The Notwithstanding Clause : Indefensible And Unviable

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The Notwithstanding Clause: Indefensible and Unviable Within the last decade, Canada has become internationally recognized as a constitutional democracy. Moreover, the Charter of Rights and Freedoms is seen as an exemplary rights protection document. Nonetheless, the Charter 's most unique feature, the Notwithstanding Clause (NC) is highly controversial as it allows the legislature to displace most Charter rights. The NC can be applied to fundamental freedoms, legal rights, and equality rights; however, it cannot be applied to mobility rights, minority language education rights, or gender equality rights. Ultimately, if a legislature is determined to preserve a law that violates Charter-protected rights, it can do so. In assessing the logic, wisdom, and viability of the NC, it is clearly indefensible and unviable; therefore, Canada should abolish it. Firstly, the NC is inconsistent with the entrenchment of rights and freedoms protection embodied by the Charter. Secondly, the legislature 's power of the NC cannot be legitimately exercised against the judiciary 's power of review. Thirdly, the NC has a long history of dormancy and has become irrelevant. Jamie Cameron 's The Charter 's Legislative Override: Fear or Figment of the Constitutional Imagination? and John Whyte 's On Not Standing For Notwithstanding, critiques the NC. Cameron argues that legislative authority cannot prevail in the contest between competing supremacies under the Charter; whereas Whyte, who

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