Standing Up for Notwithstanding


  • Peter H. Russell



The author responds to and criticizes the attack of Professor John Whyte on the notwithstanding clause in the Canadian Charter of Rights and Freedoms. After quickly dealing with several of the admittedly bad reasons for inclusion of the notwithstanding clause, the author puts forward his case for the override focusing on the substantive outcomes of decision-making, as well as the process of decision-making itself. The author supports his views by considering two test cases: The Elections Act Case and The Quebec Signs Case. Finally, the author takes issue with White's treatment of Canada's basic constitutional principles and their bearing on the override issue. The author concludes that it would not be sound to let all public issues which may be adjudicated under the Charter fall to be settled by judges, and he then uses this conclusion to refute the arguments put forward by Professor conclusion Whyte