The notwithstanding clause: A legislative weapon?

The purpose with which the notwithstanding clause was included in the Charter, has lately not been met. The merits of an override clause for harmful decisions made by the courts are plenty, however, the combination of courts generally being on the right track and the clause being used inappropriately calls for its removal. In the cases of both Saskatchewan and Alberta, legislatures used or threatened to use the notwithstanding clause against the wishes of the majority, to preclude the freedom of association by preventing strike. This entrenchment was clearly not for the greater benefit of the people but for the advancement of a political agenda. The Levesque government in Quebec also misused the override clause to exclude Quebec laws from application to the fundamental freedoms not for the good of the people but in retaliation against Trudeau and the Premiers of Canada for agreeing on the terms of the Constitution without his input. If the Canadian government is misusing the provisions of section 33, and if they have found means of reviewing legislation to satisfy the courts, then the inclusion of the notwithstanding clause in the Constitution is unnecessarily causing risk and controversy.

In the last hundred years, Canada’s use of the judiciary branch of government for adjudication has created a means for the protection and sustenance of fundamental rights and freedoms. The removal of section 33 of the Constitution would leave interpretation of legislation entirely up to the courts, and effectively make Canada a judiciary supreme state. The ongoing debate between the systems of parliamentary supremacy and judicial supremacy holds that judicial review is against the principle of majority rule because the courts are unrepresentative of the people. The essence of a democracy is to ensure that the ideas, criticisms, and general concept of a society are represented by its elected officials, a task currently unmet by the Supreme Court Justices of Canada.

An advantage of the notwithstanding clause is that it creates opportunity to consider public opinion on a decision in a way that the limitation clause does not. Peter Russell recognizes how the clause can bring an issue from the courts to the people in stating: “The legislative override has the merit, when properly used, of applying reasoned discussion in a publicly accountable forum to great issues of justice and public well being…” Had the clause been designed effectively, it would have indeed been used to bring the public’s views and criticisms into the decision process. Yet, the lack of written process requiring a reasoned debate or referendum before invoking the notwithstanding clause allows governments to use the clause without recognition of public stance, and moreover to use it for furthering their own aspirations. One of only two provinces to use the notwithstanding clause, Saskatchewan created legislation against the freedom of association, regardless of majority opposition. If the notwithstanding clause were used in accordance to its purpose, it would be beneficial in letting the public decide whether encroachments of their rights are justified. Unfortunately, in this less than ideal society, the destruction imminent from misuse of the notwithstanding clause outweighs its potential from its potential benefits.

Some topics in this essay:
Peter Russell, Supreme Court, Elliot Trudeau, Rights Freedoms, Constitution Section, Quebec Saskatchewan, Lorraine Weinrib, Canadian Premiers, Control Act, Trade Centre, notwithstanding clause, section 33, rights freedoms, limitation clause, override clause, judicial review, supreme court, judicial supremacy, branch government, charter rights, clause section 33, charter rights freedoms, judiciary branch government, notwithstanding clause creates, normative value structure,