Is Section 33 of the Canadian Charter of Rights and Freedoms limited by Section 1? Section 33 of the Canadian Charter of Rights and Freedoms provides as follows: Exception where express declaration 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 the Charter] [...] Section 1 of the Charter states that: Rights and freedoms in Canada 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Does Section 1 imply that all uses of Section 33 are potentially subject to judicial review and may be invalidated upon a finding by a court that the limitation of Charter rights that was imposed by the legislature through Section 33 is not justifiable in a free and democratic society? Related: Could the Holocaust legally happen in modern day Canada?
No, it is not. Section 1 allows legislatures to infringe all Charter rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can completely ignore the Charter rights that it can be applied to (ss. 2 &amp; 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating Charter rights. Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, Ford v. Quebec (AG) [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved). In it, ss. 58 &amp; 69 of Quebec's Charter of the French Language were disputed. Due to legislative hijinks*, it was unclear whether either section was covered by an invocation of the notwithstanding clause. The Court first undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not (para. 34). Only after that did it address the substantive rights issues. While still analysing both ss. 58 &amp; 69 to fall within the guarantees of Charter s. 2(b), the court only concluded s. 69 to infringe the Charter since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As Charter rights were found to be infringed, the Court then examined whether s. 69 could saved under Section 1. It could not, thus rendering it an unjustifiable infringement of the Charter (para. 73). *To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the Constitution Act, 1982.
The power definitely exists, and it is also said by some (respectable persons) that they have a duty to do so. There are many schools of legal interpretation. One trend is to attempt to discern legislative intent, based on whatever facts there might be such as newspaper articles or legislative committee reports. A contrary trend is to look exclusively at the text enacted by the legislature – this school is known as the Textualist school, and is currently dominant in the US Supreme Court. There are also non-textualist &quot;progressive&quot; trends that seek justice according to some social principle, rather than the text of the law or the definitive intent of the original legislators, which may address the situation that you have in mind. In civil cases, statutory law tends to be rather unclear, allowing a judge to decide on the basis of their beliefs of what is fair, equitable or just. That is because in the common law, close to a millenium old, judgments were supposed to be &quot;just&quot;. In the US, much of the common law has been re-coded as statutory law, and in that case, the intent of the legislature is really to &quot;encode the sense of justice implicit in the common law&quot;. This does not mean that trial judges have unlimited power to set aside the words of existing laws. Their primary obligation is to apply the law literally, as interpreted by their superiors (appellate courts). When the higher courts are silent and when the legislature is not clear, the trial judge has some leeway to follow whichever jurisprudential philosophy they adhere to.
Canada Short version: In the mid-'90s, a Supreme Court decision and an Act of Parliament clarified the legal process under which a province could secede from Canada. While unilateral secession need not be recognized, the Canadian government would be obliged to negotiate the secession of a province following a sufficiently clear referendum result. Long version: Since around the mid-20th century, there has been an active sovereigntist movement in the province of Quebec, and a sovereigntist party (the Parti Québecois, or PQ) has formed the provincial government in Quebec a few times. The PQ has twice held referendums on whether Quebec should separate from Canada. The first referendum, in 1980, was soundly defeated; but the second referendum, in 1995, was defeated by a margin of only about 1% of the votes cast. The question in this second referendum was criticized by the federalist movement as being rather confusing and convoluted. It also later emerged that the PQ government at the time had planned to unilaterally declare independence if the sovereigntist option had won, even at a 50% + 1 level. In response to these events, two major events occurred which greatly clarified the legal and political circumstances under which a province would be &quot;allowed&quot; to secede from Canada. First, in Reference re: Secession of Quebec, the Supreme Court of Canada found that according to principles of both Canadian and international law, a province does not have the right to unilaterally secede; but they also found that the federal government is obliged to negotiate secession after a vote in favor of separation. [As an aside, the discussion in the Reference re: Secession of Quebec concerning the various issues at play is broadly applicable to any separatist movement, and the decision is worth reading if you want to delve into this more.] Second, the Parliament of Canada passed the Clarity Act, which more clearly laid out the conditions under which the government of Canada would recognize a secession vote. The provisions of the Clarity Act are as follows: Giving the House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote; Specifically stating that any question not solely referring to secession was to be considered unclear; Giving the House of Commons the power to determine whether or not a clear majority had expressed itself following any referendum vote, implying that some sort of supermajority is required for success; Stating that all provinces and the First Nations were to be part of the negotiations; Allowing the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act; The secession of a province of Canada would require an amendment to the Constitution of Canada. Taken together, the Supreme Court decision and the Clarity Act present a relatively clear legal &amp; political path by which a Canadian province could secede. However, in the original question you ask Is there any sovereign country which currently has a law which would allow an arbitrary part of its territory to declare independence on its own if a majority of that territory is in favor? (bolding mine). If by &quot;on its own&quot; you mean &quot;unilaterally, without negotiation&quot;, then strictly speaking this does not apply to Canada; a negotiation process and a constitutional amendment would also be required in the wake of a secession vote. Reference re: Secession of Quebec specifically bars a unilateral declaration of independence. Ironically (or perhaps because of these measures), support for sovereignty in Quebec has fallen significantly since 1995, and multiple splinter parties have formed out of the PQ. It therefore seems unlikely that the provisions of the Clarity Act will be tested in the near future.
A statutory instrument that exceeds the limits of the enabling Act is void. For example, an Act that enables the executive to make regulations about companies would not support a regulation that purported to affect companies and partnerships. There are two controls in place: regulations must be tabled in Parliament and any MP can call for the regulation to be debated and voted down. anyone affected by the regulation can go to court to oppose it - there are lots of things they can argue including that the regulation overreaches its enabling Act.
This is known as the "ministerial exception". Because the Free Exercise and Estalishment clauses of the First Amendment prohibit the government from interfering with religion, the government cannot override a doctrine that contradicts the teachings of a religion (so women and gays cannot sue the Catholic church for not being hirable as priests). In Hosanna-Tabor v. EEOC, an individual taught classes and led prayer at a religous school, but was fired ultimately due to a disability (narcolepsy). The Lutheran church does not have any known doctrine condemning narcolepsy: but it was unanimously ruled that "the Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own". Thus the church was legally permitted to fire the individual due to her disability.
The United States would be one such country. I'm sure it is not the only one. In the case of countries with constitutional courts there is basically no one to second guess their interpretations which is also true when the apex court in a country provides an opinion. Since no one can overrule many of these courts, they are allowed to do what they want.
The Canadian law governing interception of communication (wiretapping and recording) is explained here. Canada is a one-party country, so as long as one party (you, for example) consent, this would not be a violation of that statute. That source also believes (not unreasonably) that is would not constitute the tort of invasion of privacy since under the act The nature and degree of privacy to which a person is entitled … is that which is reasonable in the circumstances, giving due regard to the lawful interests of others (bearing in mind that is it allowed w.r.t. Section 184(1) of the Criminal Code: that is, it is reasonable to do so).
Section 381.00316 is unconstitutional because it is an unjustifiable content-based restriction on speech, in violation of the First Amendment. The law is unconstitutional because private businesses and their owners have a First Amendment right to demand that their customers engage in speech as a condition of doing business. If you've watched Showtime at the Apollo or America's Got Talent, you understand the concept that a business owner can make decisions -- objectively or subjectively -- about what kinds of speech they want to host. If you want to make it through your performance, it's incumbent on you to satisfy the predilections of the business owner. And this doesn't just apply to TV. If you went to a poetry slam at your local coffee shop, the owners could boot you if talked through the performances, making it difficult for other customers to enjoy the show. Likewise, they could boot you if you went to the mic and started spouting racist nonsense, or if you just stood at the mic and said nothing at all. In the Florida case, Norwegian is doing the same thing -- just not for artistic reasons. Beyond requiring customers to pay for a ticket, it is requiring its customers to communicate the message that they are vaccinated, and they are requiring them to communicate using written documentation. In other words, Norwegian is demanding that customers engage in speech (&quot;I am vaccinated&quot;) in a certain way (written proof of vaccination), and that kind of exchange falls within the protections of the First Amendment. That speech is subject to regulation because of its vaccination-related content of that speech, making Section 381.00316 a content-based restriction on speech, which subjects it to strict scrutiny, meaning that the state cannot enforce the law unless it furthers a compelling governmental interest and is narrowly tailored to advance that interest. The state argued that the law furthered compelling governmental interests in protecting medical privacy and preventing discrimination, but the court wasn't buying it: Here, Defendant has presented no evidence to demonstrate that his asserted interests are in response to real problems that Florida residents are actually facing. There is no evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation. The legislative record cited by Defendant is bereft of any facts or data underpinning the Statute’s purported purpose. In light of the absence of any appropriate data, reports, or even anecdotal evidence on this issue, the Court cannot conclude that Defendant’s articulated interests are based on a problem that exists in fact. And even if these were compelling interests, the state failed to prove that the law was actually advancing them. Because the law outlawed the exchange of written communication rather than outlawing the vaccination requirements themselves, businesses remained free to demand information about vaccination status (through oral statements, for instance), and to discriminate against who they knew or believed to be unvaccinated. (N.B.: For procedural reasons, they court actually applied intermediate scrutiny, but the law ends up invalid for basically the same reasons.) Section 381.00316 is unconstitutional because it substantially burdens interstate commerce in violation of the Dormant Commerce Clause. The law was also struck down because it intrudes on the federal government's authority to regulate interstate (and international) commerce. When a law is challenged under the Dormant Commerce Clause, courts ask two questions: (1) Does the state law favor in-state economic interests; and (2) Does the state law's burden on interstate commerce outweigh the legitimate local benefits to the state? A &quot;yes&quot; answer to either will invalidate the law. Here, the court held that the law did not directly favor in-state economic interests, but that the burdens on commerce outweighed the local benefits. Because the law did not meaningfully advance any of the local interests it had invoked (as discussed above), but it did impose a substantial burden on interstate commerce because Norwegian's ships travel to additional ports where proof of vaccination is required: Section 381.00316 will prevent NCLH and other cruise lines from possessing verified information necessary to effectively and efficiently process landing and disembarking at various, preferred domestic and international ports where documentary proof of vaccination is required. This affects not only opportunities for vacation activities like sightseeing, but also responses to mechanical and medical emergencies, or even geopolitical crises. Depriving cruise lines of corroboration of passengers’ vaccination status impedes their ability to prepare and address these eventualities. Either the First Amendment violation or the Commerce Clause violation would have been independently enough to invalidate the statute. Norwegian also argued that the statute was preempted by the CDC's Conditional Sailing Order and related orders, but the court declined to address that argument.