1. CLN4U

2.   Section 33 of the Charter of Rights and Freedoms permits governments (including the federal Parliament, and/or provincial/territorial legislatures) to override certain rights and freedoms that are guaranteed by the Charter  gives elected officials the ability to overrule the courts, should they determine that the need to do so exists What is the Notwithstanding Clause?

3.  Section 33 states the following:  “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” Wording of Section 33

4.   The clause was included in the Charter as part of a compromise between the federal and provincial governments during discussions leading to the Patriation of the Canadian Constitution in 1982  Prime Minister Trudeau made no secret of his disdain for the clause, claiming it violated his sense of justice  Premiers (particularly from the Western Provinces) wanted something in the Charter that would maintain Parliamentary Supremacy. Why Does it Exist?

5.  1.Proposed legislation must explicitly state that s. 33 is being invoked 2.Governments must have at least a majority of the support in the legislature 3.Any use of section 33 only has a lifespan of 5 years.  The courts can strike down the law after this time 4.After 5 year term, the government must re-enact the legislation once again explicitly stating that s.33 is being invoked How is it Invoked?

6.   Quebec was the first province to use the clause in 1982.  In an act of defiance the PQ government used section 33 to apply to all legislation, past and present, passed by the National assembly  Many condemned this “omnibus” action, but the Supreme Court of Canada upheld its constitutionality.  this stopped in 1987, when the Quebec Liberals, having ousted the PQ, determined the practice should not be continued. It’s Use…

7.   The Saskatchewan government was the next to invoke section 33, to force back-to-work legislation in 1986.  Such legislation was viewed as unconstitutional, because it infringed the workers' freedom of association’.  First time outside of Quebec the clause was invoked Saskatchewan

8.   In March, 2000, the Alberta Legislature passed Bill 202  Amended the province's Marriage Act to include an opposite-sex-only definition of marriage  included the notwithstanding clause in order to insulate the definition from Charter challenges.  Declaration period expired on March 23, 2005  However, in 2004 the Supreme Court ruled in Reference re Same-Sex Marriage that the definition of marriage is within the exclusive domain of the Canadian Parliament, therefore the Alberta government acted ultra-vires its jurisdiction Alberta

9.   Section 33 has only been used one time in direct response to a Supreme Court decision  In 1988, the SCC authored a unanimous decision (Ford v Quebec) that struck down Quebec’s “French-only” sign law as infringing on freedom of expression and language rights - Bill C-101  Quebec Bill 101 (the Charter of the French Language ) has been renewed every 5 years since 1989.  Viewed by many pundits a background reason for the failure of the constitutional amendments contained in the Meech Lake Accord Supreme Court Decisions

10.   In all cases except the Ford decision, section 33 has been used pre-emptively  The notwithstanding clause has been used very infrequently. Why?  The Charter is perceived as a “rights giving” symbol, anything that seemingly takes those rights away is generally viewed with suspicion  General perception that the courts have generally been on the right track  R v. Sharpe  Vriend v. Alberta Why has it not been used?