The Legislative Override

• Author: Robert J. Sharpe; Kent Roach
• Pages: 101-108

101

CHA PTER 5

THE LEGISLATI VE

OVERRIDE

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