Section Thirty-three of the Canadian Charter of Rights and Freedoms

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Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (or "la clause dérogatoire" in French), or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter.

Contents

Text

The section states:

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Function

The federal Parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's eleven jurisdictions may suspend the core rights of the Charter. The rights to be overridden, however, must be either a fundamental right (e.g., section 2 freedom of expression, religion, association, etc.), a legal right (e.g., liberty, search and seizure, cruel and unusual punishment, etc.), or a section 15 equality right. Other rights such as section 6 mobility rights, democratic rights, and language rights are inalienable.

Such a declaration lapses after five years or a lesser time specified in the clause, although the legislature may re-enact the clause indefinitely. The rationale behind having a five-year expiry date is that it is also the maximum amount of time that the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate.[1] (The provisions of the Charter that deal with elections and democratic representation are not among those that can be overridden with the notwithstanding clause.)

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