The Structure of Invalid but Operative Legislation: Why the Notwithstanding Clause Does Not Preclude Judicial Review
Bibliographic record
Abstract
A fundamental question concerning the legal effects of the notwithstanding clause is whether courts could conduct judicial review of legislation invoking the clause. The received wisdom on this question has been that the notwithstanding clause precludes judicial review. But in recent years, scholars have argued in different ways that the notwithstanding clause permits judicial review. This thesis critically builds on the arguments that the notwithstanding clause permits judicial review of protected legislation. It points out the problems with those arguments and proposes a revised theory of the notwithstanding clause which addresses the difficulties with those arguments. Along the way, it proposes a novel interpretation of the supremacy clause of the Constitution of Canada, introduces the Canadian doctrine of separation of powers into the legal debates on section 33 after developing that doctrine, and responds to key recent developments in the debates about the notwithstanding clause
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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 | 0.016 | 0.054 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.008 | 0.053 |
| Scholarly communication | 0.010 | 0.010 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.010 | 0.008 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
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".