I keep seeing this same defence being offered by otherwise sensible people: the notwithstanding clause is part of the Charter and therefore there is nothing unconstitutional about invoking it. /1
The Queen is part of the constitution, too — no law can pass without her assent — but if she started refusing passage of laws willy-nilly it would still be a pretty fundamental constitutional breach. Some things are made to be unused. /2
Decisions to invoke the clause cannot be seen in isolation from one another. The effect of using it once is to make it easier to use it again, and again, and again. When it becomes routine, there will be very little left of the Charter. Yet each use would be constitutional! /3
The clause depends for its legitimacy, then, on being used sparingly, if at all. But its very presence begs for it to be used more often than that, in as much as it undermines the moral force of the Charter in which it is embedded. /4
The premise of the Charter is that rights are inviolable — subject only to such reasonable limits etc. But the premise of notwithstanding is that they are completely violable, without any requirement that the limits be reasonable, proportionate etc. /5
This isn’t a balancing act — reasonable limits is the balancing act. It’s a basic, irresolvable contradiction, and as such inherently unstable. /6
The Charter will either prevail over the notwithstanding clause, whether by repeal or desuetude, or notwithstanding will eat the Charter. /7
