A rule-of-law compliant reading of section 33: The continuing relevance of Lorraine Weinrib’s public law scholarship
Bibliographic record
Abstract
Lorraine Weinrib has contributed greatly both as a scholar and as a litigator to Canada’s jurisprudence on section 33 of the Canadian Charter of Rights and Freedoms. Section 33 empowers legislatures to ‘override’ certain Charter rights by declaring that legislation will continue to be operative ‘notwithstanding’ its inconsistency with the provisions of the Charter guaranteeing those rights. Weinrib has maintained for many years that, while section 33 does not empower courts to inquire into the substantive justifiably of a legislature’s invocation of section 33, the logic of the Constitution as a whole demands that legislatures offer public justifications to the very constituents whom a democratically elected legislature is meant to serve. This article argues that Weinrib’s work is as relevant now as ever during a period when provincial governments seem more willing to invoke section 33. Moreover, the article argues that the constitutional principle of the rule of law demands precisely the kind of public discourse and discussion that Weinrib argues is integral to section 33. The rule of law demands that exercises of power must be shown to be justifiable against rules of law or, in hard cases, against the normative principles that we have committed to as a political community. Public justification for invocations of section 33 is important, then, for rule-of-law reasons, but, as Weinrib has argued over a four-decade career in the law, it is by upholding the principle of the rule of law – by explaining to the people why it is a good thing to override rights in specific circumstances – that governments can uphold Canada’s constitutional commitments to both democracy and constitutional rights.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.010 | 0.022 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.001 | 0.002 |
| Science and technology studies | 0.011 | 0.042 |
| Scholarly communication | 0.015 | 0.012 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.010 | 0.019 |
| Insufficient payload (model declined to judge) | 0.003 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".