Part V Rights and Freedoms, A Litigating and Interpreting the Charter, Ch.33 The Notwithstanding Clause: Why Non-use Does Not Necessarily Equate with Abiding by Judicial Norms

The notwithstanding clause in section 33 has always been the Charter’s most controversial provision. Although rarely invoked, a failure to use this power should not be equated with a willingness to abide by judicial norms about the Charter. This chapter analyses the political life of the notwithstanding clause. It examines the origins of the notwithstanding clause, its uses, its influence on constitutional ideals beyond Canada, and the political consequences associated with a deeply entrenched reticence to invoke the notwithstanding clause. This discussion addresses whether current reluctance to use section 33 is better explained by risk aversion than by legislative compliance with the Charter.