The notwithstanding clause of section 33 in the Canadian Constitution gives legislatures the ability to pass laws that override essential guarantees of the Charter of Rights and Freedoms. In using the notwithstanding clause, legislation may infringe on rights that are included in section 2, and sections 7 to 15- inclusive of fundamental freedoms, legal rights, and equality rights. An ongoing debate has fostered over this "override clause", arguing that the loss of these rights and freedoms may outweigh the benefits that the associated legislation has on society. The clause, not originally considered in the drafting of the Constitution, was a compromise made by former Prime Minister Pierre Elliot Trudeau to get approval of the Constitution from the provinces. Now that the Constitution has been ratified and Canadians have come to understand its value and purpose, why is the notwithstanding clause-source of controversy and an infringement of rights-still included in the Constitution? One must recall that section 33 allows parliament to maintain supremacy over the judicial branch of government, and in doing so gives opportunity for legislation to pass without process or justification. Outcomes of the notwithstanding clause can be detrimental to society and contrast the constitutional foundation that the nation is built on. Furthermore, the poor and ineffective use of section 33 in the duration of its existence suggests that provisions for such a clause are unnecessary and irrationally dangerous. The notwithstanding clause should therefore be removed from the Charter on the basis that it denies judicial supremacy, that it is against the fundamental principles of Constitutionalism, and that it is of limited effective use in Canadian politics. .
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.
