The notwithstanding mechanism and public discussion : Lessons from the ignored practice of section 33 of the Charter
By: KAHANA, Tsvi
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Material type: 
ArticlePublisher: 2001Canadian Public Administration 44, 3, p. 255-291Abstract: Most Canadians believe that the notwithstanding clause, namely section 33 of the Charter of Rights and Freedoms, has been used only a few times in the past and that currently no legislations invoking section 33 is in force. This article reveals that the "notwithstanding mechanism" was actually used in sixteen different pieces of legislation ( in addition to its omnibus use by Quebec) and that seven acts invoking the mechanism are still in force. The article then argues that two main reasons for the lack of public response to these invocations of section 33 were that these uses were both invisible and inaccessible. They were invisible because they dealt with matters that were not on the public agnda and they were inaccessible because they dealt with complicated policy questions. The article concludes by contending that the notwithstanding mechaninsm should only be used in response to a Supreme Court decision and not prion to it. It is likely that a Supreme Court decision would have made these ignored uses of section 33 both more visible and more accessible and hence more noticeable
| Item type | Current location | Collection | Call number | Status | Date due | Barcode |
|---|---|---|---|---|---|---|
| Periódico | Biblioteca Graciliano Ramos | Periódico | Not for loan |
Most Canadians believe that the notwithstanding clause, namely section 33 of the Charter of Rights and Freedoms, has been used only a few times in the past and that currently no legislations invoking section 33 is in force. This article reveals that the "notwithstanding mechanism" was actually used in sixteen different pieces of legislation ( in addition to its omnibus use by Quebec) and that seven acts invoking the mechanism are still in force. The article then argues that two main reasons for the lack of public response to these invocations of section 33 were that these uses were both invisible and inaccessible. They were invisible because they dealt with matters that were not on the public agnda and they were inaccessible because they dealt with complicated policy questions. The article concludes by contending that the notwithstanding mechaninsm should only be used in response to a Supreme Court decision and not prion to it. It is likely that a Supreme Court decision would have made these ignored uses of section 33 both more visible and more accessible and hence more noticeable
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