Friday, December 27, 2013

The Mystique of the Notwithstanding Clause

The Mystique of the Notwithstanding Clause

By Furano Yukihira
The Daily Magi
December 31, 2059


Section 33 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. As such, it is a controversial provision.

The section states:
    Section 33.
    (1) 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.
    (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).


The federal Parliament, a provincial legislature, or a territorial legislature may declare that one of its laws or part of a law applies 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 fourteen 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. (The provisions of the Charter that deal with elections and democratic representation are not among those that can be overridden with the notwithstanding clause.)

The Notwithstanding Clause reflects the hybrid character of Canadian political institutions. In effect it protects the British tradition of parliamentary supremacy under the American-style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression.

Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention." There is no such device, for example, in the United States Bill of Rights. However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights." A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate any right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause.

Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. This power, however, could be used only in respect of the right to work. In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities fulfills a similar purpose.

No comments:

Post a Comment