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The Notwithstanding Clause and the Canadian CharterRights, Reforms, and Controversies |
eBook Available
Examining and demystifying one of the most controversial, consequential, and misunderstood constitutional provisions: the Charter’s notwithstanding clause.
Section 33 - what is commonly referred to as the notwithstanding clause (NWC) - was written into the Canadian Charter of Rights and Freedoms to allow Parliament and the provinces to provisionally override certain Charter rights.
The Notwithstanding Clause and the Canadian Charter examines the NWC from all angles and perspectives, considering who should have the last word on matters of rights and justice - the legislatures or the unelected judiciary - and what balance liberal democracy requires. In the case of Quebec, the use of the clause has been justified as necessary to preserve the province’s culture and promote its identity as a nation. Yet Quebec’s pre-emptive and sweeping invocation of the clause also challenges the scope of judicial review and citizens’ recourse to it, and it tests the assumption that a dialogue between the judiciary and the legislature is always preferable in instances in which the legislative branch decides to suspend the operation of certain Charter rights and freedoms. By virtue of its contested purposes, interpretations, operation, and applications, the NWC represents and, to an extent, defines both the character and the very real vulnerabilities of liberal constitutionalism in Canada.
The significance, effects, and legitimacy of the NWC have been vigorously debated within scholarship and among politicians and activists since the patriation of the Canadian Constitution in 1982. In The Notwithstanding Clause and the Canadian Charter leading scholars, jurists, and policy experts elucidate and prescribe reforms to the application of this consequential clause about which so much is written, and around which there is relatively little consensus.
The Notwithstanding Clause and the Canadian Charter examines the NWC from all angles and perspectives, considering who should have the last word on matters of rights and justice - the legislatures or the unelected judiciary - and what balance liberal democracy requires. In the case of Quebec, the use of the clause has been justified as necessary to preserve the province’s culture and promote its identity as a nation. Yet Quebec’s pre-emptive and sweeping invocation of the clause also challenges the scope of judicial review and citizens’ recourse to it, and it tests the assumption that a dialogue between the judiciary and the legislature is always preferable in instances in which the legislative branch decides to suspend the operation of certain Charter rights and freedoms. By virtue of its contested purposes, interpretations, operation, and applications, the NWC represents and, to an extent, defines both the character and the very real vulnerabilities of liberal constitutionalism in Canada.
The significance, effects, and legitimacy of the NWC have been vigorously debated within scholarship and among politicians and activists since the patriation of the Canadian Constitution in 1982. In The Notwithstanding Clause and the Canadian Charter leading scholars, jurists, and policy experts elucidate and prescribe reforms to the application of this consequential clause about which so much is written, and around which there is relatively little consensus.
Details
480 Pages, 6 x 9
ISBN 9780228020202
April 2024
Formats: Cloth, Paperback, eBook
“Comprehensive and compelling, these essays probe the intersection of history, law, policy, and politics, reflecting the dynamics of a constitutional democracy.” Irwin Cotler, Raoul Wallenberg Centre for Human Rights
“The right book at the right time!” Patrick Taillon, Université Laval
“The book brings together diverse voices to produce the most comprehensive study of this controversial clause. A must-read for anyone interested in human rights, democracy, and the future of Canada.” Justice Nathalie Des Rosiers, Ontario Superior Court of Justice
“This is a fascinating and provocative collection of essays on one of the most contested features of the Canadian constitution, the notwithstanding clause. It is a must-read for those who want to learn about, and dissect contrasting views on this powerful, rights-implicating legislative tool.” Emmett Macfarlane, co-author of Legislating under the Charter: Parliament, Executive Power, and Rights
“This comprehensive volume brings together leading scholars and practitioners to analyze some of the most important issues and challenges related to the Charter’s override clause. It will be of great value to all interested in Canadian constitutional law and politics.” Adam Dodek, co-editor of In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession
“Biro has assembled an exceptional volume of essays and perspectives on the notwithstanding clause. It is timely, insightful, and essential reading in today’s public policy debate.” Senator Peter Harder
“The right book at the right time!” Patrick Taillon, Université Laval
“The book brings together diverse voices to produce the most comprehensive study of this controversial clause. A must-read for anyone interested in human rights, democracy, and the future of Canada.” Justice Nathalie Des Rosiers, Ontario Superior Court of Justice
“This is a fascinating and provocative collection of essays on one of the most contested features of the Canadian constitution, the notwithstanding clause. It is a must-read for those who want to learn about, and dissect contrasting views on this powerful, rights-implicating legislative tool.” Emmett Macfarlane, co-author of Legislating under the Charter: Parliament, Executive Power, and Rights
“This comprehensive volume brings together leading scholars and practitioners to analyze some of the most important issues and challenges related to the Charter’s override clause. It will be of great value to all interested in Canadian constitutional law and politics.” Adam Dodek, co-editor of In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession
“Biro has assembled an exceptional volume of essays and perspectives on the notwithstanding clause. It is timely, insightful, and essential reading in today’s public policy debate.” Senator Peter Harder
Peter L. Biro is a lawyer, founder of Section 1, senior fellow of Massey College, Centre associate of the UBC Centre for Constitutional Law and Legal Studies, and chair emeritus of the Jane Goodall Institute.
Acknowledgments | ix
Introduction - Setting the Stage: Chekhov’s Gun Inverted | 3
Peter L. Biro
Part One | Genesis and Context | 23
1 An Historic Canadian Compromise: Forty Years after the Patriation of the Constitution, Should We Cheer a Little? | 25
Thomas S. Axworthy
2 The Evolving Debate over Section 33 of the Charter | 49
Kristopher E.G. Kinsinger
Part Two | Fundamentals | 67
3 Key Foundations for the Notwithstanding Clause in Institutional Capacities, Democratic Participatory Values, and Dimensions of Canadian Identities | 69
Dwight Newman
4 The Notwithstanding Clause, the Operation of Legislation, and Judicial Review | 93
Grégoire Webber
Part Three | Judicial Review | 109
5 Legislative Choices in Using Section 33 and Judicial Scrutiny | 111
Robert Leckey
6 Judicial Declarations Notwithstanding the Use of the Notwithstanding Clause? A Response to a (Non-) Rejoinder | 132 Maxime St-Hilaire, Xavier Foccroulle Ménard,
and Antoine Dutrisac
7 Notwithstanding Judicial Review: Legal and Political Reasons Why Courts Cannot Review Laws Invoking Section 33 | 168
Geoffrey Sigalet
8 Courts, Legislatures, and the Politics of Judicial Decision-Making (or Perhaps the Notwithstanding Clause Isn’t Such a Bad Thing after All) | 184
Christopher Manfredi
Part Four | Quebec | 203
9 The Notwithstanding Powers and Provisions:An Asset for Quebec and for Canada | 205
Benoît Pelletier
10 Bill 21 and Bill 96 in Light of a Distinctive Quebec Theory of the Notwithstanding Clause: A Distinct Approach for a Distinct Society and a Distinct Legal Tradition | 231
Guillaume Rousseau and François Côté
11 Quebec’s Bills 21 and 96: An Underwater Eruption | 253
Marion Sandilands
12 The Rise and Fall of Liberal Constitutionalism in Quebec | 271
Jonathan Montpetit
Part Five | Legitimacy, Justification, Democracy | 287
13 The Notwithstanding Clause, Bill 96, and Tyranny | 290
Tsvi Kahana
14 Are There Constitutional Limits on the Use of the Notwithstanding Clause? | 309
Gregory B. Bordan
15 Notwithstanding v. Notwithstanding: Sections 28 and 33 of the Canadian Charter of Rights and Freedoms | 338
Mary Eberts
16 Section 33, the Right to Vote, and Democratic Accountability | 364
Cara Faith Zwibel
17 The Text and the Ballot Box: Section 3, Section 33, and the Right to Cast an Informed Vote | 381
Jamie Cameron
18 Notwithstanding Minority Rights: Rethinking Canada’s Notwithstanding Clause | 401
Caitlin Salvino
19 Detoxing Democracy: Exploring Motivation, Authority, and Power | 419
Sabreena Delhon
Contributors | 433
Index | 439
Introduction - Setting the Stage: Chekhov’s Gun Inverted | 3
Peter L. Biro
Part One | Genesis and Context | 23
1 An Historic Canadian Compromise: Forty Years after the Patriation of the Constitution, Should We Cheer a Little? | 25
Thomas S. Axworthy
2 The Evolving Debate over Section 33 of the Charter | 49
Kristopher E.G. Kinsinger
Part Two | Fundamentals | 67
3 Key Foundations for the Notwithstanding Clause in Institutional Capacities, Democratic Participatory Values, and Dimensions of Canadian Identities | 69
Dwight Newman
4 The Notwithstanding Clause, the Operation of Legislation, and Judicial Review | 93
Grégoire Webber
Part Three | Judicial Review | 109
5 Legislative Choices in Using Section 33 and Judicial Scrutiny | 111
Robert Leckey
6 Judicial Declarations Notwithstanding the Use of the Notwithstanding Clause? A Response to a (Non-) Rejoinder | 132 Maxime St-Hilaire, Xavier Foccroulle Ménard,
and Antoine Dutrisac
7 Notwithstanding Judicial Review: Legal and Political Reasons Why Courts Cannot Review Laws Invoking Section 33 | 168
Geoffrey Sigalet
8 Courts, Legislatures, and the Politics of Judicial Decision-Making (or Perhaps the Notwithstanding Clause Isn’t Such a Bad Thing after All) | 184
Christopher Manfredi
Part Four | Quebec | 203
9 The Notwithstanding Powers and Provisions:An Asset for Quebec and for Canada | 205
Benoît Pelletier
10 Bill 21 and Bill 96 in Light of a Distinctive Quebec Theory of the Notwithstanding Clause: A Distinct Approach for a Distinct Society and a Distinct Legal Tradition | 231
Guillaume Rousseau and François Côté
11 Quebec’s Bills 21 and 96: An Underwater Eruption | 253
Marion Sandilands
12 The Rise and Fall of Liberal Constitutionalism in Quebec | 271
Jonathan Montpetit
Part Five | Legitimacy, Justification, Democracy | 287
13 The Notwithstanding Clause, Bill 96, and Tyranny | 290
Tsvi Kahana
14 Are There Constitutional Limits on the Use of the Notwithstanding Clause? | 309
Gregory B. Bordan
15 Notwithstanding v. Notwithstanding: Sections 28 and 33 of the Canadian Charter of Rights and Freedoms | 338
Mary Eberts
16 Section 33, the Right to Vote, and Democratic Accountability | 364
Cara Faith Zwibel
17 The Text and the Ballot Box: Section 3, Section 33, and the Right to Cast an Informed Vote | 381
Jamie Cameron
18 Notwithstanding Minority Rights: Rethinking Canada’s Notwithstanding Clause | 401
Caitlin Salvino
19 Detoxing Democracy: Exploring Motivation, Authority, and Power | 419
Sabreena Delhon
Contributors | 433
Index | 439
