- Category: I - O
- Published: 02 April 2014
Section 33 of the Canadian Constitution’s Charter of Rights and Freedoms, also known as the “notwithstanding clause,” is a legislative power that allows the Parliament or a Legislature to override certain Charter sections.This power applies to rights in ss 2 (fundamental freedoms) and 7 to 15 (legal and equality rights). Law makers can enact the clause if, after careful consideration, they believe the interests of democracy are best served by overriding a law. The remaining Charter rights are exempt from the clause because the document’s framers believed these rights to be too important to be overridden under any circumstances. The notwithstanding clause must be expressly stated within legislation and it cannot be applied retroactively. Also, it can only be implemented for five years, but it may be re-instated for additional five-year periods. This time frame generally coincides with the length of electoral terms, giving the public an opportunity to challenge their government’s decision to override the Charter.
Dubbed the Charter’s “sleeping giant” because of its extraordinary power but infrequent use, the notwithstanding clause was developed during the debate over the new Constitution in the early 1980s. Although a similar provision had existed in the Bill of Rights, federal and provincial legislators were divided on the notwithstanding clause’s inclusion in the Charter. Opponents argued that the Charter’s purpose could be jeopardized if some rights were left unprotected. Supporters, however, believed that the clause could promote democracy: allowing legislators control, or “sovereignty,” over important issues could prevent the unelected judiciary from having too much power over elected legislatures. A feature originating in Canadian politics, the clause has since acted as a model for other countries, such as Israel and South Africa, who have chosen to include override provisions in their own constitutions.
Examples of the Notwithstanding Clause Being Used
The notwithstanding clause has been used infrequently and, at times, controversially. It has not been used by the federal government and only four examples exist at the provincial and territorial levels:
1) Quebec's was the only provincial government to oppose the Charter, but it was the first to invoke the clause. In 1982 its government passed legislation that invoked the clause in every new statute, but the practice lapsed when a new government was elected in 1985.
2) Quebec also relied on the clause in 1988 when the Supreme Court of Canada’s Ford and Devine decisions prevented its residents from using French-only signage. In 1982 the Yukon used the clause in its Land Planning and Development Act, but the Act was ultimately not proclaimed into law.
3) Saskatchewan added the clause to protect back-to-work legislation in 1986, but it was removed when the Supreme Court ruled that the statute did not violate the Charter.
4) Alberta’s government added the clause to its Marriage Act in 2000, exclusively limiting marriage to heterosexual couples, but it was invalid because marriage is exclusively federal jurisdiction.
Examples of its use have illustrated that while its practical impact has been limited, its political importance is significant. It has become a symbol of political balance in Canada.
 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canadian Act 1982 (UK), 1982, c 11, s 33 [Charter].
 Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 39.5.
 Barbara Billingsley, “Section 33: The Charter’s Sleeping Giant” (2002) 21 Windsor YB Access Just 311 at 332.
 Hogg, supra note 4 at 39.8.
 Ibid at 39.7.
 Barbara Billingsley, “The Constitutional Override Clause” in Leonard I Rotman, Bruce P Elman & Gerald Gall, eds, Constitutional Law: Cases, Commentary and Principles (Scarborough: Thomson, 2008) 1313 at 1324.
 Ford v Quebec (Attorney-General),  2 SCR 712 [Ford].
 Devine v Quebec (Attorney-General),  2 SCR 790 [Devine].
 Hogg, supra note 4 at 39.2.