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The Notwithstanding Clause and the Canadian Charter: Rights, Reforms, and Controversies (eBook)


ISBN13: 9780228020226
Published: April 2024
Publisher: McGill-Queen's University Press
Country of Publication: Canada
Format: eBook (ePub)
Price: £31.50
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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.

Subjects:
Other Jurisdictions , eBooks, Canada
Contents:
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