Notwithstanding the Override: Path Dependence, Section 33, and the Charter
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AbstractSection 33 of the Canadian Charter of Rights and Freedoms – the 'notwithstanding clause' – remains controversial. Although the clause exists as a legitimate constitutional instrument, it has been used infrequently, and never by the federal government. This paper examines arguments put forward to explain the infrequent use of the clause. Of all the explanations offered, the historical-institutionalist concept of 'path dependence' is most compelling. Ever since the Quebec government used the notwithstanding clause in response to Ford v. Quebec (1988), subsequent Prime Ministers have demonized the clause in order to gain political capital. The depiction of section 33 as inherently antithetical to the logic of a Charter of Rights has been so successful that few political leaders will risk using the clause, even when public opinion is in favour. With the Charter being seen as a 'symbolic rights-giver,' this demonization has led to the gradual erosion of section 33’s legitimacy as an acceptable legislative instrument.
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