Notwithstanding Clause

Notwithstanding Clause
Name	Notwithstanding Clause
Original language	English
Enacted	1982
Jurisdiction	Canada
Statute	Constitution Act, 1982
Section	Section 33
Status	in force

Notwithstanding Clause is the informal name for Section 33 of the Constitution Act, 1982, a provision that permits legislatures to override certain rights in the Canadian Charter of Rights and Freedoms for a limited time. It creates an explicit mechanism by which provincial legislatures and the Parliament of Canada may enact laws that operate notwithstanding specified Charter guarantees, generating recurring debates among actors such as the Supreme Court of Canada, the Canadian Bar Association, the New Democratic Party, the Progressive Conservative Party of Ontario, and civil society groups like Amnesty International and the Canadian Civil Liberties Association.

Background and Legal Context

Section 33 emerged from constitutional negotiations involving figures and institutions such as Pierre Trudeau, the Constitutional Conferences (1981–1982), the Charlottetown Accord, and the Meech Lake Accord. Framers sought compromise among stakeholders including provincial premiers like René Lévesque, Bill Davis, and Brian Mulroney, federal ministers such as Jean Chrétien, and interest groups like the Federation of Canadian Municipalities and the Canadian Labour Congress. The provision interfaces with other constitutional elements including the Notwithstanding Clause’s placement alongside the Canadian Charter of Rights and Freedoms, the patriation process culminating in the Constitution Act, 1982, and interpretive authority vested in the Supreme Court of Canada and provincial superior courts.

Text and Scope

Section 33 authorizes a legislature to expressly declare that a law shall operate notwithstanding certain Charter provisions, specifically those in sections concerning fundamental freedoms, legal rights, and equality rights. The clause applies to provisions such as sections that are often litigated before the Supreme Court of Canada and provincial courts—including rights at issue in cases like R v Oakes, Egan v Canada, R v Morgentaler, and Ford v Quebec (AG). The text requires a temporal limit—typically five years—after which the declaration must be re-enacted to continue. Its operation has implications for statutes enacted by bodies such as the Legislative Assembly of Ontario, the Assemblée nationale du Québec, the Legislative Assembly of Alberta, and the Parliament of Canada.

Historical Use and Notable Invocations

Several high-profile uses occurred in contexts involving language policy, education, and social policy. The Quebec Charter of the French Language debates and legislation by the Government of Quebec invoked constitutional tensions with decisions like Ford v Quebec (AG), prompting political leaders such as René Lévesque and later premiers to consider Section 33. The Government of Saskatchewan and the Government of Manitoba have debated potential use in matters related to health and social services, while the Legislative Assembly of Ontario used similar override rhetoric during disputes over labour statutes involving premiers like Mike Harris and Doug Ford. Federal politicians including Pierre Trudeau and Brian Mulroney referenced the clause during national constitutional discussions, as did municipal actors during debates over bylaws challenged under the Charter, with involvement from organizations such as The Canadian Press and CBC reporting.

Legal Challenges and Judicial Interpretation

Judicial scrutiny has centered on the scope, procedural requirements, and interaction with judicial remedies adjudicated by courts including the Supreme Court of Canada, the Ontario Court of Appeal, and the British Columbia Court of Appeal. Decisions in landmark cases such as R v Oakes, Ford v Quebec (AG), and Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) shaped doctrines about proportionality and justifiability under the Charter, affecting how Section 33 is understood in practice. Legal scholars at institutions like the University of Toronto Faculty of Law, the Osgoode Hall Law School, and the McGill University Faculty of Law have debated whether declarations under Section 33 trigger justiciability review, procedural entrenchment, or conflict with conventions articulated in the patriation debates.

Political Debate and Public Opinion

Political parties including the Liberal Party of Canada, the Conservative Party of Canada, the New Democratic Party, the Bloc Québécois, and provincial parties such as the Coalition Avenir Québec and the Ontario Liberal Party have taken divergent stances on use and reform. Public opinion polling by firms like Ipsos, Angus Reid Institute, and the Environics Institute has revealed fluctuating attitudes, often responsive to high-profile controversies over language laws, public safety statutes, and education policy. Civil liberties organizations, law societies such as the Law Society of Ontario, and advocacy groups like Equality Rights organizations have campaigned for restrictions or abolition, while some premiers and ministers invoke Section 33 as a political tool in negotiations with bodies like the Federal-Provincial Conferences of First Ministers.

Comparative Perspectives and International Analogues

Analogues are discussed in comparative constitutional scholarship alongside provisions in documents such as the United Kingdom Human Rights Act 1998, the First Amendment to the United States Constitution, the German Basic Law, and the South African Constitution. Scholars compare Section 33 to mechanisms like derogation clauses in the European Convention on Human Rights, emergency powers provisions in the Weimar Constitution, and override tools in parliamentary democracies including examples from the Australian Constitution and the New Zealand Bill of Rights Act 1990. Comparative work involves institutions such as the International Commission of Jurists, the United Nations Human Rights Committee, and academic centers like the Oxford University Faculty of Law and Harvard Law School.

Category:Canadian constitutional law