Ford v. Quebec (Attorney General): The Use of Section 33 as a Form of Protest

In the 1988 case Ford v. Quebec, [1] the Supreme Court of Canada affirmed Quebec’s use of Section 33, which is the override clause of the Charter of Rights and Freedoms.

 

Section 33.(1) says that “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”. [2] The only limit on this comes from section 33.(3), which states that every time a legislator can only override rights via section 33.(1) for 5 years until the statute must be renewed.

 

While there were various issues in this case, the three that I would like to focus on are:

 

1. Whether simply expressing that “this Act shall operate notwithstanding the provision of sections 2 and 7 to 15 of the Constitution Act, 1982” [3] was a valid exercise of section 33.

2. Whether it was valid for Quebec to apply section 33 into all of their statutes at once.

3. Whether section 33 could be applied retroactively.

 

The Courts decided that:

 

1. Yes, this was a valid exercise of section 33. All that is required for section 33 to take effect is that it be expressly stated. [4]

2. Yes, Quebec’s omnibus use of the override clause was valid. [5]

3. No, section 33 could not be applied retroactively. [6]

 

Factual Background

 

The government of Quebec was excluded from the final discussions that led to the amendment of the Constitution. As a protest, they used section 33 to prevent the Charter from being applied to their provincial laws. This was done through the use of a standard override clause. The clause stated:

 

“This Act shall operate notwithstanding the provisions of sections 2 and 7 to 15 of the Constitution Act, 1982 (Schedule B of the Canada Act, chapter 11 in the 1982 volume of the Act of Parliament of the United Kingdom).” [7]

 

The government of Quebec repealed and re-enacted, with the addition of this standard clause, all provincial legislation. This was meant to be applied retroactively to the day the Charter came into force.

 

Comment

 

Quebec’s use of section 33 is a form of political protest. This is clear due to the circumstances preceding their use of the override clause, as well as the fact that they enacted the Quebec Charter of Rights and Freedoms, which protects many of the same rights included in the Charter. A similar instance of political protest is Alberta’s use of the notwithstanding clause in 2000, when Alberta invoked the notwithstanding clause to signal that they did not agree with the legislature’s passing of the Marriage Amendment Act. [8]

 

Both provinces’ uses of section 33 were largely symbolic, as Alberta does not have jurisdiction over marriage, and Quebec enacted their own Charter of rights. They were using the notwithstanding clause to assert their independence from the federal government’s policies and push back against the division of power. It is interesting that the two provinces that have done this are Alberta and Quebec, who are unique provinces within Canada; Quebec being the only majority French-speaking province in Canada, and Alberta being the most historically conservative province in Canada. It leaves open the question of whether section 33 is a threat to national unity, or whether it is positive, as provinces can use this clause symbolically to assert their independence without any real consequence to the federal government.

 

Citations

 

[1] Ford v Quebec, 1988 2 SCR 712, 54 DLR (4th) 577.

 

[2] Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

 

[3] Supra note 1 at para 15.

 

[4] Ibid at para 33.

 

[5] Ibid at para 35.

 

[6] Ibid at para 36.

 

[7] Ibid at para 15.

 

[8] David Giles, Understanding the Charter’s Notwithstanding Clause, online: Global News <http://globalnews.ca/news/1816424/understanding-the-charters-notwithstanding-clause>.

 

 

About the Author

 

Riel Hishon has a degree in economics from the University of British Columbia. She is currently a JD candidate at the University of Western Ontario. 

 

Suggested Citation

 

Riel Hishon, "Ford v. Quebec (Attorney General): The Use of Section 33 as a Form of Protest" (2017) WJLS Chambers, online: <www.wjlschambers.com/single-post/2017/03/06/Ford-v-Quebec-Attorney-General-The-Use-of-Section-33-as-a-Form-of-Protest>.

 

 

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