Notwithstanding Clause,s.33

Overriding Powers

• In the late-1970s and early-1980s, the federal and provincial governments undertook negotiations to modernize the Canadian Constitution, which eventually led to the passage of a new Constitution in 1982.

• The federal proposal was, however, a controversial one .

• Several provinces disagreed with its inclusion on the grounds that it would significantly shift political power from elected legislatures to appointed courts.

• The Notwithstanding clause was subsequently added to the Charter as a means of alleviating these provincial concerns

Constitutional Supremacy & Judicial Review

• Constitution is a political system which is framed by a set of basic rules and norms.

• The Canadian Constitution includes several formal pieces of legislation, such as the Constitution Act, 1867 and the Constitution Act, 1982, as well as a number of unwritten constitutional conventions and norms.

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Parliamentary - Federalism

• The Constitution governs the basic nature of key political institutions, such as parliamentary government (the operation of the executive and legislative branches of government) and federalism (the division of power between different federal and provincial/territorial levels of government).

Constitutional Supremacy.

• This means that all other laws and government actions must be in accordance with the basic rules and norms set out in the Constitution. A federal, provincial, or territorial government, for example, can only exercise jurisdiction over policy fields given to it under the Constitution.

Judicial Review

• Interpreting the Constitution and settling constitutional conflicts between different political actors .

Judiciary Jurisdiction

• The judiciary has the power to review the government's actions and decide whether or not it is acting within the rules and norms laid out in the Constitution. If the judiciary finds that a constitutional rule has been broken, it can force the offending government to change its actions.

Provincial Fears of Judicial Power

• The Notwithstanding clause was eventually included within the Charter to alleviate these provincial fears of judicial power. Found under Section 33 of the Charter, the clause states:

• Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Notwithstanding Clause & Charter Rights and Freedoms

• The Notwithstanding clause may only be used in regard to the Charter and not other parts of the Canadian Constitution. Moreover, the Notwithstanding clause can only be used against a limited number of Charter rights and freedoms.

These include:

• Fundamental freedoms (s.2)

• Legal rights (s.7-14)

• Equality rights (s.15)

The Notwithstanding clause cannot be used for:

• Democratic rights (Sections 3-5 )

• Mobility Rights (s.6)

• Language Rights( ss16-22)

• Minority Language Education Rights (s.23)

Usage of the Notwithstanding Clause

• Quebec (1982-85): Aftermath of the Patriation

• Quebec (1988): French Sign Laws

• Saskatchewan (1986): Back-to-Work Legislation

• Alberta (2000): Definition of Marriage