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Section Thirty-three of the Canadian Charter of Rights and Freedoms

From Academic Kids

Template:Canadian Charter Section 33 of the Canadian Charter of Rights and Freedoms in the Constitution of Canada, commonly known as the Notwithstanding Clause or override power, allows Parliament or provincial legislatures to override certain portions of the Charter.

The section reads as follows:

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).


Contents

Function of the clause

The federal Parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" certain sections of the Charter, essentially using it to negate any federal/provincial or judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden.

Such a declaration lapses after five years or a lesser time specified in the clause, although it may be re-enacted again and again, indefinitely. The rationale behind having a five-year expiry date is that it is also the maximum amount of time that the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate. Although, if fundamental rights--such as freedom of conscience and freedom of religion; freedom of thought, belief, opinion and freedom of expression, including freedom of the press (which includes other media of communication); freedom of assembly; and freedom of association--can be overridden, then this raises the question of whether or not the people do have the right to do so. However, scholars of British constitutional law, upon which much Canadian constitutional jurisprudence is based, stress that if the fundamental jus commune or law of the land was to be overridden in such a cavalier way by a Parliament exercising such arbitrary parliamentary supremacy the people would have the ability to revolt against their government much as the rebels revolted against the Crown in the thirteen colonies. This is the kind of thinking used in the reasoning of jurists who developed the theory of the Implied Bill of Rights before the adoption of the Charter of Rights and Freedoms.

History

The inclusion of the clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints with the Charter was its effect of shifting power from elected officials to the judiciary, giving the courts the final word. The inclusion of section 33 along with section 1 (the Limitations clause) was supposed to give provincial legislators more leverage to pass law. Prime Minister Trudeau was originally strongly opposed to including the clause, but eventually agreed under pressure from the provincial premiers.

Use of the clause

The use of this override clause is most noted for its inclusion in the Quebec language law known as Bill 101 after sections of those laws were found unconstitutional by the Supreme Court of Canada in Ford v. Quebec (A.G.). On December 21, 1989 the Premier of the Province of Quebec employed the "notwithstanding clause" to override freedom of expression (section 2b), and equality rights (section 15). This allowed the Province of Quebec to continue the restriction against the posting of any commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government rewrote the law and the notwithstanding clause was removed.

The clause was also used with respect to a labour law passed by the province of Saskatchewan. In this case the law was later ruled to be consistent with the Charter of Rights and Freedoms, making the use of the clause unnecessary.

On March 16, 2000, the Alberta government passed Bill 202, which amended the provincial Marriage Act to include an opposite-sex only definition of marriage as well as the Notwithstanding clause in order to insulate the definition from Charter challenges. However, provinces may only use the Notwithstanding clause on legislation genuinely provincial in nature and the Supreme Court ruled in Re: Same-Sex Marriage that the definition of marriage is within the exclusive domain of the Canadian Parliament.

The use of this clause has come to be seen as an increasingly dangerous political option for governments as the Charter gains more respect with age. Although the Charter was originally greeted with great indifference, the Canadian electorate adopted it as its own once it saw the Charter in action. Polls of the electorate tend to promise a painful political death to politicians or even complete political parties that mess with their Charter. Nevertheless, threats to invoke the notwithstanding clause are common as they are seen as a symbol of protecting local cultural values against the dominance of Ottawa and Central Canada.

Some legal scholars have argued the clause may even become a lapsed power if not used, and will be excluded from use by the large part of Canada's constitution which is unwritten.

International implications

Noted right-wing jurist and former nominee to the United States Supreme Court Robert Bork has advocated for the adoption of a similar clause in the Constitution of the United States, and earlier rightist thinkers have often advocated something similar. Even with recent political events in the U.S. seeming to advance further the interests of the right wing, this eventuality is regarded as highly unlikely, at least at the present.

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