The Legislative Override

• Author: Robert J. Sharpe; Kent Roach
• Pages: 95-101

95

CHA PTER 5

THE LEGISLATI VE

OVERRIDE

There is a signif‌icant qual if‌ication in the Canadia n constitution on

the power of judicial review under the Charter of Rights and Freedoms,

namely, the legislative override or notwithst anding clause found in sec-

tion 33. This provision represents an import ant compromise re ached at

the time of the entrenchment of the Char ter to meet concerns about the

enhanced power of judicial review. It ref‌lects the judgment that, while

a strong element of judicial review is justi f‌iable in a democracy, judicial

power also needs to be constr ained. Although the override has b een

rarely used, it is a fundamental structural feature of the Charter that

shapes the respect ive responsibilities of the courts on the one hand and

Parliament and the legislatures on the other.

Section 33 of the Charter perm its Parliament or a provincial legis-

lature 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 “notwith standing” one of these sections w ill be

protected from judicial review, and the law will rem ain in effect despite

violating a Charter-guaranteed right or freedom. This means that the

fundamental freedoms (expression, religion, association, and assem-

bly) are subject to being overridden by legislative decision, as are the

legal rights and, subject to section 28, the r ight 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