The 2022 Conference

Section 1

A conference of leading scholars, jurists and commentators on the significance, meaning, impact, operation and (de)merits of Section 33 of the Canadian Charter of Rights and Freedoms forty years after the Charter’s enactment.

The Notwithstanding Clause at 40 :
Canadian Constitutional Democracy at a Crossroads

Watch the conference right here:

    • (I) Nathalie Des Rosiers, Principal, Massey College: Welcome
    • (II) Peter L. Biro, Founder, Section 1: Introduction – Chekhov’s Gun Inverted
    • (III) Thomas Axworthy, Chair of Public Policy, Massey College, Secretary General, InterAction Council: An Historic Canadian Compromise: The making of the deal that delivered the Notwithstanding Clause
    • Q & A
    • (IV) Lorraine Weinrib, University of Toronto (Law): Charter Override in a Free and Democratic Society: Norms and Exceptions
    • (V) Dwight Newman, University of Saskatchewan (Law): Key Foundations for the Notwithstanding Clause in Institutional Capacities, Democratic Participatory Values, and Dimensions of Canadian Identities
    • (VI) Nathalie Des Rosiers, Principal, Massey College: The Dialogue Theory: Key Elements and the Argument Against Pre-emptive use of Section 33
    • (VII) Jamie Cameron, Osgoode Hall Law: Section 3, section 33, and Bill 307: Working Families et al. v. Ontario
    • (VIII) Benoît Pelletier, University of Ottawa (Law), Former Quebec Minister and MNA, : The Notwithstanding Provisions: Who gets the last word?
    • Q & A
    • (IX) Grégoire Webber, Queen’s (Law and Philosophy): Notwithstanding rights, review, or remedy revisited: on the notwithstanding clause, the operation of legislation, and some alternatives
    • (X) Robert Leckey, Dean, McGill Law: Derogating from Rights and the Role of the Judiciary
    • (XI) Geoffrey Sigalet, University of British Columbia (Law and Politics): The Passive Aggressive Vices: The Normative Case Against the Judicial Review of Statutes Invoking Section 33
    • (XII) Xavier Foccroulle Ménard, Associate, Norton Rose Fulbright Canada LLP, Montreal: Nothing to Declare: Invocation of Section 33 Precludes Further Judicial Intervention – a response to Leckey, Webber, Mendelsohn and Sirota
    • Q & A
    • (XIII) Guillaume Rousseau, Director, Graduate Applied State Law and Policy Programs, University of Sherbrooke; François Côté, Lawyer, Lecturer and doctoral candidate (Univ. Laval & Univ. Sherbrooke): Bill 21 and Bill 96 in light of a distinctive Quebec theory of the notwithstanding clause
    • (XIV) Marion Sandilands, Conway Litigation: The use of s. 33 in Quebec’s Bill 96: The Most Sweeping Human Rights Override in Canadian History – A Response to Rousseau
    • (XV) Gregory Bordan, Norton, Rose LLP: Distinctiveness or Discrimination? Quebec’s Bill 21 and Significance for Basic Rights
    • (XVI) Jonathan Montpetit, CBC News; St. Clair Balfour Fellow at Massey College: Bills 21 and 96: The end of liberal constitutionalism in Quebec?
    • Q & A
    • (XVII) Caitlin Salvino, Junior Fellow, Massey College: Notwithstanding Minority Rights: Re-Thinking Canada’s Notwithstanding Clause
    • (XVIII) Cara Zwibel, Canadian Civil Liberties Association: Reading s. 33 purposively to protect democratic accountability
    • Q & A
    • (I) Nathalie Des Rosiers, Principal, Massey College: Welcome
    • (II) Peter L. Biro, Founder, Section 1: Introduction – Chekhov’s Gun Inverted
    • (III) Thomas Axworthy, Chair of Public Policy, Massey College, Secretary General, InterAction Council: An Historic Canadian Compromise: The making of the deal that delivered the Notwithstanding Clause
    • Q & A
    • (XIX) Mary Eberts, Law Office of Mary Eberts: Is it possible to defang the override? A barrister’s query
    • (XX) Tsvi Kahana, Ono Academic College, Israel Institute for Advanced Studies: The Section 33 Non-Dialogue (Or Perhaps the Notwithstanding Clause is a Bad Thing After All)
    • (XXI) Christopher Manfredi, Professor of Political Science, Provost and Vice Principal, McGill Univ: Section 33: Usage and Proposed Improvements
    • (XXII) Sabreena Delhon, Executive Director, Samara Centre for Democracy: Detoxing Democracy: Exploring Motivation, Authority and Power
    • Q & A

Thomas S Axworthy is Massey College Public Policy Chair and is a former Principal Secretary to Prime Minister Pierre Trudeau

Peter L. Biro is the Founder of SECTION 1, a civil and commercial litigator and human rights lawyer, educator, legal and public affairs writer and commentator and CEO of Newcon Optik.  He is Chair Emeritus of the Jane Goodall Institute, Global, a former Governor fo the University of Haifa, a Fellow of the Royal Society of Arts, Editor of Constitutional Democracy Under Stress: A Time For Heroic Citizenship, and of the forthcoming volume, The Notwithstanding Clause at 40: Canadian Constitutional Democracy at a Crossroads.

Gregory Bordan is counsel at Norton Rose Fulbright in Montreal.  He has extensive experience in the areas of regulatory law, product liability, constitutional law, including Charter of Rights issues, and in matters related to Charter of the French language. He is also secretary of the Legal Committee of the Coalition Inclusion Quebec, one of the plaintiffs challenging Quebec’s Bill 21, Quebec’s ban on religious symbols. The Coalition is a broad grouping of individuals and groups, religious and non-religious, who joined together to oppose Bill 21 and to defend freedom of religion and religious neutrality of the state.

Jamie Cameron is Professor Emerita, having retired from Osgoode Hall Law School in January 2020. Over the years, she has taught and written on constitutional and public law issues, including the Charter of Rights and Freedoms, freedom of expression and the press, academic freedom, US constitutional law, judicial biography, and criminal law. She has recently appeared before the courts, including the Supreme Court of Canada, in Charter cases.

Xavier Foccroulle MénardAssociate, Norton Rose Fulbright Canada LLP, Montreal.

François Côté holds a bachelor’s degree in civil law (U. Sherbrooke), masters degrees in common law (U. Sherbrooke) and international law (U. Montpellier) and is currently finishing his doctorate degree (U. Laval & U. Sherbrooke) on the contrasting epistemics of the civilian and common law legal traditions regarding fundamental rights. He is a lawyer and lecturer practicing and teaching in Montreal, specialized in civil law, fundamental rights, comparative law and linguistic rights.

Sabreena Delhon is the Executive Director of the Samara Centre for Democracy, a non-partisan civil society organization that is committed to securing an accessible, responsive, and inclusive democratic culture in Canada. Prior to joining Samara, Sabreena was the Principal of Signal Strategies and managed access to justice initiatives at the Law Society of Ontario. She has directed research studies that examine public perceptions of legal technology and the justice system; results have informed the work of Ontario’s Ministry of the Attorney General and can be found on law school syllabi. She is a Fellow with Simon Fraser University’s Morris J. Wosk Centre for Dialogue and Massey College.

Nathalie Des Rosiers is the Principal of Massey College, Distinguished Visiting Professor at the University of Toronto Faculty of Law, Senior Fellow of Trinity College, Professor of Law at the University of Ottawa – Common Law.  From 2016 -2019, she was the MPP representing the riding of Ottawa-Vanier and Minister of Natural Resources and Forestry (2018).  Prior to politics, she was Dean of Law, Common Law, University of Ottawa (2013-2016), General Counsel of the Canadian Civil Liberties Association (2009-2013), Vice-President, Governance , University of Ottawa (2008-2009), Dean of Law, Civil Law ( 2004-2008) and President of the Law Commission of Canada( 2000-2004).  She has received the Order of Canada, the Order of Ontario, honorary doctorates from Université UCL (Belgium) and the Law Society of Ontario, le Prix Christine Tourigny (Barreau du Québec), the Law Society Medal from the Law Society of Ontario and is a Fellow of the Royal Society of Canada.

Mary Eberts is a Senior Fellow at Massey College with a national litigation practice focussed on equality rights and Indigenous rights.   She represented the Canadian Advisory Council on the Status of Women during the drafting of the Charter of Rights, with particular focus on section 15;  the Ad Hoc Committee of Canadian Women on the Constitution as counsel in the Secession Reference and during the hearings on the Meech Lake Accord; and the Native Women’s Association of Canada with respect to the Charlottetown Accord.   She has been counsel in matters before the Supreme Court of Canada, the Federal Court and Court of Appeal, the Ontario Supreme Court and Court of Appeal, the Quebec Superior Court and Courts of Appeal in Yukon, B.C., PEI, and Alberta.   She has held the Henderson Chair in Human rights at the University of Ottawa and the Ariel Sallows Chair in Human Rights at the College of Law, University of Saskatchewan, and  is an Officer of the Order of Canada.

Tsvi Kahana is a Professor of Law at Ono Academic College, Israel. He writes in the fields of consitutional law, constitutional theory, and comparative constitutional law, and has written extensively both about s.33 of the Canadian Charter of Rights and Freedoms and about the Notwithstanding Clause in the Constitution of Israel.

Robert Leckey teaches and researches in family law, constitutional law, and comparative law at the McGill Faculty of Law, where since 2016 he has been dean and Samuel Gale Professor. His books include Bills of Rights in the Common Law (Cambridge University Press, 2015). A former clerk for Justice Michel Bastarache at the Supreme Court of Canada, he is a member of the Law Society of Ontario and an Advocate Emeritus of the Barreau du Québec.

Christopher Manfredi has served as Provost and Vice-Principal (Academic) at McGill University since July 1, 2015. His research interests include judicial politics, constitutional design, constitutional theory, law and politics, and legal mobilization.  He has published extensively in academic and professional journals, has authored or edited seven books, and is a highly regarded political and legal commentator.

Jonathan Montpetit covers Quebec politics for CBC News and has written extensively about the Laicity Act (Bill 21) and secularism debates in the province. He holds graduate degrees in political science from the London School of Economics and McGill University. He spent the 2021-2022 academic year as the St. Clair Balfour Fellow at Massey College.

Dwight Newman is Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law (2013-23) at the University of Saskatchewan.  He has published over a hundred articles or chapters and fifteen books, and his work has been cited at all levels of courts.  He holds a BA in Economics, JD, BCL, MPhil, and DPhil degrees and during some spare time in the pandemic he recently completed an MATS in the History of Christianity and an MSc in Finance and Financial Law. 

Benoît Pelletier is a lawyer, doctor of laws and university professor. As a constitutionalist, he is frequently invited by the media to comment on current events. He was a member of Quebec’s National Assembly and a minister in the Charest government. His ministerial responsibilities included Canadian intergovernmental relations. Indigenous Affairs, the Reform of democratic Institutions, the Canadian francophonie, Access to Information and Internal Trade. He is a member of the Order of Canada and an officer in the National Order of Quebec.

Guillaume Rousseau completed a master’s degree in comparative law at McGill University and doctoral studies in law at l’Université Paris I Panthéon-Sorbonne and l’Université de Sherbrooke. He is an associate professor and the Director of the Graduate Applied State Law and Policy Programs at the Université de Sherbrooke. Professor Rousseau also acted as legal counsel to the government of Québec during the preparation and hearings leading to the adoption of the Act respecting the laicity of the State.

Caitlin Salvino is in the final stages of completing her DPhil in Law at the University of Oxford where she studied as a Rhodes Scholar (Ontario, 2018). She also has completed a B.A. in Human Rights and Law at Carleton University and an MPhil in Law (Oxon). Her graduate research at the University of Oxford focused on Canada’s notwithstanding clause and was supervised by the Director of the University of Oxford Bonavero Institute of Human Rights and former South African Constitutional Court Judge Kate O’Regan. She is an active community advocate and sits on the board of directors for the Disabled Women’s Network of Canada (DAWN Canada) and Student’s for Consent Culture Canada. This year she was awarded the Governor General Award in Commemoration of the Persons Case for outstanding contributions to gender equality in Canada.

Marion Sandilands is a partner at Conway Baxter Wilson LLP. After her call to the bar, she served as a law clerk to the Honourable Andromache Karakatsanis at the Supreme Court of Canada. She has also served as a law clerk and as Counsel at the Federal Court. Marion acts for civil society organizations, school boards, parliamentarians and Indigenous clients. Marion also holds an M.A. in International Affairs and has worked in the field of international development. Marion has appeared before the Supreme Court of Canada on matters of constitutional law and teaches Canadian Federalism Law at the University of Ottawa.

Geoffrey Sigalet is an Assistant Professor of Law and Politics at UBC’s Okanagan Campus. He has held fellowships at McGill’s Research Group for Constitutional Studies, the Queen’s Faculty of Law, and Stanford Law School. He earned his PhD in public law from Princeton University in 2018.

Maxime St-Hilaire holds a doctorate in law (LLD) from Laval University and is an associate professor at the Faculty of Law at Université de Sherbrooke, where he teaches constitutional law and legal philosophy. In 2021, he won this University’s research and creation award, in the human sciences category, for his book titled Les Positivismes juridiques au XXe siècle. Normativismes, sociologismes, réalismes (PUL, 2020). In 2014, he won the ‘’Prix Minerve 2014’’ award for his book titled La lutte pour la pleine reconnaissance des droits ancestraux: problématique juridique et enquête philosophique (Yvon Blais, 2015).  While a doctoral student, he served as law clerk to the hon. Marie Deschamps J., at the Supreme Court of Canada (2009-10), after an internship at the Venice Commission (2007-8).

Grégoire Webber is Canada Research Chair in Public Law and Philosophy of Law at Queen’s University and joint founder and Executive Director of the Supreme Court Advocacy Institute, which provides free advocacy advice to counsel appearing before the Supreme Court of Canada. He was previously senior policy advisor with the Privy Council Office and Legal Affairs Advisor to the Attorney General of Canada and Minister of Justice.

Lorraine E. Weinrib, J.D. (U of T) and LLM (Yale), Counsel, Ministry of the Attorney General of Ontario, 1975-88, rising to the position of Deputy Director of Constitutional Law & Policy. Represented Ontario in Ford (1988), the leading SCC case on Charter s. 33. Professor of law at U of T since 1988, teaching Canadian constitutional law, comparative constitutional law, and constitutional litigation and advocacy. Approach to the Charter emphasizes the legitimacy of the novel institutional roles it established, based on its historical and political genesis, transformative aspirations, and the theoretical and comparative models it embodies and rejects.  Publications include “Learning to Live with the Override”, McGill LJ 1989-90 and “The Canadian Charter’s Override: Lessons for Israel”, Israel Law Review 2016.

Cara Zwibel is a lawyer and Director, Fundamental Freedoms Program at the Canadian Civil Liberties Association (CCLA). She has a Political Science degree from McGill University, an LL.B. from Osgoode Hall Law School and an LL.M. from New York University where she was a Vanderbilt scholar. Cara’s work at the CCLA focuses on freedom of expression, freedom of religion, democratic rights and government accountability. She clerked for the Honourable Justice Ian Binnie at the Supreme Court of Canada and worked at a large national law firm before coming to the CCLA.

Notwithstanding Clause

Section 33 of the Canadian Charter of Rights and Freedoms The “Notwithstanding Clause”

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under section (1).

(5) Section (3) applies in respect of a re-enactment made under section (4).

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