Aileen Kavanagh (Trinity College (Dublin)) has posted Underuse of the Override on SSRN. Here is the abstract:
The power of the legislature to override court rulings on rights – and to legislate ‘notwithstanding’ some rights guarantees – is one of the most notable and controversial aspects of the Canadian Charter of Rights and Freedoms 1982 and the UK Human Rights Act 1998. In this article, I argue that the exercise of the override is subject to the unwritten constitutional norms grounded in the separation of powers – norms which preclude the legislature from regularly or lightly overriding court decisions, merely because they disagree with them. If the legislature is given the last word, then is it a last word as last resort. Foregrounding the norms of comity, collaboration, and conflict-avoidance, I argue that legislatures should apply – and in Canada and the UK generally do apply – a general presumption in favour of compliance with judicial decisions, unless that presumption is rebutted by exceptional and weighty reasons to the contrary. I conclude exploring contemporary concerns about an increased use of the override in the Canadian context—and the potential for the Supreme Court of Canada to enter the fray by adjudicating the exercise of the override in challenging times.
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