The Legislative Override

AuthorRobert J. Sharpe; Kent Roach
There is a signif‌icant qual if‌ication in the Canadia n Const itution on the
power of judicial review under the Charter of Rights and Freedoms: the
legislative override or notwit hstanding clause found in section 33. This
provision represents an import ant 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, although a strong
element of judicial review is justif‌i able in a democracy, judicial power
also needs to be constrained. Although the override has never been
used by Parliament and, wit h the exception of Quebec, is rarely used by
the provinces, 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 legi s-
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 declar ation from Parliament or a legislature
that it is to have eect “notwith standing” one of these sections w ill be
protected from judicial review, and the law will rem ain in eect despite
violating a Charter-guaranteed right or freedom. This means that the
fundamental fre edoms (expre ssion, religion, association, and assembly)
are subject to being overridden by legislative decision, as are the legal
rights and, subject to section 28,1 the right to equality. The reach of the
1 Section 28 prov ides that Charter rights a re granted equally to m ale and female
persons. It is not l isted in s 33 as one of the provisions t o which s 33 applies. The

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