Section Thirty-three of The Canadian Charter of Rights and Freedoms - Function

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 Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate. (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.