Document Type

Article

Publication Date

2022

Abstract

Section 33, which empowers legislatures to override most of the Charter’s fundamental rights and guarantees, has resurfaced in recent years and more ominously, as a rights-negating mechanism. The relationship between s.33 and the Charter’s non-derogable rights is one issue that has arisen under s.33 legislation enacted by Quebec and Ontario. In Ontario, Bill 307’s use of the override to reinstate unconstitutional restrictions on third party political advertising also engages the democratic rights of voters protected by s.3 of the Charter. In marking the first time override legislation forms the backdrop to s.3’s interpretation, Working Families v. Ontario (Working Families #2) contemplates s.33’s novel role in the analysis. Bill 307’s use of the override places the relationship between ss.33 and the right to vote in sharp relief, exposing a symbiotic relationship between the two that informs the Charter’s democratic rights. Democratic accountability, a principle that grounds the underlying assumptions of both, establishes a critical bond between these provisions of the Charter. That bond requires vigorous enforcement of the right to vote, not only to protect s.3’s democratic rights, but also to legitimize s.33’s legislative override. Put simply, the legitimacy of s.33 and its theory of democratic accountability are contingent on an interpretation of s.3 that prohibits interference with the democratic process. This article argues that Bill 307 violates s.3 because it interferes with that process and undermines the voter’s right to cast an informed vote.

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