The Notwithstanding Clause: Legislatures, Courts, and the Electorate

72:2 University of Toronto Law Journal [2022 Forthcoming]

37 Pages Posted: 10 May 2021

See all articles by Robert Leckey

Robert Leckey

McGill University - Faculty of Law

Eric Mendelsohn

Mendelsohn Legal and Consulting

Date Written: May 7, 2021

Abstract

This article interprets the notwithstanding clause in s 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, s 33(2) temporarily ensures a protected law’s ‘operation’ by preventing it from being ‘inconsistent’ with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, s 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public’s constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public’s ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of s 33(3), one that underpins our constitutional framework more broadly.

Keywords: Canadian Charter of Rights and Freedoms, notwithstanding clause, parliamentary sovereignty, constitutional interpretation, judicial review, democracy

JEL Classification: K19

Suggested Citation

Leckey, Robert and Mendelsohn, Eric, The Notwithstanding Clause: Legislatures, Courts, and the Electorate (May 7, 2021). 72:2 University of Toronto Law Journal [2022 Forthcoming], Available at SSRN: https://ssrn.com/abstract=3841568

Robert Leckey (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)

Eric Mendelsohn

Mendelsohn Legal and Consulting ( email )

5159 St Laurent Blvd
Montreal, Québec
Canada

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