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60 Osgoode Hall L. J. 1 (2023)

handle is hein.journals/ohlj60 and id is 1 raw text is: 1 The Notwithstanding Clause in Canada: The First Forty Years TSVI KAHANA* This article evaluates the use of section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause (NWC), over the first forty years of its existence. It provides a comprehensive account of all uses of the NWC in this period, introduces the notion of tyrannical use of the NWC, and develops criteria to evaluate whether a particular use is tyrannical. It then demonstrates that most NWC uses have not been tyrannical; rather, the NWC was used for temporary, ameliorative, or transitional purposes. That said, in the studied period, there have been three instances of tyrannical use of the NWC and another use that had tyrannical characteristics. Worryingly, of the three instances of tyranny, two have taken place in the past four years. Professor of Law, Ono Academic College, Israel. I would like to thank Mark Tushnet and two anonymous reviewers of the Osgoode Hall Law Journal for commenting on a previous draft. Aviv Shimshi, Or Shua, and Yarden Lichterman provided excellent research assistance. An earlier draft of this article was co-written with a colleague who has since taken up a position with government and hence prefers to remain unnamed. Of course, the responsibility for any errors remains solely mine. I wish to dedicate this article to the memory of Peter Hogg, a mentor and a friend.

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