Rights
The Constitution Acts 1867 and 1982, with the Charter and section 33
Canada's constitution is not one document. The Constitution Act 1867 divides powers between Parliament and the provinces, and the Constitution Act 1982 added the Canadian Charter of Rights and Freedoms plus a domestic amending formula, ending the need for a British statute. The Charter is enforced by the courts, which may strike down legislation, but section 33 — the notwithstanding clause — lets Parliament or a legislature override most Charter rights for renewable five-year periods.
Key rules
- Jurisdiction — Federal and provincial legislation are both subject to the Charter; section 33 does not reach democratic, mobility or language rights
- Deadline — A section 33 declaration expires after five years unless re-enacted
- Deadline — Charter applications: no fixed limitation, but delay may defeat a remedy
Governing law
- Constitution Act 1867 (ss. 91 to 95 (division of powers))
- Constitution Act 1982, Part ICanadian Charter of Rights and Freedoms
- Constitution Act 1982 (s. 35 (Aboriginal and treaty rights))
- Constitution Act 1982 (s. 33 (notwithstanding clause))
In practice
Section 1 makes Charter rights subject to reasonable limits demonstrably justified in a free and democratic society, and the Oakes test is how courts decide whether a limit survives. Section 35, which protects Aboriginal and treaty rights, sits outside the Charter and so cannot be overridden under section 33 — a distinction that matters greatly in resource and consultation litigation.