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GUIDE TO THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Part II : The Contents of the Canadian Charter of Rights and Freedoms

Section 32

Application of Charter

1. This Charter applies
   1. to the Parliament and government of Canada in respect of all matter within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
   2. to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
2. Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

The purpose of this section is to make it clear that the Charter only applies to governments, and not to private individuals, businesses or other organizations.

As mentioned earlier, section 32(2) was necessary in order to give governments a chance to amend their laws to bring them into line with the right to equality. Section 15 of the Charter did not come into force until three years after the rest of the Charter became effective on April 17,1982.

Section 33

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).

Both Parliament and provincial legislatures have a limited power under section 33 to pass laws that are exempt from certain Charter provisions – those concerning fundamental freedoms and legal and equality rights. This section is sometimes referred to as the “notwithstanding clause”.

In order to rely on this section, Parliament or a legislature must state specifically that a particular law is exempt from the Charter. It must also state which sections of the Charter do not apply. An exemption from the Charter lasts a maximum of five years. After that, if Parliament or the legislature concerned wishes it to continue to be exempt from the Charter, it must make a new declaration under this section.

The purpose of this section is to require a government that wishes to limit Charter rights to say clearly what it is doing and accept the political consequences of it.

It also ensures that Parliament and the legislatures, not the courts, have the final say on important matters of public policy. If, at a certain point, the rights in the Charter no longer reflect Canadian values, then democratically elected bodies like Parliament and the legislatures can make laws that are not bound by the Charter.

To date, provincial legislatures have used this section rarely. It has never been used by the federal Parliament.

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