Section Thirty-three of the Canadian Charter of Rights and Freedoms
(Redirected from Notwithstanding Clause)
Categories: Canadian Charter of Rights and Freedoms
| Canadian Charter of Rights and Freedoms |
| Guarantee of Rights and Freedoms |
| 1 |
| Fundamental Freedoms |
| 2 |
| Democratic Rights |
| 3, 4, 5 |
| Mobility Rights |
| 6 |
| Legal Rights |
| 7, 8, 9, 10, 11, 12, 13, 14 |
| Equality Rights |
| 15 |
| Official Languages of Canada |
| 16, 16.1, 17, 18, 19, 20, 21, 22 |
| Minority Language Education Rights |
| 23 |
| Enforcement |
| 24 |
| General |
| 25, 26, 27, 28, 29, 30, 31 |
| Application of Charter |
| 32, 33 |
| Citation |
| 34 |
Section Thirty-three of the Canadian Charter of Rights and Freedoms (known as "la Charte canadienne des droits et libertés" in French) is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (or "la clause dérogatoire" in French) or override power and allows Parliament or provincial legislatures to override certain portions of the Charter.
The section states:
- (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" countermanding sections of the Charter, thereby nullifying 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. The rights to be overridden, however, must be either a fundamental right (eg. section 2 freedom of speech, religion, association, etc), a legal right (eg. 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 argument has been made that 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 it is questionable whether the people in fact do have a true right to overrule Parliament's actions. 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, either because he was staying at a separate hotel or because he was a Quebec separatist who was refusing to cooperate. At any rate, he refused to agree to the deal, and ultimately the Quebec government declined to endorse the constitutional amendment.
Use of the clause
After the Charter came into force in 1982, Quebec inserted a notwithstanding clause into each and every one of its laws; these expired in 1987, when the Quebec Liberals, having ousted the Parti Quebecois, 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 came into force, and Alberta also abandoned an attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations.
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. The Canadian electorate has adopted the Charter as their own, and 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. However, there is no current popular movement to enact such a clause.
Under present interpretation of the "due process" clause of the 14th Amendment to the United States Constitution, most of the restrictions of the U.S. Bill of Rights also apply to the states; before the passage of the 14th Amendment, states could pass laws which abridged rights that the federal Congress was not allowed to pass. The introduction of a "notwithstanding" clause to the United States Constitution would restore to the states the power to pass certain laws that would currently be declared unconstitutional.