On Not Standing For Notwithstanding

Abstract

Many commentators have attempted to locate a Justification for the legislative override in section 33 of Charter on the basis of Canadian constitutional theory. Professor Whyte argues that the abolition of the notwithstanding clause would conform comfortably with the premises which underlie the Canadian constitutional regime. The first among these is the principle of legal- ism, the process by which we have chosen to adjudicate the resolution of public issues. Second, the principle of it is contended, provides some support for judicial control over political choices on the basis that, at the very least, certain Charter rights enhance the democratic process. The final principle examined, that of federalism, provides a historical perspective within which the disruption caused by judicial nullification can be assessed. The author argues that constitutionalism already exacts a high price on the autonomy of electoral politics and that the capacity of governments to regulate for the public good has not been seriously hampered as a result. Lastly, Professor Whyte examines the rationale for the Charter, as a tool to circumvent oppressive legislative measures, and why the judiciary be relied upon to protect the radically dispossessed when they have no alternative route for the vindication of Charter values.