The Notwithstanding Clause and the Precedent in Ford

Abstract

There are, it sometimes seems, two Fords alive in the legal mind: one is the case as decided, with its legal propositions then settled (le dit); the other is the case as it has grown in the legal imagination, with propositions not then settled (le non-dit). In the light of increasing calls for the precedent in Ford to be overturned to allow for substantive limitations on the use of the notwithstanding clause, there is reason to review le dit et le non-dit of the famous case of 1988: what did Ford say and what did it leave unsaid?