REPORT: The Notwithstanding Clause,Section 33 of the Constitution Act, 1982


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Constitution Act, 1982

Section 33 

Compilation of primary documents to assist  in interpreting the meaning of the Notwithstanding Clause in Section 33 of the Constitution Act, 1982[1]

(1)       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 of this Charter.

(2)       An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operations as it would have but for the provision of this Charter referred to in the declaration.

(3)       A declaration made under subsection (1) shall cease to have effect in five years after it comes into force or on such earlier date as may be specified in the declaration.

(4)       Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

(5)       Subsection (3) applied in respect of a re-enactment made under subsection (4)

—–o0o—–

 History of Section 33

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Meetings Between Ministers

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2-5 November, 1981) – Federal-Provincial Conference of First Ministers on the Constitution, Verbatim Transcript.

p. 141

In an effort to reach an acceptable consensus on the constitutional issue which meets the concerns of the federal government and a substantial number of provincial governments, the undersigned governments have agreed to the following:…

(3) Charter of Rights and Freedoms:

– The entrenchment of the full Charter of Rights and Freedoms now before Parliament with the following changes:

[…]

(b) a “notwithstanding” clause covering sections dealing with Fundamental Freedoms, Legal Rights and Equality Rights. Each “notwithstanding” provision would require re-enactment not less frequent that once every five years.

p. 145

A notwithstanding clause is one which enables a legislative body (federal and provincial) to enact expressly that a particular provision of an Act will be valid, notwithstanding the fact that it conflicts with a specific provision of the Charter of Rights and Freedoms. The notwithstanding principle has been recognized and it contained in a number of bills of rights, including the Canadian Bill of Rights (1960), the Alberta Bill of Rights (1972), the Quebec Charter of Rights and Freedoms (1975), the Saskatchewan Human Rights Code (1979), and Ontario’s Bill 7 to Amend its Human Rights Code (1981)

How it would be applied

Any enactment overriding any specific provisions of the Charter would contain a clause expressly declaring that a specific provision of the proposed enactment shall operate, notwithstanding a specific provision of the Charter of Rights and Freedoms.

Any notwithstanding enactment would have to be reviewed and renewed every five years by the enacting legislature if it were to remain in force.

——–o0o——–

1981: Commons Debates

——–o0o——–

6 November, 1981: Parliament Debate (Click HERE )

p. 12594

[Pauline Jewett] Mr. Speaker, in the absence of the minister responsible for the status of women my question is for the Prime Minister. As the Prime Minister knows, Clause 28 of the constitutional resolution is a paramountcy clause outside the charter. I remind him that Clause 28 is the one saying

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

What I would like to ask the Prime Minister is if he can tell the House whether Clause 28 will continue to have paramountcy. That is, will it override any attempts made to deny equality to women?

[P. E. Trudeau] Mr. Speaker, I can only answer that my impression is that the clause would continue. I have not been involved in the drafting which went on between provincial and federal officials yesterday afternoon and, I believe, during the night as well.

I cannot answer firmly but I want to tell the hon. Member – and this applies also to the Standing Order 43 motion put by the member for Malahat-Cowichan-The Islands-is that we took the draft presented to us by the seven premiers. They had made a lot of deletions from our original draft which is before the House. One of those deletions was precisely the clause concerning aboriginal rights.

——–o0o——-

9 November, 1981: Parliament Debate (Click HERE )

p. 12634

[Joe Clark] Madam Speaker, I suppose that so long as we have an implicit undertaking from the Prime Minister that he will respect the spirit sought by Mr. Ryan of an honest attempt to include the province of Quebec in this accord, we will have to wait to see the resolution which comes forward. However, let me ask a specific supplementary question of the Prime Minister in relation to the resolution that is being drafted. Would the Prime Minister confirm that in the original accord, signed by himself and the nine premiers on Thursday, the opt-out or override provisions do not apply to the guarantee of equality of male and female persons which, the Prime Minister will recall, was set down deliberately in a separate section, Section 28, of the original resolution?

[…]

p. 12635

[P. E. Trudeau] Oh, well, we know that the Leader of the Opposition has always argued that we should have a charter made in Canada by Canadians. Now that we will have our own Constitution, now will be his chance to have a charter made in Canada by Canadians, and over the next years he will be able to fight to put back in the charter what we had in the original charter which his party combated tooth and nail for the past year.

[…]

 [Joe Clark] Madam Speaker, there is a great deal of heckling from the Liberal side, perhaps to stop questions about the equality of male and female persons. However, let me come back to the specific communiqué of the accord tabled in the House of Commons by the Prime Minister which says that there was agreement on the entrenchment of the full charter of rights and freedoms now before Parliament, with the following changes:

(b) A “notwithstanding” clause covering sections dealing with Fundamental Freedoms, Legal Rights and Equality Rights.

The Prime Minister will recall that there was a deliberate effort made, when the original resolution was prepared, to put Section 28 in a separate section. That separate Section 28 is not referred to in the list of exceptions I have just quoted.

Is the Prime Minister telling us that the Government of Canada is now changing the accord which was signed by the Premiers? Are we going to have a resolution which has an opting-out or override clause applied to Section 28, when the accord did not have an opting-out or override clause applying to Section 28?

[P. E. Trudeau] No, Madam Speaker, I am not saying that. The Government of Canada did not want to take anything out of the resolution which was before the House; nothing. We wish the Leader of the Opposition had supported it when it was here the first time, but I did say that the officials of the federal and provincial governments did meet on Thursday and Friday, and my understanding of that meeting is that this particular section would be subject to the “notwithstanding” clause.

[Joe Clark] That changes the accord.

[P. E. Trudeau] Let me make it clear that everything in the charter now we would want to keep. Anything taken out is taken out because of the accord.

[Joe Clark] No.

[P. E. Trudeau] The Leader of the Opposition says “No”. I wish he would get hold of the nine premiers and get them to interpret the accord.

I can show a piece of paper too.

[Miss MacDonald] Shame on you.

[P. E. Trudeau] The lady from Kingston says “Shame”. She did not support the charter when it was here.

[…]

[P. E. Trudeau] She did not support it when it gave absolute equality to the sexes. Hon. members opposite did not support it when it gave recognition to aboriginal rights. As a result of the accord last week we have had to take certain things out, not because we wanted to take them out but because we were asked to take them out as the price of an agreement. I will not be saddled now with any weakness of the charter, which the party opposite refused to support and is now crying about because it does not appear in its entirety. They wanted a charter made in Canada. Let them sit down to work now and start making a charter in Canada. That means agreeing with the provinces that they should protect these people.

——–o0o——–

16 November, 1981: Parliament Debate (Click HERE )

[Edward Broadbent] Madam Speaker, my question is addressed to the minister responsible for the status of women. The minister knows that following certain answers given by the Prime Minister with respect to Clause 28 in the old constitutional resolution, the precise meaning and significance of that clause are unclear. She also knows that there have been discussions taking place, as I understand it, between the federal and provincial officials in recent days. I wonder if she is now in a position to outline to the House the precise meaning of that clause.

[Judy Erola] Madam Speaker, I will be happy to answer the question. The precise meaning of the clause as we see it, is that Section 15, where the nonobstante applies, refers to the specific definition of sexual discrimination for a very specific act. In Clause 28 the broad principle is stated, one in which the women of Canada are very much interested and are very positive about. They wish this to remain within the charter, of course. I should like to advise hon. members that we are optimistic at this stage and hope that Clause 28 in the general section will remain intact. We may know by the end of the day.

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18 November, 1981: Parliament Debate (Click HERE )

[Flora MacDonald] Madam Speaker, I have a straightforward question that is directed to the Prime Minister, regarding the constitutional proposals. Will the Prime Minister confirm that ail of the provinces, except Saskatchewan, have now agreed to the inclusion intact of the equality clause, Section 28, as it was introduced to the House of Commons earlier this year with unanimous approval by all parties of this House?

[P. E. Trudeau] Madam Speaker, the negotiations on this particular subject have been going on for several days because it was a matter of clarifying what the premiers intended when they signed the accord. There has been, effectively, disagreement between them as to what particular interpretation should be given to a particular section. I can only say that to this moment it has been impossible to get all nine premiers who signed the accord, on the same wavelength, and to agree to the same text.

[P. E. Trudeau] Since we told the provinces that we would be tabling the resolution in its final form today, as a direct answer to the hon. lady’s question I must say that there is more than one province which disagrees with the complete restoration of the section as it was. Therefore, in the spirit of the accord, I think we will have to go with a modified version of the text that we had originally proposed, not only in the resolution which has been before the House for a year, but also in the drafting sessions. I do not think it is appropriate to point out any particular province. There has been a great deal of negotiations going on, but obviously there is some lack of unanimity among the provinces as to what was intended in the accord.

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20 November, 1981: Parliament Debate (Click HERE )

[…]

  1. Notwithstanding anything in this Charter except section 33, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

[…]

  1. (1) 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 of this Charter, or section 28 of this Charter in its application to discrimination based on sex referred to in section 15.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to it in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection 3 applies in respect of a re-enactment made under subsection (4).

p. 13042

[Mr. Chrétien]

The override clause in the Charter of Rights and Freedoms will require that a law state specifically that part or all of it applies, notwithstanding a particular section of the charter in the Constitution. Such an override automatically expires after five years unless specifically renewed by a legislature. The effect of this provision is, first, that it will be politically very difficult for a government to introduce without very good reason a measure which applies notwithstanding the Charter of Rights and Freedoms in the Constitution. Second, a sunset provision of five years provides a degree of control on the use of an override clause in allowing public debate on the desirability of continuing the deliberations further.

It is important to remember that the concept of an override clause is not new in Canada. Experience has demonstrated that such a clause is rarely used and, when used, it is usually not controversial. The Alberta bill of rights was enacted in 1972 and included an override clause. The Saskatchewan human rights code of 1979 also has an override provision. Neither has ever been used.

The Canadian Bill of Rights, enacted in 1960 by Mr. Diefenbaker, also contains an override provision. In 20 years, it has only been used once.

The Quebec charter of rights and freedoms adopted in 1975 contains an override clause which has been used several times. However, it has never successfully been used in a controversial manner. What is interesting in the Quebec experience is that the first draft of Bill 101 would have applied notwithstanding the Quebec charter of rights and freedoms. In this controversial area public pressure forced the Quebec government to delete the clause from the bill.

It is because of the history of the use of the override clause and because of the need for a safety valve to correct absurd situations without going through the difficulty of obtaining constitutional amendments that three leading civil libertarians have welcomed its inclusion in the Charter of Rights and Freedoms.

Gordon Fairweather, who is well known in this House and is the Commissioner of the Canadian Human Rights Commission, said this: “I’m in no mood for nitpicking today, I’m feeling tremendously upbeat”. That queote is from the Montreal Gazette, November 7, 1981. Mr. Fairweather said that the override clause will become as dead from lack of use as a clause in the British North America Act that, at least in theory, still enables Ottawa to disallow provincial legislation. Referring to long standing provincial opposition to entrenched rights, Mr. Fairweather said: “The gang of no has become the gang of yes!”

[…]

[Mr. Chrétien] Professor Walter Tarnopolsky is a past-president of the Canadian Civil Liberties Association and an international expert on bills of rights. His view is that the override clause “is really not such a bad idea, and could have a great many advantaged”. That quote is from The Globe and Mail, November 9, 1981.

It should be clear, in conclusion, that the compromise reached by the Prime Minster with the nine Premiers maintains the principle of a full, complete and effective constitutional Charter of Rights and Freedoms. It does not exclude rights which have previously been guaranteed. In fact, the charter has been improved because unforeseen situations will be able to be corrected without the need to seek constitutional amendment. For those who remain concerned about the override clause, let me remind them that it has been said that “The price of liberty is eternal vigilance”. Pressure groups must remain vigilant and we are seeing such vigilance now from women who are arguing for the removal of the override clause in Section 28 and the aboriginal people who are fighting for the reinstatement of their rights…

[…]

Fourth, the charter enumerates equality rights. In this area the government is taking bold steps forward in order to ensure the equality of women before and under the law. I know some would have hoped that we could do even better, and I hope we can in the next few days. The ball is now squarely in the court of Premier Blakeney. This government and the party I belong to are confident that we can and must succeed. But we also know that we must not break accord or all will be lost. I am sure that the efforts of the Minster of State for Mines (Mrs. Erola) who is responsible for the status of women will bring about the result that is the desire of every member of this House.

[…]

[Mr. Chrétien] It is the view of Canadian that having given our word when we signed the accord, we have to keep it. I want to affirm in this House that we will not impose it on the provinces if they do not want it. There is a mechanism that will permit us to do that eventually. Since the Government of Canada gave its word, it has the duty to respect that. I am sure the provinces understand the message of Canadians and are about to tell us that we will go to London with the entrenchment of both the women’s rights in Section 28 and the native rights in the Constitution.

[…]

[Joe Clark] At this state of the debate of the resolution, there are three specific amendments which my party proposes to introduce. There may be more later after further consideration of the implications of the resolution and consideration of proposals which may come, for example, from spokesmen of the people of Quebec. It is not our intention to extend the debate unduly, but it is our hope that everyone in the House will work constructively to bring the country together.

Our first amendment, which I move later today, will reinstate, without qualification, the guarantee in Section 28 of the equality of male and female persons.

[…]

[Joe Clark] The House will not be surprised that my amendment in this case will be introduced by my good friend and colleague, the hon. Member for Kingston and the Islands (Miss MacDonald). The present resolution will allow Parliament or a legislature to treat women as less equal than men, or men as less equal than women. We intend that the rights and freedoms set forth in all the provisions of the resolution will be guaranteed equally to male and female persons. I will elaborate on our reasons later.

[…]

[Joe Clark] I indicated that the first amendment we wanted to introduce, the one which I will be introducing today, relates the equality of male and female persons. I would like to speak about that for a moment. When representatives of the federal and provincial governments met, they agreed that certain rights set out in the Charter of Rights and Freedoms should be limited by Section 33 of the new resolution by the non obstante clause. In the accord which was tabled in this House of Commons by the Prime Minister on November 5, the non obstante clause did not apply to section 28, which guaranteed the equality of male and female persons. I believe that is an uncontested version of what happened, both in the conference and afterward.

Indeed, what happened, to the best of our ability to reconstruct it, is that after the Prime Minister came to Parliament and the Premiers went home, the officials of both levels of government got together and decided to apply the non obstante clause to Section 28. The government, in this amendment and resolution, has unfortunately accepted the officials’ amendment and has not acted on the accord which was reached by 10 of the 11 first ministers when they met here in early November. As a consequence of the change brought to this matter by officials, Section 28 is subject to Section 33. A limit is placed upon the equality of male and female persons which was not explicitly intended to be so placed by the 11 first ministers of Canada when they met in conference in November in the capital of the country,

In recent days there has apparently been some dramatic shifting of opinion on the question. In one case, we learned that at least one Premier had not been informed of the exact nature of the work being undertaken by his officials and the position being ascribed to his government by his officials. My colleague, the hon. member for Kingston and the Islands (Miss MacDonald), brought that matter directly to the attention of the Premier for Nova Scotia. I should say, in passing, that the hon. member for Kingston and the Islands did so at her own initiative and that of her party and, without the benefit of advice from the government, brought that to the attention of the premier of the province of Nova Scotia. When he understood what was at issue, he immediately indicated his willingness to have Section 28 stand without limitation and expressed his willingness to associate himself, along with other Premiers and certainly along with his party, with the idea of the equality of treatment of male and female persons. Therefore, that changed.

[…]

At this point I would like to move a motion, and I will continue my remarks after having done so. I move, seconded by the hon. member for Kingston and the Islands:

That the proposed Constitution Act 1981 be amended

  • By striking out clause 28 and substituting the following:

 

  1. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed to male and female persons.

(b) by striking out subclause 33(1), and substituting the following:

  1. (1) 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 section 7 to 15 of this Charter

What that does is remove the non obstante clause from Section 28. It restores the guarantee of equality of male and female persons to the position enjoyed when the accord was tabled in this House of Commons by the Prime Minister of Canada after his meeting with the first minsters.

 

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20 November, 1981: Parliament Debate (Click HERE )

[Flora MacDonald] Madam Speaker, my question is directed to the Prime Minister. He will recall that a couple of days ago I asked him how many provinces have not yet given their consent to withdrawing the…

  1. 12979 …override provisions to the equality clause, Section 28. Following question period the Prime Minister will recall that he intimated informally to me across the floor of the House of Commons that there were two such provinces. Then he intimated that, if that number were reduced to one, he might consider reinstating the clause at it was in the original, but that he could not do so if it were two or more provinces.

Seeing that there seems to be only one province now which is withholding its approval, I ask the Prime Minster most sincerely whether he would, in concert with eight provinces, agree to reinstate Section 28 to give full equality to male and female persons as it was in the original resolution?

[…]

[P. E. Trudeau] The hon. lady is asking me hypothetical questions because I do not know how many provinces will in the end support the amendments to restore the charter to its original form, the way it had been proposed. I do not know how many provinces, in the end will support, maybe all, maybe not all.

[…]

If the question does arise, we will have to make up our minds on this side of the House if “x” number of provinces is enough or not. I hope we will not have to ask ourselves that question because I am sure the house will let any changes to the accord made on Thursday, two weeks ago, be made with the consent of the provinces. I think that is important.

[Flora MacDonald] Madam Speaker, I would like to put a supplementary question. The Prime Minister will remember, of course, that Section 28 was not in the proposals brought before the House a year ago this October, and presented by the Prime Minster.

[…]

That section was added in April of this year with the consent and agreement of all parties of this House, because I think we will want to see that section carried out. Therefore, I really want to come back to the question that I posed to the Prime Minster and the information that I understood he conveyed to me the other day that, while two provinces would present some difficulty for him in undertaking to make any change to the clause as it now stands before the House, if that number were reduced to one he might consider it. I am asking him will he not consider that?

[P. E. Trudeau] Madam Speaker, the hon. member make a point that Section 28 was not in the charter when it was first introduced. She is right, of course, and she is right that many other changes in the charter were made following the introduction into this House in October of last year. She should be reminded of the process which caused that to happen.

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20 November 1981: Parliament Debate (Click HERE )

[Mr. Clark] I indicated that the first amendment we wanted to introduce, the one which l will be introducing today, relates to the equality of male and female persons. I would like to speak about that for a moment. When representatives of the federal and provincial governments met, they agreed that certain rights set out in the Charter of Rights and Freedoms should be limited by Section 33 of the new resolution by the non-obstante clause. In the accord which was tabled in this House of Commons by the Prime Minister on November 5, the non-obstante clause did not apply to Section 28, which guaranteed the equality of male and female persons. I believe that is an uncontested version of what happened, both in the conference and afterward.

 

Indeed, what happened, to the best of our ability to reconstruct it, is that after the Prime Minister came to Parliament and the Premiers went home, the officials of both levels of government got together and decided to apply the non obstante clause to Section 28. The government, in this amendment and resolution, has unfortunately accepted the officials’ amendment and has not acted on the accord which was reached by 10 of the 11 first ministers when they met here in early November. As a consequence of the change brought to this matter by officials, Section 28 is subject to Section 33. A limit is placed upon the equality of male and female persons which was not explicitly intended to be so placed by the ll first ministers of Canada when they met in conference in November in the capital of the country.

 

In recent days there has apparently been some dramatic shifting of opinion on the question. In one case, we learned that at least one Premier had not been informed of the exact nature of the work being undertaken by his officials and the position being ascribed to his government by his officials. My colleague, the hon. member for Kingston and the Islands (Miss MacDonald), brought that matter directly to the attention of the Premier of Nova Scotia. I should say, in passing, that the hon. member for Kingston and the Islands did so at her own initiative and that of her party and, without the benefit of advice from the government, brought that to the attention of the premier of the province of Nova Scotia. When he understood what was at issue, he immediately indicated his willingness to have Section 28 stand without limitation and expressed his willingness to associate himself, along with other Premiers and certainly along with his party, with the idea of the equality of treatment of male and female persons. Therefore, that changed.

——–o0o——–

23 November 1981: Parliament Debate (Click HERE [The original PDF document is in French. The translated version is available HERE)

[Madam Speaker] The right hon. member for Yellow Head, seconded by the hon. member for Kingston and the Islands moves:

  1. Notwithstanding anything in this charter, the rights and freedoms to in it are guaranteed equally to male and female persons.

(b) by striking out subclause 33(1) and substituting the following:

  1. (1) 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 of this Charter.

[…]

  1. 13123

[Judy Erola] Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. It is that simple. We want the reference to Section 28 in the override clause, Section 33, deleted. The charter will then carry a forceful statement of equality. This will give the courts a strong direction that sex discrimination cases require their strictest scrutiny.

For those who argue that affirmative action programs are jeopardized by the removal of Section 28 from Section 33, I remind them that the present constitutional proposals clearly state that affirmative action programs are not subject to the normal rules barring discrimination on the basis of sex. To go back to some of the things which have happened to women in this country, I am sure there are many who are not aware of the fact that long before the era of the suffragists, women in Quebec, Nova Scotia and New Brunswick had been entitled to vote and hold office. Why? What happened? Simply because it had not occurred to anyone to make laws to prevent them from voting. Of course, you can guess what happened when this existed; legislation was enacted to remove that right.

 

——–o0o——–

24 November, 1981: Parliament Debate (Click HERE )

[Flora MacDonald] I am glad to say that hope has won the day. I feel a deep and overwhelming sense of relief – and then jubilation – that the amendment before us to be accepted and Section 28 entrenched without qualification and without any override provision in the charter, that section merits repeating:

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

[…]

  1. 13197

[Mrs. Mitchell] This morning a member of the ad hoc women’s committee said to me, and I quote:

Last night’s announcements is a good beginning, but we have only won half the battle. We must get rid of the override completely regarding fundamental freedoms in Section 2 and also the Sections 7 to 15 regarding rights and freedoms which must be universally applied across Canada with no override clause for provinces….

I agree with the ad hoc women’s committee – I am quoting them rather frequently because I have seen them on many occasions in my office – that we have a long way to go that there will be many cases to test those constitutional provisions. But we are pleased that such a good start has been made. By including Section 28 with no override, we expect, for example, that the Supreme Court of Canada will never again be able to rule against women as it did in the Lavell, Bédard and Bliss cases, as well as in other instances mentioned by the hon. member for Kingston and the Islands (Miss MacDonald) and yesterday by the hon. member for New Westminster-Coquitlam (Miss Jewett).

——–o0o——–

25 November, 1981: Parliament Debate (Click HERE )

[Mrs. Margaret Mitchell] Madam Speaker, it is my duty to present a petition to the House sponsored by the Ad Hoc Committee of Canadian Women on the Constitution. This petition asks for the removal of the override section, Section 33, from the Charter of Rights and Freedoms. It is the hope of Canadian women that members of Parliament will delete the shockingly regressive Section 33 in order to guarantee that basic rights and freedoms – and 2 of them are listed – cannot be violated by the provinces or the federal government.

——–o0o——–

26 November, 1981: Parliament Debate (Click HERE )

  1. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

[…]

  1. (1) 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 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

——–o0o——–

1 December, 1981: Parliament Debate (Click HERE )

[Mr. Allmand]

On the other hand, I am not happy at all with the revised charter, with the new amending formula, the new wording which apples to the charter, and the new wording on aboriginal rights. In particular, I am not pleased with the introduction of the “notwithstanding” clause into the charter, a so-called override clause, and, in particular, as it would apply to Section 2, fundamental freedoms, and Section 15, the equality clause. For me, these two clauses were key ones which I think would have helped protect Canadians on many issues which are not foreseen today.


FOOTNOTES

[1] NB: This report is still in progress.

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