35 Pages Posted: 25 Jun 2009 Last revised: 14 Sep 2017
Date Written: 2008
The Notwithstanding Clause is the cornerstone of our Canadian constitutional architecture. It merges parliamentary supremacy and constitutional democracy. But the Notwithstanding Clause finds itself conceptually situated between illegitimacy and desuetude in a constitutional purgatory. This is not a promising portrait. Nonetheless, it is a blessing in disguise. The tragic failure of the Notwithstanding Clause is a fortuitous opportunity to create a new process to achieve its objectives while also remaining loyal to the intentions of its creators. That is the task I have given myself in this Article. This new process - which I call advisory review - is a new form of judicial review that is uniquely Canadian, born of Canadian roots, and consistent with Canadian constitutional traditions.
Keywords: Notwithstanding Clause, judicial review, Canada, Charter of Rights and Freedoms, democratic legitimacy, desuetude
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