Notwithstanding the Override: Path Dependence, Section 33, and the Charter
Bibliographic record
Abstract
Section 33 of the Canadian Charter of Rights and Freedoms – the 'notwithstanding clause' – remains controversial. Although the clause exists as a legitimate constitutional instrument, it has been used infrequently, and never by the federal government. This paper examines arguments put forward to explain the infrequent use of the clause. Of all the explanations offered, the historical-institutionalist concept of 'path dependence' is most compelling. Ever since the Quebec government used the notwithstanding clause in response to Ford v. Quebec (1988), subsequent Prime Ministers have demonized the clause in order to gain political capital. The depiction of section 33 as inherently antithetical to the logic of a Charter of Rights has been so successful that few political leaders will risk using the clause, even when public opinion is in favour. With the Charter being seen as a 'symbolic rights-giver,' this demonization has led to the gradual erosion of section 33’s legitimacy as an acceptable legislative instrument.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.006 | 0.011 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.009 | 0.028 |
| Scholarly communication | 0.007 | 0.005 |
| Open science | 0.001 | 0.002 |
| Research integrity | 0.002 | 0.005 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".