2

Section 33 of the Canadian Charter of Rights and Freedoms provides as follows:

Exception where express declaration

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 [of the Charter]

[...]

Section 1 of the Charter states that:

Rights and freedoms in Canada

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Does Section 1 imply that all uses of Section 33 are potentially subject to judicial review and may be invalidated upon a finding by a court that the limitation of Charter rights that was imposed by the legislature through Section 33 is not justifiable in a free and democratic society?

Related: Could the Holocaust legally happen in modern day Canada?

1
  • To assist others, the Charter was enacted by the Constitution Act, 1982 and the cited sections are within Part 1 of that Act which can be found about half way down this page – Rock Ape Apr 29 at 17:06
4

No, it is not. Section 1 allows legislatures to infringe all Charter rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can completely ignore the Charter rights that it can be applied to (ss. 2 & 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating Charter rights.

Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, Ford v. Quebec (AG) [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved).

In it, ss. 58 & 69 of Quebec's Charter of the French Language were disputed. Due to legislative hijinks*, it was unclear whether either section was covered by an invocation of the notwithstanding clause. The Court first undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not (para. 34).

Only after that did it address the substantive rights issues. While still analysing both ss. 58 & 69 to fall within the guarantees of Charter s. 2(b), the court only concluded s. 69 to infringe the Charter since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As Charter rights were found to be infringed, the Court then examined whether s. 69 could saved under Section 1. It could not, thus rendering it an unjustifiable infringement of the Charter (para. 73).

*To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the Constitution Act, 1982.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.