The Legislative Override

• Author: Robert J. Sharpe, Kent Roach
• Pages: 90-96

90

CHA PTER 5

THE LEGISLATIVE

OVERRIDE

There is a signif‌icant qualif‌ication in the Canadian constitution on

the power of judici al review under the Charter of Rights and Freedoms,

namely, the legislative override or notwithstanding clause found in sec-

tion 33. This provision represents an important 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, while

a strong element of judicial review is justif‌iable in a democracy, judicial

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

rarely u sed, it is a fundamental structural feat ure of the Charter that

shapes the respective responsibilities of the courts on the one hand and

Parliament and the legislatures on the other.

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

lature to declare that a law sh all operate “notwithstanding a provision

included in section 2 or sections 7 to 15” of the Charter. In other words,

a law conta ining a simple declarat ion from Parliament or a leg islature

that it is to have ef fect “notwithstand ing” one of these sections will be

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

violating a Char ter guaranteed right or freedom. This means that t he

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 right to equality. The reach of

the legislative override does not extend to democratic right s (the right

to vote and the requi rement of reg ular se ssions of Parliament and the

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