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This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law's 'operation' by preventing it from being 'inconsistent' with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public's constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public's ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly. [ABSTRACT FROM AUTHOR]

This Article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays attention to difference in constitutional texts. By reporting remedial practices and studying the written and unwritten factors that judges identify as conditioning their remedial determinations, the Article studies the significant gap between authoritative text and practice. In a warning for those who draft bills of rights, who rely on their texts to forecast judicial practice, or who simply aim to delineate and understand the exercise of judicial power under bills of rights, judges' discussion reveals that the scope of action they perceive as legitimate may differ from what a rights instrument's text implies. This gap has implications for efforts to classify forms of judicial review as strong-form or weak-form, as it may reduce the effective distance between different models as they appear on paper. The Article identifies shifting and contradictory views about reading-in versus invalidating legislation, and about immediate versus delayed orders. Based on its comparison of judicial remedial practices, the Article flags the unavoidable uncertainty of applying a bill of rights to legislation. It interprets the practices of the two countries' highest courts as embodying a preference for a judicial posture of legislative engagement over one of constitutional enforcement. This conception of the judicial role emerges from similarities in practice, despite differences in the authorizing constitutional texts. The Article establishes a firm basis for normative evaluation of the legitimacy of judicial remedial discretion exercised with a view to engaging the democratic branches of government. [ABSTRACT FROM AUTHOR]

This paper engages critically with the new orthodoxy holding that individuals have a "right" to know their genetic origins and that such knowledge is crucial to realizing their identities. It examines two case studies: the Pratten litigation under the Canadian Charter of Rights and Freedoms regarding anonymous donor conception and scholarship approving a reform to Quebec's adoption law. It addresses the supposed "identity gap" between those who are adopted or donor-conceived and those who are neither. Arguments for law reform exaggerate that gap, opposing the incomplete, insecure identity of the adopted or donorconceived to the ostensibly complete, secure identity of those raised by their putatively genetic parents. A result is to overstate what is distinct and harmful about being adopted or donor-conceived. The paper also identifies a mistaken perception of law's role in fashioning identity and recognizing family ties, including what law does for those who are not adopted or donor-conceived and what it might do for those who are. Some claims for law reform in the service of identity expect more from law than it can or should provide. [ABSTRACT FROM AUTHOR]

The article presents an overview of how jurisprudence in Canadian family law has evolved in the thirty years since the establishment of the Charte canadienne des droits et libertés. Topics mentioned include the legal obligations of unmarried couples, gay marriage, and laws against the corporal punishment of children.

The paper contributes to debates on the role of appellate judges in the uncertain field of family law. It takes as point of departure recent judgments by the Supreme Court of Canada regarding children. Repeated scholarly criticisms that the judgments provide inadequate guidance for trial judges and lawyers call for scrutiny: the criticisms overlook live debates on the appropriateness of judicial deference to legislative instrument choice, as well as the difficulty of judicial rule making in a fractious field where little social consensus obtains on key distributive questions. Family scholars might fruitfully explore constitutional theorists' work on human rights, institutional expertise, and deference. It is also worth reading the judgments' moral signals against the backdrop of research on regulation and social norms. Perhaps the judgments provide guidance, but not of the expected kind. [ABSTRACT FROM AUTHOR]

The article offers information on the Supreme Court's approach for upholding limit on charter rights and freedom in Canada. It states the criteria for the approach which includes the recognition of significant objectives to justify a constitutionally protected freedom or right and a proportionality test. It relates that the approach have contributed to the reflection on several challenges including maintenance of a bilingual public law and suitable position for judges employing bill of rights.

The article examines the Canadian Supreme Court's judgement on the Rick v. Brandsema case involving a separation agreement dividing family assets. Particular focus is given to facts surrounding the case. Also included are information on the court's judgment in Miglin v. Miglin, as well as its relation to the doctrine of unconscionability. It also discusses the award of damages made on setting aside the parties' agreement.