Out of the Shadows: Responsive Judicial Review and the Resurgence of the Notwithstanding Clause

This paper argues that the recent resurgence of section 33 of the Canadian Charter of Rights and Freedoms represents a generational challenge to both the role of courts and the legitimacy of fundamental rights. In this light, the paper argues that Rosalind Dixon’s theoretical framework prescribes a self-weakened form of judicial review in order to preserve the courts’ role as democratic constitutional guardians in the medium term. However, some Canadian courts have gone in the opposite direction, opting for a super-strong form of judicial review. As Dixon cautions, this form of judicial review may be very detrimental in the medium term.