canada constitutional-law
Is Section 33 of the Canadian Charter of Rights and Freedoms limited by Section 1?
<p>Section 33 of the Canadian Charter of Rights and Freedoms provides as follows:</p>
<blockquote>
<p><strong>Exception where express declaration</strong></p>
<p>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 the Charter]</p>
<p>[...]</p>
</blockquote>
<p>Section 1 of the Charter states that:</p>
<blockquote>
<p><strong>Rights and freedoms in Canada</strong></p>
<p>1 The <em>Canadian Charter of Rights and Freedoms</em> guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.</p>
</blockquote>
<p>Does Section 1 imply that all uses of Section 33 are potentially subject to judicial review and may be invalidated upon a finding by a court that the limitation of Charter rights that was imposed by the legislature through Section 33 is not justifiable in a free and democratic society?</p>
<p>Related: <a href="https://law.stackexchange.com/questions/4624/could-the-holocaust-legally-happen-in-modern-day-canada">Could the Holocaust legally happen in modern day Canada?</a></p>

<p>No, it is not. Section 1 allows legislatures to infringe all <em>Charter</em> rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can <strong>completely ignore</strong> the <em>Charter</em> rights that it can be applied to (ss. 2 &amp; 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating <em>Charter</em> rights.</p>
<p>Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, <em><a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/384/index.do" rel="nofollow noreferrer">Ford v. Quebec (AG)</a></em> [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved).</p>
<p>In it, ss. 58 &amp; 69 of Quebec's <em>Charter of the French Language</em> were disputed. Due to legislative hijinks*, it was unclear whether either section was covered by an invocation of the notwithstanding clause. The Court <strong>first</strong> undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not (para. 34).</p>
<p>Only after that did it address the substantive rights issues.  While still analysing both ss. 58 &amp; 69 to fall within the guarantees of <em>Charter</em> s. 2(b), the court only concluded s. 69 to infringe the <em>Charter</em> since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As <em>Charter</em> rights were found to be infringed, the Court then examined whether s. 69 could saved under
Section 1. It could not, thus rendering it an unjustifiable infringement of the <em>Charter</em> (para. 73).</p>
<p>*To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the <em>Constitution Act, 1982</em>.</p>
