Notwithstanding clause / Canadian constitution
Why does the charter of rights and freedom include a notwithstanding clause? And what it’s significant?
Essay outline
1- Write a brief introduction: the intro should include.
2- A brief definition of Canada’s constitution, and the 1982 Canada’s constitution act which include the notwithstanding clause.  Also brief definition of the clause. 6 to 12 lines .. just outline it
For example; the 1867 British north America act become Canada’s constitution and the mechanism behind the structure of the government in Canada and preserving the rights of all civilians, the constitution also ensure the destruction of power among the provinces of Canada and established the concept of federalism moving forward, the formation of the constitution and the declaration of the new constitution act of 1982 .. so u will talk about the constitution the powers given to the provinces ( federal power), the right of citizens and 1982 constitution act … for this use reding marked #1
3- Clear thesis. 2 or 3 lines ……… remainder.. points 1,2,3 should be in ½ page of my paper
4- The body of the essay should include the debate over the clause, when and how it was invoked, what is the power it has and who can use it? 3 to 3 ½ pages use this web site for #4 use pdf reading marked #4 ↕#4 and the structure of the 3 ½ should be like this.. intro .. example Introduction what is it The constitutional notwithstanding clause set out in section 33 of the Canadian Charter of Rights and Freedoms…, Origins of Section 33, Content of Section 33, Arguments For and Against Section 33.
5- Is it democratic to have it? for this part use SONJA GROVER Lakehead University, Ontario, Canada readings 1 ½ page or less for this use pdf reading marked #5
6- Compare the notwithstanding clause to the (USA Bill of Rights) and brief comparison with The development of the supremacy of the British Parliament… for this use pdf readings marked#6 and look at this web site http://www(dot)law(dot)cornell(dot)edu/wex/first_amendment
1 ½ page
7- How significant this Clause is? The public opinion With some examples. And for this use readings marked #7
http://sixthformlaw(dot)info/02_cases/mod2/cases_supremacy.htm  cases in UK chose one small case
NOTWITHSTANDING CLAUSE / CANADIAN CONSTITUTION
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1.0 Introduction
The government system in Canada was originally outlined by the British North America Act 1867, where England’s Westminster system was combined with federalism (division of sovereignty). In the past few years, the 1867 document has often been utilized to analyze how powers are divided between the provinces and the federal government. Authority to amend the Canadian constitution was transferred from Britain by the Constitutional Act, 1982. This also led to the implementation of Canadian Charter of Rights and Freedoms. In the Canadian constitution, one of the instruments that has been subjected to heated scholarly debate is the notwithstanding clause. This clause is also referred to as "legislative override" and is part of section 33 of the Charter. It gives the legislature authority to enact laws and declare them notwithstanding certain sections of the Charter. This document critically analyzes why the notwithstanding clause is included in the charter of rights and freedoms, and its significance.[Leach, Richard H. Canadian Federalism Revisited. (Publius, Vol. 14, No. 1, Crisis and Continuity in Canadian Federalism, pp. 9-19, 1984) 9] [Snow, David. Notwithstanding the override: path dependence, section 33, and the charter. (Innovations: A Journal of Politics. Volume 8. Pp.1-15 – 2008-2009), 1]
2.0 Notwithstanding clause
The reasons for having the notwithstanding clause are plenty. First, the intention of the legislative override was only to be used during rare occasions when the legislature disagrees with how the way the judiciary interprets major issues regarding public policy. Second, the U.S. experience when the decision made by the judiciary was contrary to public opinion with, regards to crucial matters like abolition of slavery made legislators in Canada in implement the clause to curb an errant court.[Lougheed, P. (1998). Why a notwithstanding clause? (Points of View No. 6. Pp. 1-18)iii]
Origins of Section 33
When the legislature override was established, from a constitutional perspective, it is a uniquely Canadian development that is not similar to any western democratic human rights declarations or international human rights development. Each of the provisions in the Canadian constitution holds that the bills of rights, Charter or Code has primacy over any conflicting legislation unless there is an invocation of the overriding provision. Section 33 can only be said to have originated from the constitutional partition process where participants were familiar with the notwithstanding provisions, both at provincial and federal levels.[Library of Parliament. (The Notwithstanding Clause of the Charter. Pp.1-12), 3] [Leach, 9]
The notwithstanding provision was first introduced by Saskatchewan in 1980 when the Federal-Provincial Continuing Committee of Ministers Responsible for Constitutional Affairs (CCMC) was being deliberated. Huge amount of information in the Charter of Rights was created and polished between October 1980 and February 1981. The concept of notwithstanding clause was also introduced in in Ottawa in September 1980 during the Federal-Provincial Meeting of First Ministers. On September 1981, the Supreme Court said that the federal government had a legal right of engaging in unilateral constitution partition, but through the provision, there should be provincial support. Therefore, throughout October 1981, several meetings were held among provincial and federal officials and ministers as they prepared for a Federal-Provincial Conference of First Ministers that was held in November 1981. The contents of section 33 has several provisions.[Whyte, John D. Sometimes Constitutions are made in the Streets: the Future of the Charter’s Notwithstanding Clause. (Constitutional Forum constitutionnel. Volume 16, Number 2, - 79-87. 2007) 82]
Content of Section 33
To start with, provincial legislature or the parliament is permitted by Section 33 (1) to implement legislation that can override sections of the Charter. Usage of the notwithstanding power has to be contained in an Act, be express instead of implied, and it should not subordinate the legislation. The notwithstanding clause is a type of declaratory power and such powers are not unusual in making of constitutions. In a case where section 33 (1) can be invoked by a legislature of Parliament, the overriding legislation under section 33 (2) renders the relevant right or rights of the Charter "not entrenched" for the main purposes of that legislation. Therefore, parliamentary sovereignty is in effect revived when the override powers are exercised in that particular legislative context.[Ibid, 82]
According to section 33 (3), the lifespan of every exercise of notwithstanding power is five years or less. This power expires after the end of five years unless it is reenacted by the legislature or parliament under section 33 (4) for an additional five years or less. Various rights cannot be overridden, and they include democratic rights, language rights, mobility rights, guaranteed equality of men and women, and minority language education rights. Other rights that are not subject to section 33 override include multicultural heritage, denominational schools, enforcement of the Charter, although strictly speaking, these provisions are not guaranteed rights. Several arguments that support and oppose section 33 have been put forward.[Library of Parliament,, 2] [Ibid, 2]
Arguments For and Against Section 33
Individuals who support section 33 say that in exceptional circumstances, the legislature can make important decisions and isolate them for review by the unelected judicial branch of the government. They say that the threat to individual rights are not significant due to the five year limit of the implementation of the notwithstanding clause. Moreover, any legislative override is subjected to public debate when it is first enacted as well as at the moment of any additional re-enactment. They also say that only a specific, and not all, rights are subjected to legislative override.[Whyte, 85] [Lawson, William, J. Every Lawyer's Introduction and Guide to the Canadian Constitution. (American Bar Association Journal, Vol. 50, No. 1. pp. 70-73, 1964) 70]
Other supporters argue that although courts should play a role in elaborating the rights and freedoms of Canadians, it should not be given the authority of acting as legislators. This is because judges tend to remain in office for several years, even after the government that appointed them has left. Furthermore, the role of making policies would compromise the impartiality and independence of the courts and this can hasten their politicization. Therefore, legislative override allows political decisions to be implemented by elected officials and thus avoid politicization of the courts.[Snow, 1] [Lawson, 70]
Those who oppose section 33 say that it is inconsistent with the implementation of human rights and freedoms. This implies that freedoms and rights in the Charter are subjected to judicial interpretation and it should be protected from transgression by the legislature. The government does not violate the rights of the public, but there is a need for elimination or limitation of the rights of the minority and thus the need for constitutional constraints. Section 1 of the Charter argues that the guaranteed rights and freedoms are subject to reasonable limits that are prescribed by the law, and justified in a democratic and free society. Therefore, courts should have enough amount of flexibility to accommodate legisla...