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« The main problem may well be that we elect utterly unfit people to public office, but since that seems to be the growing trend in the western world then it’s time to recognize we need better protection against those vile incompetents who claim to lead us. »

Not that I disagree with you here, but...what is the reason to believe that courts won’t also soon or eventually be stacked with unfit vile incompetents, given who we’re electing to appoint them?

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Quebec have all the legitimacy in the world to use the notwitstanding to avoid a constitution they never signed.

It's hypocritical to want Quebec to stop using it without wanting Quebec to sign the constitution

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Isn't the notwithstanding clause in the constitution?

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I will disregard your negative yet predictable anglo bias towards Québec, which makes you prisoner of a very British classic liberal view of society. What can be done about it exactly, especially in Ontario where people don't care that much with democracy (just look at the last election turnout rate). It's not like it can be reinterpreted by the courts: it's written quite clearly in the Constitution. So good luck with your "legitimacy" argument.

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I'm glad to hear you'd support the "legitimacy" of federal disallowance of Quebec laws just because disallowance is "written quite clearly in the Constitution."

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The difference is that our benevolant Supreme Court has already stated that the power of disallowance has most likely fallen into desuatude. Plus, I'm not sure it would pass the test of federalism (or unity for that matter) as a pillar of Canadian society. At least the notwithstanding clause can be used by both levels of government. The sad reality is that not enough Ontarians, who tend to belittle the role of their province in favor of federal politics, cared to cast their ballot and are now stuck with this government.

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Whether disallowance has fallen into desuetude is, definitionally, a question of convention, not law. The idea that 'federalism' is a pillar of Canadian society but 'rights' (by implication) are somehow not is patently ridiculous.

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Federalism is a fundamental tenet of the Canadian constitution though, just like Constitutionalism and the Rule of law. But the notwithstanding clause is both legal and constitutional, and hasn't fallen into disuse. So, again, good luck with the legitimacy argument.

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I am not sure if they said most likely. They simply said that the late Professor Hogg and other scholars contend that it was abandoned after being overtaken by federalism: "[f]or example, although the federal power of disallowance was included in the Constitution Act, 1867, the underlying principle of federalism triumphed early. Many constitutional scholars contend that the federal power of disallowance has been abandoned (e.g., P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at p. 120)."

But constitutional principles alone cannot be used to strike express legislative provisions (let alone, constitutional statute): see the majority reasons in Toronto (City) v. Ontario (Attorney General). Courts just use constitutional principles as fodder to bolster reasoning grounded in more express constitutional devices: i.e., generally, Charter provisions.

Given the City of Toronto precedent, how could the constitutional principle of federalism alone be used to strike an express provision of the Constitution Act, 1867?

Perhaps the SCC could seek to employ constitutional framework reasoning (akin to Reference re Supreme Court Act, ss. 5 and 6). Or perhaps they could lean on the Miller II reasoning: i.e., perhaps they could rely on constitutional principles to quash Cabinet's request to the Governor General.

But I agree with Professor Macfarlane; it is difficult to argue in favour of s. 33 based on the fact that it is an express provision, while casting off the disallowance power. It's also ironic (and somewhat hilarious) that the greatest supporters of s. 33 outside Quebec routinely rail against 'judicial activism' and 'constitutional principles.'

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