Boston College - Law School; Yale University - Law School; Universidad Externado de Colombia - Facultad de Derecho; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law
Alberta Law Review, Vol. 45, No. 4, 2008
Boston College Law School Legal Studies Research Paper No. 2008-01
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.
Number of Pages in PDF File: 35
Keywords: Notwithstanding Clause, judicial review, Canada, Charter of Rights and Freedoms, democratic legitimacy, desuetude
Date posted: June 25, 2009 ; Last revised: March 18, 2010