Charter Notwithstanding: Section 33.

• Author: Bowal, Peter

" 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. " Section 33 of the Canadian Charter of Rights and Freedoms ("Charter) is known as the "notwithstanding clause" and the "override clause." It allows governments to suspend the rights in section 2 and sections 7 to 15 of the Charter for consecutive five-year periods.

As a "superpower", it happens to be the most controversial Carter provision. This article explains the notwithstanding clause in detail.

Purpose

Section 33 is intended to leave some law and policy-making power in the hands of elected officials. The enactment of the Charter significantly expanded the power of judges to strike down and re-write legislation. In return for their consent to the Charter in 1982, some provinces insisted on having a democratic override of the courts over some rights. This compromise, the 'notwithstanding clause', allows governments to suspend some rights by declaring their legislation shall operate notwithstanding the Charter.

What Rights Can be Overridden?

Section 33 can override rights in sections 2 and 7 to 15, including fundamental freedoms, legal rights and equality. Accordingly, governments can override our:

* freedom of conscience and religion;

* freedom of thought, belief, opinion and expression, including freedom of the press;

* freedom of peaceful assembly;

* freedom of association; and

* right to life, liberty and personal security.

Governments could also override rights to conduct unreasonable searches and seizures and subject us to cruel and unusual punishment. And equality rights can be paused.

Rights associated with criminal justice administration can also be suspended. The government may demand an accused give evidence, be arbitrarily detained or imprisoned, remain unaware of the reasons for arrest or the specific offence charged, and denied access to a lawyer. Rights such as trial within a reasonable time, bail, presumption of innocence, jury trials, language interpreters and double jeopardy can all be overridden.

What are the super-rights that cannot be overridden and suspended?

* Democratic rights to vote and run in elections

* Mobility rights to move, live and work anywhere in the country

* Language rights

However, all three of these categories of rights have...