of Rights and Freedoms
|Part of the Constitution Act, 1982.|
|Guarantee of Rights and Freedoms|
|3, 4, 5|
|7, 8, 9, 10, 11, 12, 13, 14|
|Official Languages of Canada|
|16, 16.1, 17, 18, 19, 20, 21, 22|
|Minority Language Education Rights|
|25, 26, 27, 28, 29, 30, 31|
|Application of Charter|
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 temporarily override certain portions 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 any number of times. 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 new representatives who would have the power to do so. (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).)
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 Government 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.
Two provinces have used the power of override. Saskatchewan used it to force provincial employees to work and to allow the government to pay for non-Catholics to attend a Catholic school, and Quebec used it to allow the government to restrict language of signage. Neither of the usages were renewed, and they each therefore expired after five years. Both Saskatchewan and Quebec have introduced new legislation that invokes the override and may still come into effect as of October 2019[update].
Four jurisdictions—Yukon, Alberta, Ontario, and New Brunswick—have introduced bills that invoked the override but never came into effect for various reasons. Other provinces and territories, and the federal government, have not used it.
|Province||Year introduced||Period in effect||Statute enacting notwithstanding clause||Charter right circumvented||Enacted?|
|Yukon||1982||N/A||Land Planning and Development Act||Section 15 equality rights pertaining appointment to committees||Received royal assent, but not brought into force|
|Quebec||1982||1982–1992||all statutes from 1982 to 1987||preemptive blanket application||Brought into force, but was unnecessary in most or all cases, and the validity of blanket application has never been tested in court|
|Saskatchewan||1986||1986–1987||SGEU Dispute Settlement Act||Section 2(d) freedom of association pertaining to unions||Brought into force, although later found to be unnecessary by the Supreme Court|
|Quebec||1988||1988–1993||An Act to Amend the Charter of the French Language||Section 2(b) freedom of expression and section 15 equality rights pertaining to language on signs||Brought into force|
|Alberta||1998||N/A||Institutional Confinement and Sexual Sterilization Compensation Act||Sections 2 and 7 to 15||Bill dropped by legislature|
|Alberta||2000||N/A||Marriage Amendment Act, 2000||Section 15 equality rights pertaining to same-sex marriage||Brought into force, but ultra vires, so of no force or effect|
|Saskatchewan||2018||N/A||School Choice Protection Act||Section 15 equality rights pertaining to public funding of Catholic schools||Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal.|
|Ontario||2018||N/A||Efficient Local Government Act, 2018||Section 2(b) freedom of expression pertaining to municipal elections||Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decision|
|Quebec||2019||2019–present[update]||An Act Respecting the Laicity of the State||Section 2(b) freedom of expression and Section 15 equality rights pertaining to the wearing of religious symbols by public servants.||Received royal assent and brought into force on June 16, 2019|
|New Brunswick||2019||N/A||An Act Respecting Proof of Immunization||Sections 2 and 7 to 15||Bill reached first reading, but was not passed before the end of the 59th New Brunswick Legislature.|
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.
In 1998, Alberta introduced, but later abandoned, a bill that would 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.
There were also discussions to invoke the notwithstanding clause following the Supreme Court of Canada's 1998 decision in Vriend v Alberta, but were resisted by Premier Ralph Klein at the time.
On November 22, 2019, Education Minister Dominic Cardy introduced a bill, known as Bill 39, in the Legislative Assembly of New Brunswick to end non-medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre-empt any court and charter challenges to the bill by "an organized, well-financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020.
In August 2018, the government of Ontario passed the Better Local Government Act, which, among other things, ordered the Toronto City Council to change its electoral ward boundaries for the upcoming municipal election to match the boundaries used for federal and provincial electoral ridings, thus reducing the number of wards from 47 to 25. Premier of Ontario Doug Ford stated that the current council had "failed to act on the critical issues facing the city", and claimed cost savings of $25 million over the next four years. The bill was controversial for both its intent and its timing, as it came in the midst of a municipal election campaign. The electoral boundaries had already been realigned for the 2018 election to expand it from 44 to 47 wards, by consolidating several existing wards and adding new ones.
On September 10, 2018, the Act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first time that the notwithstanding clause would ever be invoked in Ontario. However, on September 19, the Court of Appeal for Ontario granted a stay of the Superior Court's decision, allowing the province to again enact a 25-ward structure for the City of Toronto. During the oral argument for that case, the counsel for the Attorney General stated that the provincial government would not proceed with the legislation to invoke the notwithstanding clause if the stay was granted.
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts. This stopped in 1987, when the newly elected Quebec Liberals discontinued the practice.
The way the Quebec legislature deployed the clause in the late 1980s 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), would evoke, the act of invoking the notwithstanding clause would be more politically costly even than had always been apprehended, according to some.
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.
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019 and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered.
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.
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212, 2017 SKQB 109, which stated the government could not provide funding for non-Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there is no longer a need for the Notwithstanding Clause.
Following a Supreme Court of Canada decision of January 30, 2015, which struck down Saskatchewan essential service legislation, Premier Brad Wall publicly considered using the notwithstanding clause to protect the province's ability to force essential service employees back to work.
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".
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.
Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the right to work.
In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities fulfils a similar purpose.
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