Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (or la clause dérogatoire in French), or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter. It was, and continues to be, perhaps the most controversial provision of the Charter.
The section states:
- (1) 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.
- (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
- (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
- (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
- (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7-14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". Other rights such as section 6 mobility rights, democratic rights, and language rights are inviolable.
Such a declaration lapses after five years or a lesser time specified in the clause, although the legislature may re-enact the clause indefinitely. The rationale behind having a five-year expiry date is that it is also the maximum amount of time the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed, they have the "right" to elect representatives that will carry out the wish of the electorate. (The provisions of the Charter that deal with elections and democratic representation are not among those that can be overridden with the notwithstanding clause.)
The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect it protects the British tradition of parliamentary supremacy under the American-style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression.
The idea for the clause was proposed by Peter Lougheed as suggested by Merv Leitch. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints with the Charter was its effect of shifting power from elected officials to the judiciary, giving the courts the final word. Section 33, in conjunction with the limitations clause in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers.
The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, as well as Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the National Conference Centre in Ottawa and sowed the seeds for a deal. This compromise ultimately caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed-upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they notably excluded René Lévesque, the premier of Quebec, in the negotiations. At any rate, he refused to agree to the deal, and ultimately the Quebec government declined to endorse the constitutional amendment. Chrétien would later say on the notwithstanding clause, "Canada probably wouldn't have had any Charter without it."
According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it."
During the January 9, 2006, party leaders' debate for the 2006 federal election, Prime Minister Paul Martin unexpectedly pledged that his Liberal government, if returned, would support a constitutional amendment to prevent the federal government from invoking section 33, and challenged Conservative leader Stephen Harper to agree. This sparked a debate as to how the notwithstanding clause can be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that since the proposal would only limit the federal Parliament's powers, Parliament could make the change alone.
Use by provinces and territories
To date, only two provinces and one territory have used the power of override. The other provinces and territories, and the federal government, have not used it. Moreover, the way the Quebec legislature deployed the clause in the late 1980s has significantly diminished public respect in the rest of the country for section 33. Due to the mass opposition that its use, or even threatened use, as in the case of Alberta (listed below), brings to life, some observers have speculated that the act of invoking the notwithstanding clause would be politically costly.
The history of the use (or consideration of use) of the override clause by provincial and territorial legislatures is given below.
Alberta has never successfully invoked the notwithstanding clause, but in March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite-sex-only definition of marriage as well as the notwithstanding clause in order to insulate the definition from Charter challenges. However, a legislature may only use the "notwithstanding clause" on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in Reference re Same-Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding the legislation ultra vires, or beyond the constitutional powers of the Alberta Legislature.
Alberta once abandoned an attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed.[clarification needed]
After the Charter came into force in 1982, Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly. This stopped in 1987, when the newly elected Quebec Liberals discontinued the practice.[further explanation needed]
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to the Charter and the notwithstanding clause was removed.
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back to work. The Court of Appeal for Saskatchewan had previously held that a similar back-to-work law was unconstitutional because it infringed workers' freedom of association. The government appealed that decision to the Supreme Court of Canada. Since the Court of Appeal decision was still the statement of law at the time of the SGEU Dispute Settlement Act, a clause was written into the act, invoking the section 33 override. The earlier law was later found by the Supreme Court to be consistent with the Charter, meaning the use of the clause had been unnecessary.
Following a Supreme Court of Canada decision of January 30, 2015, which struck down Saskatchewan essential service legislation, Premier Brad Wall considered enacting the notwithstanding clause to protect the province's ability to force essential service employees back to work.
In May 2017, the Wall government announced it would invoke the notwithstanding clause to overrule a Court of Queen's Bench for Saskatchewan ruling which stated the government could not provide funding for non-Catholic students to attend Catholic separate schools.
In 1982, the legislature of Yukon made use of the notwithstanding clause in the Land Planning and Development Act. This was the first use, by any Canadian legislature, of the section 33 override. However, as constitutional scholar Peter Hogg notes, the "statute ... was never brought into force and so scarcely counts as an example".
Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". The United States Constitution gives no such powers to the states (see: Nullification), but Article III, sect. 2 does authorize the Congress to remove jurisdiction from the Federal Courts. Not since World War II has Congress mustered the requisite majority.
However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977) and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause.
In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities fulfils a similar purpose.
- Library of Parliament, Parliamentary Information and Research Service, The Notwithstanding Clause of the Charter, prepared by David Johansen, 1989, as revised May 2005. Retrieved August 7, 2006.
- Chrétien, Jean. My Years as Prime Minister. Vintage Canada Edition, 2008. Pg. 392.
- Peter McKnight, "Notwithstanding what?" The Vancouver Sun, January 21, 2006, pg. C.4.
- "The Honourable E. Peter Lougheed - Why a Notwithstanding Clause?". Library and Archives Canada. Archived from the original on 2016-11-07. Retrieved 2016-11-07.
- "Same-sex Marriage and the Notwithstanding Clause" (PDF). Institute for Research on Public Policy. Retrieved 2011-05-05.
- "Martin says he would ban notwithstanding clause". CBC News. January 9, 2006. Archived from the original on 11 January 2006. Retrieved 10 January 2006.
- Corbella, Licia. "Martin shocks drafter of Charter of Rights" Calgary Sun, 11 January 2006.
- Heather Scoffield, "Ottawa rules out invoking notwithstanding clause to stop migrant ships," Canadian Press, September 13, 2010
- Chrétien, My Years as Prime Minister, pp. 392-393.
- Yakabuski, Konrad (April 3, 2014). "The Quebec election is a clash of two charters". The Globe and Mail.
- Marriage Act, R.S.A. 2000, c. M-5. Accessed URL on March 10, 2006.
- "Sterilizing Klein's legislation," Maclean's, Toronto: Mar 23, 1998. Vol. 111, Iss. 12, p. 29.
- The SGEU Dispute Settlement Act, S.S. 1984-85-86, c. 111, s. 9.
- Peter W. Hogg, Constitutional Law of Canada, 4th ed. (Scarborough: Carswell, 1997), s. 36.2.
- Joel Bakan et al., Canadian Constitutional Law, 3d ed. (Toronto: Emond Montgomery, 2003), p. 780.
- RWDSU v. Saskatchewan,  1 S.C.R. 460.
- Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, online at: http://canlii.ca/t/gg40r
- CBC News (4 February 2015). "Brad Wall open to using 'notwithstanding clause' over labour ruling". Canadian Broadcasting Corporation.
- Charlton, Jonathan (4 February 2015). "Wall floats notwithstanding clause in response to SCOC labour ruling". The StarPhoenix.
- Langenegger, Stefani (May 1, 2017). "Sask. to use notwithstanding clause to override Catholic school ruling". CBC News. Retrieved May 1, 2017.
- Peter Hogg, Constitutional Law of Canada. Student Edition 2007, section 39.2 (p. 842).
- The Norris-LaGuardia Act of 1932 "provided, with certain exceptions, that no Federal court should have jurisdiction to issue an injunction in a case involving or growing out of a labor dispute." In 1942, the Emergency Price Control Act "contained a provision withholding from Federal district courts authority to enjoin the enforcement of the act."
- Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, p. 835.
- Charter of Human Rights and Responsibilities Act 2006 (s. 31),
- ABC AM radio program, 21 December 2005, according to transcript
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