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The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing

The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing Recent interest in the use of section 33 of the Canadian Charter of Rights and Freedoms has renewed political and scholarly attention to this unique device of constitutional politics. The notwithstanding clause is notable for being an opt-out clause exclusively available for government use, positioning it above the courts on key areas of rights. This article argues that the notwithstanding clause can be understood properly as an institutionalized mechanism of court curbing; that is, as an effort to limit a court’s power. We analyze uses of the notwithstanding clause using national and regional media coverage to understand how section 33 is framed, as well as an original dataset that investigates Canadians’ support of the notwithstanding clause and court curbing. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The American Review of Canadian Studies Taylor & Francis

The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing

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References (42)

Publisher
Taylor & Francis
Copyright
© 2023 ACSUS
ISSN
1943-9954
eISSN
0272-2011
DOI
10.1080/02722011.2023.2180954
Publisher site
See Article on Publisher Site

Abstract

Recent interest in the use of section 33 of the Canadian Charter of Rights and Freedoms has renewed political and scholarly attention to this unique device of constitutional politics. The notwithstanding clause is notable for being an opt-out clause exclusively available for government use, positioning it above the courts on key areas of rights. This article argues that the notwithstanding clause can be understood properly as an institutionalized mechanism of court curbing; that is, as an effort to limit a court’s power. We analyze uses of the notwithstanding clause using national and regional media coverage to understand how section 33 is framed, as well as an original dataset that investigates Canadians’ support of the notwithstanding clause and court curbing.

Journal

The American Review of Canadian StudiesTaylor & Francis

Published: Jan 2, 2023

Keywords: Court curbing; Canadian politics; judicial politics; public support; judicial review

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