Abstract
This paper highlights choices made by legislatures when they activate the notwithstanding clause in the Canadian Charter of Rights and Freedoms. Such choices relate to the extent of the rules or statutes protected from possible strike- down; to the Charter provisions from which protection is granted; and to timing, namely, whether the notwithstanding clause is used pre-emptively or after litigation. These choices may significantly affect voters’ knowledge of the effect on rights of a law shielded by the notwithstanding clause. Moreover, uses of the notwithstanding clause relate variably to theoretical justifications for this mechanism. For example, the view of the notwithstanding clause as a means by which a legislature disagrees with the judiciary on rights is inconsistent with recent practice. This paper’s attention to the modalities of uses of the notwithstanding clause advances debate on this distinctive feature of the Canadian constitution.
Citation Information
Leckey, Robert.
"Legislative Choices in Using Section 33 and Judicial Scrutiny."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
115.
(2024).
DOI: https://doi.org/10.60082/2563-8505.1446
https://digitalcommons.osgoode.yorku.ca/sclr/vol115/iss1/4
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