Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the “notwithstanding clause”, allows federal parliament or provincial legislatures to temporarily override certain sections of the Charter. This clause gives legislatures the ability to enact laws that may violate sections 2 and 7 to 15 of the Charter, which cover fundamental freedoms, legal rights, and equality rights.
The notwithstanding clause has been an important part of the Charter since its inception. It balances two important principles in the Canadian constitution: rights protections under the Charter, and parliamentary supremacy. The clause also acts as a “safety valve” to allow governments to enact legislation they believe is necessary, even when it may infringe Charter rights.
What does Section 33 do?
Section 33 is quite short, and states:
| 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). |
In plain language, this section allows federal parliament or provincial legislatures to pass laws that will operate despite violating certain Charter rights. The declaration expires after 5 years, but can be re-enacted as needed.
Why was Section 33 included in the Charter?
Section 33 was the result of lengthy negotiations and debates prior to the Charter being enacted in 1982. There were two main considerations behind its inclusion:
Parliamentary Supremacy
Some key stakeholders, mainly provincial premiers, argued that the courts should not have the final say over fundamental laws passed by democratically elected legislatures. Section 33 assured legislatures they could override Charter rights when deemed absolutely necessary.
“Safety Valve”
Some worried the Charter could prevent governments from enacting laws they believed were in the best interest of society. Section 33 acts as a safety valve or escape clause to allow important legislation to proceed, even if it violates Charter rights.
Without Section 33, the Charter may not have been approved. It was essential to negotiating the constitutional supremacy of the Charter.
When has Section 33 been used?
Section 33 remains controversial and using it comes with some political risks. For this reason, it has only rarely been invoked by provincial governments, and never by the federal Parliament. Notable uses include:
Quebec:
- Bill 178 in 1988 – Required use of French on commercial signs
- Bill 62 in 2001 – Merged several municipalities into the “megacity” of Montreal
Saskatchewan:
- Back to Work legislation in 1986 – Ended a strike by public sector employees
Yukon:
- Land Planning Act in 1982 – Established controversial land use planning powers
While used infrequently, the clause acts as a warning to courts that legislatures will exercise their constitutional powers when they feel it is necessary.
Criticisms of Section 33
Use of the notwithstanding clause has been deeply controversial. Here are some key criticisms:
- It allows elected officials to violate citizens’ constitutionally protected rights
- It undermines the role of the courts in upholding Charter rights
- It is undemocratic, as invoking it does not require public consultation or debate
- It disproportionately impacts minority groups and vulnerable populations
Critics argue Section 33 should be repealed or amended to raise the threshold for use. However, any changes would require complex constitutional negotiations between the federal and provincial governments.
Arguments in Favour of Retaining Section 33
While controversial, there are arguments for why the notwithstanding clause should be retained in its current form:
- It preserves parliamentary supremacy and democracy
- It provides a safety valve for extraordinary circumstances
- It acknowledges reasonable limits on complex policy issues
- It allows provinces flexibility in exercising their jurisdiction
- It was essential to gaining provincial support for the Charter
Supporters argue it is an important part of Canada’s constitutional architecture that provides balance between rights and democracy. It should be retained as the circumstances under which using it are appropriate are extremely rare.
Looking Forward: The Notwithstanding Clause Debate
There is ongoing debate around if and how Section 33 should be reformed. Here are some possibilities that have been raised:
- Repealing Section 33 entirely (very unlikely due to constitutional complexity)
- Increasing the threshold for use (e.g. require 2/3 majority vote)
- Limiting the clause to specific sections of the Charter
- Restricting the length of time an override can stay in effect
- Requiring public consultation before invoking the clause
However, many experts argue Section 33 plays an important role as-is. Any changes could unbalance Canada’s delicate constitutional framework. But the clause will likely continue sparking debate between those who view it as protecting democracy and those who see it as undermining rights.
Conclusion
Section 33 of the Charter, the notwithstanding clause, enables legislatures to temporarily override certain constitutional rights. This unique Canadian compromise has been critically important since the Charter’s inception in balancing parliamentary supremacy and judicial review.
While controversial, Section 33 acts as an important safety valve in extraordinary circumstances. It also recognized the Charter could not wholly subvert parliamentary sovereignty. Strict conditions on its use ensure it is not abused.
After 40 years, Section 33 remains part of the Charter with no changes made. While critics believe it gives too much power to elected officials, supporters see it as protecting democracy in Canada’s constitutional order. The clause will continue sparking debate between these perspectives. But it seems likely Section 33 is here to stay as a central component of the Canadian Charter of Rights and Freedoms.
