Author Topic: Constitution of Canada  (Read 487 times)

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Offline segnosaur

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Re: Constitution of Canada
« Reply #15 on: August 30, 2017, 02:08:00 pm »
Re: Notwithstanding clause....

The charter authors knew there would be conflicts between the rulings of unelected judges creating new interpretations of the general principles in the charter and the democratically expressed will of the people. The notwithstanding clause is an important limit on the power of the judiciary which allows the elected representatives to over rule them. This check which has only needed to be used rarely, however, as the cost of implementing the various rulings rises there we will eventually get to the point where legislatures need to routinely invoke it in order to manage government finances responsibly.
A couple of other notes about the clause:

- Only certain rights can be overridden. For example, they can override the right to freedom of expression (as Quebec did with bill 101), but they can't override rights related to democracy/voting

- The notwithstanding clause expires after 5 years, but can be renewed indefinitely. For example, when Quebec brought in bill 101, they invoked Nothwithstanding (although they were doing that with pretty much every bill at the time.), They've had to continually invoke it every few years, otherwise their language laws might become unconstitutional. (The reason why it expires after 5 years is probably because that's the maximum length of time a legislature can sit, and it forces the next government to deal with the issue in some way, be it fixing the legislation to make it constitutional or reinvoking the notwithstanding clause.)