Talk:Section 33 of the Canadian Charter of Rights and Freedoms

Does Bork think the US should have a notwithstanding clause?
Noted right-wing jurist and nominee to the United States Supreme Court, Robert Bork, has advocated for the adoption of a similar clause in the Constitution of the United States.


 * Does anyone have a citation for this? scc 00:01 18 Jun 2003 (UTC)


 * This appears to show that he is of the opinion stated in the article . &#8212; Alex756 04:46, 28 Nov 2003 (UTC)


 * That does not actually have Bork come right out and say he'd like to have a notwithstanding clause. I couldn't find a source for that at all.  I deleted it and replaced it with a "Comparisons with other human rights instruments" section.  CanadianCaesar 01:12, 29 November 2005 (UTC)

Popular support for the Charter?
"Although the Charter was originally greeted with great indifference, the Canadian electorate adopted it as its own once it saw the Charter in action. Polls of the electorate tend to promise a painful political death to politicians or even complete political parties that mess with their Charter."

POV wishful thinking, I think. I question whether these claims are actually true. Certainly Albertan majority opinion isn't well described by "adopt[ing] it as its own once it saw the Charter in action", and the second sentence is simply silly ("that mess with their Charter"?). I'd request some evidence for the latter claim.

AlexKepler 02:46, 17 Jul 2004 (UTC)

Discussion of the Use of the notwithstanding clause
The sections on the use of the notwithstanding clause leave a lot to be desired in this article.

It gives the impression that the s.33 has only been used three times, when in fact it is more than 15 since 1985. It also ignrores the fact that between 1982 and 1985 the Quebec National Assembly added the notwithstanding clause to ALL its laws as a protest to the Charter.

Can s. 33 lapse?
What's more, the contention that Canada's constitution is unwritten isn't factually correct. Canada's constitution is made up of the Constitution Act 1867 and the Constitution Act 1982 as it's written part along with the subsequent body of case law that surrounds them. The notwithstanding clause is section 33 of the Constitution Act 1982 - it's written. It can't 'lapse'.

No source is given for the contention that it could become a lapsed provision. I'd contend that is because no such source exists.

I can only assume the confusion comes from the fact that, once invoked, the notwithstanding clause has effect for only 5 years after its enactment, and will lapse unless re-enacted. The article, however, gives the impression that should sec. 33 come into disuse, it may disappear completely from Canada's constitutional framework, which is simply incorrect.


 * You're absolutely right. I have found that many parts of the Canadian Constitution related articles leaving much to be desired. Nevertheless, it's an evolutionary process and we add when we can. Given the poor state of some segments and the occational omissions, any change to them would be more than welcome. Cheers! PullUpYourSocks 13:48, 24 Feb 2005 (UTC)

move
Now that we have articles on other Charter sections, I've moved this one to conform to the style. Obviously we have redirects from Notwithstanding Clause, etc. - Montr&eacute;alais 05:24, 21 Apr 2005 (UTC)

comments on the 2006 federal election
''The results of the 2006 federal election may suggest a shift in public attitudes toward the Supreme Court. The public reaction towards Paul Martin's futile proposal to restrict the federal government's power to invoke the notwithstanding clause in the middle of the 2006 election campaign may further reinforce this perceived shift. However, both of these possibilities are highly speculative.''

The above section should only be placed in the article with citation.-- metta, The Sunborn  22:30, 25 April 2006 (UTC)
 * Wow, didn't even see that. Yep, original research.  The same anon also reworded stuff to make it more like Hogg's book, although it wasn't word-for word copying. CanadianCaesar Et tu, Brute? 22:52, 25 April 2006 (UTC)
 * Never mind; on second inspection, it was so close, I've reverted. CanadianCaesar Et tu, Brute? 09:20, 13 July 2006 (UTC)

comparison to Israel
Removed: Outside Canada, Israel added a device similar to the notwithstanding clause to its Basic Law in 1992. This power, however, could be used only in respect to freedom of occupation.

The source says nothing about Israel, and the word occupation makes the meaning ambiguous as to whether it refers to "occupations as in things one may do for a living", and as in "of Palestinian territories". Furthermore this is an article about Canada, and a note like this to show its application somewhere else should have a valid, verifiable source. The source given originally: Hogg, Peter W. Constitutional Law of Canada.  2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, does not seem to have anything to do with Israel   —Preceding unsigned comment added by 96.52.240.246 (talk) 16:26, 15 December 2008 (UTC)
 * Please actually check the source before removing stuff. Hogg's book may not be about Israel, but in discussing the notwithstanding clause, he does mention Israel.  A comparison of laws section is valid. 24.64.165.129 (talk) 15:39, 16 December 2008 (UTC)


 * Agreed. The section is specifically about how s. 33 compares with other jurisdictions, and makes references to other Canadian provincial human rights legislation and whether there is anything similar outside of Canada (in this case, only Australia and Israel). Therefore, it is completely relevant and useful to the section. If the section is relevant to the purpose of the article (and I believe it is), then it should remain. Singularity42 (talk) 17:39, 16 December 2008 (UTC)

limited application of s. 33
Funny how section 33 only covers section 2 and 7-15, but not the language sections.So my legal and equality rights can be overriden, but I have the right to have them overriden in french or english.It makes me think ole Pierre was just trying to appease the sepertists and realy didn't care about fundamental freedoms at all.

Deleted
This portion of the article is likely OR unless sourced. LastOthello (talk) 03:23, 7 November 2010 (UTC)

The argument has been made that if fundamental rights—such as freedom of expression and freedom of association—can be overridden, then it is questionable whether the Charter really provides a check on parliamentary power. However, scholars of British constitutional law, upon which much Canadian constitutional jurisprudence is based, stress that if the fundamental jus commune or law of the land was to be overridden in such a cavalier way by a Parliament exercising such arbitrary parliamentary supremacy the people would have the ability to revolt against their government much as the rebels revolted against the Crown in the thirteen colonies. This type of reasoning was used by the jurists who developed the theory of the Implied Bill of Rights before the adoption of the Charter of Rights and Freedoms. Against this reasoning, however, the introduction of the Charter coincided with the final, full independence of Canada from Britain and the 'Patriation of the Constitution,' so arguments concerning British Constitutional law now have a much weaker force than they would have had before Canada's autonomy was complete. Also, whether a modern constitutional design should have no better mechanism than the possibility of a popular uprising to protect fundamental human rights from legislative tyranny may be questioned. Finally, preserving a legal tradition of Parliamentary supremacy by the notwithstanding clause may today seem less morally imperative than protecting fundamental human rights from legislative attack.

Rename?
Should we rename this article Notwithstanding clause per Common name? It should still appear in the template as 33, though. LastOthello (talk) 03:32, 7 November 2010 (UTC)
 * I do agree with that as "The Notwithstanding Clause" is how a majority of people refer to it. Very few people know the number of the section. Celynn (talk) 02:49, 8 November 2011 (UTC)


 * WP:Common name is just one criteria to consider in the overall WP:NAMINGCRITERIA. Another factor is consistency.  Given that every other article on the sections of the Charter are worded the same way as above, and there is nothing wrong with a redirect, I think the title should stay as is without a consensus otherwise. Singularity42 (talk) 04:05, 8 November 2011 (UTC)

False claim
"Moreover, the manner in which the clause was invoked by the Quebec legislature in the late 1980s has significantly diminished public respect in the rest of the country for Section 33"...the link for this claim says nothing of the kind; it mentions a few non-Quebec politicians criticizing Quebec, but says nothing about "public respect" for Section 33. The statement violates NPOV and is patently false. Many Canadians see Sect. 33 as the only thing left of Canadian democracy after the Canada Act nullified the supremacy of Parliament and handed it over to unelected judges.77Mike77 (talk) 12:57, 5 March 2014 (UTC)

Sask. to use notwithstanding clause to override Catholic school ruling
Saskatchewan's premier says the province will use the notwithstanding clause to defy a court ruling that said the government could no longer pay for non-Catholic students to attend Catholic schools. http://www.cbc.ca/news/canada/saskatchewan/sask-notwithstanding-catholic-1.4093835 Jabrwock (talk) 19:32, 1 May 2017 (UTC)

Clarification requested Alberta and Quebec sections
I tagged some parts of the Alberta and Quebec sections as needed clarification [//en.wikipedia.org/w/index.php?title=Section_33_of_the_Canadian_Charter_of_Rights_and_Freedoms&diff=814724504&oldid=808831362].

The first one is very confusingly worded. "Alberta once abandoned an attempt to use the notwithstanding clause" - this sounds like Alberta is trying to use the notwithstanding clause after originally abandoning their attempt. I'm guessing what it really means is Alberta once attempted to use the notwithstanding clause, but eventually abandoned their attempt. However since the source is offline I'm lazy to dig it up to confirm so am reluctant to change it myself.

As for Quebec. The article says (and the law seems to support this) that you need to specify what parts of the charter you are overriding. So what did Quebec do? Did they insert a clause into every law saying the whole act operated notwithstanding all provisions in section 2 and sections 7 to 15? I don't know the precise timings but did they renew and of the notwithstanding parts before they stopped?

Nil Einne (talk) 15:20, 10 December 2017 (UTC)

Political correctness from Wikipedia
What is it with the POV that there are no similarities between these and the laws that were abused in the Weimar Republic in 1936?

173.179.38.104 (talk) —Preceding undated comment added 00:39, 4 October 2019 (UTC)

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