The Notwithstanding Clause of the Charter

2  Content of Section 33
Section 33(1) of the Charter of Rights permits Parliament or a provincial legislature to adopt legislation to override section 2 of the Charter (containing such fundamental rights as freedom of expression, freedom of conscience, freedom of association and freedom of assembly) and sections 7–15 of the Charter (containing the right to life, liberty and security of the person, freedom from unreasonable search and seizure, freedom from arbitrary arrest or detention, a number of other legal rights, and the right to equality). Such a use of the notwithstanding power must be contained in an Act, and not subordinate legislation (regulations), and must be express rather than implied.

Under section 33(2) of the Charter of Rights, on the invocation of section 33(1) by Parliament or a legislature, the overriding legislation renders the relevant Charter right or rights “not entrenched” for the purposes of that legislation. In effect, parliamentary sovereignty is revived by the exercise of the override power in that specific legislative context. Section 33(3) provides that each exercise of the notwithstanding power has a lifespan of five years or less, after which it expires, unless Parliament or the legislature re-enacts it under section 33(4) for a further period of five years or less.

A number of rights entrenched in the Charter are not subject to recourse to section 33 by Parliament or a legislature. These are democratic rights (sections 3–5 of the Charter), mobility rights (section 6), language rights (sections 16–22), minority language education rights (section 23), and the guaranteed equality of men and women (section 28). Also excluded from the section 33 override are section 24 (enforcement of the Charter), section 27 (multicultural heritage), and section 29 (denominational schools) – these provisions do not, strictly speaking, guarantee rights.

All rights and freedoms set out in the Charter are guaranteed, subject to reasonable limitations under the terms of section 1. This has the effect, in combination with section 32 of the Charter (making the Charter binding on Parliament and the legislatures) and section 52 of the Constitution Act, 1982 6 (making the Constitution, of which the Charter is a part, the supreme law of Canada), of entrenching the rights and freedoms set out in the Charter. The invocation of section 33, and especially of section 33(2), pierces the wall of constitutional entrenchment and resurrects, in particular circumstances, the sovereignty of Parliament or a legislature. Consequently, the Charter is a unique combination of rights and freedoms, some of which are fully entrenched, others of which are entrenched unless overridden by Parliament or a legislature.

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