International Law and the Notwithstanding Clause: Resorting to the Forest, Not the Trees, to Help Interpret Section 33 of the Canadian Charter

Abstract

The hypothesis is that the reason why the international law argument is rejected, when interpreting section 33 of the Charter, relates to the type of international normativity, as well as the source of international law used by counsels, and considered by judges eventually. To lay out the discussion, it is necessary to look in detail at the February 2024 Quebec Court of Appeal decision in the Bill 21 case, the part dealing with the international law perspective and specifically the elements considered (i.e. the trees). Then the lionheart of the paper – after setting the debate over the Ford precedent in terms of horizontal stare decisis for our apex court – is on the proper framework of analysis in resorting to international law (conventional or customary), as clarified by the Supreme Court of Canada in two seminal judgments in 2020: the Québec inc. and Nevsun cases. The original contribution of the paper is that a much better way to invoke international law as relevant and persuasive source to assist in interpreting the notwithstanding clause is to use general human rights normativity (i.e. the forest), with a view to placing section 33 within the broader context of the Canadian Charter, considered as a whole. The idea is to understand the override as an ‘exception’ (which calls for a strict and restrictive interpretation) to the regime application, which normally is meant, in case of right or freedom violation, to provide for access to justice and to allow for a right to a remedy. These norms exist in international law, forming part of the ‘forest’ that can be used to validate the interpretation of section 33. The conclusion suggests two considerations flowing from this new interpretation of the notwithstanding clause, which could be judicially reviewed.

Keywords: Canadian Law, International Law, Constitutional Law, Canadian Charter, Notwithstanding Clause, Constitutional Interpretation, International Human Rights Law, Access to Justice, Right to a Remedy, Horizontal Stare Decisis, Quebec Bill 21, Supreme Court of Canada