Author: Tracey Young. (Dec. 17, 2020). Canadian Charter of Rights and Freedoms: The "Nuclear Option": Sec. 33 – Notwithstanding clause. C4D Canadians4Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2020/12/canadian-charter-of-rights-and-freedoms.html.
The clause allows federal, provincial or territorial governments to temporarily override, or bypass, certain Charter rights. These overrides are subject to renewal after five years.
Although the clause is available to governments, its use is politically difficult and therefore rare. It is known colloquially as the “nuclear option,” because its use is considered extremely severe.
Since the Constitution was patriated in 1982, the clause has been used only a handful of times by various provinces. The federal government has never invoked the clause (Canadian Encyclopedia).
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Section 33 – Notwithstanding clause
Provision
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 of this Charter.
(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 section (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 section (1).
(5)
Section (3) applies in respect of a re-enactment made under section (4).
Similar
provisions
Section
33 is unique among the constitutions of countries with constitutional
democracies. However, certain international human rights conventions contain
more limited notwithstanding clauses. Article 4 of the International Covenant and Civil and
Political Rights, which is legally binding on Canada, contains a
notwithstanding clause.
See
also the following regional instruments that are not legally binding on Canada
but include notwithstanding clauses: article 27 of the American Convention on Human Rights;
article 15 of the European
Convention on Human Rights.
Analysis
Section
33 allows Parliament or the legislature of a province to derogate from certain
sections of the Charter, namely section 2 (fundamental freedoms), sections 7 to
14 (legal rights) and section 15 (equality rights). It does
not apply to democratic rights (section 3 — the right to vote or sections 4 and
5 — the sitting of the House of Commons or other Canadian legislatures),
mobility rights (section 6) or language rights (sections 16 to 23). Once
invoked, this section effectively precludes judicial review of the legislation
under the listed sections. The declaration is only valid for 5
years. After this time period, it ceases to have any effect unless it is
re-enacted.
Section 33 lays down a requirement of form only. In invoking
section 33, the legislature does not need to identify the provisions of the Act
in question which might otherwise infringe specified guaranteed rights and/or
freedoms, nor does the legislature need to provide a substantive justification
for using the override (Ford v.
Quebec (Attorney General), [1988] 2 S.C.R. 712, paragraph
33).
A
declaration under section 33 is valid if it generally names all of sections 2
and 7 to 15, without specifying the possible provisions to which the override
may apply. Omnibus legislation will not affect the validity of the
declaration (Ford, supra).
Where
the legislative intent is to override only part of the provisions or provisions
contained in a section, section or paragraph of the Charter, there must be a
sufficient reference in words to the selected part of the legislation to be
overridden (Ford, supra).
The general rule of interpretation against retroactive and retrospective operation applies to section 33 of the Charter: section 33 has been interpreted by the Supreme Court as permitting prospective derogation only. If enacting legislation purports to give retrospective effect to an override of the Charter, the legislation is, to that extent, of no force or effect. (Ford, supra; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927).
Use of section 33 by the government
To
date, the federal government has not invoked the notwithstanding clause.
Section
33 has been invoked on occasion by provincial governments. For
example, in 1982, Quebec passed an omnibus enactment that repealed all
pre-Charter legislation and re-enacted it with the addition of a standard
clause that declared the legislation to operate notwithstanding section 2 and
sections 7 to 15 of the Charter. The legislation also inserted the standard
clause into all post-Charter enactments. The declaration in the omnibus
legislation purported to have retroactive effect to April 17, 1982. This
omnibus legislation was the subject of the decision in Ford, supra. It was not
re-enacted when it expired.
Saskatchewan,
the Yukon, Ontario, and Alberta have also made section 33 declarations. Not all
of the laws in which these declarations were made were brought into force.
References
Canadian Encyclopedia. Notwithstanding clause. Retrieved from: https://www.thecanadianencyclopedia.ca/en/article/notwithstanding-clause.
Government of Canada/Department of Justice. Section 33 – Notwithstanding clause. Retrieved from: https://canada.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html.
Copyright © 2020-2021.Tracey Young/C4D Canadians4Democracy. All Rights Reserved.
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