| Summary: | <p>The notwithstanding clause is a constitutional tool that can be invoked by federal, provincial, and territorial legislatures. It provides these legislatures with the ability to pass legislation that either pre-empts or overrides judicial review that concern certain Charter rights. Any notwithstanding clause legislation must contain a renewable five-year sunset clause. The notwithstanding clause has been tabled in legislation twenty-five times. Between 2018 and 2022, there were seven notwithstanding clause bills tabled in four provincial legislatures. These post-2018 notwithstanding clause invocations raise important questions about the role of the judiciary in substantively evaluating section 33.</p>
<p>Currently, the only authoritative case law on the notwithstanding clause is Ford v Quebec. In Ford, the Supreme Court of Canada determined that the notwithstanding clause should be evaluated in ‘form-only’, without substantive review of its use. Through my thesis, I seek to critically engage with Ford and ask, ‘can substantive limits be placed on the notwithstanding clause through judicial review?’. After identifying shortcomings within theoretical approaches to the notwithstanding clause and critiquing Ford, I will present my own theory on the need to revisit the judiciary’s approach to interpreting the notwithstanding clause. Through the application of ordinary approaches to Canadian constitutional interpretation, I argue there are at least four limits on notwithstanding clause application: (1) section 33 cannot be invoked in an omnibus manner; (2) the the unwritten constitutional principle of democracy limits its application to political expression; (3) customary international law jus cogens norms limits its application to torture; and (4) section 28 of the Charter safeguards gender equality from its scope. My four proposed limits on the notwithstanding clause do not represent an exhaustive approach on limits to section 33. Instead, I argue that there are judicial review limits on section 33 that can be derived through constitutional interpretation and non-exhaustively explore four.</p>
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