Notwithstanding Clause

Section 33 of the Canadian Charter of Rights and Freedoms, known as the notwithstanding clause, is part of the Constitution of Canada. Also known as the override clause, Section 33 allows federal, provincial or territorial governments to temporarily override, or bypass, certain Charter rights. Section 33 overrides can last only five years, when they are subject to renewal. Although the clause is available to governments, its use is politically difficult and therefore rare. It is known colloquially as the “nuclear option,” because its use is considered extremely severe. Since the Constitution was patriated in 1982, the clause has been used only a handful of times by various provinces. The federal government has never invoked the notwithstanding clause.



Canadian Charter of Rights and Freedoms
Copy of the Canadian Charter of Rights and Freedoms.

Section 33 of the Charter

In Canada’s constitutional system of government, the judicial branch interprets whether the government’s actions are within the rules and norms of the Constitution. If a court finds that a government has broken a constitutional rule or norm, it can force the government to change its actions. However, Section 33 of the Charter can bypass a court’s ruling. It declares:

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 of this Charter.

This means that elected governments (federal, provincial or territorial) can declare a law or action to continue in force “notwithstanding” — meaning “in spite of” — and therefore in violation of a Charter right.

Background

In the late 1970s and early 1980s, the government of Pierre Elliott Trudeau began the process of patriating Canada’s Constitution — taking it out of the hands of the British Parliament. In the process, the government also decided to include a new Charter of Rights and Freedoms within the Constitution (see Constitutional History).

Several provincial leaders were concerned that the Charter would give courts and judges too much power to interpret its meaning and restrict the right of provincial governments to make laws as they saw fit (see Distribution of Powers).

In the end, a majority of provinces agreed to support the Charter if it contained a clause allowing Parliament or any provincial legislature to exempt laws from certain sections in the Charter (on fundamental rights, equality rights and legal rights), for a period of five years, at which point they are subject to renewal.

The clause was included at the last minute during constitutional negotiations, in what became known as the “Kitchen Accord” (see Patriation of the Constitution). When it seemed negotiations would end in deadlock, federal justice minister Jean Chrétien met with his Ontario and Saskatchewan counterparts Roy McMurtry and Roy Romanow in a kitchen in the Government Conference Centre in Ottawa. The ideas they agreed to in that meeting included the inclusion of a notwithstanding clause, as well as an amending formula for the Constitution. The new proposal was accepted by all provinces except Quebec, with Premier René Lévesque objecting to the fact the deal was negotiated in his absence — an event that become known in Quebec as the “night of the long knives.”

Use of the Notwithstanding Clause

Section 33 of the Charter, known as the notwithstanding clause, allows governments to exempt their laws from certain sections of the Charter, but not from democratic, mobility or language rights. While the federal government has never invoked the clause, it has been used a handful of times by various provincial governments to override Charter rights.

Between 1982 and 1985, the ruling Parti Québécois invoked the clause in every piece of legislation passed in Quebec’s National Assembly and amended all past legislation to include Section 33 wording. Since the Quebec government had not signed the 1982 Constitution, its use of the notwithstanding clause was made in symbolic protest of the Charter and not to override any particular rights.

However, in 1988 the Quebec Liberal Party invoked the clause to pass Bill 178, a law limiting the use of English-language signage and advertising — a violation of freedom of expression under the Charter. When it came up for renewal five years later, this legislation was replaced by Bill 86, which complied with Charter rights.

Beyond Quebec, the clause has been written into five government bills, and passed into three laws. In 1982, Chris Pearson’s Progressive Conservative government in Yukon invoked the notwithstanding clause in a land-planning bill that did not pass into law.

In 1986, Saskatchewan Premier Grant Devine’s Progressive Conservative government invoked the notwithstanding clause in back-to-work legislation that the Saskatchewan Court of Appeal had ruled violated Charter rights (see Court System of Canada). Use of the clause later became unnecessary after the Supreme Court of Canada accepted the government’s appeal against the lower court’s ruling.

In Alberta, Ralph Klein’s Progressive Conservative government used the clause to pass legislation that affirmed the definition of marriage as being between a man and a woman in 2000 (seeSame-Sex Marriage in Canada). However, the Supreme Court of Canada ruled in 2004 that marriage legislation was the responsibility of the federal government, which made same-sex marriage legal across all provinces and territories in 2005.

In 2017, Brad Wall’s Saskatchewan Party invoked the clause to override a court ruling that would have removed provincial funding from non-Catholic students attending Catholic schools (see also Separate School). Two years earlier, Wall had considered invoking the clause to override a Supreme Court ruling that found Saskatchewan laws against public sector strikes unconstitutional.

Doug Ford’s Progressive Conservative government invoked the clause in Ontario in 2018. The Ford government had passed legislation to reduce the size of Toronto’s municipal council, a law that was struck down by an Ontario Superior Court judge for violating Charter rights. When Ford announced he would invoke the notwithstanding clause, he cautioned that he would not hesitate to use Section 33 again in the future. The Ford government withdrew a revised bill that contained Section 33 wording after the Ontario Court of Appeal granted a stay of the lower court’s decision.

The day after Coalition Avenir Québec (CAQ) won the 2018 Quebec election, Premier-designate François Legault said he was prepared to invoke the notwithstanding clause to ban public employees from wearing religious symbols when at work (see also  Quebec Values Charter).