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The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing

The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing Recent interest in the use of section 33 of the Canadian Charter of Rights and Freedoms has renewed political and scholarly attention to this unique device of constitutional politics. The notwithstanding clause is notable for being an opt-out clause exclusively available for government use, positioning it above the courts on key areas of rights. This article argues that the notwithstanding clause can be understood properly as an institutionalized mechanism of court curbing; that is, as an effort to limit a court’s power. We analyze uses of the notwithstanding clause using national and regional media coverage to understand how section 33 is framed, as well as an original dataset that investigates Canadians’ support of the notwithstanding clause and court curbing. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The American Review of Canadian Studies Taylor & Francis

The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing

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The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing

Abstract

Recent interest in the use of section 33 of the Canadian Charter of Rights and Freedoms has renewed political and scholarly attention to this unique device of constitutional politics. The notwithstanding clause is notable for being an opt-out clause exclusively available for government use, positioning it above the courts on key areas of rights. This article argues that the notwithstanding clause can be understood properly as an institutionalized mechanism of court curbing; that is, as an...
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Publisher
Taylor & Francis
Copyright
© 2023 ACSUS
ISSN
1943-9954
eISSN
0272-2011
DOI
10.1080/02722011.2023.2180954
Publisher site
See Article on Publisher Site

Abstract

Recent interest in the use of section 33 of the Canadian Charter of Rights and Freedoms has renewed political and scholarly attention to this unique device of constitutional politics. The notwithstanding clause is notable for being an opt-out clause exclusively available for government use, positioning it above the courts on key areas of rights. This article argues that the notwithstanding clause can be understood properly as an institutionalized mechanism of court curbing; that is, as an effort to limit a court’s power. We analyze uses of the notwithstanding clause using national and regional media coverage to understand how section 33 is framed, as well as an original dataset that investigates Canadians’ support of the notwithstanding clause and court curbing.

Journal

The American Review of Canadian Studies – Taylor & Francis

Published: Jan 2, 2023

Keywords: Court curbing; Canadian politics; judicial politics; public support; judicial review

References

  • François Legault Criticizes Justin Trudeau Over Notwithstanding Clause Comments
  • Majority of Torontonians (54%), Ontarians (58%) and Canadians (57%) Oppose Doug Ford’s Use of Notwithstanding Clause to Reduce the Size of Toronto City Council
  • Democrats Prepare Bill Limiting U.S. Supreme Court Justice Terms to 18 Years
  • The Separation of Powers, Court Curbing, and Judicial Legitimacy
  • Tory Candidates Play Fast, Loose with Rights
  • “Ford Vs. Education Workers: How are Ontarians reacting?” Abacus Data
  • Public Support for Canadian Courts: Understanding the Roles of Institutional Trust and Partisanship
  • Everyday Legal Problems and the Cost of Justice in Canada: Overview Report
  • Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows
  • The Changing Nature of Public Support for the Supreme Court of Canada
  • Charter Dialogue Revisited-Or Much Ado About Metaphors
  • The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter
  • Democrats to Introduce Bill to Expand Supreme Court from 9 to 13 Justices
  • Chief Justice Warns Against Political Attacks on Judicial Independence
  • State Legislatures, State High Courts, and Judicial Independence: An Examination of Court-Curbing Legislation in the States
  • Terms of Entitlement: Is There a Distinctly Canadian ‘Rights Talk’?
  • Partisanship, Motivated Reasoning and the Notwithstanding Clause: The Case of Provincially Imposed Redistricting in the City of Toronto
  • Charter Values Don’t Equal Canadian Values: Strong Support for Same-Sex and Property Rights
  • A Paper Tiger No More? The Media Portrayal of the Notwithstanding Clause in Saskatchewan and Ontario
  • A Distinctive Quebec Theory and Practice of the Notwithstanding Clause: When Collective Interests Outweigh Individual Rights
  • The Truck and the Brakes: Understanding the Charter’s Limitations and Notwithstanding Clauses Symmetrically
  • Citizens’ Perceptions of the Courts: The Impact of Race, Gender, and Recent Experience
  • “Access to Justice: A Societal Imperative.” Supreme Court of Canada
  • The Faulty Received Wisdom Around the Notwithstanding Clause
  • The Case for Making the Notwithstanding Clause Politically Awkward Again