Weaving Section 33 into the Charter Project

Citizen-Led Oversight as a Potential Way Out of the Legitimacy Conundrum

Abstract

This article suggests that invocations of the notwithstanding clause should be evaluated by citizens' juries: small groups of citizens tasked with hearing evidence from stakeholders (and experts) and passing judgment on the legitimacy of their government's invocation of section 33. Above all, we argue that the establishment of such bodies would better redeem the democratic promise of section 33, which we characterize as an attempt to swap judicial scrutiny of laws and actions that impact fundamental rights for popular scrutiny. There is no perfect way to do this, of course, but we suggest that citizens' juries could at least compensate for some of the limitations of the electoral scrutiny that is presupposed by section 33's sunset clause while still offering a more ostensibly democratic review mechanism than judicial review.