Notwithstanding Clause

Section 33 of the Canadian Charter of Rights and Freedoms is known as the notwithstanding clause. Also known as the override clause, it is part of the Constitution of Canada. The clause allows federal, provincial or territorial governments to temporarily override, or bypass, certain Charter rights. These overrides are subject to renewal after five years. 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 clause.

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 allows a government to 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.” In other words, elected governments (federal, provincial or territorial) can implement a law or action “notwithstanding” — meaning “in spite of” — a Charter right.

Background

In the late 1970s and early 1980s, the government of Pierre 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. They feared this would 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 on one condition; that it contain 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). The laws can be exempted for a period of five years. At that point, they are subject to renewal.

The clause was included at the last minute during constitutional negotiations. It was a result of what became known as the “Kitchen Accord.” (See also Patriation of the Constitution.) When it appeared 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. Among the ideas they agreed to were the inclusion of a notwithstanding clause and an amending formula for the Constitution. The new proposal was accepted by all provinces except Quebec. Premier René Lévesque was incensed that the deal was negotiated in his absence; the event 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. The federal government has never invoked the clause. It has been used a handful of times by various provincial governments.

Between 1982 and 1985, the ruling Parti Québécois invoked the clause in every piece of legislation passed in Quebec’s National Assembly. It also amended all past legislation to include Section 33 wording. The Quebec government’s use of the notwithstanding clause in these cases was made in symbolic protest of the Charter, not to override any rights.

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

Beyond Quebec, the clause has been written into six government bills and passed into law four times. In 1982, Chris Pearson’s Progressive Conservative government in Yukon invoked the 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.) Devine’s use of the clause later became unnecessary after the Supreme Court of Canada accepted his government’s appeal against the lower court’s ruling.

In Alberta, Ralph Klein’s Progressive Conservative government used the clause to pass legislation against same-sex marriage in 2000. However, the Supreme Court ruled in 2004 that marriage legislation was the jurisdiction of the federal government; it 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. This law was struck down by an Ontario Superior Court judge for violating Charter rights. The Ford government removed the notwithstanding clause from the legislation after the Ontario Court of Appeal granted a stay of the Superior 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 — teachers, police officers, judges, etc. — from wearing religious symbols at work. (See also Quebec Values Charter). In June 2019, Legault’s CAQ government passed Bill 21, the so-called secularism bill, into law. Legault’s government invoked the notwithstanding clause to block individuals or groups from challenging the law for violating Charter rights. The law sparked protests and debate and was criticized by many as a form of legalized discrimination.

In June 2021, a year before the next scheduled election, the Ontario government under Premier Doug Ford invoked the notwithstanding clause for a second time. The government had previously passed a bill that expanded the restriction on pre-election third-party spending from six months to one year, while maintaining the cap on third-party advertising spending at $600,000. (See Political Party Financing in Canada.) After an Ontario Superior Court justice struck down the bill as unconstitutional, the Ford government included the notwithstanding clause in the bill and reintroduced it to the legislature. An emergency weekend session was held for debate. Bill 307, an amendment to the Elections Finance Act, was passed by a vote of 63–47 on Monday 14 June. The government maintained it was using “every tool in our toolbox” to protect elections from outside influence. Critics argued the intent of the law was to stifle criticism of the government, which weeks earlier had an approval rating of only 39 per cent.