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The Canadian Override: Constitutional Model or Bête Noire of Constitutional Politics?†

Published online by Cambridge University Press:  29 February 2016

Adam Dodek
Adam Dodek*
Affiliation:
Faculty of Law, University of Ottawa.
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Abstract

Israeli proponents of the enactment of a legislative override often invoke Canada as a model that Israel should follow. Their proposals would allow the Knesset to ‘override’ a decision of the Supreme Court of Israel that strikes down a law on the ground that it violates a Basic Law. Proponents of an Israeli override seek recourse to various types of argument to support their position. This article focuses on one such argument: the use of Canada as a model to support the Israeli argument for enacting an override. It argues that in order to evaluate both the value of adopting the Canadian override and the likelihood of its transplantation to Israel being successful, one needs to acquire a deep understanding of its operation in Canada. The article contains four sections in addition to the introduction. Section 2 briefly explains what ‘the Canadian override’ is and how it came to be. Section 3 analyses the positive attraction of the Canadian override as a constitutional model, and identifies three different models of the Canadian override. Section 4 focuses on the Canadian experience with its override. It explains why Canadians have come to view it in negative terms – the ‘bête noire of Canadian constitutional politics’– because of the manner in which it was adopted and the circumstances in which it was first used. Section 5 concludes with some thoughts on legal transplants, legitimacy and lessons for Israel from the Canadian experience.

Keywords

Constitutionoverridejudicial reviewCanadarights
Type
Symposium Articles
Information
Israel Law Review , Volume 49 , Issue 1 , March 2016 , pp. 45 - 65
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2016 

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Footnotes

†

This article is part of a symposium collection of contributions relating to the constitutional override clauses in Israeli and Canadian constitutional law. The other articles in this issue making up this symposium are Lorraine E Weinrib, ‘The Canadian Charter’s Override Clause’, and Rivka Weill, ‘Juxtaposing Constitution-Making and Constitutional-Infringement Mechanisms in Israel and Canada’.

References

1 Moran Azoulay, ‘Ministers Approve Bill to Override High Court’, ynetnews.com, 26 October 2014, http://www.ynetnews.com/articles/0,7340,L-4584500,00.html.

2 https:// www.knesset.gov.il/description/eng/eng_mimshal_yesod1.htm.

3 CA 6821/93 United Mizrahi Bank Ltd. v Migdal Co-operative Village (1995) 49 (4) PD 221, http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf.

4 Segal, Zeev, ‘Israel Ushers in a Constitutional Revolution: the Israeli Experience, the Canadian Impact’ (1994) 6 Constitutional Forum 44, 45–46Google Scholar (writing that shortly before the enactment of the Basic Law: Freedom of Occupation which would include the override, Israeli Supreme Court Justice Aharon Barak wrote a letter to the Chair of the Knesset Committee which was preparing the bill for final reading. Barak referred to the Canadian ‘override clause’ as a possible clause for adoption by the Knesset. According to Segal, in public discussions about the Israeli override, it was mentioned that the Canadian override was very rarely used in Canada: ibid 46).

5 HCJ 3872/93 Meatrael v Prime Minister 47(5) PD 485.

6 Lahav Herkov, ‘Bayit Yehudi Bill Would Allow Knesset to Reverse High Court Cancellation of Bills’, The Jerusalem Post, 21 October 2014, http://www.jpost.com/Israel-News/Politics-And-Diplomacy/Bayit-Yehudi-bill-would-allow-Knesset-to-reverse-High-Court-cancellation-of-bills-379394; Ayelet Shaked, ‘Saving Democracy’, ynetnews.com, 21 October 2014, http://www.ynetnews.com/articles/0,7340,L-4583129,00.html.

7 Shaked, ibid.

8 https:// www.facebook.com/ayelet.benshaul.shaked/posts/659011677550595 (translation by author).

9 This article does not address the application of the so-called ‘UK override’, which I take to be a reference to a ‘designated derogation’ under the Human Rights Act 1998 (UK) (HRA1998). I would simply note that the operation of the HRA 1998 differs significantly from the application of the Canadian Charter of Rights and Freedoms in Canada and from the Basic Laws in Israel. Most notably, courts in the UK do not have the power of judicial review to strike down legislation as they do in Canada and in Israel. UK courts may issue a ‘declaration of incompatibility’ with a Convention right, but they cannot strike down legislation: HRA 1998, s 4. However, I believe that the reference to the UK in the debate over the Israeli override is made for similar purposes as invoking Canada – to bolster the case for the legitimacy of the override.

10 Frederick Schauer, ‘The Politics and Incentives of Legal Transplantation’ in Joseph S Nye and John D Donahue (eds), Governance in a Globalizing World (Visions of Governance for the 21st Century 2000) 253, 254.

11 ibid 258. Schauer's hypothesis is as follows: ‘The political reputation of the donor country, both internationally and in the recipient country, is a causal factor in determining the degree of reception in the recipient country of the donor country's legal ideas, norms, and institutions, even holding constant the host country's evaluation of the intrinsic legal worth of those ideas, norms, and institutions, and even holding constant the actual legal worth of those ideas, norms, and institutions'. Watson had suggested this idea earlier: Alan Watson, Society and Legal Change (Scottish Academic Press 1977) 98; Alan Watson, Legal Transplants: An Approach to Comparative Law (Scottish Academic Press 1974) 88–90.

12 cf Kahn-Freund, Otto, ‘On Uses and Misuses of Comparative Law’ (1974) 37 The Modern Law Review 1, 27CrossRefGoogle Scholar.

13 Oliver Wendell Holmes, The Common Law (Harvard University Press, 2009) 3.

14 My purpose here is neither to defend nor denigrate the Canadian override. Others have done that far more effectively than I could. For proponents of the override see Russell, Peter H, ‘Standing Up for Notwithstanding’ (1991) 29 Alberta Law Review 293Google Scholar; Russell, Peter H, ‘The Notwithstanding Clause: The Charter's Homage to Parliamentary Democracy’ (2007) 28 Policy Options 65Google Scholar; Blakeney, Allan E, ‘The Notwithstanding Clause, the Charter and Canada's Patriated Constitution: What I Thought We Were Doing’ (2010–11) 19 Constitutional Forum 1Google Scholar; Weiler, Paul C, ‘Rights and Judges in a Democracy: A New Canadian Version’ (1984) 18 University of Michigan Journal of Law Reform 51Google Scholar; Weiler, Paul C, ‘Of Judges and Rights, or Should Canada Have a Constitutional Bill of Rights?’ (1980) 60 Dalhousie Review 205Google Scholar; Weinrib, Lorraine Eisenstat, ‘Learning to Live with the Override’ (1990) 35 McGill Law Journal 541Google Scholar; Hogg, Peter W and Bushell, Allison A, ‘The Charter Dialogue between Courts and Legislatures (or Perhaps the Charter of Rights Isn't Such a Bad Thing After All)’ (1997) 35 Osgoode Hall Law Journal 75CrossRefGoogle Scholar; Janet L Hiebert, ‘Is It Too Late to Rehabilitate Canada's Notwithstanding Clause?’ in Grant Huscroft and Ian Brodie (eds), Constitutionalism in the Charter Era (LexisNexis 2004) 169; Christopher P Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (2nd edn, Oxford University Press 2001) 194–96. For opponents see Whyte, John D, ‘On Not Standing Up for Notwithstanding’ (1989–90) 28 Alberta Law Review 347Google Scholar; Whyte, John D, ‘Sometimes Constitutions are Made in the Streets: The Future of the Charter's Notwithstanding Clause’ (2007) 16 Constitutional Forum 79Google Scholar; Scott, Stephen A, ‘Entrenchment by Executive Action: a Partial Solution to ‘Legislative Override’ (1982) 4 Supreme Court Law Review 287Google Scholar; LaSelva, Samuel L, ‘Only in Canada: Reflections on the Charter's Notwithstanding Clause’ (1983) 63 Dalhousie Review 387Google Scholar; Patrick J Monahan, Meech Lake: The Inside Story (University of Toronto Press 1991) 169.

15 http://dictionary.reference.com/browse/bete+noire.

16 Kahana, Tsvi, ‘The Notwithstanding Mechanism’ (2002) 52 University of Toronto Law Journal 221, 221–22CrossRefGoogle Scholar, nn 6, 7. Reflecting its status as the bête noire of Canadian constitutional politics, two proponents of the use of the override cleverly dubbed it ‘the N—clause’: Mike Harris and Preston Manning, Vision for a Canada Strong and Free (The Fraser Institute 2007) 235.

17 Pt I of the Constitution Act, 1982, being Sch B to the Canada Act 1982 (UK) (the Charter).

18 ibid s 1. See generally R v Oakes [1986] 1 SCR 103.

19 Constitution Act, 1982 (n 17) s 52(1).

20 See generally Peter J McCormick, The End of the Charter Revolution (University of Toronto Press 2014); Jamie Cameron and James Stribopoulos (eds), The Charter and Criminal Justice – Twenty-Five Years Later (LexisNexis 2008); Benjamin Berger and James Stribopoulos (eds), Unsettled Legacy: Thirty Years of Criminal Justice under the Charter (LexisNexis 2012).

21 para 8 provides: ‘A provision of a law that violates freedom of occupation shall be of effect, even though not in accordance with section 4, if it has been included in a law passed by a majority of the members of the Knesset, which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement unless a shorter duration has been stated therein’.

22 Segal (n 4) 45–46.

23 Slattery, Brian, ‘A Theory of the Charter’ (1987) 25 Osgoode Hall Law Journal 701, 703CrossRefGoogle Scholar.

24 Peter W Hogg, Constitutional Law of Canada (5th edn supp, Carswell 2007) s 39.8.

25 Constitution Act 1867 (UK), Preamble.

26 British North America (No 2) Act 1949 (UK), repealed by the Canada Act 1982 (UK).

27 See, eg, Lorraine E Weinrib, ‘The Postwar Paradigm and American Exceptionalism’ in Sujit Choudhry (ed), Migration of Constitutional Ideas (Cambridge University Press 2007) 83.

28 Canadian Bill of Rights, SC 1960, c 44.

29 In 1970, the government of Canada invoked the War Measures Act 1970 in response to separatist terrorist actions in Quebec. The Act gave great powers to the police and infringed many civil liberties, including those protected by the Canadian Bill of Rights. The government of Canada used the override in the Bill: Public Order (Temporary Measures) Act, SC 1970-71-72, c 2, s 12; see Peter W Hogg, Canada Act 1982 Annotated (Carswell 1982).

30 R v Drybones [1970] SCR 282. For discussion of the Canadian Bill of Rights see Walter S Tarnopolsky, The Canadian Bill of Rights (2nd edn, McClelland and Stewart 1975) and Hogg (n 24).

31 See generally Christopher MacLennan, Towards the Charter: Canadians and the Demand for a National Bill of Rights, 1929–1960 (McGill-Queen's University Press 2003).

32 Alberta Human Rights Act, RSA 2000, c A-25.5, s 1(1); Saskatchewan Human Rights Code, SS 1979, c S-24.1, s 44; Charter of Human Rights and Freedoms, RSQ, c C-12, s 52 (Quebec).

33 Pierre E Trudeau, A Canadian Charter of Human Rights (Queen's Printer 1968).

34 Barry L Strayer, Canada's Constitutional Revolution (University of Alberta Press 2013) 125 (noting that between 1968 and 1980 – over the course of more than a decade of discussions, documents and meetings – the provinces never produced a draft Charter as an alternative to the federal proposals. They did so for the first time in the summer of 1980 in advance of the September 1980 First Ministers' Meeting).

35 ibid 267, 269.

36 ibid 270 (expressing the opinion that the very existence of the override ‘was an enduring source of regret for Pierre Trudeau’).

37 ibid 267 (noting that Premier Peter Lougheed of Alberta ‘referred to a notwithstanding clause as one of the possible means of making the Charter less unpalatable to some provinces. The matter was not pursued at that time by First Ministers’). It is also notable that Alberta's Bill of Rights contains an override power similar to that in the Canadian Bill of Rights: Alberta Bill of Rights, SA 1972, c 1, s 2, referred to in Hogg (n 29) 80.

38 Strayer (n 34).

39 Most notably by Premier Allen Blakeney of Saskatchewan at the September 1980 First Ministers' Meeting: Strayer (n 34) 269 (noting that again ‘[t]he matter received no further attention at that time and the First Ministers’ Meeting failed to reach any agreement’).

40 For the text of the April Accord, see Anne F Bayefsky, Canada's Constitution Act 1982 and Amendments: A Documentary History, vol II (McGraw-Hill Ryerson 1989) 804–13.

41 David Milne, The New Canadian Constitution (Lorimer 1982) 46–47.

42 ibid 86

43 Government of Canada, The Charter of Rights and Freedoms: A Guide for Canadians (Ministry of Supply and Services 1982) 41–43.

44 One popular account of the patriation stage refers to ‘the Candy-Colored Charter’: Robert Sheppard and Michael Valpy, The National Deal: The Fight for a Canadian Constitution (Fleet Books 1982) 135.

45 Re Resolution to Amend the Constitution [1981] 1 SCR 753 (Patriation Reference).

46 Strayer (n 34) 266. For the text of the 5 November 1981 Accord see Howard Leeson, The Patriation Minutes (Centre for Constitutional Studies, Faculty of Law, University of Alberta 2011) 101–03. On the November Accord see Roy Romanow, Howard Leeson and John Whyte, Canada … Notwithstanding (Carswell/Methuen 1984); Ron Graham, The Last Act: Pierre Trudeau, the Gang of Eight and the Fight for Canada (Allen Lane 2011); Edward McWhinney, Canada and the Constitution 1979–1982 (University of Toronto Press 1982) 90–101; Milne (n 41) 135–64; Stephen Clarkson and Christina McCall, Trudeau and Our Times, Vol I: The Magnificent Obsession (McClelland and Stewart 1997) 357–87.

47 Patriation Reference (n 45).

48 Strayer (n 34) 269–70.

49 Leeson (n 46) 66, 69.

50 Strayer (n 34) 267.

51 ibid 266.

52 Dodek, Adam M, ‘Canada as Constitutional Exporter: The Rise of the “Canadian Model” of Constitutionalism’ (2007) 36 Supreme Court Law Review (2d) 309Google Scholar.

53 Gardbaum, Stephen, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 American Journal of Comparative Law 707CrossRefGoogle Scholar.

54 Hiebert, Janet, ‘Parliamentary Bills of Rights: An Alternative Model’ (2006) 69 The Modern Law Review 7CrossRefGoogle Scholar.

55 Tushnet, Mark, ‘Alternative Forms of Judicial Review’ (2003) 101 Michigan Law Review 2781CrossRefGoogle Scholar.

56 Dodek (n 52).

57 Hogg and Bushell (n 14).

58 Weinrib (n 14) 564–65 (arguing that the override could ‘reflect something positive about Canada's commitment to rights protection: not rule by supercourts at the expense of legislatures, but a complex partnership through institutional dialogue between supercourts and superlegislatures’).

59 Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law 2001).

60 Weinrib (n 14) 564–65.

61 Hogg and Bushell (n 14) 79–80.

62 Weinrib, Lorraine, ‘The Canadian Charter as a Model for Israel's Basic Laws’ (1993) 4 Constitutional Forum 85Google Scholar; Segal (n 4).

63 Robert H Bork, Coercing Virtue: The Worldwide Rule of Judges (AEI Press 2003) 91–92.

64 See generally Jeff Sheshol, Supreme Power: Franklin Roosevelt vs. The Supreme Court (WW Norton 2010) 205, 223 (discussing proposals for constitutional amendment by Progressive presidential candidate, Robert La Follette, in 1924).

65 Strayer (n 34) 199–200.

66 Azoulay (n 1).

67 House of Commons Debates, 32nd Parliament, 1st session, 20 November 1981, 13042 (Jean Chrétien).

68 Canadian Inter-Governmental Conference Secretariat, Federal-Provincial Conference of First Ministers on the Constitution, verbatim transcript, 5 November 1981, 125.

69 McMurtry, Roy, ‘The Search for a Constitutional Accord – A Personal Memoir’ (1982) 8 Queen's Law Journal 65Google Scholar.

70 cf Canadian Charter of Rights and Freedoms (n 17) s 33(3) and Basic Law: Freedom of Occupation, s 8.

71 This was the case with Saskatchewan's use of the override in 1986, discussed below.

72 House of Commons Debates (n 67).

73 RWDSU v Sask [1987] 1 SCR 460, discussed in Hogg (n 24) s 39.2

74 Ford v Quebec [1988] 2 SCR 712. For criticism of the Supreme Court's decision on this issue see Weinrib (n 14).

75 eg, Weinrib (n 14); Manfredi (n 14) 192–93.

76 A 2007 poll indicated that almost half of Canadians were unaware of the existence of the override. Of those who were aware of it, nearly one third thought that neither the federal government nor the provinces should be able to use it; 30 per cent thought they both should be able to use it; 13.5 per cent thought only the provinces and 12 per cent only the federal government: Nanos, Nik, ‘Charter Values Don't Equal Canadian Values: Strong Support for Same-sex and Property Rights’ (2007) Policy Options 50Google Scholar.

77 Weill, Rivka, ‘The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution Making’ (2014) 62 American Journal of Comparative Law 127, 130CrossRefGoogle Scholar.

78 eg, Choudhry, Sujit, ‘The Lochner Era and Comparative Constitutionalism’ (2004) 2 International Journal of Constitutional Law 1CrossRefGoogle Scholar.

79 Nelson Wiseman, In Search of Canadian Political Culture (UBC Press 2007) 62–64, 74.

80 Neil Nevitte, The Decline of Deference (University of Toronto Press 1996).

81 Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, 32nd Parliament, 1st Session, 1980–81, Report to Parliament, 57:5.

82 See generally Romanow, Whyte and Leeson (n 46).

83 Manfredi (n 14) 184.

84 Russell (n 14).

85 Strayer (n 34) 201–02; Romanow, Whyte and Leeson (n 46) 213.

86 Strayer (n 34) 203.

87 Leeson (n 46) 77; Penney Kome, The Taking of Twenty-Eight: Women Challenge the Constitution (The Women's Press of Canada 1983) 83–95; Marilou McPhedran, ‘A Truer Story: Constitutional Trialogue’ in Graeme Mitchell and others (eds), A Living Tree: The Legacy of 1982 in Canada's Political Evolution (LexisNexis 2007) 101, 121–22; Peter H Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (3rd edn, University of Toronto Press 2004) 122; and Chaviva Hošek, ‘Women and the Constitutional Process’ in Keith Banting and Richard Simeon (eds), And No One Cheered: Federalism, Democracy & The Constitution Act (Methuen 1983) 280, 291–95.

88 Strayer (n 34) 203–04; Leeson (n 46).

89 House of Commons Debates 12:13013, 20 November 1981, 13042, discussed in McPhedran (n 87) 121.

90 Kome (n 87) 95.

91 Alan C Cairns, Charter versus Federalism: The Dilemmas of Constitutional Reform (McGill-Queen's University Press 1992).

92 ibid 108–09.

93 McWhinney (n 46) 112. See also the comments of Russell (n 87) 121 (‘For some, the override even with these restrictions contradicts the basic purpose of a constitutional bill of rights – of placing certain fundamental rights and freedoms beyond legislative encroachment. For others with less faith in the judiciary's wisdom in striking the right balance between competing rights and social interests, the override is a prudence democratic fail-safe device. However, the fact that the override was adopted in a closed-door deal among the political elites meant that the public was not exposed to this debate. Given the popularity of the Charter and growing distrust of politicians, the circumstances of the override's adoption could only lower its legitimacy’).

94 Weinrib (n 14) 544.

95 An Act Respecting the Constitution Act, 1982, SQ 1982, c 21, discussed in Weinrib (n 14).

96 The constitutionality of the omnibus override was largely upheld by the Supreme Court of Canada in Ford v Quebec (n 74). The Supreme Court found that the attempt by the government of Quebec to apply the override retroactively (to the time period between 17 April 1982 when the Charter came into effect and June 1982 when the legislation was passed) was invalid.

97 Weinrib (n 14) 560.

98 The Yukon government included an override in a statute that never came into force: Land Planning and Development Act, SY 1982, c 22, s 39(1), discussed in Hogg (n 24) s 39.2. For a comprehensive review and analysis of all uses of the override see Kahana (n 16).

99 RWDSU v Sask (n 73), discussed in Hogg (n 24) s 39.2.

100 Manfredi (n 14) 185.

101 R v Morgentaler [1988] 1 SCR 30.

102 Russell, Peter H, ‘Canadian Constraints on Judicialization from Without’ (1994) 15 International Political Science Review 165CrossRefGoogle Scholar, 171.

103 Re Objection by Quebec to a Resolution to Amend the Constitution [1982] 2 SCR 793.

104 The agreement was reached at Meech Lake just outside Ottawa and was known as the Meech Lake Accord: see generally Monahan (n 14).

105 The three-year deadline was set by virtue of the deadline for constitutional amendments set out in the Constitution Act, 1982, s 39(2).

106 Ford v Quebec (n 74).

107 Christopher P Manfredi, ‘Same Sex and the Notwithstanding Clause’ (2003) (October) Policy Options 21, 22.

108 Bill 178, An Act to Amend the Charter of the French Language, SQ 1988, c 54.

109 Milne (n 41) 230–32.

110 Russell (n 87) 146.

111 Snow, David, ‘Notwithstanding the Override: Path Dependence, Section 33, and the Charter’ (2008–09) 8 Innovations: A Journal of Politics 1Google Scholar.

112 Russell (n 87) 145; Monahan (n 14) 164 (stating that after the Quebec government used the override ‘there was virtually no chance that the Meech Lake Accord would be ratified’). Thomas Axworthy has called Quebec's use of the override ‘perhaps the single most important act in eroding support for the proposed Meech Lake package of amendments to the Constitution’: Axworthy, Thomas S, ‘The Notwithstanding Clause: Sword of Damocles or Paper Tiger?’ (2007) (March) Policy Options 58Google Scholar. See also Milne (n 41) 234 (calling Quebec's Bill 178 a ‘disastrous blow for the Meech Lake Accord and the ratification process’).

113 Milne (n 41) 233–34.

114 Axworthy (n 112) 58.

115 Manfredi (n 14) 204, 205, 210.

116 R v Seaboyer [1991] 2 SCR 577.

117 R v Askov [1990] 2 SCR 1199.

118 R v Morin [1992] 1 SCR 771.

119 Bill 26, Institutional Confinement and Sexual Sterilization Compensation Act, s 3, Alberta, 24th Legislature, 2nd Session, 47 Elizabeth II, 1998.

120 Manfredi (n 14) 187.

121 Sandra Martin, ‘Ralph Klein, 70: The Man Who Ruled Alberta’, The Globe and Mail, 29 March 2013, http://www.theglobeandmail.com/news/national/ralph-klein-70-the-man-who-ruled-alberta/article10569210/?page=all.

122 Edmonton Journal, 12 March 1998, quoted in Manfredi (n 14) 187–88.

123 Vriend v Alberta [1998] 1 SCR 493.

124 Roach (n 59) 196.

125 Marriage Amendment Act, SA 2000, c 3, s 5.

126 Reference re Same Sex Marriage [2004] 3 SCR 698.

127 Snow (n 111) 10.

128 ibid; Campbell Clark, ‘Liberals Highlight Left-Right Fault Line’, Globe and Mail, 4 June 2004, A8.

129 In recent Canadian federal elections, there has typically been one English-language leaders’ debate and one French-language debate.

130 ‘Liberal Platform Doesn't Include Notwithstanding Clause Ban’, CBC News, 11 January 2006, http://www.cbc.ca/news/canada/liberal-platform-doesn-t-include-notwithstanding-clause-ban-1.585843. For a more sympathetic account see Axworthy (n 112) 58.

131 Axworthy (n 112) 58.

132 Janet L Hiebert, ‘Compromise and the Notwithstanding Clause: Why the Dominant Narrative Distorts Our Understanding’ in James B Kelly and Christopher P Manfredi (eds), Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (UBC Press 2009) 107, 119.

133 On the occasion of the Charter's 30th anniversary in 2012, senior public servants wanted to celebrate the event but the Minister vetoed the idea and all the government could do was issue a press release: Mark Bourrie, Kill the Messengers: Stephen Harper's Assault on Your Right to Know (HarperCollins 2015) 157.

134 Mike Harris and Preston Manning, Vison for a Canada Strong and Free (The Fraser Institute 2007) 12, 235–37, referred to in Axworthy (n 112) 58.

135 See generally Sean Fine and Chris Hannay, ‘Harper v The Supreme Court: Five Recent Losses for the PM’, The [Toronto] Globe and Mail, 25 April 2014, http://www.theglobeandmail.com/news/politics/harper-v-the-supreme-court-five-recent-losses-for-the-pm/article18206422/?page=all.

136 See generally Lorne Sossin, ‘Court Dismissed’, The Walrus, January–February 2015, http://thewalrus.ca/court-dismissed.

137 Bill 60, Charter Affirming the Values of State Secularism and Religious Neutrality and of Equality between Men and Women and Providing a Framework for Accommodation Requests, National Assembly of Quebec, 40th Legislature, 1st Session.

138 ibid s 5 (Restriction on Wearing Religious Symbols).

139 See, eg, Sean Fine, ‘Is Quebec's Secular Charter Constitutional? Nine Legal Experts Weigh In’, The [Toronto] Globe and Mail, 14 September 2014, http://www.theglobeandmail.com/news/politics/is-quebecs-secular-charter-constitutional-nine-legal-experts-weigh-in/article14324825/?page=all; Daniel Schwartz, ‘Charter of Quebec Values on Collision Course with Constitution?’, CBC News, 11 September 2014, http://www.cbc.ca/news/politics/charter-of-quebec-values-on-collision-course-with-constitution-1.1699637.

140 ‘PQ Willing to Use Notwithstanding Clause to Make Sure Controversial Secular Charter Becomes Law, Marois Says’, Postmedia News, 31 March 2014, http://news.nationalpost.com/2014/03/31/pq-willing-to-use-notwithstanding-clause-to-make-sure-controversial-secular-charter-becomes-law-marois-says.

141 Weill (n 77).

142 Weill, Rivka, ‘Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power’ (2011–12) 39 Hastings Constitutional Law Quarterly 457Google Scholar. Weill acknowledges that the inclusion of a notwithstanding clause in the Basic Law: Freedom of Occupation ‘suggests that Canada served as an example to Israel's development and national maturation’: ibid 509, citing Aharon Barak, Interpretation in Law: Constitutional Interpretation (Nevo 1994) 634 (in Hebrew). In fact, Zeev Segal has written that Barak wrote directly to the MKs considering amendments to the Basic Law and suggested the Canadian override to them: Segal (n 4) 45–46.

143 http://languagegeek.net/2007/08/28/the-meaning-of-the-french-phrase-bete-noire/#sthash.z84RVqen.dpuf.