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The Notwithstanding Clause and the Canadian Charter: Rights, Reforms, and Controversies

The Notwithstanding Clause and the Canadian Charter: Rights, Reforms, and Controversies

Author: Peter L. Biro
Publisher: McGill-Queen's University Press
ISBN: 9780228020202
Published In: April 2024
Format: Paperback
Jurisdiction: Canada ? Disclaimer:
Countri(es) stated herein are used as reference only

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Section 33 - what is commonly referred to as the notwithstanding clause (NWC) - was written into the Canadian Charter of Rights and Freedoms to allow Parliament and the provinces to provisionally override certain Charter rights.

The Notwithstanding Clause and the Canadian Charter examines the NWC from all angles and perspectives, considering who should have the last word on matters of rights and justice - the legislatures or the unelected judiciary - and what balance liberal democracy requires. In the case of Quebec, the use of the clause has been justified as necessary to preserve the province’s culture and promote its identity as a nation. Yet Quebec’s pre-emptive and sweeping invocation of the clause also challenges the scope of judicial review and citizens’ recourse to it, and it tests the assumption that a dialogue between the judiciary and the legislature is always preferable in instances in which the legislative branch decides to suspend the operation of certain Charter rights and freedoms. By virtue of its contested purposes, interpretations, operation, and applications, the NWC represents and, to an extent, defines both the character and the very real vulnerabilities of liberal constitutionalism in Canada.

The significance, effects, and legitimacy of the NWC have been vigorously debated within scholarship and among politicians and activists since the patriation of the Canadian Constitution in 1982. In The Notwithstanding Clause and the Canadian Charter leading scholars, jurists, and policy experts elucidate and prescribe reforms to the application of this consequential clause about which so much is written, and around which there is relatively little consensus.

Acknowledgments | ix

Introduction - Setting the Stage: Chekhov’s Gun Inverted | 3

Peter L. Biro

Part One | Genesis and Context | 23

An Historic Canadian Compromise: Forty Years after the Patriation of the Constitution, Should We Cheer a Little? | 25

Thomas S. Axworthy

The Evolving Debate over Section 33 of the Charter | 49

Kristopher E.G. Kinsinger

Part Two | Fundamentals | 67

Key Foundations for the Notwithstanding Clause in Institutional Capacities, Democratic Participatory Values, and Dimensions of Canadian Identities | 69

Dwight Newman

The Notwithstanding Clause, the Operation of Legislation, and Judicial Review | 93

Grégoire Webber

Part Three | Judicial Review | 109

Legislative Choices in Using Section 33 and Judicial Scrutiny | 111

Robert Leckey

Judicial Declarations Notwithstanding the Use of the Notwithstanding Clause? A Response to a (Non-) Rejoinder | 132 Maxime St-Hilaire, Xavier Foccroulle Ménard,

and Antoine Dutrisac

Notwithstanding Judicial Review: Legal and Political Reasons Why Courts Cannot Review Laws Invoking Section 33 | 168

Geoffrey Sigalet

Courts, Legislatures, and the Politics of Judicial Decision-Making (or Perhaps the Notwithstanding Clause Isn’t Such a Bad Thing after All) | 184

Christopher Manfredi

Part Four | Quebec | 203

The Notwithstanding Powers and Provisions:An Asset for Quebec and for Canada | 205

Benoît Pelletier

10.

Bill 21 and Bill 96 in Light of a Distinctive Quebec Theory of the Notwithstanding Clause: A Distinct Approach for a Distinct Society and a Distinct Legal Tradition | 231

Guillaume Rousseau and François Côté

11.

Quebec’s Bills 21 and 96: An Underwater Eruption | 253

Marion Sandilands

12.

The Rise and Fall of Liberal Constitutionalism in Quebec | 271

Jonathan Montpetit

Part Five | Legitimacy, Justification, Democracy | 287

13.

The Notwithstanding Clause, Bill 96, and Tyranny | 290

Tsvi Kahana

14.