Section Thirty-three of the Canadian Charter of Rights and Freedoms
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Template:Canadian Charter 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.
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).
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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 speech, 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 speech 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, 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.
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. <ref>'Martin says he would ban notwithstanding clause', CBC News, January 9, 2006 </ref> 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.<ref>Corbella, Licia. "Martin shocks drafter of Charter of Rights" The Calgary Sun, 11 January 2006.</ref>
Use of the clause
After the Charter came into force in 1982, the Quebec government of Premier René Lévesque passed Bill 62, which added a standard notwithstanding clause to each of the provincial statutes in force. In addition, his government made it a customary practice to insert the clause into all of its new laws in order to protest the fact that the Canadian Constitution was repatriated without the Quebec's consent. When the Quebec Liberals defeated the Parti Quebecois in the 1985 provincial election, the pratice was discontinued. After 1987, the clause was allowed to expire on any remaining statutes containing it.
While the Quebec government of Premier Robert Bourassa used the notwithstanding clause on four separate occasions with much less controversy, the most controversial use of it came in the aftermath of a decision by the Supreme Court of Canada, which declared in Ford v. Quebec (A.G.) that sections of the Quebec language law known as Bill 101 were unconstitutional. On December 21, 1989, the Quebec government employed the notwithstanding clause to override freedom of expression (section 2b), and equality rights (section 15) in Bill 178. This law 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 employed by the Saskatchewan government of Premier Grant Devine in 1986. This instance involved a labour dispute between the provincial government and its workers, represented by the Saskatchewan Government Employees' Union (SGEU). In the fall of 1985, the SGEU started a series of rotating strikes in an attempt to put pressure on the government. The Saskatchewan government recalled the legislature on January 30, 1986, and introduced Bill 144, which included the notwithstanding clause and legislated the employees back to work. In Bill 144, the Devine government employed the clause to overide the union's freedom of association (section 2d). Since the Supreme Court of Canada later ruled in a similar case that legislating employees back to work did not infringe upon workers' freedom of association, the use of the notwithstanding clause in Bill 144 was viewed as unnecessary.
On March 16, 2000, the Alberta government of Premier Ralph Klein passed Bill 202, which amended the provincial Marriage Act<ref>Marriage Act, R.S.A. 2000, c. M-5. Accessed URL on March 10, 2006.</ref> 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.
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. 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.
At the same time, however, some members of the Conservative government of Prime Minister Stephen Harper have publicly criticized some Charter-based rulings of the Supreme Court. The results of the 2006 federal election may suggest a shift in public attitudes toward the Supreme Court. The public reaction towards Paul Martin's futile proposal to restrict the federal government's power to invoke the notwithstanding clause in the middle of the 2006 election campaign may further reinforce this perceived shift.
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 notwithstanding clauses.
Outside Canada, Israel added a notwithstanding clause to its Basic Law in 1992. This power, however, could be used only in respect to freedom of occupation.<ref>Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.</ref>