The Notwithstanding Clause, the Charter, and Canada's Patriated Constitution: What I Thought We Were Doing

Abstract

Professor Whyte, in his article “Sometimes Constitutions are Made in the Streets: the Future of the Charter’s Notwithstanding Clause,” raises some intriguing points. He gives a historical review of the origin of the “notwithstanding” clause as it appears in the Canadian Charter of Rights and Freedoms, enacted in 1982. In the course of so doing, he appears to propose a distinction between “rights” – those claims which are included in the Charter, and “policies” – those claims which are protected by the activities of the legislative and executive arms of government. This is, I argue, a false dichotomy. It leads to the conclusion that the use of the “notwithstanding” clause can only amount to a suspension of rights in favour of achieving government policy.