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This is, needless to say, a caricature. The case against notwithstanding is not that the courts are superior to the legislatures, but that they are “other than” the legislatures. The rights set out in the Charter are essentially promises: in all of our laws, our leaders solemnly declared, and in all of our acts, we will abide by these guarantees.

And to show they meant it — that these were not ordinary political promises, to be abandoned when expedient — they passed them into law, as legally binding commitments.

But a promise, to be binding, must have an independent adjudicator. If governments and legislatures were allowed to decide for themselves whether they had lived up to their promises, they would be of little value. Yet that is what the notwithstanding clause amounts to. It allows political leaders to substitute their own judgment for that of the courts; to wriggle out of their promises, while pretending to keep them.

No right is absolute, of course — though the presumption of innocence is pretty close — but the Charter already allows for exceptions: Sec. 1, the “reasonable limits” clause. There would seem little need for an additional, “unreasonable limits” clause.

Notwithstanding is not the emergency safety valve its advocates pretend, but a bottle marked ‘drink me’

It’s not about either side having the last word: it is almost always possible for the legislature to redraft a law that has been struck down, in ways that fulfill its original purpose, but at less harm to rights. Yes, the courts sometimes get it wrong — if you’ve noticed, so do the legislatures — but the image of the courts as power-mad usurpers is quite at odds with the actual record: there are at least as many cases where they have been too eager to defer to the legislatures as the contrary.