Federalism and the Notwithstanding Clause
Constitutional Forum Vol. 32 No. 3 (2024) 1-12
12 Pages Posted: 18 Apr 2024
Date Written: November 1, 2023
Abstract
In 1982, as part of the final negotiations over the Constitution Act, 1982, nine of ten provincial governments and the Government of Canada agreed to a derogation clause by which any legislature could, by express declaration, ensure that a law operates “notwithstanding” certain rights in the Canadian Charter of Rights and Freedoms. The clause was, and remains, controversial. Outside the province of Quebec it was not often used between 1982 and 2018. Section 33 rarely featured in political debate, even in the wake of controversial court rulings. Since 2018, however, numerous provinces have used or threatened to use section 33. The spate of recent use has revived concerns about the clause’s negative impact on minority or otherwise disadvantaged groups.
This paper addresses a separate issue: section 33’s effect on Canadian federalism. The notwithstanding clause was part of the 1982 bargain by which both provincial and federal sovereignty would have to cede to constitutional supremacy vis-à-vis individual rights. But actors outside the particular invoking jurisdiction will also struggle over how to respond section 33’s increased use.
In this paper I look at possible responses to section 33 that could deeply affect the country’s underlying federal structure. It discusses three responses – disallowance, judicial review and amendment – that have either arisen in public discourse or, I argue, warrant serious consideration. My goal is to offer a more complex way of thinking of about section 33’s focusing on its relationship to Canadian federalism and, by implication, to the future course of the country’s democratic constitutionalism.
Keywords: Canada, Constitution of Canada, federalism, disallowance, judicial review, advisory opinions, section 33, notwithstanding clause, constitutional rights
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