The Desuetude of the Notwithstanding Clause -- And How to Revive it

Abstract

The Supreme Court of Canada’s controversial invalidation of the Criminal Code prohibition on physician-assisted dying prompted suggestions that the federal government should invoke the Notwithstanding Clause to restore the law. Yet both the Harper and Trudeau Governments rejected this advice; the former refused to reenact the impugned law using the Notwithstanding Clause retrospectively; and the latter, newly-elected with a majority in October 2015, rejected the suggestion that it should pass its new law using the Notwithstanding Clause preemptively. It should come as no surprise that both governments took the same view of the Notwithstanding Clause. The reason why is clear but not easily explained: the Notwithstanding Clause has become politically toxic and is at risk of falling into constitutional desuetude, a phenomenon that afflicts a textually entrenched constitutional provision that political actors no longer see as politically usable despite there being no legal prohibition on its use. In this Chapter, I explain why the Notwithstanding Clause is at risk of desuetude, how this came to be, and also how political actors can halt its decline toward obsolescence in order to make it more likely that Parliament will in the future have a real choice whether or not to exercise the policymaking power that the Notwithstanding Clause confers upon it — rather than being compelled to accept the judgment of the Supreme Court of Canada as final and irreversible.

Keywords: Notwithstanding Clause, Legislative Override, Constitutional Change, Constitutional Convention, Canadian Constitution, Supreme Court of Canada, Constitutional Desuetude, Reservation, Disallowance