Suspended declarations of invalidity are court orders that, like the notwithstanding clause, temporarily prolong the life of laws after courts have found them unconstitutional. In recent years, the Supreme Court has used these orders in relation to issues such as physician-assisted death and prostitution. Compared to the notwithstanding clause, however, suspended declarations have flown under the radar. The federal government could have invoked the notwithstanding clause to obtain this extension, as the clause applied to the Charter right that was at issue in the litigation. Fortunately, there may soon be an opportunity for the Supreme Court to revisit the principles governing suspended declarations of invalidity.

Source: National Post September 13, 2018 20:15 UTC