Section 33 of the Canadian Charter of Rights and Freedoms

Canadian Charter
of Rights and Freedoms
Part of the Constitution Act, 1982
Preamble
Guarantee of Rights and Freedoms
1
Fundamental Freedoms
2
Democratic Rights
3, 4, 5
Mobility Rights
6
Legal Rights
7, 8, 9, 10, 11, 12, 13, 14
Equality Rights
15
Official Languages of Canada
16, 16.1, 17, 18, 19, 20, 21, 22
Minority Language Education Rights
23
Enforcement
24
General
25, 26, 27, 28, 29, 30, 31
Application
32, 33
Citation
34

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 (French: clause dérogatoire, clause nonobstant, or, as prescribed by the Quebec Board of the French Language, disposition de dérogation[1]). Sometimes referred to as the override power, it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter.[2]

Text

The section states:

Section 33.

(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).

Function

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".[2] Other rights such as section 6 mobility rights, democratic rights, and language rights are inviolable.

Such a declaration ends 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 so desire, they have the right to elect new representatives who could choose to repeal the law or let the declaration expire.[3] (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.[4] 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.[3]

History

The idea for the clause was proposed by Peter Lougheed as suggested by Merv Leitch.[5] The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along 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.[6]

Justice Minister Jean Chrétien agreed to the notwithstanding clause in the Kitchen Accord.

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, and 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 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 excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it."[3]

In exchange for agreeing to the Notwithstanding Clause, Trudeau declined to remove the federal powers of disallowance and reservation from the draft Constitution.[7]

When it was introduced, Alan Borovoy, the general counsel to the Canadian Civil Liberties Association, addressed concerns that the Notwithstanding clause was susceptible to abuse from a government by stating that "Political difficulty is a reasonable safeguard for the charter."[8][9]

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."[3]

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.[10] This sparked a debate about how the notwithstanding clause could 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, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone.[11]

Comparison with other human rights instruments

Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention".[12] 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.[13]

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.[12]

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 freedom of occupation.[12]

In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities fulfils a similar purpose.[14][15]

The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible.

Uses

Four provinces and one territory have passed laws invoking the notwithstanding clause.[16] The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982–1985, a French-only sign law in 1988, a law prohibiting state-affiliated employees from wearing religious symbols in 2019,[17] and a law strengthening the use of French in 2022. Saskatchewan passed a back-to-work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non-Catholics to attend publicly-funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third-party groups must limit their activities in the lead-up to an election.[18] Yukon invoked the clause in 1982, but this law was never brought into force.

The federal Parliament has never introduced legislation invoking the clause.

Usages of the notwithstanding clause
Jurisdiction Year Period in effect Statute enacting notwithstanding clause Charter right(s) circumvented Enacted Notes on enactment
Quebec 1982 1982–1990 Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);[19]

All new statutes from 1982 to 1985[20]

Blanket application to sections 2 and 7 to 15 (all applicable Charter sections) Yes Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35).
Yukon 1982 — Land Planning and Development Act[21] Section 15 equality rights pertaining appointment to committees No Received royal assent, but not brought into force.
Quebec 1986 1986–present An Act Respecting the Pension Plan of Certain Teachers Section 15 (equality rights) Yes Renewed 7 times; set to expire in January 2025.[22]
Quebec 1986 1986–present An Act Respecting the Government and Public Employees Retirement Plan Section 15 (equality rights) Yes Renewed 7 times; set to expire in January 2025.[22]
Quebec 1986 1986–present An Act Respecting the Teachers Pension Plan Section 15 (equality rights) Yes Renewed 7 times; set to expire in January 2025.[22]
Quebec 1986 1986–present An Act Respecting the Civil Service Superannuation Plan Section 15 (equality rights) Yes Renewed 7 times; set to expire in January 2025.[22]
Quebec 1986 1986–2001 An Act Respecting the Conseil superieur de l'Éducation Section 2(a) (freedom of religion and conscience) and section 15 (equality rights) Yes Renewed in 1988, 1994, and 1999; repealed in 2001.[22]
Quebec 1986 1986–2001 An Act Respecting the Ministère de l'Éducation Section 2(a) (freedom of religion and conscience) and section 15 (equality rights) Yes Renewed in 1988, 1994, and 1999; repealed in 2001.[22]
Quebec 1986 1986–2008 The Education Act for Cree, Inuit and Naskapi Native Persons Section 2(a) (freedom of religion and conscience) and section 15 (equality rights) Yes Renewed 5 times; expired on July 1, 2008.[22]
Quebec 1986 1986–1987 An Act to Amend the Act to Promote the Development of Agricultural Operations Section 15 (equality rights) Yes Repealed in 1987.[22]
Saskatchewan 1986 1986–1987 SGEU Dispute Settlement Act[23] Section 2(d) (freedom of association) Yes Brought into force, although later found to be unnecessary by the Supreme Court.
Quebec 1988 1988–2008 Education Act Section 2(a) (freedom of religion and conscience) and section 15 (equality rights) Yes Renewed 4 times; expired on July 1, 2008.[22]
Quebec 1988 1988–1993 An Act to Amend the Charter of the French Language[24] Section 2(b) (freedom of expression) and section 15 (equality rights) Yes Brought into force. Not re-enacted after the five-year expiry in 1993.[22]
Quebec 1989 1989–1999 An Act Respecting School Elections Section 2(a) (freedom of religion and conscience) and section 15 (equality rights) Yes Renewed in 1994; repealed in 1999.[22]
Quebec 1992 1992–1997 An Act Respecting Private Education Section 2(a) (freedom of religion and conscience) and section 15 (equality rights) Yes Expired after 5 years in 1997 and not renewed.[22]
Alberta 1998 — Institutional Confinement and Sexual Sterilization Compensation Act[25] Sections 2 and 7 to 15 (all applicable Charter sections) No Bill dropped by legislature.
Alberta 2000 2000–2004 Marriage Amendment Act, 2000[26] Sections 2 and 7 to 15 (all applicable Charter sections) Yes, but later declared invalid by the Supreme Court Came into force, but effectively declared ultra vires by Supreme Court in 2004,[27] so of no force or effect. Notwithstanding clause expired by operation of law in March 2005.[22]
Quebec 2001 2001–present An Act Respecting the Pension Plan of Management Personnel Section 15 (equality rights) Yes Renewed 4 times; set to expire in January 2025.[22]
Quebec 2005 2005–2008 Act to Amend Various Legislative Provisions of a Confessional Nature in the Education Field Section 2(a) (freedom of religion and conscience) and section 15 (equality rights) Yes Permitted schools to continue offering religious programs until July 2008, at which point the clause expired.[16][22]
Saskatchewan 2018 — School Choice Protection Act[28] Section 2 (fundamental freedoms) and Section 15 (equality rights) No Received royal assent, but not brought into force.[29] Usage of the Clause became unnecessary when the original court case was overturned on appeal.
Ontario 2018 — Efficient Local Government Act, 2018[30] Sections 2, 7 and 15 (all applicable Charter sections) No Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decision
Quebec 2019 2019–present An Act Respecting the Laicity of the State[31] Sections 2 and 7 to 15 (all applicable Charter sections) Yes Received royal assent and brought into force on June 16, 2019. Renewed in May 2024.[32]
New Brunswick 2019 — An Act Respecting Proof of Immunization[33] Sections 2 and 7 to 15 (all applicable Charter sections) No Clause removed from bill prior to defeat at third reading.[34]
Ontario 2021 2021–2023 Protecting Elections and Defending Democracy Act, 2021[35] Sections 2 and 7 to 15 (all applicable Charter sections) Yes, but later struck down by the courts Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33.
Quebec 2022 2022–present An Act respecting French, the official and common language of Québec[36] Sections 2 and 7 to 15 (all applicable Charter sections) Yes Received royal assent on June 1, 2022.[37]
Ontario 2022 — Keeping Students in Class Act, 2022[38] Sections 2, 7 and 15 Yes, but later nullified retroactively Received royal assent on November 3, 2022.[39] Repealed and retroactively nullified on November 14, 2022.[40]
Saskatchewan 2023 2023–present The Education (Parents’ Bill of Rights) Amendment Act, 2023 Sections 2, 7 and 15 Yes Royal assent received and came into force on October 20, 2023.

Alberta

Compensation for forced sterilization (1998)

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[41] approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed.[42]

Same-sex marriage (2000)

In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act[43] to include an opposite-sex-only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same-Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature.[6]

Other discussions of its use in Alberta

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.[44]

In 2024, Premier Danielle Smith has said she might use the notwithstanding clause to protect a gender-affirming healthcare ban.[45]

New Brunswick

Mandatory vaccinations (2019)

On November 22, 2019, Education Minister Dominic Cardy introduced a bill 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".[46] The use of the notwithstanding clause was removed from the bill in June 2020,[47] before the bill was ultimately defeated in a free vote at third reading in the legislature.[34]

Ontario

Municipal elections (2018)

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 2018 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 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.[48][49][50]

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.[51] Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling,[52] which, if passed, would have been the first use of the notwithstanding clause in Ontario.[53][51] However, on September 19, the Court of Appeal for Ontario granted a stay of the Superior Court's decision, allowing the province to again implement 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.[54] Belobaba's ruling was ultimately overturned 3-2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5-4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy.[55]

Third-party political advertising (2021)

In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause.

In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation.[56]

Education worker labour rights (2022)

On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed.[57]

The Ontario government faced heavy backlash from the general public over the law.[58] Other unions also threatened to walk off the job and protest the law in solidarity.[59] As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed.[60][61][59]

Quebec

Blanket application (1982–1985)

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 on grounds in the relevant Charter sections.[62] This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice.[62][20] The Quebec Liberals did successfully invoke the notwithstanding clause to apply to a number of pieces of legislation pertaining to education and pensions between 1986 and 1992. Many of these uses of the notwithstanding clause were subsequently re-enacted.[20]

The way the Quebec legislature deployed the clause in the late 1980s diminished public respect in the rest of the country for section 33.[2] Due to the mass opposition that its use, or even threatened use, as in the case of Alberta (listed above), would evoke, the act of invoking the notwithstanding clause would be more politically costly even than had always been apprehended, according to some.[63][64][65]

Sign laws (1988)

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 Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed.

Wearing of religious symbols by public servants (2019)

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.[66] It also prevents people from receiving public services with their faces covered.

French language requirements for multiple sectors (2021)

The stated goal of Bill 96 was "to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation."[67] Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill.

The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25.

Employers may not require knowledge of a language other than French during "recruitment, hiring, transfer or promotion," unless they can show the that additional language is necessary and they took "all reasonable means to avoid imposing such a requirement."

The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to "enter at any reasonable hour any place, other than a dwelling house," where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant.

The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit", immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin-Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit.[68]

Saskatchewan

Back-to-work order (1986)

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.[69][70][71] 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.[70][72]

Catholic school funding (2018)

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.[73][74] The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal.[75] With the original decision overturned, there was no longer a need for the Notwithstanding Clause.

In 2023, Premier Scott Moe told reporters that the province would be willing to use the notwithstanding clause to uphold a policy requiring parents be notified of and approve any requested name and pronoun change from their child before it be recognized at school.[76][77] This came after legal action was initiated by an advocacy group against the provincial government,[78] the province's youth advocate published a report against the policy,[79] and a Regina court granted an injunction to stop the policy.[80]

The bill, titled the "Parents' Bill of Rights", was passed on October 20, 2023.[81]

Other discussions of its use in Saskatchewan

Following a Supreme Court of Canada decision of January 30, 2015,[82] 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.[83][84]

Yukon

Committee appointments (1982)

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".[2][85]

References

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