OVERRIDE

OVERRIDE (pp. 790-794 Canadian Constitutional Law Case Book 4th Ed.)

Section 33 is a rarely used feature of the Charter. It was used in all Quebec legislation following the enactment of the Charter. In Ford v Quebec (Attorney General), [1988] 2 SCR 712, 54 ALR (4th) 577 the Court dealt with application and interpretation of the section.

            Quebec applied section 33 after the enactment of the Supreme Court held that a prohibition on the use of English in outdoor advertising was a violation of section 2(b) of the Charter. Quebec felt that the Charter did not protect its unique language rights.

Issues: Ford argued that 1) Quebec legislation should use the specific wording of the sections of the Charter subject to the override 2) cannot do a blanket application of the clause across all its legislation and 3) section 33 cannot be used retroactively.

Findings:

1)    It is okay to refer to the sections by number only in the legislation, and in fact this is the correct manner in which to apply section 33

2)    It is perfectly acceptable to apply a blanket amendment to all provincial acts, and is routinely done by the provinces when amending legislation

3)    Section 33 sets out that  “the Act of provision thereof shall operate notwithstanding” where “shall operate notwithstanding” could be interpreted proactively or retroactively. Court found that it is not appropriate to interpret section 33 as applying retroactively. 

The Court also expressed that use of section 33 must be done using “an explicitly expressed declaration”. The courts will determine what constitutes “an explicitly expressed declaration” but won’t specifically determine in advance what type of legislation section 33 is applicable to.