The Specific Clause in Canadian Constitution Is a Champion of Federalism

The continued existence of the notwithstanding clause speaks to its utility. Its origins are entirely important to Canadian Federalism. Essentially the notwithstanding clause was the result of a political compromise necessitated by the need to recognize the constitutional notion of parliamentary sovereignty, the autonomous provincial paradigm, the need for patriation of the Constitution of Canada. Despite widespread criticism, the notwithstanding clause serves useful purposes. Not only does the clause balance parliamentary sovereignty with judicial supremacy, it provides a method by which parliament safeguards against the risk of judicial errors in the interpretation and enforcement of the fundamental rights and freedoms contained in the Charter. Indeed, had it not been for the compromise resulting in the notwithstanding clause, Canada would not have received the support of each of the Provinces and therefore would not have had the Charter after all. This research study analyses the notwithstanding clause and both sides of the debate. It is determined that despite its criticism, the clause is not only necessary for providing a balancing act between parliamentary sovereignty and judicial supremacy, it was also a necessary compromise for facilitating constitutional traditions and for supporting and obtaining federalism. In other words, the notwithstanding clause plays an important role in the development of Canada’s constitution and the relationship between the legislative and judicial limbs of the federal government. This study is therefore divided into three main parts. The first part of the paper discusses the origins and the use of the clause in practice and its implications. The second part of the paper discusses the arguments against the usefulness of the clause and the final part of the paper discusses the arguments in favor of the clause. The Charter contained in the Constitution Act 1982 guarantees fundamental rights and freedoms and applies to both federal and provincial laws, policies and practices on the part of both federal and provincial government.