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Notwithstanding Clause in the Canadian Constitution Essay

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Updated: Sep 17th, 2022

The Notwithstanding or power override Clause is a set of provisions written in the Canadian Constitution. The clause is introduced in Section 33 of the Charter of Rights and Freedoms and allows provincial and federal parliamentary bodies to withdraw certain legislation when necessary. It has been used several times to “strike down legislation, to read-in terms to legislation, to issue mandatory orders” (Campbell, 2018, p. 1-2). In my opinion, this clause is a negative characteristic of the Canadian legislature because it allows the authorities to impose excessive power. At the same time, individual rights should be a priority at all times.

The Notwithstanding Clause might be invoked by parliament to secure its sovereignty when some laws contradict the provisions of the Charter. For example, as identified by Rousseau and Cote (2017), this clause is used to overrule other legislation in cases when the collective interests, such as national identity, are under consideration. In such a case, a legislator might refer to the notwithstanding clause and justify the priority of the collective majority’s rights over individual rights and freedoms of the citizens. Indeed, when justifying the national identity issues, the clause would be wise to apply.

On the other hand, the utilization of the Notwithstanding Clause violates individual rights and freedoms of the citizens of Canada if disproportionately applied by the authorities. Indeed, Section 33 addresses the opportunity to overrule the Charter’s provisions on equality rights, legal rights, and freedom of speech, among others. This statement implies that parliamentary bodies have the power to regulate the provision of the Constitution in their interests by enacting laws that diminish individual rights. Overall, the clause is a political means of providing provinces more sovereignty, on the one hand, and a potential source of domination of the majority’s rights over individual rights and freedoms of Canadians.

References

Campbell, M. (2018). Reigniting the dialogue: The latest use of the Notwithstanding Clause in Canada. Public Law, 1, 1–10.

Rousseau, G., & Cote, F. (2017). A distinctive Quebec theory and practice of the Notwithstanding Clause: When collective interests outweigh individual rights. Revue Générale de Droit, 47(2), 343–431.

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IvyPanda. "Notwithstanding Clause in the Canadian Constitution." September 17, 2022. https://ivypanda.com/essays/notwithstanding-clause-in-the-canadian-constitution/.

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IvyPanda. 2022. "Notwithstanding Clause in the Canadian Constitution." September 17, 2022. https://ivypanda.com/essays/notwithstanding-clause-in-the-canadian-constitution/.

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IvyPanda. (2022) 'Notwithstanding Clause in the Canadian Constitution'. 17 September.

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