8 - Canada’s Notwithstanding Clause, Dialogue, and Constitutional Identities

Summary

In this chapter, I seek to re-engage with the philosophy of the notwithstanding clause in Canada’s Charter of Rights and Freedoms, and argue that the clause enacts a relatively unique model of constitutionalism attentive to traditions of parliamentary democracy and to respect for distinct national identities within Canada. First, I draw on the history of the clause and the thought of the premiers who advocated for it, linking their ideas on it to their broader theories of constitutionalism and identity. Second, I argue that returning to their conception of the clause allows for a different reading of the text than has been supposed by those who read the clause narrowly, such as Jeffrey Goldsworthy and Jeremy Waldron, whose considerations of the clause relate to more abstract, decontextualized aspects of interpretation. I seek to show that they have missed the potential for more coordinate approaches to rights interpretation. Third, I exposit the clause’s fit with the circumstances of Canada, showing how it opens possibilities going beyond dialogue on rights interpretation to the implementation of principled coordinate approaches to rights interpretation and colocation of rights with other aspects of national identity. I argue that these features of Canadian constitutionalism need to shape interpretation of the clause’s contribution to dialogue theory.