A safety valve is a flap, lid or device that acts as a fail-safe. For those unfortunate to have experienced backflow into your home, a safety valve installed in a sewer line permits wastewater to exit while blocking unwanted backflow. It is a reliable and indispensable tool in this context. The legal world has adopted this term in constitutional analyses. This paper examines whether legal safety valves do provide relief. First, the paper provides an overview of how safety valves have been installed in the Supreme Court of Canada’s legal analyses. Then the paper provides a sober discussion of how this legal mechanism affects access to Charter protection at a practical level for vulnerable and marginalized persons, particularly in the immigration and refugee law context. Legal safety valves are the provisions or mechanisms in a legislative framework that courts point to as curing or diminishing any unconstitutional effects of an impugned provision or scheme. They often come in the form of alternative applications, exemptions, or an exercise of discretion. They are patchwork solutions and are not a good substitute to replacing a system that has significant implications for people subject to the law; in ideal situations, a more enduring and reliable solution could be crafted. They can be exercises of judicial or legislative power and have been referred to as “discretion, exemptions or escape clauses”. They have been found in section 7 or 12 Charter analyses. The paper asks us to return to the foundations of Charter analysis and ask what are permissible ways to cure unconstitutional legislative provisions or schemes? The paper argues there is little evidence legal safety valves do provide the necessary escape from the ambit of unconstitutional schemes and may only provide temporary solutions.
Jamie Liew (Thu,) studied this question.