The Charter’s Legislative Override: Feat or Figment of the Constitutional Imagination?
CONSTITUTIONALISM IN THE CHARTER ERA, pp. 135-67, Grant Huscroft & Ian Brodie, LexisNexis Canada, 2004
68 Pages Posted: 12 Jun 2010
Date Written: 2004
This paper offers a pessimistic view of section 33 's place in the Charter's structural framework. It begins by showing how a mechanism that allows legislatures to override constitutionally protected rights attained an aspirational role in the scheme of the Charter. According!y, the first section of the paper explains the override's transformation from an ultimatum that was issued in the course of tense political negotiations, into a triumph of the constitutional imagination.
The next sections explore the gap between the idea and reality of the override. The Charter may represent the middle ground, but that ground has moved further from the midpoint than Canadians are willing to admit. As the discussion explains, legislative authority cannot prevail in the contest between competing supremacies under the Charter. Section 33 grants legislatures a power that cannot legitimately be exercised against the Charter's entitlements or the judiciary's power of review. In light of that conclusion, the final part of the paper considers the dormant override's influence on the psychology of institutional relations.
Keywords: Canadian Charter, S. 33, Legislative Override
JEL Classification: K10
Suggested Citation: Suggested Citation