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This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law's 'operation' by preventing it from being 'inconsistent' with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public's constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public's ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly. [ABSTRACT FROM AUTHOR]

This paper contributes to feminist debates on cohabitation by studying judicial discourse after legal reform. It examines how Canadian judges speak about cohabitation and decide whether cohabitants qualify as “spouses” for the purposes of property sharing. Judges assess cohabitants against an ideal of companionate marriage with gendered and class overtones. A contrasting tendency is to disavow moral judgments by declaring openness to a diversity of relationships. It seems difficult to operationalize cohabitation as a relationship form distinct from marriage. Indeed, the cases undermine assertions that reform makes married couples and cohabitants equal. Efforts to “modernize” family law appear to give new life to traditional ideals of the good marriage. [ABSTRACT FROM AUTHOR]