LE3 .A278 2022

2022

Crandall, Erin

Acadia University

Master of Arts

Masters

Political Science

Politics

Since its entrenchment in the Canadian Constitution in 1982, The Charter of Rights and Freedoms has garnered both scrutiny and praise from supporters and detractors alike. The section of the Charter which has been, and continues to be, the most misunderstood and most highly criticized is section 33, known colloquially as the “the notwithstanding clause”. S.33 is viewed by its critics as being both undemocratic and rights effacing. It is misunderstood by many of its critics as being a legislative override of judicial review, even though the word override does not appear, nor has it ever appeared, in the language of the notwithstanding clause. Rather than being considered an override, S.33, should be considered as a check and balance on judicial power, and what s.33 offers is something much more interesting and worthwhile than a simple override of judicial review. This thesis argues that s.33, rather than simply providing a legislative body with the ability to override judicial decisions with which they do not agree, provides the judicial and legislative branches of government with an avenue to further a constructive dialogue. Rather than being a check and balance which cuts the power of the judiciary off at the knees, this check and balance infuses the relationship between the judicial and legislative branches with an air of moderation. S.33 can formalize the view that the branches of government do not work independently from one another, but rather that they work interdependently with one another. In this way s.33 acts as a mechanism that can bridge the gap between Canada’s history as a federation which adheres to the principle of parliamentary supremacy and Canada’s current position as a federation which adheres to the principle of constitutional supremacy.

The author retains copyright in this thesis. Any substantial copying or any other actions that exceed fair dealing or other exceptions in the Copyright Act require the permission of the author.

https://scholar.acadiau.ca/islandora/object/theses:3733