Advisory Review: The Reincarnation of the Notwithstanding Clause

Abstract

The notwithstanding clause is the cornerstone of our Canadian constitutional architecture. It has a high ambition to reconcile constitutionalism with democracy. But the notwithstanding clause finds itself conceptually situated between illegitimacy and desuetude in a constitutional purgatory. This is not a promising portrait. Nonetheless, it is a blessing in disguise. The tragic failure of the notwithstanding clause is a fortuitous opportunity to create a new process that will allow us to achieve its objectives while also remaining loyal to the intentions of its creators. This new process - which the author calls advisory review - is a new form of judicial review that is uniquely Canadian, born of Canadian roots, and consistent with Canadian constitutional traditions.