Notwithstanding clause

Definition

The notwithstanding clause is a provision in the Canadian Charter of Rights and Freedoms that allows federal or provincial governments to pass laws that may operate notwithstanding or despite certain sections of the Charter. This clause essentially grants governments the power to override certain individual rights and freedoms for a specified period, making it a controversial yet significant feature in discussions surrounding constitutional rights and governmental authority.

5 Must Know Facts For Your Next Test

1. The notwithstanding clause can be invoked by both federal and provincial governments to temporarily set aside certain Charter rights.
2. When a government invokes this clause, it must state which rights it is overriding and for how long, usually up to five years before renewal is required.
3. The use of the notwithstanding clause has sparked significant debate regarding its implications for civil liberties and governmental power.
4. Not all rights in the Charter can be overridden; for example, the right to vote and minority language educational rights are protected from being set aside by this clause.
5. Several provinces have utilized the notwithstanding clause in various instances, most notably Quebec in relation to its language laws.

Review Questions

• How does the notwithstanding clause illustrate the tension between individual rights and government authority in Canada?
  • The notwithstanding clause highlights the balance of power between individual rights and government authority by allowing legislatures to override specific Charter protections. This provision enables elected officials to prioritize perceived societal needs or policy goals over individual liberties. The ability to invoke this clause raises critical questions about accountability, civil rights, and whether elected representatives should have the authority to bypass constitutional protections for particular laws.
• Discuss the implications of invoking the notwithstanding clause on public trust in government institutions.
  • Invoking the notwithstanding clause can lead to public skepticism regarding government intentions and actions. When elected officials choose to bypass Charter rights, it may create a perception that they are prioritizing political agendas over individual freedoms. This can erode trust among citizens who feel their rights are vulnerable or who believe their government is overstepping its bounds. The subsequent public discourse surrounding such decisions often reveals deeper concerns about democratic values and civil liberties.
• Evaluate the long-term effects of repeated use of the notwithstanding clause on Canadian democracy and individual freedoms.
  • Repeated use of the notwithstanding clause could significantly reshape Canadian democracy by establishing a precedent where governments feel empowered to sidestep constitutional protections. This trend might lead to erosion of individual freedoms as citizens may become increasingly concerned about their rights being routinely overridden. If such practices become normalized, it risks diminishing the role of the Charter as a protector of rights, ultimately impacting public perception of justice, equality, and the rule of law within Canadian society.

Related terms

Canadian Charter of Rights and Freedoms:

A fundamental part of Canada's Constitution that outlines the rights and freedoms guaranteed to all Canadians, including freedom of expression, right to equality, and the right to a fair trial.

Section 33: The specific section of the Canadian Charter that contains the notwithstanding clause, which allows legislatures to declare that a law will operate despite any provisions of the Charter.

Constitution Act, 1982:

An act that patriated the Canadian Constitution from the United Kingdom, establishing the framework for Canada’s governance, including the introduction of the Charter of Rights and Freedoms.