CLN4U. Section 33 of the Charter of Rights and Freedoms permits governments (including the federal Parliament, and/or provincial/territorial legislatures)

CLN4UCLN4U

Section 33 of the Charter of Rights and

Freedoms permits governments (including the federal Parliament, and/or provincial/territorial legislatures) to override certain rights and freedoms that are guaranteed by the Charter

gives elected officials the ability to overrule the courts, should they determine that the need to do so exists

What is the Notwithstanding Clause?

Section 33 states the following: “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 of this Charter.”

Wording of Section 33

The clause was included in the Charter as

part of a compromise between the federal and provincial governments during discussions leading to the Patriation of the Canadian Constitution in 1982

Prime Minister Trudeau made no secret of his disdain for the clause, claiming it violated his sense of justice

Premiers (particularly from the Western Provinces) wanted something in the Charter that would maintain Parliamentary Supremacy.

Why Does it Exist?

1. Proposed legislation must explicitly state that s.

33 is being invoked2. Governments must have at least a majority of

the support in the legislature3. Any use of section 33 only has a lifespan of 5

years. The courts can strike down the law after this time

4. After 5 year term, the government must re-enact the legislation once again explicitly stating that s.33 is being invoked

How is it Invoked?

Quebec was the first province to use the clause in

1982. In an act of defiance the PQ government used

section 33 to apply to all legislation, past and present, passed by the National assembly

Many condemned this “omnibus” action, but the Supreme Court of Canada upheld its constitutionality. this stopped in 1987, when the Quebec Liberals,

having ousted the PQ, determined the practice should not be continued.

It’s Use…

The Saskatchewan government was the

next to invoke section 33, to force back-to-work legislation in 1986. Such legislation was viewed as

unconstitutional, because it infringed the workers' freedom of association’.

First time outside of Quebec the clause was invoked

Saskatchewan

In March, 2000, the Alberta Legislature passed Bill 202 Amended the province's Marriage Act to include an

opposite-sex-only definition of marriage included the notwithstanding clause in order to

insulate the definition from Charter challenges. Declaration period expired on March 23, 2005 However, in 2004 the Supreme Court ruled in

Reference re Same-Sex Marriage that the definition of marriage is within the exclusive domain of the Canadian Parliament, therefore the Alberta government acted ultra-vires its jurisdiction

Alberta

Section 33 has only been used one time in direct

response to a Supreme Court decision In 1988, the SCC authored a unanimous decision (Ford

v Quebec) that struck down Quebec’s “French-only” sign law as infringing on freedom of expression and language rights - Bill C-101

Quebec Bill 101 (the Charter of the French Language ) has been renewed every 5 years since 1989.

Viewed by many pundits a background reason for the failure of the constitutional amendments contained in the Meech Lake Accord

Supreme Court Decisions

In all cases except the Ford decision,

section 33 has been used pre-emptively The notwithstanding clause has been

used very infrequently. Why? The Charter is perceived as a “rights

giving” symbol, anything that seemingly takes those rights away is generally viewed with suspicion

General perception that the courts have generally been on the right track R v. Sharpe Vriend v. Alberta

Why has it not been used?