The Legislative Override

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 86-92

CHAP TER 5

THE LEGISLATIVE

OVERRIDE

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 notw ithstanding clause found in sec-

tion 33. This provision represents an i mportant compromise reached at

the time of the entrenchment of the Charter to meet concerns about the

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

a strong element of judicial rev iew is justifiable in a democr acy, judicial

power also needs to be constrained. Although the override has been

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

shapes the resp ective responsibilities of the court s on the one hand and

Parliament and the legislatures on the other.

Section 33 of the Charter per mits Parliament or a provinci al legi s-

lature to declare th at a law shall operate “notwit hstanding a prov ision

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 “notw ithstandi ng” one of these sections w ill be

protected from judicial review, and the law wi ll remain 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 overr ide does not extend to democratic rights (the right

to vote and the requirement of regular sessions of Parli ament and the

legislatures), mobility rights (the right of citizens to enter, leave, and

move about the country), minority or language rights. It also does not

apply to the constitutional div ision of powers.

86