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The Arguments For and Against the Notwithstanding Clause

The Arguments For and Against the Notwithstanding Clause
   Thomas (Guoting)Guo
   The notwithstanding clause is a unique and famous clause of the Canadian Constitution. Since 1982, when it was adopted, arguments about it have never stopped(CTV.ca newsstaff. 2006).[1]Recently, the same sex marriage issue ignited arguments again(Charlie 2006)[2]. This essay reviews and comments on arguments for and against the clause.

   I. What is the Notwithstanding clause?
   Section 33(1) of the Charter of Rights and Freedoms allows both federal and provincial legislatures to adopt legislation to override Section 2 (involving freedom of expression, conscience, association and assembly); plus sections 7-15 [(a.) the right to life, liberty and security, (b.) freedom from unreasonable search and seizure, (c.) freedom from arbitrary arrest or detention, (d.) a number of other legal rights, and (e.) the right to equality]. All rights and freedoms stipulated in the Charter are guaranteed and subject to the above limitations. Consequently, the Charter is a unique combination of rights and freedoms; some are fully protected and others are entrenched unless overridden by legislatures.
   Until now, the notwithstanding clause has been used approximately 18 times, mainly in Quebec. Recently, research showed 68% of people strongly or somewhat support the notwithstanding clause(author unknown.2006.)[3] . After the Supreme Court of Canada ordered Alberta to write protection for homosexuals into its human rights legislation, thousands of citizens clamoured for the government to use the notwithstanding clause to override the court(Steel 11)[4] Thus, the majority supported the clause; however, a lot of people also demanded it be repealed.
   II . Argument For and Against the Notwithstanding Clause
   Since the notwithstanding clause was written into the Charter of Rights and Freedoms in 1982, the legislative override clause of Section 33 has been a highly contested provision. Most of the controversy focuses on issues concerning the scope of power and core democratic concepts such as democracy, majority tyranny, legislative supremacy, judicial review, and judicial activism. The following are the main arguments for and against the notwithstanding clause.
   A. Arguments For Section 33
    1. To ensure the democratic ideal of government the notwithstanding clause mentions the fundamental purpose of parliamentary bodies is to facilitate the democratic ideal of government by discussion. Parliamentary bodies are important means of bringing democratic discussion of important public policy. If judges are given the last word on Charter questions, then Parliament can do nothing, and the process of democratic discussion becomes impossible. Courts and parliament have a role to play in deciding Charter issues. Further, the notwithstanding clause is crucial to this participation of parliament and processes of public discussions that democratic institutions bring with them(Jay 2007)[5].
   2. Elected legislatives, rather than un-elected judges, are best to make important policy decisions. Claims the notwithstanding clause threat individual rights are not substantial because there is a five-year limit on any use of the notwithstanding power. Any such legislative override will be subject to public debate at the time of its first enactment and at the moment of any subsequent re-enactment(David 2005)[6].
   3. Judges should not act as legislators. Judges may remain in office for many years after their appointment. If they had a greater "political" role, their non-responsibility to the electorate might well be a source of controversy because a policy-making role would compromise the independence and impartiality of the courts, and would hasten their politicization(David 2005)[7].
    4. Elected legislatives make the final political decisions and can mitigate politicization of courts. Accordingly, there is little evidence to prove Canadian Supreme Court Judges are selected according to how they would rule in various cases. Without the notwithstanding clause and courts as final arbiters of social values, society would be vulnerable to change(David 2005)[8].
   5. Legislators should have the final word on public policy matters as the "safety valve" or "unintended consequences" arguments. This suggests the notwithstanding clause is needed where a judicial decision based on Charter guarantees might result in a threat to important social values or goals. Because such rights and freedoms are generally stated, and are susceptible to varying constructions and interpretations, courts may render judgments that drafters did not anticipate(David 2005)[9].
   6. There is parliamentary sovereignty. The notwithstanding clause says legislators, unlike judges, are electorally responsible. The clause makes it possible for legislatures to correct any unfortunate judicial interpretation of the Charter.
   7. There is constitutional authority support:
    i. Professor Wayne MacKay of Dalhousie University spoke in favour of retaining the section by stating “The notwithstanding clause permits debate about which rights are fundamental in Canadian society and which should prevail when rights are in conflict. In a democratic society steeped in the tradition of parliamentary supremacy, it is proper to give our elected legislators the final word” ( A Reader's Digest June 1989. 103)[10]
    ii. Professor François Chevrette of the Université de Montréal was also in favour of retaining the clause. He pointed out that political power can override a judicial decision on an important or sensitive issue, and then there is an opportunity for national debate (A Reader's Digest June 1989.104). [11]
   B. Arguments Against Section 33
   1. Section 33 is inconsistent with entrenchment of human rights and freedoms. The notwithstanding clause says rights and freedoms are subject to judicial interpretation but must be protected against legislative transgression. When the majority of the public is in favour of limitation or elimination of rights of a minority constitutional restrictions are needed. Moreover, the Charter does not create absolute rights and freedoms, which are subject to reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society. This should permit the courts enough flexibility to adjust legislative goals that infringe a guaranteed right or freedom.(Philip 18)[12]
   2. A hierarchy of rights is created. Legislative override is applicable to only fundamental freedoms, legal rights, and equality rights; therefore, other rights such as democratic, mobility, language, minority language education, and the guaranteed equality of gender are not subject to the override. (Philip 19)[13]
   3. There is demeaning of the nature of freedoms and rights. Manning states " Rights and freedoms that can be overridden are so significant as to raise questions about the nature of the freedom that remains. If our freedom of conscience or religion can be taken away by a law, which operates notwithstanding the Charter; if our right to life or liberty can be taken not in accordance with the principles of fundamental justice, what freedom do we have?" (Morris 55). [14]
   4. There is majority tyranny. In a democracy, public policy is generally orientated towards opinions of the majority of citizens. As a result, democratic laws can often be unfair to minority groups (such as minority religious, ethnic, racial, or cultural groups) or other individuals outside the majority opinion. In extreme situations the majority may prosecute or force these minorities to conform to the majority view. The charter is used as a means of protecting minorities( Jay 2007)[15].
   5. Legislative supremacy broke the balance of three powers in a democratic government. Democratic governments include different branches – such as legislatures, executives, and judiciaries. Legislative supremacy in a democracy means destroying the balance, which is the core value of most democratic governments.(Jay 2007)[16] The mere existence of the override power can entice governments to use it.

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