the notwithstanding clause

A detailed Summary of the notwithstanding clause

Canada is one of the most sought after places in the world to live. The standard of living is one of the highest in the world, it welcomes new immigrants, and there are many personal freedoms which are questioned in other parts of the world. Here, there is a Charter of Rights and Freedoms that protects our individual rights. This charter, which came to be in 1982, is the basis of our Canadian society. It lays down the law, so that the limitations can be seen. Other countries also have similar documents, but Canada's has some unique qualities. Though it is a huge social accomplishment in Canadian politics, it does have some flaws. One unique quality in our constitution is section 33, also referred to as the "Notwithstanding Clause". Since it's inception in 1982, this clause has been the cause of much controversy. The "Notwithstanding Clause" should be removed from the Canadian Charter of Rights and Freedoms because it violates the equality that the rest of the charter tries to protect.

The "Notwithstanding Clause" is a compromise that was made by the parties involved in the 1982 constitutional meetings. It's purpose was to appease the groups that felt the constitution hurt their interests. Section 33 states as follow

The "Notwithstanding Clause" has been detrimental to the health of Confederation. Since its first (attempted) use, it has been controversial. Almost immediately after the constitution had been passed into law 1982, Quebec showed us how this act could be abused. The separatist government in Quebec, who did not sign on to the constitution used section 33 to voice their displeasure. They stated that all of Quebec's statutes would operate notwithstanding any of the Charter sections which could be overridden, specifically s2 and s7-15. By doing this, the Charter, which was suppose to bring Canada closer together, further alienated Quebec from English Canada. The charter was designed to give all Canadians equal rights. The politicians of Quebec, instead, isolated the people of Quebec, by being the only government not to accept the Charter. When put to judicial review, the courts agreed with the province of Quebec, that they did have a right to use the clause, but it had to be more specific in what was notwithstanding. The clause, since their could be no one to check their power, allowed a bunch of radical sovereignists to make the decision. Their agenda had nothing to do with making Canada stronger. After all, they were the ones trying to break it up. This allowed a double standard to be created, one for Quebec, and one for the rest of Canada. Once the decision was made by Quebec's national assembly, no one could reverse it. The Constitution of 1982, is not a truly Canadian document; rather, it is an English Canadian Charter of Rights.

1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as those may be, be that the Act or a provision there of shall operate notwithstanding a provision included in s.2 or s.s.7-15 of this charter.

2) An act or provision of an act in respect of which a declaration made under this section is in effect shall have operation as it would have but for the provision of this charter referred to in the declaration.

The notwithstanding clause is only good for five years. So, when the five years expires, the current government must re- declare the clause for the laws it is trying to protect from the charter. When this was introduced in the House of Commons as a part of the new constitution in 1981, Jean Chretien, minister of finance at the time stated that the clause "is unlikely ever to be used except in non-controversial circumstances." The participants in drafting th charter felt this clause would satisfy the critics of their bill. They did not realize the impact that it would have on Canadian politics.

"Pursuant to subsection 33(1) of the Canadian charter of Rights and Freedoms, this Act is declared to operate notwithstanding the freedom of association in paragraph 2(d) of the Canadian Charter of Rights and Freedoms." s.9 (1)

3) A declaration made under subsection (1) shall cease to have 5 years after it comes into force or on such earlier date as may be specified in the declaration.

Quebec also used section 33 in a more recent case. The Quebec legislature passed Bill 101, which was a law that required all commercial signs to be in french. In a very controversial

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Approximate Word count = 2160
Approximate Pages = 9 (250 words per page double spaced)

Category: History