The new Canadian Constitution of 1982 replaced the Bill of Rights with the Canadian Charter of Rights and Freedoms. The Charter of Rights and Freedoms provides the fundamental and immutable rights such as democratic rights, mobility rights, legal rights, language rights, equality rights, and minority language rights, as well as specific freedoms like freedom of religion and thought. However, the Charter includes one of the most controversial elements in the entire new Constitution of Canada, the Notwithstanding Clause in Section 33. Section 33 was included in the Charter specifically because the provinces feared an imbalance of power away from elected officials toward the appointed officials in the judiciary. After all, any law passed by any government -- whether provincial or federal -- could be held up to legal scrutiny by the courts. The courts could then negate laws passed by provincial legislatures at will, thereby weakening the legislative branch. The Notwithstanding Clause is an attempt to provide a balance of power, by allowing elected officials to pass laws notwithstanding of the Charter. This means that the Notwithstanding Clause enables provincial, territorial, and the federal governments to pass laws that may conflict with fundamental rights and freedoms...
The laws in question would be somewhat immune from judicial review.
Although it seems as if Section 33 would allow governments to override the Charter at will, this is certainly not the case. The Notwithstanding Clause applies to specific rights and freedoms, and can be invoked only related to laws pertaining to legal rights, equality rights, and fundamental freedoms (Makarenko, 2006). Moreover, there are strict procedures that must be followed when the Notwithstanding Clause is invoked. There is a five-year expiry on the use of Section 33, meaning that the legislature only has five years with which to use its power to override to judiciary. After that period has lapsed, a new appeal to the Notwithstanding Clause must be made. The theory is that by this time, a new legislature has been called because elections would have been held. When filing for Section 33, the legislature must also be specific in declaring its intentions and must enjoy a majority support for the measure in whatever legislature is in question (provincial, territorial, or federal).
The legacy of Section 33 is controversial in that it allows for temporary suspensions of specific rights and freedoms, based on the vicissitudes of public opinion or…
Mackarenko, J. (2006). The Notwithstanding Clause. Retrieved online: http://mapleleafweb.com/features/notwithstanding-clause-section-33-charter
University of Alberta Centre for Constitutional Studies (2014). Notwithstanding Clause. Retrieved online: http://ualawccsprod.srv.ualberta.ca/ccs/index.php/i-o/755-notwithstanding-clause
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