The legislative override

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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There is a significant qualification in the Canadian constitution on the power of judicial review under the Charter of Rights and Freedoms, namely, the legislative override or notwithstanding clause found in section 33. This provision represents an important compromise reached at the time of the entrenchment of the Charter to meet concerns about the enhanced power of judicial review. It reflects the judgment that, while a strong element of judicial review is justifiable in a democracy, judicial power also needs to be constrained. Although the override has been rarely used, it is a fundamental structural feature of the Charter that shapes the respective responsibilities of the courts on the one hand and Parliament and the legislatures on the other.

Section 33 of the Charter permits Parliament or a provincial legislature to declare that a law shall operate "notwithstanding a provision included in section 2 or sections 7 to 15" of the Charter. In other words, a law containing a simple declaration from Parliament or a legislature that it is to have effect "notwithstanding" one of these sections will be protected from judicial review, and the law will remain in effect despite violating a Charter-guaranteed right or freedom. This means that the fundamental freedoms (expression, religion, association, and assembly) are subject to being overridden by legislative decision, as are the legal rights and, subject to section 28, the right to equality. The reach of the legislative override does not extend to democratic rights (the right to vote and the requirement of regular sessions of Parliament and the legislatures), mobility rights (the right of citizens to enter, leave, and

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move about the country), minority rights, or language rights. It also does not apply to the constitutional division of powers.

Override declarations can be in effect for a maximum period of five years, which is roughly tied to the life of a Parliament. As a result, the decision to renew an override will come before a newly elected Parliament or legislature and will have to be debated again by another group of elected legislators.

There is, as might be expected, enormous controversy concerning the wisdom of including the override clause in the constitution, but it was a fundamental compromise without which Canada probably would have no Charter. The notwithstanding clause was modelled on similar clauses in human rights codes and a provision in the Canadian Bill of Rights.1Other countries, notably the United Kingdom, have included an override clause in human rights instruments drafted after the Charter.2The Supreme Court of Canada has clearly stated that it will not engage in reviewing the legitimacy of a legislative decision to invoke the override clause.3The Court made this pronouncement in a case involving the Quebec government’s decision to enact an omnibus override clause shortly after the enactment of the Charter. Through one stroke of the legislative pen, all Quebec statutes were exempted from the Charter by a blanket repeal and then re-enacted with the inclusion of a standard override clause. In addition, all new Quebec statutes were enacted with an override clause. The result was to protect all Quebec statutes from judicial review under the Charter. The decision to enact the override was taken by the separatist Parti Québécois government, which had opposed the 1982 amendments to the constitution, including the Charter. Maintaining that the government of Quebec should have a veto over any such fundamental constitutional changes, the Quebec National Assembly refused to recognize the legitimacy of the Charter.

These override measures were challenged. The Quebec Court of Appeal held that such a sweeping and general declaration of override was invalid and that a much more specific approach was called for.4The Supreme Court of Canada disagreed, holding that, so long as the form of section 33 was observed, the courts had no business second-guessing or reviewing the exercise of the override power by a legislature. According to the Supreme Court, section 33 requires only a formal declaration expressly referring to the sections of the Charter being over-

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ridden. The Court did, however, impose one significant limitation - a declaration under...

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