Malcolm Rivera
The notwithstanding clause, or Section 33 of the Canadian Charter of Rights and Freedoms, is a part of the Constitution of Canada that allows Parliament or provincial legislatures to temporarily override certain sections of the Charter. This provision has been a source of controversy, with some arguing that it protects parliamentary supremacy while others express concern about its potential for abuse by governments. The clause has been invoked by several provincial governments, including Quebec, Saskatchewan, Alberta, and Ontario, and has been the subject of legal challenges and public backlash. The use of the notwithstanding clause continues to be a highly debated topic in Canada.
| Characteristics | Values |
|---|---|
| Section of Canadian Constitution | 33 |
| Other names | Notwithstanding Clause, Override Power, Non Obstante Clause |
| What it does | Allows Parliament or provincial legislatures to override certain sections of the Charter for a limited period |
| Sections of Charter it can override | 2, 7-14, 15 |
| Sections of Charter it cannot override | 3, 4, 5, 6, Aboriginal and Treaty rights under Section 35 of the Constitution Act, 1982 |
| Who can use it | Provincial or federal governments |
| Use by federal government | Never |
| Use by provincial governments | Quebec, Saskatchewan, Alberta, Ontario, Yukon |
| Use outside Quebec | Written into 6 bills and passed into law 4 times |
| Controversy | Yes |
| Recent use | Ontario government under Doug Ford in 2021 |
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What You'll Learn
The controversial nature of the clause
The controversial nature of the notwithstanding clause, or Section 33 of the Canadian Charter of Rights and Freedoms, has been evident since its inception. It is unique among constitutional democracies and grants provincial legislatures or Parliament the power to override certain sections of the Charter for a limited period, subject to renewal. This includes fundamental freedoms, legal rights, and equality rights, but not democratic rights, mobility rights, or minority language rights.
The controversy surrounding the clause stems from concerns about its potential for abuse by governments. Critics argue that it undermines the very rights and freedoms it claims to protect, giving lawmakers the ability to disregard fundamental rights and freedoms guaranteed under the Charter. This has led to fears that it could be used to justify hate speech and child pornography under the guise of freedom of expression.
The notwithstanding clause has been invoked by several provincial governments, including Quebec, Saskatchewan, Alberta, and Ontario. In 2019, Quebec used the clause to pass Bill 21, which banned public sector workers from wearing religious symbols, infringing on freedom of religion and expression. In 2021, Ontario used the clause to revive a law struck down by the courts regarding pre-election third-party spending.
The use of the notwithstanding clause has sparked widespread debate and backlash, with legal challenges from organisations such as the Canadian Civil Liberties Association and the National Council of Canadian Muslims. They argue that the clause should not be used to override core rights and freedoms that existed before the Charter and are central to Canada's constitutional structure.
While some defend the clause as a safeguard against judicial overreach, ensuring that elected officials have the final say in interpreting rights and freedoms, others view it as a threat to the very foundation of Canadian democracy and the rule of law. The controversial nature of the notwithstanding clause continues to fuel ongoing debates about the balance of power between the legislature and the judiciary in Canada.
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How it differs from the US Constitution
Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause, is part of the Constitution of Canada. It allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter, which include fundamental freedoms, legal rights, and equality rights. This clause reflects the hybrid nature of Canadian political institutions, protecting British parliamentary supremacy within an American-style system of written constitutional rights.
The notwithstanding clause is unique among the constitutions of countries with constitutional democracies, including the United States. The US Constitution does not give similar powers to the states, although Article III, Section 2 authorises Congress to remove jurisdiction from federal courts, a power not exercised since World War II. The concept of the notwithstanding clause predates the Charter, with the Canadian Bill of Rights (1960) containing a similar provision. However, the Bill of Rights' clause could invalidate any right, not just specified clauses as in the Charter.
The inclusion of the notwithstanding clause in the Canadian Constitution was controversial, with some arguing it could be abused by the government. Despite this, it was adopted in 1982, and since then, several provinces have invoked it, including Quebec, Saskatchewan, Yukon, Ontario, and Alberta. The federal government has not yet used it.
In contrast, the US Constitution, which forms the basis of the American system of government, does not include a similar clause. The US Constitution establishes a federal system with a division of powers between the federal government and the states, similar to Australia. However, it does not provide for a notwithstanding clause, reflecting a different approach to managing the dynamic between federal and state powers.
The Canadian Constitution, with its notwithstanding clause, thus presents a unique blend of British and American political traditions, resulting in a distinct system of rights and freedoms with a built-in mechanism for parliamentary override in exceptional circumstances.
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How it has been used in Ontario
The notwithstanding clause, or Section 33 of the Canadian Charter of Rights and Freedoms, gives provincial legislatures or Parliament the ability to override certain portions of the charter for a five-year term. It is part of the Constitution of Canada and is also referred to as the override clause.
The Ontario government has used the notwithstanding clause on several occasions. In August 2018, the Ontario government passed the Better Local Government Act, which ordered the Toronto City Council to change its electoral ward boundaries for the 2018 municipal election, reducing the number of wards from 47 to 25. This was controversial for its intent and timing, as it came amid a municipal election campaign. The act was later struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed on voters' rights to effective representation. In response, Premier Doug Ford announced his intention to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling. However, the Court of Appeal for Ontario granted a stay of the Superior Court's decision, allowing the province to implement the 25-ward structure without invoking the clause.
In June 2019, the Ontario government under Premier Doug Ford used the notwithstanding clause for the first time. The government added the clause to a bill concerning pre-election third-party spending after an earlier version of the bill was struck down as unconstitutional. The bill, which imposed a limit of $600,000 on third-party spending in the 12 months before an election, was controversial, with opponents arguing that it aimed to silence criticism ahead of the provincial vote.
In November 2022, the Ontario government passed a bill that imposed a contract on Ontario education workers, prohibiting them from striking and attempting to prevent a constitutional challenge regarding the freedom to associate. However, the education workers still went on strike, and the government faced heavy backlash from the public and other unions. As a result, the government repealed the law and resumed contract negotiations.
In summary, the Ontario government has used the notwithstanding clause in an attempt to override court rulings, silence criticism, and impose limits on striking workers and third-party election spending. The use of the notwithstanding clause by the Ontario government has often been met with controversy and backlash, leading to legal challenges and public protests.
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How it has been used in Quebec
The notwithstanding clause, or Section 33 of the Canadian Charter of Rights and Freedoms, is a part of the Constitution of Canada. It allows Parliament or provincial legislatures to temporarily override certain sections of the Charter, namely sections 2 (fundamental freedoms) and 7–15 (legal rights). It does not apply to democratic rights, mobility rights, or minority language rights.
The clause has been used in Quebec several times. Notably, Quebec did not sign the Constitution Act 1982 and subsequently added a standard notwithstanding clause to every law in force at the time until 1985. In 1988, Quebec used the clause in response to a Supreme Court decision that the province's law allowing only French on commercial signs violated freedom of expression. This was the first time the clause was used in direct response to a Supreme Court decision. The Quebec National Assembly adopted Bill 178, which allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French.
In 2019, the Legault government used the clause to pass Bill 21, a law that prohibited certain public sector workers from wearing religious symbols in their workplaces. In 2021, the Legault government used the clause again to pass Bill 96, which included amendments to Quebec's Charter of the French Language, such as expanding the investigative powers of Quebec's language office.
In summary, Quebec has used the notwithstanding clause multiple times, notably to uphold laws relating to the French language and to restrict the rights of certain public sector workers. The use of the clause in Quebec has been controversial and has diminished public respect for Section 33 in the rest of the country.
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How it has been used in Saskatchewan
The notwithstanding clause, also known as Section 33 of the Canadian Charter of Rights and Freedoms, is a part of the Constitution of Canada. It allows Parliament or provincial legislatures to temporarily override certain sections of the Charter.
In 1986, the Legislature of Saskatchewan enacted the SGEU Dispute Settlement Act, requiring striking government workers to return to work. As this infringed on workers' freedom of association, a clause was written into the act, invoking the section 33 override. The earlier law was later found to be consistent with the Charter, meaning the use of the clause had been unnecessary.
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule a 2017 Court of Queen's Bench ruling, which stated that the government could not fund non-Catholic students to attend Catholic separate schools. This law was never brought into force.
In 2023, Premier Scott Moe announced that the province would use the notwithstanding clause to uphold a policy requiring parents to be notified of and approve any name and pronoun change requested by their child. This was in response to a Regina court injunction that paused the policy until its constitutionality could be tested. The "Parents' Bill of Rights" was passed on October 20, 2023.
Saskatchewan has also made other section 33 declarations, including one in 2000 to define marriage as "between a man and a woman", which was later deemed ultra vires by the Supreme Court of Canada.
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Frequently asked questions
The notwithstanding clause, or Section 33 of the Canadian Charter of Rights and Freedoms, allows Parliament or provincial legislatures to override certain sections of the Charter for a five-year term, subject to renewal.
The clause was included to bring provinces onside with then-Prime Minister Pierre Trudeau's signature piece of legislation. While Trudeau didn't initially see the need for the clause, provinces such as Alberta and Saskatchewan wanted an out should they disagree with a court decision.
The notwithstanding clause has been used by Quebec, Saskatchewan, Alberta, and, most recently, Ontario. For example, in 2019, Quebec used the clause to pass Bill 21, a law that prohibited certain public sector workers from wearing religious symbols in their workplaces. In 2021, Ontario used the clause to restore parts of the Election Finances Act that had been declared unconstitutional.
There are concerns that the notwithstanding clause gives too much power to provincial legislatures or Parliament to override Charter rights. It has been described as susceptible to abuse from a government.
