Nothing to Declare: A Response to Grégoire Webber, Eric Mendelsohn, Robert Leckey, and Léonid Sirota on the Effects of the Notwithstanding Clause

Abstract

In the wake of the legal challenge to Quebec’s law on state secularism,¹ Professor Grégoire Webber, lawyer Éric Mendelsohn, and Dean Robert Leckey jointly published a post. In that post, they argue that the invocation of the "notwithstanding clause" in section 33 of the Canadian Charter of Rights and Freedoms does not preclude a court from making a declaration of "consistency." By such a declaration, a Court would declare the mere "inconsistency," not the invalidity or inoperability, of legislative provisions for which section 33 had been invoked with the constitutional rights from which they validly derogate.² Their arguments ought to be reviewed and assessed, as they constitute creative but ultimately erroneous development in legal thought on section 33 in Canadian law.

¹ Act Respecting the Laicity of the State, CQLR c L-0.3.
² Grégoire Webber, Eric Mendelsohn & Robert Leckey, “The faulty received wisdom around the notwithstanding clause” Policy Options Politiques (10 May 2019) online: <irpp.org/magazines/ may-2019/faulty-wisdom-notwithstanding-clause/>.