Overview

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.

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9780228020202

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Reviews

“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 “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 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 “The right book at the right time!” Patrick Taillon, Université Laval

“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

“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 with 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

Author Information

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.

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