The Notwithstanding Clause: Section 33 of the Charter

Section 33 of the Charter, commonly referred to as the Notwithstanding or Override clause, has an important place in Canada's constitutional development, as well as the relationship between the legislative and judicial branches of government. This article provides an introduction to the nature, operation, and history of the Notwithstanding clause.

What is the Charter's Notwithstanding Clause?

Origins & basic nature of the clause

Operation of the Charter's Notwithstanding Clause

What rules govern the clause's usage?

Usage of the Charter's Notwithstanding Clause

When has the clause been used in Canada's history?

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What is the Notwithstanding Clause?

Origins & basic nature of the clause

Notwithstanding Clause & Constitutional Compromise

In the late-1970s and early-1980s, the federal and provincial governments undertook negotiations to modernize the Canadian Constitution, which eventually led to the passage of a new Constitution in 1982. Central to these negotiations was a federal proposal to introduce a constitutionally-entrenched set of rights and freedoms to replace the Canadian Bill of Rights (this new set of rights eventually became the Charter).

The federal proposal was, however, a controversial one. Several provinces disagreed with its inclusion on the grounds that it would significantly shift political power from elected legislatures to appointed courts. The Notwithstanding clause was subsequently added to the Charter as a means of alleviating these provincial concerns.

Constitutional Supremacy & Judicial Review

How exactly does the Notwithstanding clause impact the relationship between elected legislatures and the judiciary? In examining this issue it is useful to first discuss two key constitutional concepts: constitutional supremacy and judicial review.

Canada has a constitutional system of government, meaning that its political system is framed by a set of basic rules and norms, which are collectively referred to as the "Constitution." The Canadian Constitution includes several formal pieces of legislation, such as the Constitution Act, 1867 and the Constitution Act, 1982, as well as a number of unwritten constitutional conventions and norms. The Constitution governs the basic nature of key political institutions, such as parliamentary government (the operation of the executive and legislative branches of government) and federalism (the division of power between different federal and provincial/territorial levels of government).

Moreover, the Constitution is recognized as the supreme law in Canada's political and legal system. This is referred to as constitutional supremacy. This means that all other laws and government actions must be in accordance with the basic rules and norms set out in the Constitution. A federal, provincial, or territorial government, for example, can only exercise jurisdiction over policy fields given to it under the Constitution.

Finally, the judicial branch of government (the court system) plays an important role in the operation of this constitutional system of government. It is tasked with interpreting the Constitution and settling constitutional conflicts between different political actors. This is referred to as the power of judicial review. When, for example, the provinces believe that the federal government is overstepping its constitutional powers, they can apply to the courts to settle the conflict. The judiciary has the power to review the government's actions and decide whether or not it is acting within the rules and norms laid out in the Constitution. If the judiciary finds that a constitutional rule has been broken, it can force the offending government to change its actions.

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The Charter & the Notwithstanding Clause

What does all of this have to do with the Notwithstanding clause? The provinces were concerned that a constitutionally entrenched Charter would give the courts too much power to review the actions of elected legislatures. As part of the Constitution, the Charter would become the supreme law in Canada's political and legal system. All other laws and government actions would have to be accordance with these new constitutional rights and freedoms. Moreover, the judiciary would have the power to interpret the meaning of those rights and freedoms, as well as to review the actions of elected legislatures to ensure the Charter is being respected. Instead of simply interpreting and enforcing the Constitution on regular issues, such as the operation of parliamentary government and federalism, the judiciary would now have the power to interpret and enforce a broad set of citizen rights, such as fundamental freedoms, democratic rights, and equality rights.

For more information on the Charter:

The Notwithstanding clause was eventually included within the Charter to alleviate these provincial fears of judicial power. Found under Section 33 of the Charter, the clause states:

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 of this Charter.

The Notwithstanding clause thus permits elected legislatures (federal, provincial, or territorial) to declare that a particular action or law operates "notwithstanding" or "in spite of" a right or freedom found in the Charter. The judiciary is still responsible for interpreting the Charter and reviewing government actions in general. However, the Notwithstanding clause allows legislatures to make some of their laws or actions temporarily immune from judicial review under the Charter. If, for example, a legislature wishes to pass a law that will unconstitutionally violate the Charter right to freedom of expression, it can make a declaration under the clause stating that the law will continue to stand, regardless of the violation. The judiciary, therefore, no longer has the power to force the legislature to change the law in that case. The Notwithstanding clause thus alleviated provincial concerns of judicial power by permitting legislatures to protect themselves from judicial review under the Charter.


Operation of the Charter's Notwithstanding Clause

What rules govern the clause's usage?

While the general purpose of the Notwithstanding clause is to protect legislatures from judicial review, there are some important qualifications regarding its actual operation.

Notwithstanding Clause & Charter Rights and Freedoms

Firstly, the Notwithstanding clause may only be used in regard to the Charter and not other parts of the Canadian Constitution. Moreover, the Notwithstanding clause can only be used against a limited number of Charter rights and freedoms. These include:

  • Fundamental freedoms (Section 2 of the Charter) such as freedom of conscience and religion; freedom of thought, belief, opinion and expression (including media); freedom of peaceful assembly; and freedom of association.
  • Legal rights (Sections 7-14 of the Charter) such as the right to life, liberty and security of the persons and the right not to be deprived thereof except in accordance with the principles of fundamental justice; the right to be secure against unreasonable search or seizure; the right not to be arbitrarily detained or imprisoned; the right to not to be subject to any cruel or unusual punishment, rights against self-crimination; and so forth.
  • Equality rights (Section 15 of the Charter) such as the right to be equal before and under the law and the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The Notwithstanding clause cannot be used for the remaining Charter provisions, including:

  • Democratic rights (Sections 3-5 of the Charter) such as the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein; the requirement that no House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members; and the requirement that there shall be a sitting of Parliament and of each legislature at least once every 12 months.
  • Mobility rights (Section 6 of the Charter) such as the right of every citizen to enter, remain in and leave Canada, and the right of every permanent resident to move and take up residence in any province and pursue the gaining of a livelihood in any province.
  • Language rights (Sections16-22 of the Charter) such as the requirement that English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada, and the right of a member of the public to communicate with and receive services from federal government institutions or agencies in either English or French.
  • Minority language education rights (Section 23 of the Charter), the right of a citizen to have their children receive primary or secondary education in either English or French.

In other words, the Notwithstanding clause only permits legislatures to protect themselves from judicial review in the context of certain Charter rights and freedoms. A legislature may make a law immune from judicial review in regard to the Charter's fundamental freedoms, legal rights, and equality rights. The clause, however, cannot be used in the context of the other rights and freedoms provided for by the Charter. If, for example, a legislature wishes to enact a law that would violate democratic rights under the Charter, it could not use the Notwithstanding clause to protect itself from judicial review.

Explicit Legislative Declaration

Legislatures must also follow certain procedures when invoking the Notwithstanding clause. In order to invoke the clause, a legislature must make an explicit declaration through legislation. In order words, it must pass a piece of legislation that explicitly declares its intention to invoke the Notwithstanding clause. In addition, the legislation must explicitly state which laws are to operate notwithstanding the Charter, as well as which particular rights and freedoms the law will be immune from. These requirements are significant in that they help to ensure that legislatures cannot use the Notwithstanding clause in a stealthy or secretive manner. As the clause must be invoked through legislation, opposition members in the legislature have an opportunity to criticize and draw public attention to the declaration. Moreover, the requirement that the legislation explicitly state the nature of the Notwithstanding declaration helps to ensure that the public is fully informed of the intention and effect of the legislature's actions.

Duration of a Notwithstanding Declaration

Declarations under the Notwithstanding clause are not permanent; they only have a maximum life span of five years. As such, a legislature can only protect a law or action from judicial review under the Charter for a period of five years, after which the declaration no longer has any force and the law may be reviewed and struck down by the courts. A legislature, however, may extend the period past the initial five-year term by "re"-invoking the Notwithstanding clause through another explicit legislative declaration. Such a declaration again only lasts for a maximum of five years. There is no limit on how many times a legislature may re-invoke the Notwithstanding clause to protect a particular law or action.

This term limit has significance within the context of Canada's electoral system. Under Canada's Constitution, general elections (federally, provincially, and territorially) must be held at least every five years. This means that a legislature invoking the Notwithstanding clause will likely face re-election before it has a chance to extend the declaration beyond the initial five-year period. If voters are dissatisfied with the initial declaration, they can use the election as an opportunity to elect legislature members who will either repeal the declaration or who will not re-invoke it when the time came.

Government Jurisdictions & the Notwithstanding Clause

Finally, while any federal, provincial, or territorial legislature may invoke the Notwithstanding clause, they may only do so for legislation over which they have constitutional jurisdiction. It is important here to remember that Canada is a federation, with powers and jurisdictions divided between the different levels of government. The federal government, for example, has jurisdiction over national issues, such as national defence, foreign policy, and so on. The provinces, in turn, have their own fields of jurisdiction, such as natural resources and social policy (health care, employment insurance, local government, etc). One level of government cannot use the Notwithstanding clause to make immune laws or actions which are under the jurisdiction of another level of government.

This was a key element in the legal and political debate surrounding the Charter right to equality (under Section 15) and same-sex marriage. Several Canadian courts struck down the traditional definition of marriage (as between one man and one woman) on the grounds that it violated the right to equality by discriminating against same-sex couples. In the subsequent political debate, some of the provinces alluded to the possibility they might invoke the Notwithstanding clause as a means of protecting the traditional definition of marriage. The provinces, however, were precluded from doing so on the grounds the definition of marriage fell under federal, and not provincial, jurisdiction. As such, only the federal Parliament has the power to make a Notwithstanding declaration in this case.


Usage of the Notwithstanding Clause

When has the clause been used in Canada's history?

The Notwithstanding clause has been used very rarely and has only been invoked by provincial governments (as of May 2007, the federal government has never made a Notwithstanding declaration). The following briefly discusses key usages of the clause in Canada's history.

Quebec (1982-85): Aftermath of the Patriation

In the period immediately following the signing of the new Constitution in 1982, the Quebec government sought to protect itself from any Charter obligations. This was due in part to the fact that Quebec did not consent to the 1982 constitutional compromise that produced, amongst other things, the Charter. In June 1982, the Quebec provincial legislature (then controlled by the Parti Québécois) legislated the Act Respecting the Constitution Act, 1982, in which it invoked a blanket Notwithstanding declaration. The effect of this was to make all past and future provincial legislation (up to 1985) immune from judicial review under the Charter. The declaration, however, was allowed to elapse following the election of the more federalist Liberal Party of Quebec in 1985.

 

Quebec (1988): French Sign Laws

Since 1985, the Quebec legislature has applied the Notwithstanding clause much more rarely. The most notable usage came in 1988, when the province sought to protect its sign laws. At the time, the provincial government had passed laws requiring all commercial signs in the province (both inside and outside of establishments) to be in French only. The intent of the law was to protect the use of the French language in commercial activities.

Several individuals and groups challenged the sign laws based on the grounds the legislation violated their rights to freedom of expression under Section 2(b) of the Charter. The Supreme Court of Canada agreed, and in two 1988 decisions (Ford v. Quebec, Devine v. Quebec), ruled that an outright prohibition of the use of languages other than French was an unreasonable limitation on the freedom of expression.

Read the Full Text of the Supreme Court of Canada Decision in Ford v. Quebec

Read the Summary of the Supreme Court of Canada Decision in Devine v. Quebec

The Quebec government responded by amending the original sign-law to permit the usage of other languages on signs inside of commercial establishments, but continued to prohibit the use of any language other than French on exterior signs. Additionally, the Quebec provincial legislature invoked the Notwithstanding clause to protect the amended legislation from any further judicial review under the Charter. When the five-year time limit for the Notwithstanding declaration expired, it was not extended by the Quebec legislature. Instead it passed a new law, one that was more in keeping with the Charter and its principles, allowing signs in both languages, but only as long as French was the predominant language displayed.

Saskatchewan (1986): Back-to-Work Legislation

In 1986, the Saskatchewan legislature introduced back-to-work legislation to end a strike by public service employees. The government introduced the legislation based on the grounds it needed to protect the general public from the harm associated with the disruption of government service caused by the strike. The legislature went a step further by making a Notwithstanding declaration to protect the back-to-work law from any Charter scrutiny by the judiciary (in particular, to protect the legislation from being found unconstitutional on the grounds it violated a possible right to strike under the Charter). The courts later ruled, however, in the case Alberta Labour Reference, that the Charter did not include the right to strike. As a result of the court decision in that case, the Notwithstanding declaration by the Saskatchewan government turned out to be unnecessary.

Read the Full Text of the Supreme Court Decision in the Alberta Labour Reference

Alberta (2000): Definition of Marriage

In March 2000, the Albertan legislature passed Bill 202 – the Marriage Amendment Act. This legislation re-asserted the definition of marriage as a union between a man and a woman, excluding gay couples. The Act also included a Notwithstanding declaration, to protect this legislated definition of marriage from judicial review under the Charter. The Alberta legislature made the declaration in response to the possibility that the Supreme Court of Canada would rule that the exclusion of gay couples from the definition of marriage violated the right to equality under Section 15 of the Charter. This marked the first time the Notwithstanding clause had been used to protect "traditional" moral values. The declaration, however, turned out to be mainly symbolic, as the Supreme Court of Canada later ruled that the ability to define the term marriage rested solely with the federal government, and was outside provincial jurisdiction. A Notwithstanding declaration cannot be made for policy areas that are outside a government's jurisdiction.


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