Free Essay About Canadian Constitution

Section 33 of the Canadian constitution allows parliament or provincial legislatures to pass a law even though it may contravene some aspects of the charter. As such, it is called a notwithstanding clause or a legislative override. This clause gives the parliament the opportunity to make laws which it believes are better in protecting the rights of the people as opposed to the provisions of the charter. Consequently, the parliaments as well as provincial legislatures are given the power to pass laws and declare them notwithstanding the charter. The laws that are passed by the parliaments and legislatures will therefore not be subject to charter sections which include legal rights, fundamental freedoms and equality rights. These laws are applicable for a five year period after which the parliaments and provincial legislatures are then required to re-pass them. In the event that they are unable to re-pass the laws, then the afore-mentioned sections of the Charter will be applicable. The reason for the five year-period is to allow the electorate to choose their representatives who would come up with better laws if they are dissatisfied with the current ones. Therefore, laws which are passed according to the notwithstanding clause are only applicable for maximum period of five years.
The notwithstanding clause has various functions within the Canadian constitutional framework. One of the functions of this clause is to permit the federal parliament and territorial legislatures to override certain rights and freedoms which are guaranteed by the Charter. This is done especially when the federal parliament and territorial legislative authorities ascertain that the enjoyment of such rights and freedoms significantly interferes with other people’s rights and freedom. This therefore means that by enacting laws that contravene some provisions of the Charter of Rights and Freedoms, such territorial legislatures and parliaments would be offering legal protection to the people who are in need if such protection. For instance the Quebec government used the notwithstanding clause to protect people’s freedom of expression.
This clause is also permits elected officials to overrule the decisions that are made by the Supreme Court if they feel that they have been made inappropriately. This is important because it seeks to protect the rights of different individuals within the Canadian jurisdiction. The Supreme Court may arrive at specific court rulings that are not acceptable to the public. Since the ruling is made by the Supreme Court, it may be quite difficult for any other party to contest such a ruling. Consequently, parliaments and territorial legislatures play a very important role of coming up with laws which override such rulings thus promoting justice and freedom within the jurisdiction. This clause is therefore a very important element in the Canadian legal system because it protects the rights and freedom of people whenever such are violated through specific court rulings. For instance, in March 2000 the notwithstanding clause was used in Alberta province to protect the rights of people involved in the same-sex marriage. The Bill 202 was passed by the Alberta legislature which amended the province’s Marriage Act. Following this amendment, the Marriage Act include an opposite-sex only definition of marriage which then gave people the right to get involved in the same-sex marriage without any fear of legal proceedings against them. A notwithstanding clause was enacted in order ensure that this definition of marriage does not face unnecessary challenges from the Charter.
The other function of the notwithstanding clause is that it protects the supremacy of parliaments in the face of strong courts and written constitutional rights. The Canadian judicial system is dominated by strong courts and written constitution in which case the parliament may not have such a huge impact on the manner in which legal decisions are arrived at. This situation gives the Supreme Court too much power thus making it challenging for some legal decisions to be made in the manner that is favorable to the people. The notwithstanding clause was therefore established to make sure that the laws which are applied are as just as expected by the people within the jurisdiction. If for instance, a law is made and it fails to meet the electorate’s expectations, they would expect their representatives to come up with laws which override such earlier established legal provisions. This would then result into legal rulings that would be favorable and thus acceptable. At times, the parliament and territorial legislatures may come up with laws which are not fully acceptable to the people. Since people would be dissatisfied with the parliament’s actions, they will have until the end of five years to have the notwithstanding clause removed. This is because the clause can only be applied for five years after which it is re-passed. It would therefore be the duty of the electorate to make sure that different representatives are elected into the office to prevent the notwithstanding clause from being re-passed.
Section 33 is a good idea for Canadian law. One of the reasons why this is the case is the fact that it trims the powers of the Supreme Court. This is important because once the members of Supreme Court have known that their decisions are not necessarily final, they would make sure that they make only the rulings which are not only appropriate but that are beneficial to the general public. This is the case because in case their decision making process fails to meet the expectations of the general public, territorial legislatures will formulate laws that contravene such rulings and subsequently use the notwithstanding clause to have their way. This plays a very important role in protecting the freedom and rights of people within this jurisdiction. It also keeps the judges of the Supreme Court on toes to ensure that the decisions which they make are within their constitutional mandate and also promote the people’s enjoyment of their respective rights and freedom.
Secondly, section 33 is a good idea for Canadian law because it seeks to ensure that the British parliamentary system is protected. This is because the American system emphasizes the need to apply written laws and adherence to the rulings of strong courts. While such a legal system is good in some areas, its full application may not be good to all the people within the legal jurisdiction. Some legal decisions made by the court may be inappropriate and as a result cause some people not to enjoy their respective rights. This is the reason why section 33 is a good idea because it puts in place a balance between the British parliamentary system and the American legal system. The achievement of this balance plays a very important role in ensuring that the quality of laws made is high and that all the people within the jurisdiction freely enjoy their rights.
Thirdly, when the notwithstanding clause is used, the common citizen is given access to the power to make and amend laws. If laws made by the government do not satisfy the needs of the people, the parliament have the right to contest such laws and therefore come up with overriding legal provisions. Such provisions would then ensure that any legal issues affecting citizens are dealt with the most effective manner. If the representatives fail to bring come up with such provisions, people will have the right to vote them out and thus elect people who would effectively address their concerns. It is also important to note that when the current parliamentary representatives enact an unpopular law, the electorate would simply do away with such a law by voting out such representatives thus preventing them from re-passing the law that was considered unpopular. Therefore, section 33 of Canadian is a good idea for Canadian law.