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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]

In contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to cohabitation have amended the boundaries of marriage and fundamental legal categories. A conservative approach to marriage and cohabitation has failed to conserve marriage. We identify a gap, not between law and social life but between law and its prevailing justification, that cohabitants are free to choose to marry or to conclude contracts. Legislative and judicial developments show that this justification fails to persuade. Finally, we read France and Quebec’s approach to cohabitation as symptomatic of an impoverished misreading of the civil law tradition. [ABSTRACT FROM AUTHOR]

The article aims to complicate efforts to make law fit or catch up to social practices. It scrutinizes the ‘reflective claim’ using the case study of recognition of parenting by lesbian couples. Reforms in the United Kingdom’s Human Embryology and Fertilisation Act 2008 and the Canadian province of Quebec’s civil code are compared with empirical work from the social sciences on lesbians’ family practices. The reflective claim rests on problematic ideas about social practices and law. Since law is always blunt and incomplete, choices must be made as to which practices it should aim to recognize. Furthermore, the impact of heterosexist and homophobic conditions on lesbian families means that observable practices may not be a suitable model for gay-affirmative reforms. As advanced in the literature, the reflective claim overlooks law and society’s complex interaction, including how reform will not merely reflect but also alter practices. It fails to do justice to law reform’s normative character, obscuring its costs and positive potential. [ABSTRACT FROM PUBLISHER]