Section 33 of the Canadian Charter of Rights and Freedoms: Difference between revisions
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The '''override power''' is the name of the |
The '''override power''' is the name of the legislative power under section 33 of the [[Canadian Charter of Rights and Freedoms]] also known popularly as the '''nothwithstanding clause''' in the [[Constitution of Canada]], the Federal parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" certain sections of the Charter, essentially using it to negate any [[judicial review]] or overriding the Charter protections for a limited period of time. This is done by including a section in the law specifically specifying which rights have been overridden. Such a declaration lapses after five years or a lesser time specified in the clause. It may be re-enacted. The rationale behind having a five year expiry date is that five years is also the maximum amount of time the Parliament or legislature may sit before an election must be called, thus if the people wish the law to be repealed the have the right to elect representatives that will carry out the wish of the electorate. |
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The use of this clause is most noted for its inclusion in the [[Quebec]] language law known as Bill 101 after sections of those laws were found unconstitutional by the [[Supreme Court of Canada]] in [[Ford v. Quebec (A.G.)]]. On [[December 21]], [[1989]] the Premier of the Province of [[Quebec]] employed the "notwithstanding clause" to override the freedom of expression guarantees in the Charter of Rights, to continue the restriction against the posting of any commercial signs in other languages than French. |
The use of this clause is most noted for its inclusion in the [[Quebec]] language law known as Bill 101 after sections of those laws were found unconstitutional by the [[Supreme Court of Canada]] in [[Ford v. Quebec (A.G.)]]. On [[December 21]], [[1989]] the Premier of the Province of [[Quebec]] employed the "notwithstanding clause" to override the freedom of expression guarantees in the Charter of Rights, to continue the restriction against the posting of any commercial signs in other languages than French. |
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Revision as of 04:02, 5 May 2003
The override power is the name of the legislative power under section 33 of the Canadian Charter of Rights and Freedoms also known popularly as the nothwithstanding clause in the Constitution of Canada, the Federal parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" certain sections of the Charter, essentially using it to negate any judicial review or overriding the Charter protections for a limited period of time. This is done by including a section in the law specifically specifying which rights have been overridden. Such a declaration lapses after five years or a lesser time specified in the clause. It may be re-enacted. The rationale behind having a five year expiry date is that five years is also the maximum amount of time the Parliament or legislature may sit before an election must be called, thus if the people wish the law to be repealed the have the right to elect representatives that will carry out the wish of the electorate.
The use of this clause is most noted for its inclusion in the Quebec language law known as Bill 101 after sections of those laws were found unconstitutional by the Supreme Court of Canada in Ford v. Quebec (A.G.). On December 21, 1989 the Premier of the Province of Quebec employed the "notwithstanding clause" to override the freedom of expression guarantees in the Charter of Rights, to continue the restriction against the posting of any commercial signs in other languages than French.
The only other use of the notwithstanding clause to date was with respect to a labor law passed by the province of Saskatchewan. However, in this case the law was later ruled to be consistent with the Charter of Rights and Freedoms, making the use of the clause unnecessary.
In addition, the use of this clause has come to be seen as an increasingly dangerous political option for governments as the Charter gains more respect with age. As a result, the clause has been used with decreasing frequency as politicians fear the negative public reaction of constitutional rights being overridden.
Noted right-wing jurist and nominee to the United States Supreme Court, Robert Bork has advocated for the adoption of a similar clause in the Constitution of the United States.