The constitution and laws of any country describe the rights of the population as well as the powers of the government. The Constitutional Act and the Charter of Rights and Freedoms of Canada are no exception as they guarantee the rights of the population and also state and limit the authority of the Canadian government. However, the Canadian Charter can provide appropriate limits on the government at times, but when it comes to section 33, the notwithstanding clause, the government has much more power to enact measures for its goals.
The Charter of Rights and Freedoms guarantees inviolable rights of citizens, while various laws regulate the specific rights and obligations of people and institutions. However, section 33, known as the notwithstanding clause, allows the government to exempt laws from legislation for five years, thus bypassing the rules and avoiding violations. The Canadian Charter of Rights and Freedoms, s 33, Part 1 of the Constitution Act, 1982 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”. Nevertheless, that overriding power was also limited as the government is not able to override Charter sections that pertain to mobility, democratic or language rights. It seems that the notwithstanding clause was not too limiting that will directly impact the Charter’s power to promote rights and freedom.
Moreover, this method is politically complex and is rarely used by governments. It is worth noting that the federal government of Canada has never used the notwithstanding clause, while the provincial authorities used it as a sign of protest or to circumvent some rules (Yarhi, 2018). For example, the Canadian Charter guarantees freedom of expression, but the Quebec Liberal Party invoked the clause to pass Bill 178, which restricted the use of English-language signs and advertisements (Yarhi, 2018). Thus, governments can circumvent some legal restrictions; however, the laws must be within their jurisdiction.
Therefore, while section 33 of The Charter of Rights and Freedoms is controversial in theory because it allows governments to circumvent restrictions, in practice, it does not contradict the democratic rights of the population. The complexity of applying the clause, the limited jurisdiction, and the temporality of the measure force governments to restrict its use. However, the notwithstanding clause has the advantage to resolve controversial cases cause, for example, by outdated laws or regulations.
References
Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982.
Yarhi, E. (2018). Notwithstanding clause. The Canadian Encyclopedia. Web.