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Notwithstanding Rights, Review, or Remedy?

The Canadian Charter’s notwithstanding clause makes exception to something, but what is that something? Received readings of the notwithstanding clause assume that the clause makes exception to rights or to judicial review. In this webinar, Professor Gregoire Webber will argue, instead, that the clause makes exception to the remedy that follows from a finding that legislation is inconsistent with targeted rights and freedoms. That remedy is the one outlined in the Constitution’s supremacy clause: legislation is of ‘no force or effect’ to ‘the extent of the inconsistency’ with such rights and freedoms. By reviewing how the expression ‘no force or effect’ is equivalent to the expression ‘inoperable,’ the webinar will explore the relationship between the notwithstanding clause and the supremacy clause of the Constitution, and will argue that the notwithstanding clause does not suspend rights and it does not block judicial review. Rather, it secures the operation of legislation even if such legislation is held by a court to be inconsistent with constitutional rights and freedoms.

Mar 22, 2023 05:00 PM in Edmonton