How to Have the Last Word: Some Thoughts Toward Renewed and Proper Use of Canada’s Notwithstanding Clause

Canada’s 1982 Constitution includes a distinctive provision, the s 33 ‘notwithstanding clause’ (sometimes mistakenly called a ‘constitutional override’ clause), that permits legislators to substitute their interpretation of certain Charter rights in place of interpretations that would otherwise be imposed by judges and thus to have the ‘last word’.  The clause has had limited use, but it has recently had a new use, with an announcement by Saskatchewan’s premier at the start of May of an intention to use the clause to avoid the effects of a recent trial court decision concerning funding issues at Catholic schools.  This presentation will build upon two forthcoming chapters in which the presenter has sought to re-engage with the history and theory of the clause and will expand upon his argument in a recent op ed defending Saskatchewan’s currently intended use of the clause.  The larger object the presentation will work toward is to try to articulate a set of principles on how to use the notwithstanding clause.  If accounts like those of Stephen Gardbaum of a new Commonwealth model of constitutionalism are to work, Canada’s notwithstanding clause needs to be genuinely accessible for use (something called into question by scholars such as Aileen Kavanagh) and to be used properly (something on which there has been very little extended discussion).  The presenter will try to speak to the interrelated points of how to maintain conditions in which the use of the notwithstanding clause is viable and of factors that legislators might appropriately consider in determining whether a particular use of the clause is proper.  Fighting against a current of Canadian legal academics who have all too often tried to undermine the s 33 notwithstanding clause, the presenter will thus try to offer a ‘how to’ guide for successful and proper use of the notwithstanding clause.