildrose gov't would attempt to enact something along the lines of NC's PFP&SA, but I was just curious.

[overthere]

So no provincial legislature can take over powers belonging to the Parliament of Canada. Nor could any provincial legislature pass an Act taking the province out of Canada. No such power is to be found in the written Constitution, so no such power exists.

Similarly, of course, Parliament cannot take over any power of a provincial legislature.

Parliament and the provincial legislatures both have power over agriculture and immigration, and over certain aspects of natural resources; but if their laws conflict, the national law prevails.

Of course, if Quebec for example had decided to exit Canada via referendum as they so nearly did in 1996, would the laws of a legislature that is no longer your governing body apply? In that case, Quebec would surely state they were now sovereign and that the Canadian Constituion no longer had any bearing on them. Canada could insist on an interpretation by the Supreme Court, and Quebec would have ignored both the process and the judgement. So IMO the statement that 'no such power exists' can be rendered irrelevant in real terms

Thanks for the insight. I'm just curious if the "disallowance" power that was frequently invoked by John A. Macdonald is still part of the constitution. It's basically an academic question at this point since I don't think even a hypothetical AB Wildrose gov't would attempt to enact something along the lines of NC's PFP&SA, but I was just curious.

I am quite certain that Wildrose would take some strong opinions and some strong actions related to their relationship with Ottawa if they formed the next AB government, but not anything like the homophobia of North Carolina. I could easily see Wildrose invoking the notwithstanding clause on several issues, but not that one or other socon issues. Brian Jean is far too intelligent and pragmatic for that. And I am not a Wildrose supporter.

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