FROM
OJEN.CAOne unique and controversial aspect of the Charter is s. 33 – the ‘notwithstanding clause’.
Section 33 allows Parliament or provincial legislatures to override some Charter-protected rights. It can only be used to override rights found in s. 2 (fundamental freedoms), and ss. 7-15 (legal rights and equality rights). It cannot be used to override any other sections.
This clause gives Parliament and the provinces a limited ability to pass laws that conflict with particular Charter-protected rights and freedoms. Parliament or provincial legislatures relying on this clause must expressly declare that it will override the Charter and renew this declaration at least once every five years if they intend for it to remain in force.
Despite the potential for this clause to limit the extent of Canadian rights and freedoms,
outside of Quebec, the clause has only been relied upon on three occasions since the
Charter was enacted in 1982. In the Yukon Territory in 1982, it was used in the Land Planning and Development Act, but this statute was never brought into force. In 1988, the Saskatchewan legislature used it in a law that forced striking workers back to work, but this legislation was later found not to violate workers’ freedom of association, so the use of s. 33 had been unnecessary. Finally, it was used
by the provincial government of Alberta in 2000 in an attempt to amend that province’s Marriage Act to limit the definition of marriage to opposite-sex couples. This attempt failed,
however, when the Supreme Court of Canada ruled that the definition of marriage is within federal, not provincial, jurisdiction.