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

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Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (or "la clause dérogatoire" in French), or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter.

Text

The section states:

33. (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).

Function of the clause

The federal Parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" countermanding sections of the Charter, thereby nullifying any 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. The rights to be overridden, however, must be either a fundamental right (e.g., section 2 freedom of expression, religion, association, etc), a legal right (e.g., liberty, search and seizure, cruel and unusual punishment, etc), or a section 15 equality right. Other rights such as section 6 mobility rights, democratic rights, and language rights are inalienable.

Such a declaration lapses after five years or a lesser time specified in the clause, although the legislature may re-enact the clause 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 Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate. (The provisions of the Charter that deal with elections and democratic representation are not among those that can be overridden with the notwithstanding clause.)

The Notwithstanding Clause reflects the hybrid character of Canadian political institutions. In effect it protects the British tradition of Parliamentary Supremacy under the American-style system of written constitutional rights and strong courts introduced in 1982. The argument has been made that if fundamental rights—such as freedom of expression and freedom of association—can be overridden, then it is questionable whether the Charter really provides a check on parliamentary power. 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 type of reasoning was used by the jurists who developed the theory of the Implied Bill of Rights before the adoption of the Charter of Rights and Freedoms.

History

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. Section 33, in conjunction with the Limitations clause in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers.

The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock Jean Chrétien, the federal justice minister, as well as Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the National Conference Centre in Ottawa and sowed the seeds for a deal. This compromise ultimately caused two major changes to the constitution package; the first was that the Charter would include the notwithstanding clause, and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they famously excluded René Lévesque, the premier of Quebec, in the negotiations. At any rate, he refused to agree to the deal, and ultimately the Quebec government declined to endorse the constitutional amendment.

During the January 9, 2006 party leaders debate for the 2006 federal election, Paul Martin pledged that a Liberal government would support a constitutional amendment that would prevent section 33 from being invoked by the federal government, and challenged Conservative leader Stephen Harper to agree. Martin was immediately criticized as this was not part of any prior policy announcements. This sparked a debate as to how the notwithstanding clause can be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that since the proposal would only limit Parliament's powers, Parliament could make the change alone.

Use of the clause

After the Charter came into force in 1982, Quebec inserted a notwithstanding clause into all of its laws; these expired in 1987, when the Quebec Liberals, having ousted the Parti Québécois, neglected to renew them. However, the most famous use of the notwithstanding clause came 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 Quebec employed the "notwithstanding clause" to override freedom of expression (section 2b), and equality rights (section 15). This allowed 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 government 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 they otherwise have the authority to enact, 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 Yukon Territory once included a notwithstanding clause in a statute which never took effect, and Alberta also abandoned an attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations.

Comparison with other human rights instruments

As constitutional scholar Peter Hogg remarked, the notwithstanding clause "seems to be a uniquely Canadian invention." There is no such device, for example, in the United States Bill of Rights. However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights." A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate any right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Alberta bill of rights of 1980, and the Quebec Charter of Human Rights and Freedoms (1977) also contain devices like the notwithstanding clause.

Outside Canada, Israel added a device similar to the notwithstanding clause to its Basic Law in 1992. This power, however, could be used only in respect to freedom of occupation.

In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities fulfills a similar purpose.

References

External links

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