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S.

333 Override of the Charter Main Points


Section 33.
Parliament or the legislature of a province may expressly declare in an Act of Parliament
or of the legislature, as the case may be, that the Act or a provision thereof shall operate
notwithstanding a provision included in section 2 or sections 7 to 15.
History:
s.33 of the charter was a comprise reached during a debate on the constitution in the
1980s. Provinces complained that power was being shifted from the government
(democratically elected) to the judiciary, ultimately giving courts the final word. Some
scholars have noted that without this, there would have been no charter. It was accorded
the great compromise
Application:
s.33 is not used for war or invasion, that power is reserved by POGG and other acts of
emergency. S.33 applies to normal legislation only.
It must be clearly written in a statue express declaration
It applies only to legislatures, in their capacity as prescribed under the constitution. E.g.
province cant use s.33 to strike out marriage definition or CC provision (see. Same Sex
Marriage)
S.33 only applies to s.2 and 7-15. Some have argued this creates a hierarchy of rights, and
was noted in Sauve. However, this has clearly been proven to not be true under Canadian
Constitution Law. What is excluded are very basic elements of democracy and Canadian
citizenship and bilingual and mobility tights and native rights, which found the core
aspect of what Canada encompasses.
A declaration lasts for 5 years and cannot be reviewed for judiciary
Some have speculated that the 5-year limitation period was roughly similar to elections,
meaning that it let the electorate vote after a government invoked it.
Cannot be invoked retroactively, applies only perceptively (Ford v. Quebec)
The override has been used very seldom. Since its inception, very few provinces have
used it. The usage of Quebec including it in every piece of legislation from 1982-1987
sent a chilling affect and distaste for the use of s.33.
Alberta, has tried to use it and threatened to use it. In Vriend, Justice Iccabucci read into a
Alberta Human Rights statute sexual orientation under individual rights protected by
the act. Some speculated that Alberta would invoke s.33 to get around the decision, but
they did not. Some speculated that this was due to the massive outcry regarding the
sterilization settlement.
Conclusion:
Canadians see invoking s.33 of the override VERY seriously. The public is highly
invested in the charter, and invoking it may come at a governments peril.
S.1 has somewhat stepped in and has been strengthened, to cover s.33 and the lack of use.

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