The Canadian Charter Of Rights And Freedoms

1258 WordsNov 5, 20146 Pages
The Canadian Charter of Rights and Freedoms was established in 1982 and was put into place by the Trudeau government. The purpose of the Charter was to protect the rights of Canadian individuals and to establish independence from Britain. However, one section of the charter sparked much controversy, this was section 33, also known as The Notwithstanding Clause. The purpose of this clause was to allow the state to override a right protected by the charter, for various reasons. These reasons include economic, social or because other rights were found to be more important (Blakeney, 2010) In order for the notwithstanding clause to be put into effect the legislature must declare that they plan to use this clause, and after five years the…show more content…
It must first be brought to attention that while the definition of the clause does not seem to align itself with the charter, the use of the override clause to infringe upon rights and freedoms can be seen as constitutional when it is in accordance with section one of the charter (Grover, 2006). Additionally, it is important to note that the overriding power does not apply to every section of the charter as many believe. While it does apply to arguably the most controversial sections. These include: section two the fundamental freedoms and sections seven to fifteen the legal and equality rights. We must take into account that the clause does not have any effect when dealing with sections three to five the democratic rights, section six mobility rights, sections 16 to 23 linguistic rights, minority educational language rights, or section 29 denominationally guaranteed rights (McCullough, 1992). Therefore, the clause is not an all-consuming power that can overrule any section of the charter whenever the government sees fit. Furthermore, the clause is limited to certain provisions of the charter and has a time constraint as well, thus limiting its power (McCullough, 1992). This leads into the first notion that the clause has not been used a great deal of times in Canada since its creation. Firstly, according to Kahana (2002), the clause has been used a total of 16 times since the late 1900’s and while this may
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