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The Pros And Cons Of Entrenchment

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Entrenching a charter of rights into the constitution violates the fundamental principles of democracy because it reduces the likelihood that it can be changed. Entrenchment can be defined as establishing something so firmly that it is very unlikely that it can or will be altered. Democracy can be defined as ruling by the people; citizens of a country that are eligible will vote a selected representative to run the federal, provincial, or municipal government. Democracy is about change as the people want it and, by entrenching the charter of rights into the constitution, the government is essentially revoking the citizens right to vote on specific issues regardless of what the people of the country want.

Some people may argue that entrenchment …show more content…

The second is a proportionality analysis in three parts. Once the government passes the first part of the test where they decide if it is pressing and substantial, they must go through a proportionality analysis. First they have to decide if limiting the individuals right is rational in relation to the purpose, for example, it would be unfair to limit a person’s right if they were charged with a smaller crime. If it is not proportionate to the crime, it does not pass the test. The second step of the second part is minimal impairment; this means that the government can only limit the right as little as possible. The last part states that the crime committed and the goal of limiting the right must be proportionate (Dyzenhaus, Reibetanz, Ripstein, …show more content…

Section 33 allows the government to override any rights outlined in section 2 for an amount of time no longer than five years (Johansen, Rosen, 2008). In the simplest terms, this is sufficient to overcome entrenchment being anti-democratic because this clause means that the charter is not written in stone, it can be changed for up to five years. After the five years, however, it can be renewed indefinitely (McAdam, 2009). If the population of a country wants change in the charter for whatever reason, for example gay marriage, the notwithstanding clause allows it which is a democratic

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