THE NOTWITHSTANDING CLAUSE OF THE CANADIAN AND CONSTITUTIONAL CHARTER OF RIGHTS AND FREEDOMS, THE ACHILLES HEEL OF DEMOCRACY?

As part of this contribution we will begin to comment the insertion of a notwithstanding clause (or notwithstanding clause) in the Canadian Constitution and Charter of Rights and Freedoms. We will do a brief overview of specific legal provisions to override authority in Canada for fifty years taking into account national and sub-national legislation ((Canadian Bill of Rights, 1960), section 2; then in the Alberta Bill of Rights, in the Quebec Charter of Human rights and freedoms of Quebec (Article 52, 1975), the Saskatchewan Human rights Code, in the Canada of rights Charter in the Human rights Manitoba Code, the Human rights Act of Yukon, the Ontario Human rights Code (Article 47). We will try to identify key features and show how this provision, which apparently has no parallel in any international instrument to protect human rights nor in no declaration on human rights made by a western democracy transcends the laws of Canada. It is also the contradictory dimension of this provision that we will be analyzed explaining that it is in principle inserted in a Charter of rights and freedoms but that at the same time it removes the human fundamental rights. To support our hypothesis we will mention a few articles of the charter and will make a contrastive analysis with the Quebec Charter of Human Rights and Freedoms of Quebec (1975) and the Code of Rights in Ontario (1990). The controversy concerns the fact that the exceptional power allows subnational and national legislatures, in peacetime as in wartime, to suspend fundamental freedoms and human rights - for all practical purposes, to abolish them.