Notwithstanding the Notwithstanding Clause

This paper argues that section 33 of the Charter of Rights and Freedoms — the (in)famous “notwithstanding clause” — is circumscribed by unwritten but binding constitutional principles including judicial independence; democracy; federalism; constitutionalism and the rule of law; and respect for minorities. We posit that the Canadian Constitution contains an irreducible minimum core of human rights that transcends the political compromise embodied in section 33.