Extraordinary measures may sometimes be justified as being necessary to deal with exceptional events. Those measures may become normalized when the taboo against taking them is broken and their initial justifications are detached from their repeated uses. In this article, I want to highlight the process of normalization of the exception in the Canadian constitutional context. In particular, I wilI show how a situation of extreme necessity may have pushed the Supreme Court to develop an extraordinary constitutional remedy – the suspension of a judgment of unconstitutionality – and how such remedy was later normalized. In 1985, the Supreme Court of Canada temporarily suspended the effectiveness of its opinion that all the laws adopted by the Province of Manitoba between 1890 and 1985 were unconstitutional. The Supreme Court, ironically, attempted to justify the suspension as being necessary to protect the rule of law. Following that opinion, the Supreme Court gradually went on to use that suspension mechanism in several different contexts. Now, detached from its original justification, this mechanism is used on a purely discretionary basis by judges to suspend the effect of their decisions that certain statutes are unconstitutional. In short, the possibility for Courts to suspend the effectiveness of the Constitution has been normalized, despite the fact that Canada, according to the preamble of the Constitution Act, 1982, is supposedly “founded upon principles that recognize (…) the rule of law”.
Hugo Cyr, LL.B., B.C.L. (McGill), LL.M. (Yale), LL.D. (U. de Montréal), is Dean and Professor of Public Law and Legal Theory at the Université du Québec à Montréal and a member of the Québec Bar. He is a member of the Centre de recherche interdisciplinaire sur la diversité et la démocratie (CRIDAQ). He has been a Boulton Fellow at McGill University, a Schell Fellow at Yale Law School, a law clerk to the Honourable Justice Ian C. Binnie of the Supreme Court of Canada, and a Visiting Researcher at the European Academy of Legal Theory and Visiting Professor at McGill University. He is frequently consulted by governments, media and private parties for his expertise in constitutional law.
A light lunch will be provided.