The Legislative Override

AuthorRobert J. Sharpe; Kent Roach
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

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