Canada's Notwithstanding Clause, Dialogue, and Constitutional Identities

Abstract

This paper seeks to re-engage with the underlying philosophy of the notwithstanding clause in Canada’s Charter of Rights and Freedoms (s 33, which permits legislative bodies to substitute their view of rights questions for a judicial interpretation in certain circumstances). The paper argues that the clause actually enacts a relatively unique model of constitutionalism attentive to traditions of parliamentary democracy and to respect for distinct national identities within Canada, thus responding to the distinctive historical forerunners of Canadian constitutionalism. To make this argument, first, I will draw on the history of the clause and the thought of the premiers who particularly advocated for the clause, notably Allan Blakeney and Peter Lougheed, linking their thought on the clause to their broader theories of constitutionalism and identity. Second, I will argue that returning to their conception of the clause allows for a different reading of the text than has been supposed by those who read the clause narrowly, notably such authors as Jeffrey Goldsworthy and Jeremy Waldron, whose considerations of the clause relate to relatively abstract, decontextualized aspects of interpretation. In doing so, I will seek to show that their approach has focused on narrow aspects of the clause and missed a wider potential within Canada’s constitution for more coordinate approaches to rights interpretation. Third, I will exposit the clause’s fit with the distinctive circumstances of Canada in the context of issues about how to apply the clause, showing how it opens possibilities going beyond dialogue on rights interpretation to the implementation of principled coordinate approaches to rights interpretation and colocation of rights with other aspects of national identity. Throughout I will argue that these distinctive features of Canadian constitutionalism need to shape interpretation of the clause’s contribution to dialogue theory.