Section 33 of the Charter of Rights and Freedoms, also known as the notwithstanding clause
Notwithstanding Clause
Section 33 of the Canadian Charter of Rights and Freedoms is known as the notwithstanding clause. Also known as the override clause, it is part of the Constitution of Canada. The clause allows federal, provincial or territorial governments to temporarily override, or bypass, certain Charter rights. These overrides are subject to renewal after five years. Although the clause is available to governments, its use is politically difficult and therefore rare. It is known colloquially as the “nuclear option,” because its use is considered extremely severe. Since the Constitution was patriated in 1982, the clause has been used only a handful of times by various provinces. The federal government has never invoked the clause.
Use of the Notwithstanding Clause
Section 33 of the Charter, known as the notwithstanding clause, allows governments to exempt their laws from certain sections of the Charter; but not from democratic, mobility or language rights. The federal government has never invoked the clause. It has been used a handful of times by various provincial governments.
Between 1982 and 1985, the ruling Parti Québécois invoked the clause in every piece of legislation passed in Quebec’s National Assembly. It also amended all past legislation to include Section 33 wording. The Quebec government’s use of the notwithstanding clause in these cases was made in symbolic protest of the Charter, not to override any rights.
However, in 1988, the Quebec Liberal Party invoked the clause to pass Bill 178. It limited the use of English-language signage and advertising. This was a violation of freedom of expression under the Charter. When it came up for renewal five years later, the legislation was replaced by Bill 86, which complied with Charter rights.
Beyond Quebec, the clause has been written into six government bills and passed into law four times. In 1982, Chris Pearson’s Progressive Conservative government in Yukon invoked the clause in a land-planning bill that did not pass into law. In 1986, Saskatchewan Premier Grant Devine’s Progressive Conservative government invoked the notwithstanding clause in back-to-work legislation that the Saskatchewan Court of Appeal had ruled violated Charter rights. (See Court System of Canada.) Devine’s use of the clause later became unnecessary after the Supreme Court of Canada accepted his government’s appeal against the lower court’s ruling.
In Alberta, Ralph Klein’s Progressive Conservative government used the clause to pass legislation against same-sex marriage in 2000. However, the Supreme Court ruled in 2004 that marriage legislation was the jurisdiction of the federal government; it made same-sex marriage legal across all provinces and territories in 2005.
In 2017, Brad Wall’s Saskatchewan Party invoked the clause to override a court ruling that would have removed provincial funding from non-Catholic students attending Catholic schools. (See also Separate School.) Two years earlier, Wall had considered invoking the clause to override a Supreme Court ruling that found Saskatchewan laws against public sector strikes unconstitutional.
Doug Ford’s Progressive Conservative government invoked the clause in Ontario in 2018. The Ford government had passed legislation to reduce the size of Toronto’s municipal council. This law was struck down by an Ontario Superior Court judge for violating Charter rights. The Ford government removed the notwithstanding clause from the legislation after the Ontario Court of Appeal granted a stay of the Superior Court’s decision.
The day after Coalition Avenir Québec (CAQ) won the 2018 Quebec election, Premier-designate François Legault said he was prepared to invoke the notwithstanding clause to ban public employees — teachers, police officers, judges, etc. — from wearing religious symbols at work. (See also Quebec Values Charter). In June 2019, Legault’s CAQ government passed Bill 21, the so-called secularism bill, into law. Legault’s government invoked the notwithstanding clause to block individuals or groups from challenging the law for violating Charter rights. The law sparked protests and debate and was criticized by many as a form of legalized discrimination.
In June 2021, a year before the next scheduled election, the Ontario government under Premier Doug Ford invoked the notwithstanding clause for a second time. The government had previously passed a bill that expanded the restriction on pre-election third-party spending from six months to one year, while maintaining the cap on third-party advertising spending at $600,000. (See Political Party Financing in Canada.) After an Ontario Superior Court justice struck down the bill as unconstitutional, the Ford government included the notwithstanding clause in the bill and reintroduced it to the legislature. An emergency weekend session was held for debate. Bill 307, an amendment to the Elections Finance Act, was passed by a vote of 63–47 on Monday 14 June. The government maintained it was using “every tool in our toolbox” to protect elections from outside influence. Critics argued the intent of the law was to stifle criticism of the government, which weeks earlier had an approval rating of only 39 per cent.
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