'Notwithstanding clause' of the Canadian Constitution

Throughout the Constitutional negotiations, the Premiers maintained that the Charter posed a threat to provincial autonomy. Explain their concerns. Do you agree with the Premiers’ assessment? Why or why not? As a compromise, Trudeau agreed to include Section 33 (Notwithstanding Clause) in the Charter. What does this clause allow, and do you believe its’ inclusion was a mistake? Why or why not?

In 1970s and 1980s, there were efforts by the provincial and Federal Governments, for modernizing the Constitution of Canada. There were prolonged negotiations in this exercise and most important part of the negotiations focussed on the replacement of Canadian Bill of Rights by set of freedoms and rights which is entrenched constitutionally (Kallen, 2010).

            The Premiers or Provincial leaders were opposed to the proposal since they apprehended that political power would shift to judiciary from the elected legislatures (Kallen, 2010).

            Canada, till the above mentioned reforms has a government system that is constitutional. The Constitution Acts of 1867 and 1982(Bastien, 2010) along with several other unwritten norms and conventions formed the ‘Constitution’. The Constitution clearly spelt out the power division powers between provincial and federal governments. The Constitution of the country is considered supreme and all actions of government as well as the laws are required to be according to the constitution. The judiciary is vested with responsibility of interpretation of constitutional provisions in case of a conflict of opinions between the provincial and federal governments (Behiels, 2009).

            When the Bill of Rights is finally approved, the charter that is entrenched constitutionally would vest the Courts with additional powers for reviewing elected representatives’ actions apart from interpretation of the constitutional provisions. Such a development is a clear erosion of the powers of the elected representatives and the apprehensions of the premiers were justified (Behiels, 2009).

            In order to allay the fears of the premiers and as a compromise, Trudeau agreed to include Section 33 (Notwithstanding clause) in the charter (Grover, 2005).

            According to the ‘Not withstanding clause’, the Parliament or legislature may declare  expressly in any Act  that the provision approved by them would operate  as notwithstanding which is one provision included within Section 2 or Sections (7 - 15) of the charter(Grover, 2005).

            Section 2 includes fundamental freedoms, sections 7 to 14, the legal rights and Section 15 the equality rights. The ‘Not withstanding clause affects only these rights leaving untouched the other rights like Democratic rights (Sections 3 to 5), Mobility Rights (Section 6), Language rights(Section (16-22) and minority language rights (Section 23).

            I am of the opinion that ‘Notwithstanding Clause’ adversely affects the most important human rights.

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