The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Article Title

From Ford v. Québec to the Act Respecting the Laicity of the State : A Distinctive Quebec Theory and Practice of the Notwithstanding Clause


Legal theories and practices can sometimes be compared to volcanoes. Formed in the past and remaining quiet for ages, these peaceful giants in the background scenery appear dormant, taken for granted, uninteresting even, save for a few experts — until one day they erupt in the most spectacular fashion in a sudden torrent of heated activity that changes the entire landscape. In Canadian constitutional law, the notwithstanding clauses contained in the Canadian Charter of Rights and Freedoms and in the Charter of Human Rights and Freedoms, which allows a legislature to willingly set aside the supercedence of the fundamental Canadian Charter rights regarding a specific law or body of law are such volcanoes. Formed in the mid 1970’s through the early 1980’s, the notwithstanding mechanism last generated significant attention in its early stages, in 1988, when the Canadian Charter’s override was analyzed by the Supreme Court in the Ford v. Qu bec case and when the Quebec Charter’s override was invoked in the subsequent Act to Amend Bill 101, Charte de la langue française.