Notwithstanding clause / Canadian constitution

NOTWITHSTANDING CLAUSE / CANADIAN CONSTITUTION
Name:
Institution:
Tutor:
Date:
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 Minister...