What is the Notwithstanding Clause?
Allow me to wade into a bit of a controversy of constitutional interpretation around section 33 - the notwithstanding clause. I've written about it before , but I want to discuss a bit more about what it does . Lately we've been hearing more and more about it being a mechanism by which legislators can impose their own interpretation of the Charter: The court finds that a right includes x , or that y isn't a reasonable infringement, and the legislature disagrees with the court, so has a right to legislate based on its own interpretation. In the recent Toronto v. Ontario decision from the SCC , the majority seemed to endorse that approach: Where, therefore, a court invalidates legislation using s. 2(b) of the Charter , the legislature may give continued effect to its understanding of what the Constitution requires by invoking s. 33 and by meeting its stated conditions There are several problems with that theory, however. The alternative approach, which I prefer, is