The Notwithstanding Clause in Context: Purposive Interpretation and Section 33's Place in the Constitution's Structure

This article takes a purposive approach to the notwithstanding clause, arguing it functions as a temporary safeguard of parliamentary sovereignty, enabling legislation to operate despite potential Charter infringements. It contends that the notwithstanding clause preserves legislative supremacy without diminishing the judiciary’s role as the ultimate interpreter of the Constitution, leaving declaratory judicial review both available and meaningful in cases of Charter inconsistency. Declaratory review advances constitutional principles by upholding the courts’ inherent jurisdiction, supporting the rule of law, facilitating access to justice, enhancing democratic accountability, and ensuring minority voices are heard. While declarations do not invalidate legislation, they clarify legal effects, inform the electorate, and provide practical benefits to claimants and legislatures, reinforcing the Constitution’s structure and participatory democracy.