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Source: Bob Tarantino, LLB, LLM (York University), BCL (University of Oxford)

So ... Canada's "override" ... clause might actually have the opposite effect from what one might expect: it may prompt Canadian courts to actually be MORE bold and robust in taking positions than they otherwise might be in its absence, because it always leaves them the option of arguing "Look, if you really disagree with our decision, feel free to use the notwithstanding clause to override it," ...

I guess: its = Canada's "override" clause, aka the Notwithstanding Clause. Abbreviate it as NC.

[This helpful answer enlightened me:] The word otherwise means "without NC". There is no grammatical rule to tell us what X is in a sentence. We need to understand from the context.

Based on the context, otherwise means "without NC." The dual use of both otherwise and in its absence: is it redundant? What happens if either one (but not the other) were omitted?

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Stripping away the fluff to get to the core of the statement:

Canada's "override" clause may prompt courts to be bolder in taking positions than they otherwise might be in its absence."

Yes, this is slightly redundant since you could remove either of the highlighted components and not affect the meaning too much, but doing so could reduce the statement's specificity.

Canada's "override" clause may prompt courts to be bolder in taking positions than they otherwise might be.

Canada's "override" clause may prompt courts to be bolder in taking positions than they might be in its absence."

"In its absence" is a specific, explicit alternative situation for the override clause. It's just gone, no ambiguity.

"Otherwise" merely implies that something about the situation is different. Perhaps the override clause was removed? Amended? Maybe it's still on the books but not applied in the same way as before? "Otherwise" could be any of several options.

I'd opt for removing "otherwise" to make the statement shorter & less redundant w/o losing precision.

  • -1 Just for fun or do you have a reason? Feedback please. – mc01 Apr 20 '15 at 16:53
  • +1. It wasn't I who downvoted, and am sorry to see it. Thanks for your answer! I hope that my +1 helps soothe an indignance that I've suffered myself. Your para on "otherwise" was especially helpful! – Greek - Area 51 Proposal May 13 '15 at 3:08
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You're right that "its" refers to the constitutional override clause.

As for your question: you could omit either "otherwise" or "in its absence" and the sentence would still be perfectly intelligible and have the same meaning. By that measurement, one might say that it's unnecessary to include both.

However, when I read the paragraph it doesn't seem redundant. If you were a stickler for minimalism, you might find fault with the phrasing, but personally I don't think there's anything wrong with it. In fact, I think it's fair to say that "in its absence" is simply an expansion or clarification of "otherwise." I think it makes it easier to understand.

Full disclosure: I graduated from a Canadian law school, so I am familiar with the subject material and with legal writing. Redundancies for the sake of precision are more tolerated in legal writing than in everyday language, so it's possible that that my perspective on this question is different from the general population.

  • Welcome! I look forward to your legal expertise! BTW, do you know about the proposed Law website here (Please see my profile)? – Greek - Area 51 Proposal May 13 '15 at 3:06

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