Document Type

Article

Abstract

This article evaluates the use of section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause (NWC), over the first forty years of its existence. It provides a comprehensive account of all uses of the NWC in this period, introduces the notion of tyrannical use of the NWC, and develops criteria to evaluate whether a particular use is tyrannical. It then demonstrates that most NWC uses have not been tyrannical; rather, the NWC was used for temporary, ameliorative, or transitional purposes. That said, in the studied period, there have been three instances of tyrannical use of the NWC and another use that had tyrannical characteristics. Worryingly, of the three instances of tyranny, two have taken place in the past four years.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Kahana, Tsvi. "The Notwithstanding Clause in Canada: The First Forty Years." Osgoode Hall Law Journal 60.1 (2023) : 1-71.
DOI: https://doi.org/10.60082/2817-5069.3875
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss1/1