Is there a time limit that Parliament or a province has for invoking the clause?
Unless there’s a shorter time period declared, the clause expires after five years unless renewed, but it can be renewed indefinately.
My rather worldly intelligence notwithstanding (ducks brickbats), I’ve no idea what this is aboot (ducks rotten fruit).
So, what is the notwithstanding clause?
Vaguely remembering from the murkiness of paying attention to canadian politics, the clause was written, so that individual provinces could opt out of national policys.
From sea to shining sea, certain things are universal across canada. You marry your sweetie in Halifax , Nova Scotia , and its recognized in Kamloops , BC. But should the feds enact legislation that provides same sex marriage , certain provinces like Alberta have threaten to invoke the clause , which would make a ss relationship null and void legally.
Declan
I think the “notwithstanding clause” allows the federal and provincial parliaments to pass legislation that overrides those sections of the *Charter of Rights * that deal with fundamental human rights e.g. to life and liberty etc.
Cunctator has it correctly. The notwithstanding clause allows a government to provide that one of its own laws can operate notwithstanding certain provisions of the Canadian Charter of Rights and Freedoms. It does not allow a provincial government to say that a federal law will not apply within the province.
The notwithstanding clause is another name for section 33 of the Charter:
Otto, I’m not sure if you’re asking how long the exception lasts, or if there’s a time limit for invoking the clause for a piece of legislation.
If it’s the first that you’re asking about, you’ll see from sub-section (3) that the exception only lasts for five years from the time it comes into force.
If it’s the second, I’ve never seen a suggestion that the provision has to be invoked at the time the statute is first enacted. In fact, when Quebec became the first province to use the clause in 1982, it amended all provincial statutes in force to say that they operated notwithstanding the applicable Charter provisions, regardless of when each statute was originally enacted. The Supreme Court upheld that use of the clause, so I don’t think it matters when the statute was first enacted.
It’s the second. Sorry, I thought asking about the invocation was clear.
So, really, no affectable piece of legislation or court ruling is safe ever and there’s not really such a thing as settled law in those instances, is that correct?
It hasn’t been used much. Quebec used it as mentioned above, and then again later so that signs wouldn’t have to be in English (and that was later withdrawn after UN condemnation), and by Saskatchewan to pass a labor law, which the courts ruled as consistant with the Charter of Rights anyway. Alberta’s also threatened to use it to ban same-sex marriage, but I don’t believe they have yet.
So, there’s just not that much history behind the use of the clause, so it’s hard to talk about what the limitations would be.
In 2000, Alberta added an exception under the notwithstanding clause to its Marriage Act:
So the Charter of Rights and Freedoms is “more like a set of guidelines, really”?
That’s right, but that’s because we’re talking about statute law. No statute is ever permanent. They can be repealed at any time, or amended extensively. So even if the clause could only be invoked when a statute is first passed, there wouldn’t be anything to prevent a legislature from repealing a statute and then re-enacting a new statute that covers much the same ground, with the notwithstanding clause invoked in the new statute.
The Charter was pretty controversial when first passed. The Provincial legislatures were afraid that it was a way for the national government to limit their power. This was especially true in Quebec, where they were afraid that it would take away the official status of the French language.
There was also a concern, drawn somewhat from the US experience, that it would lead to “legislation from the bench”…that popular laws would be found to violate someone’s rights. There was also a more general fear that adoption of the Charter would be a departure from common law tradition, and that it would be too “rigid” a framework.
So, with all those concerns, Section 33 was seen as neccesary.
You know all those threads about Marbury v. Madison and judicial review that we’ve had here on the SDMB? Well, that was the kind of debate that we had in Canada in the late 70s and early 80s. One of the fundamental questions was which branch of government would have the final say on the interpretation of the Charter. Was it to be the courts, as in the United States, or the elected legislatures, as in the United Kingdom?
Eventually, being Canadians, we settled on a compromise. The Charter is the supreme law, and thus normally it falls to the courts to make the interpretations. However, in exceptional cases, where the elected members of a legislature think the courts have erred in their interpretation of certain provisions, then the legislature can overrule the courts. They have to do so expressly, and they have to be willing to do it every five years if they want their interepretation to continue - and they have to be willing to take the political heat for using the notwithstanding clause.
The reason 5 years is the limit is that our elections are held at least every 5 years, if not sooner. That means that the voters will be given the chance to assess the legislature’s use of the notwithstanding clause, and take it into account in deciding how to vote.
One other point is that the clause can only be used for certain provisions. It can’t be used to overturn democratic rights (for example, our Supreme Court has held that prisoners have the right to vote; that decision can’t be affected by s. 33), nor minority linguistic rights.
So far, the clause has been invoked four times: by Quebec in 1982 and 1988; by Saskatchewan in 1984; and by Alberta in 2000. Quebec used the clause in 1982 to protest the enactment of the Charter without their consent, and in 1988 to overturn a Supreme Court decision on restrictions on the use of English in commerical signs. Saskatchewan used it to overturn a Court of Appeal ruling that held that freedom of association included a constitutional right to strike. Ultimately, the Supreme Court agreed with the government’s interpretation and allowed the appeal from the Court of Appeal. And then there’s the Alberta provision I quoted earlier.
Finally, one of the developments is that the Charter has become so much part of our culture that governments are wary about using the clause. For example, some years ago the Alberta government was being sued by individuals who had been forcibly sterilised under Alberta’s eugenics laws in the 30s and 40s. The government announced that it wanted to put a cap on damages that the individuals could sue for, and would use s. 33 to immunise the legislation from the courts. Much to the government’s surprise, there was popular outrage over the proposal to invoke the notwithstanding clause. Ultimately the government was forced to withdraw its bill and pay full compensation. So, in this particular case, it was the citizens themselves who protected their fellow citizens’ Charter rights.
Would that it were that remote. If I recall correctly, the first successful suit was that of Lelahni Muir, who was sterilized in 1959. Many of the subsequent suits were from people who were sterilized much later than that. The Sexual Sterilization Act wasn’t repealed until 1972.
Section 33 does have certain other limitations in enabling over-riding of the Charter, as may be noted in reading the quote from Northern Piper. Its application is limited to section 2 (Fundamental Freedoms) and sections 7 to 15 (Legal Rights and Equality Rights) of the Charter
Other sections remain outside the aegis of section 33: sections 3 to 5 (Democratic Rights); section 6 (Mobility Rights); sections 16 to 22 (Official Languages of Canada); section 23 (Minority Language Educational Rights); and the catch-all 25 to 31 (General).
Of these section 28 notably remained outside of the scope of section 33:
- Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
demonstrating some commitment to gender equality as well as our fondness for “notwithstanding” (it was used 3 times in a total of 34 sections).
In any event, all of these have to be read in combination with section 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.