Canadian Constitutional Law/Notwithstanding clause

Section 33 of the Canadian Charter of Rights and Freedoms 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). 1 left 100% Introduction When the Canadian Charter of Rights and Freedoms was first provided for, there were fears that it would take away too many powers from levels of government. In a process of compromise, nine provincial governments (all except Québec) agreed to implement the notwithstanding clause in exchange for having the Charter become law.https://www.canlii.org/w/canlii/2024CanLIIDocs491.pdf Federalism and the Notwithstanding Clause Mathen Carissima 2024 CanLII Constitutional Forum 11 January 2026 Said notwithstanding clause pulls its origins from a similar provision in the Alberta Bill of Rights, introduced in 1972, as a means to allow, "if public policy dictated", the Alberta legislature to legislate contrary to what the courts say.https://www.constitutionalstudies.ca/wp-content/uploads/2020/08/Lougheed.pdf Why a notwithstanding clause? Lougheed Peter 1998 Centre for Constitutional Studies 11 January 2026 Effectively, the notwithstanding clause exists because of an expressed need by provincial premiers to uphold Parliamentary sovereignty, or the ability to have Parliament legislate without constraints. The inclusion of the notwithstanding clause would be a pivotal moment in Canadian constitutional history, as the lack of accord of Québec made it known as the Night of the Long Knives. In exchange for agreeing to the inclusion of the notwithstanding clause, Trudeau declined to remove the federal powers of disallowance and reservation from the draft Constitution.Russell Peter H. w:Peter H. Russell Constitutional odyssey: can Canadians become a sovereign people? 2004 University of Toronto Press Toronto 978-0-8020-3936-1 https://archive.org/details/constitutionalod0000russ registration Québec continues to challenge the legitimacy of the Constitution Act, 1982 up until this day. The notwithstanding clause saw little use up until 2018. The reason was simple: there was a general expectation in the Canadian public that using the clause would be considered an act of political suicide. A few considerations of the use of the notwithstanding clause were given between the late 1980s and early 2000s, but these were only used in a few limited circumstances, and primarily by Quebec. This, however, would change with the rise of right-wing populism in the Canadian political arena. Since 2018, the use of the notwithstanding clause has increased significantly, encompassing everything from anti-labour strike bills to anti-hijab laws to anti-trans legislation. Its use is currently being debated by the Supreme Court of Canada in English Montréal School Board v Québec; said case is shaping up to become one of the Supreme Court's most important rulings since, arguably, the creation of the Charter itself. Application In general The notwithstanding clause can only be used to override the sections of the Charter enumerated by itself. These are: the right to freedom of religion and of conscience, freedom of expression, freedom of peaceful assembly, and freedom of peaceful association (section 2); the right to "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" (section 7); the right to be "secure against unreasonable search and seizure" (section 8); the right to not be arbitrarily detained or imprisoned (section 9); the right to be informed of the reasons of one's detention, the right to counsel and to habeas corpus (section 10); the right to procedural protections in criminal matters (section 11); the right to be exempt from cruel and unusual puninshment or treatment (section 12); the right to be exempt from self-incrimination (section 13); the right to a language interpreter (section 14); the right to equality under the law (section 15). The gender equality clause in the Charter (section 28) was also initially considered to be subject to the notwithstanding clause, but that was dropped after feminist protests. Some rights in the Canadian Charter of Rights and Freedoms cannot be subject to the notwithstanding clause. This is notably the case with the right to vote (section 3) and the right to enter, remain, and leave Canada which Canadian citizens have (section 6). Official languages rights, including minority language instruction rights are not subject to the notwithstanding clause either. The notwithstanding clause cannot apply to parts of the Constitution Act, 1982 outside of the Charter, nor can it apply to the Constitution Act, 1867 and other parts of the Constitution of Canada. Whether certain clauses of the Charter, such as the aforementioned gender equality clause, can override the notwithstanding clause remains a question of judicial debate. A jurisprudential current held by lower courts is that section 28 of the Charter plays "an interpretative or confirmatory function", yet that current remains uncertain given ongoing litigation concerning it in English Montreal School Board v Quebec.Jesse Hartery Equality and the Notwithstanding Clause : Considering the Nature and Application of Section 28 of the Canadian Charter https://doi.org/10.7202/1109763ar Cahiers de droit 2023 11 January 2026 Prior to 2018 The notwithstanding clause was used sparingly prior to 2018, with only a few such uses sparking debate. In 1982, Quebec would be the first to implement the notwithstanding clause, using it on a blanket basis to protest the adoption of the Constitution Act, 1982 and the Charter.Act respecting the Constitution Act, 1982, CQLR c L-4.2. These uses of the notwithstanding clause would cease to have effect in 1987, but its blanket application would be upheld in Ford v Quebec.Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 SCR 712 This interpretation of the notwithstanding clause as merely needing to be invoked to apply is what is being challenged by the English Montreal School Board case, supra. In 1983, federal MP Gordon Taylor would introduce a bill of attainder to execute convicted murderer Clifford Olson. This bill is the first-ever proposed use of the notwithstanding clause at the federal level in Canada. The bill would be ruled out of order the next year, owing to its nature as a bill of attainder.An Act respecting the Execution of Clifford Robert Olson In 1986, the Legislature of Saskatchewan enacted the SGEU Dispute Settlement Act, which required striking government workers to return 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.Hogg Wright 2024 § 39:2RWDSU v Saskatchewan, 1987 CanLII 90, [1987] 1 SCR 460 In 1988, Quebec would then implement the notwithstanding clause, subsequent to Ford, supra, to implement Bill 178, a law restricting the use of languages other than French on public signage. The law would then be challenged on the basis of the International Covenant on Civil and Political Rights, at the United Nations Human Rights Committee: in Ballantyne v Canada (1993), said committee would hold that Bill 178 is contrary to Article 19 of the Covenant. The Quebec government would then modify its law to comply with the Charter. In 1998, the Alberta government would introduce the Institutional Confinement and Sexual Sterilization Compensation Act. This is subsequent to Leilani Muir, a woman forcibly sterilized at the age of 14 whilst under state confinement under the Alberta Sexual Sterilization Act, filing suit against the Alberta government and being awarded $740,780 in damages, plus costs. The notwithstanding clause would be used, to quote, because the Alberta government "believ[ed] it is important that these historical claims be settled expeditiously without requiring a prolonged constitutional debate over the legislation, with the associated time and expense".https://www.alberta.ca/release.cfm?xID=5962 10 March 1998 11 January 2026 Institutional Confinement & Sexual Sterilization Compensation Act Introduced Public outcry would make the Alberta government back off on its bill a day later.https://www.thefreelibrary.com/Bill+26+reflections+(attempt+to+limit+claims+of+compensation+for...-a030473468 Gary Dickson 1 August 1998 11 January 2026 Bill 26 reflections (attempt to limit claims of compensation for sterilization). In 2000, the Alberta legislature would then use the notwithstanding clause to enact the Marriage Amendment ActMarriage Amendment Act, SA 2000, c 3, to redefine marriage as "between a man and a woman". This use would later be found to be ultra vires the Alberta government in Reference Re Same-Sex MarriageReference Re Same-Sex Marriage, 2004 SCC 79, as the division of powers provided for in the Constitution Act, 1867 gives the federal government (and not provincial ones) authority over marriage. The text in the Alberta Marriage Act would nonetheless stay in the books until 2014.Statutes Amendment Act, 2014, SA 2014, c 8 Some other non-notable uses of the notwithstanding clause from this time period exists. This would be notably the case in statutes concerning health and social services in Québec, as well as a singular use in the Yukon that was never brought into force. In general, the way the Quebec legislature deployed the clause in the late 1980s diminished public respect in the rest of the country for section 33.Library of Parliament, Parliamentary Information and Research Service, The Notwithstanding Clause of the Charter https://web.archive.org/web/20180915231437/https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201817E 2018-09-15 , prepared by David Johansen, 1989, as revised May 2005. Retrieved August 7, 2006. 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.Heather Scoffield, "Ottawa rules out invoking notwithstanding clause to stop migrant ships", Canadian Press, September 13, 2010Chrétien 2007 392–393https://www.theglobeandmail.com/opinion/a-clash-of-the-charters-notwithstanding/article17778521/ The Quebec election is a clash of two charters Yakabuski Konrad The Globe and Mail April 3, 2014 September 11, 2017 March 8, 2016 https://web.archive.org/web/20160308013812/http://www.theglobeandmail.com/opinion/a-clash-of-the-charters-notwithstanding/article17778521/ live After 2018 References Constitution Act, 1982/Part I#33.(1)