The partnership model of the Canadian notwithstanding mechanism, failure and hope

This work inquires into the idea of the notwithstanding clause contained in s. 33 of the Canadian 'Charter of Rights and Freedoms '. It sets out the theoretical perspectives for the discussion of the notwithstanding mechanism, and examines the theory and practice of this device in Canada. The dissertation discusses the shift in Canadian constitutional theory from seeing the 'Charter' with the notwithstanding clause as a reflection of a compromised constitutionalism based on the remnants of legislative supremacy to the view of it as creating a new system of judicial review with legislative finality, which I call the New Institutional Paradigm (NIP). According to the NIP, rather than authorizing the legislature to override constitutional rights, the notwithstanding clause creates a gateway for legislative participation in the interpretation of the Constitution in rights issues. The NIP creates a system of judicial review with legislative finality. But why should the legislature have the final say on constitutional issues? I discuss two answers to this question. One is that legislative finality is needed in order to check judicial errors. This answer, however, creates a theoretical inconsistency between judicial review and legislative finality. Judicial review is based on the idea that courts have a greater ability and incentive to guard the Constitution than do legislators. Legislative finality, on the other hand, rests on the opposite assumption and conceives of legislatures as being superior to courts in their ability to guard the Constitution such that they should supervise the courts' work. The other justification for legislative finality is the idea of a partnership. According to this notion, legislatures and courts--within the Canadian constitutional setting do not check and balance each other, but rather perform different functions under the Constitution. The role of courts is to deliberate on the meaning of the Constitution. The role of legislatures is to make a final decision with regard to this meaning. This approach is coherent as it unifies judicial review and legislative finality. Judicial review is based on the court's superior ability to deliberate about the meaning of the Constitution while the legislature maintains the power to reject the court's deliberation through the use of the notwithstanding clause. I further develop my own model of partnership between courts and legislatures and set out the manner in which legislatures should use the notwithstanding clause once they have decided to invoke it. In light of my suggested partnership model, I examine the practice of the notwithstanding clause in Canada. I demonstrate that Canadian legislatures have, generally speaking, refrained from using the mechanism. However, on the two occasions where a Canadian legislature did invoke the notwithstanding clause in response to a judicial decision. it did not act in a partnership oriented way. In addition, I examine how two uses, and one attempted use, of the notwithstanding mechanism have provoked harsh public reactions in Canada. These negative public responses reflect the fact that accountability might make it politically impossible to abuse the notwithstanding clause.