Exam 1: Risk Management and Sources of Law

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Given the expressed intention to invoke the notwithstanding clause, it can be assumed that the company won its Charter challenge and that the court held that a particular law was invalid.The notwithstanding clause, which is found in section 33 of the Charter, allows Parliament or a legislature to create and enforce a law "notwithstanding" the fact that it violates the Charter.It can only ever be used by the government, and not by a corporation.It is intended to allow the government to override a Charter violation in the greater public interest.In that sense, it is part of the delicate balance that the Charter seeks to strike between individual rights and the rights of the majority (as expressed through a democratically elected government).

The notwithstanding clause only applies to some of the rights and freedoms listed in the Charter.Parliament or a legislature can override section 2 (fundamental freedoms) or section 15 (equality rights), for instance, but not section 6 (mobility rights).Furthermore, the notwithstanding clause can only be used for five years at a time.At the end of that period, the clause must be reapplied.That rule ensures that the significant constitutional rules are re-examined on a regular basis.
In practice, the notwithstanding clause is almost never used.The section requires the government to expressly declare that it is overriding fundamental rights and freedoms.That sort of declaration may be politically unpopular or politically unwise.