Geoffrey Sigalet and I discuss the future of the Notwithstanding clause for Macdonald-Laurier Institute’s Inside Policy talks. The clause was crucial to the passage of the Charter, ensuring the proper balance between the primacy of democratically-elected legislatures in making the law and the courts’s role in enforcing it.

Ottawa is urging the Supreme Court to rewrite Section 33, effectively stripping legislatures of their ability to shield laws from judicial review.

What’s at stake is more than a legal technicality. With the recent federal intervention, calling on the Supreme court to place limits on the re-use of the clause, and to allow for laws to be found to contravene the Charter but still stand, the government would invite the court to implicitly rewrite the constitution.

We discuss the history of the clause, its normative importance, and upcoming cases at the Supreme Court.

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