Section 33; The Notwithstanding Clause Unit 2: Constitutional Law; Rights and Freedoms

Section 33 S. 33 permits the government (federal/provincial) to override certain rights guaranteed by the Charter Provides for protection of parliamentary supremacy- elected officials can overrule the courts Prostitution? Marijuana? Quebec Charter of Values? Euthanasia?

Legal Wording S. 33 contains 5 clauses: Parliament may declare by law that the law shall operate notwithstanding a provision in the Charter The law will be in effect with provision outlined by the Charter The law can only operate for 5 years Parliament may re-enact the law under subsection 1

The Charter Important role between individual claims and government responsibilities The courts interpret Charter rights to ensure that government laws do not violate them The courts, if such a law is found, will declare the law void or ask the government to change the law accordingly

Overriding the Charter- Example Federal government passes a law requiring public service employees to dress a certain way at work. A group of employees who wear a particular piece of clothing at all times for religious reasons protest this law. As such, they challenge the government’s dress code in court, arguing that the imposition violates their Charter freedom of religion Court agrees The court declares the law void The government then invokes section 33 declaring that the law will stand even though it violates the Charter. The invocation protects the government from any further claims Invoking sect. 33 only protects a law from being stuck down, it does not deny the right or freedom in any other capacity

Actual use Act respecting the Constitution Act 1982- Quebec- made all previous legislation immune to Charter review) 1988 French language signs- Quebec 1986 Saskatchewan back to work legislation Alberta 2000 definition of Marriage

Section 33 To pass the law using sect. 33 a majority must still be found in the Parliament Section 33 can only be used to override a few of your rights- some are beyond the reach See handout for rights that can and cannot be overridden