Введение
Несмотря на пункт 33 Канадской хартии прав и свобод, он является частью Конституции Канады. Он общеизвестен как пункт, несмотря на (или пункт nonobstant), иногда называемый правом отмены, и позволяет Парламенту или законодательным собраниям провинций временно отменять действие статей 2 и 7–15 Хартии.
Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
В разделе говорится:
Статья 33. (1) Парламент или законодательное собрание провинции может прямо заявить в акте Парламента или законодательного собрания, в зависимости от обстоятельств, что данный акт или его положение имеет силу, несмотря на положение, включенное в статью 2 или статьи 7–15. (2) Акт или положение акта, в отношении которого действует заявление, сделанное в соответствии с настоящей статьей, имеет такое же действие, какое оно имело бы, если бы не соответствующее положение Хартии, указанное в заявлении. (3) Заявление, сделанное в соответствии с подпунктом (1), утрачивает силу через пять лет после вступления его в силу или в более ранний срок, указанный в заявлении. (4) Парламент или законодательное собрание провинции может повторно принять заявление, сделанное в соответствии с подпунктом (1). (5) Подпункт (3) применяется к повторному принятию, сделанному в соответствии с подпунктом (4).
Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Функция
Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Парламент Канады, законодательное собрание провинции или территории может заявить, что один из его законов или часть закона применяется временно ("несмотря на"), отменяя действие соответствующих статей Хартии, тем самым аннулируя любой судебный пересмотр и ограничивая защиту прав, гарантированных Хартией, на определенный период времени. Это достигается путем включения в закон положения, четко определяющего, какие права были отменены. Простого большинства голосов в любой из 14 юрисдикций Канады достаточно для приостановки действия основных прав Хартии. Однако права, которые подлежат отмене, должны быть либо "фундаментальным правом", гарантированным статьей 2 (например, свобода выражения мнений, религии и ассоциаций), либо "правовым правом", гарантированным статьями 7–14 (например, право на свободу и защиту от необоснованных обысков и арестов, а также от жестоких и необычных наказаний), либо "правом на равенство", гарантированным статьей 15. (Положения Хартии, касающиеся выборов и демократического представительства (§§3–5), не подлежат отмене с помощью пункта, несмотря на (§§2, 7–15).)
Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Пункт, несмотря на, отражает гибридный характер канадских политических институтов. По сути, он защищает британскую традицию парламентского верховенства в системе письменных конституционных прав и сильных судов, введенной в 1982 году, по образцу американской системы. Бывший премьер-министр Жан Кретьен также описал его как инструмент, который может защитить от решения Верховного суда, легализующего ненавистническую речь и детскую порнографию как свободу выражения мнений. Данный пункт был достигнут в результате компромисса в ходе дебатов о новой конституции в начале 1980-х годов. Одной из основных претензий провинций к Хартии было то, что она перенесла власть от выборных должностных лиц к судебной системе, предоставив судам последнее слово. Статья 33, наряду с оговоркой об ограничениях в статье 1, была призвана предоставить провинциальным законодателям больше возможностей для принятия законов. Премьер-министр Пьер Трюдо сначала резко возражал против этого пункта, но в конечном итоге согласился на его включение под давлением провинциальных премьер-министров. Этот пункт был включен в так называемое "Кухонное соглашение". В конце конференции по конституции, которая была близка к тупику, Жан Кретьен, федеральный министр юстиции, и Рой Макмертри и Рой Романов, оба провинциальных министра, встретились на кухне в Правительственном конференц-центре в Оттаве и заложили основу для соглашения. Этот компромисс привел к двум основным изменениям в конституционном пакете: во-первых, Хартия будет включать пункт, несмотря на, а во-вторых, была согласована формула внесения поправок. Затем они всю ночь работали, консультируясь с различными премьер-министрами и получив согласие почти от всех. Однако они исключили из переговоров Рене Левеска, премьер-министра Квебека. Он отказался согласиться с соглашением, и правительство Квебека отказалось одобрить поправку к конституции. Кретьен позже сказал о пункте, несмотря на: "Канада, вероятно, не имела бы Хартию без него".
Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Когда он был представлен, Алан Боровой, в то время главный юрисконсульт Канадской ассоциации гражданских свобод, выразил обеспокоенность тем, что отмена может быть подвержена злоупотреблениям, заявив, что "политические трудности" будут "разумной гарантией для Хартии". По словам Кретьена, в 1992 году Трюдо обвинил его в пункте, несмотря на, сказав: "Ты им это дал". Кретьен ответил: "Извини, Пьер. Я рекомендовал это. Ты это дал". Это вызвало дебаты о том, как пункт, несмотря на, может быть изменен. Некоторые утверждали, что формула внесения поправок требует, чтобы федеральное правительство получило одобрение не менее семи провинций, представляющих не менее половины населения страны (стандартная процедура). Другие утверждали, что, поскольку предложение ограничивает только полномочия федерального Парламента, Парламент может внести изменения самостоятельно.
Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
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Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Конституционный эксперт Питер Хогг отметил, что пункт, несмотря на, "кажется уникальным канадским изобретением". Однако концепция пункта, несмотря на, не была создана вместе с Хартией. Наличие этого пункта делает Хартию похожей на Канадский билль о правах (1960 г.), который в разделе 2 предусматривает, что "акт Парламента" может заявить, что закон "имеет силу, несмотря на Канадский билль о правах". Основное различие заключается в том, что пункт, несмотря на, в Билле о правах может быть использован для отмены "любого" права, а не только определенных статей, как в Хартии. Кодекс прав человека Саскачевана (1979 г.), Хартия прав и свобод Квебека (1977 г.) и Билль о правах Альберты (1972 г.) также содержат механизмы, подобные пункту, несмотря на. За пределами Канады Израиль добавил механизм, аналогичный пункту, несмотря на, в один из своих Основных законов в 1992 году. Однако эта власть могла быть использована только в отношении свободы передвижения. Некодифицированная конституция Соединенного Королевства имеет неявный эквивалент пункта, несмотря на: в соответствии с доктриной парламентского суверенитета суды не имеют права признавать первичные законодательные акты недействительными по конституционным основаниям, включая несовместимость с Европейской конвенцией о правах человека. Закон о правах человека 1998 года требует, чтобы законодательство толковалось в соответствии с Конвенцией, если это возможно, но они должны все же применять любое первичное законодательство, которое они не могут истолковать таким образом. Это не относится к вторичному законодательству или делегированному законодательству, которое может быть признано недействительным, если оно несовместимо.
Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
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Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Четыре провинции и одна территория приняли законы, ссылающиеся на пункт, несмотря на. Чаще всего этот пункт использовался Квебеком, включая общее применение этого пункта ко всем законам с 1982 по 1985 год, закон о французском языке в 1988 году, закон о запрете сотрудникам, финансируемым государством, носить религиозные символы в 2019 году и закон об усилении использования французского языка в 2022 году. Саскачеван принял закон о возвращении к работе, ссылающийся на этот пункт в 1986 году, и принял закон в 2018 году (который так и не был введен в действие), ссылающийся на этот пункт, чтобы разрешить правительству оплачивать обучение некатоликов в государственных католических школах. Альберта приняла закон, ссылающийся на этот пункт в 2000 году, чтобы определить брак как "между мужчиной и женщиной"; этот закон был фактически признан недействительным Верховным судом Канады, поскольку только федеральный Парламент может определять брак. В 2021 году Онтарио приняла закон, ссылающийся на этот пункт, чтобы увеличить период времени, в течение которого группы третьих лиц должны ограничивать свою деятельность перед выборами. Юкон ссылался на этот пункт в 1982 году, но этот закон так и не был введен в действие. Федеральный Парламент никогда не вводил законодательство, ссылающееся на...
Notwithstanding clause
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or clause nonobstant), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text
The section states:
Section 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). Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock, Jean Chrétien, the federal justice minister, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise caused two major changes to the constitution package: the first was that the Charter would include the "notwithstanding clause", and the second was an agreed upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." When it was introduced, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be a "reasonable safeguard for the Charter". According to Chrétien, in 1992, Trudeau blamed him for the notwithstanding clause, saying "you gave them that". Chrétien replied, "Sorry, Pierre. I recommended it. You gave it." This sparked a debate about how the notwithstanding clause could be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone. Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause. Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible. Uses of the notwithstanding clause
Four provinces and one territory have passed laws invoking the notwithstanding clause. The clause has been invoked most frequently by Quebec, including the blanket application of the clause to every law from 1982 1985, a French only sign law in 1988, a law prohibiting state affiliated employees from wearing religious symbols in 2019, and a law strengthening the use of French in 2022. Saskatchewan passed a back to work law invoking the clause in 1986, and passed a law in 2018 (never brought into force) invoking the clause to permit the government to pay for non Catholics to attend publicly funded Catholic schools. Alberta passed a law invoking the clause in 2000 to define marriage as "between a man and a woman"; this law was effectively declared ultra vires by the Supreme Court of Canada because only the federal Parliament can define marriage. In 2021, Ontario passed a law invoking the clause to increase the time period during which third party groups must limit their activities in the lead up to an election. Yukon invoked the clause in 1982, but this law was never brought into force. The federal Parliament has never introduced legislation invoking the clause. + Usages of the notwithstanding clauseJurisdictionYearPeriod in effectStatute enacting notwithstanding clauseCharter right(s) circumventedEnactedNotes on enactmentQuebec19821982–1990Act Respecting the Constitution Act, 1982, (Retroactive amendment of every existing law);
All new statutes from 1982 to 1985Blanket application to sections 2 and 7 to 15 (all applicable Charter sections)Brought into force, but was unnecessary in most cases. The Supreme Court accepted the validity of the blanket application in Ford v. Quebec (at para. 35). Yukon1982Land Planning and Development ActSection 15 equality rights pertaining appointment to committeesReceived royal assent, but not brought into force. Quebec19861986–presentAn Act Respecting the Pension Plan of Certain TeachersSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Quebec19861986–presentAn Act Respecting the Government and Public Employees Retirement PlanSection 15 (equality rights)Renewed 7 times; set to expire in January 2025. Section 2(d) (freedom of association) Brought into force, although later found to be unnecessary by the Supreme Court. Quebec19881988–2008Education ActSection 2(a) (freedom of religion and conscience) and section 15 (equality rights)Renewed 4 times; expired on July 1, 2008. Section 2(b) (freedom of expression) and section 15 (equality rights)Brought into force. Not re enacted after the five year expiry in 1993. Sections 2 and 7 to 15 (all applicable Charter sections)Bill dropped by legislature. Alberta20002000–2004Marriage Amendment Act, 2000Sections 2 and 7 to 15 (all applicable Charter sections) Came into force, but effectively declared ultra vires by Supreme Court in 2004, so of no force or effect. Notwithstanding clause expired by operation of law in March 2005. Section 2 (fundamental freedoms) and Section 15 (equality rights)Received royal assent, but not brought into force. Usage of the Clause became unnecessary when the original court case was overturned on appeal. Ontario2018Efficient Local Government Act, 2018Sections 2, 7 and 15 (all applicable Charter sections)Bill dropped by legislature when Court of Appeal granted a stay of the lower court's decisionQuebec20192019–presentAn Act Respecting the Laicity of the StateSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent and brought into force on June 16, 2019. New Brunswick2019An Act Respecting Proof of ImmunizationSections 2 and 7 to 15 (all applicable Charter sections)Clause removed from bill prior to defeat at third reading. Ontario20212021–2023Protecting Elections and Defending Democracy Act, 2021Sections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 14, 2021. The act was struck down in March 2023 by the Court of Appeal for Ontario for violating a section of the Charter not protected by Section 33. Quebec20222022–presentAn Act respecting French, the official and common language of QuébecSections 2 and 7 to 15 (all applicable Charter sections)Received royal assent on June 1, 2022. Ontario2022Keeping Students in Class Act, 2022Sections 2, 7 and 15Received royal assent on November 3, 2022. Repealed and retroactively nullified on November 14, 2022. Saskatchewan20232023–presentThe Education (Parents’ Bill of Rights) Amendment Act, 2023Sections 2, 7 and 15Royal assent received and came into force on October 20, 2023. Alberta
Compensation for forced sterilization (1998)
In 1998, Alberta introduced, but later abandoned, a bill that would attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations approved by the Alberta Eugenics Board before the Sexual Sterilization Act was repealed. Same sex marriage (2000)
In March 2000, the Legislature of Alberta passed Bill 202, which amended the province's Marriage Act to include an opposite sex only definition of marriage as well as the notwithstanding clause to insulate the definition from Charter challenges. However, a legislature may use the "notwithstanding clause" only on legislation it would otherwise have the authority to enact, and the Supreme Court of Canada ruled in 2004 in Reference re Same Sex Marriage that the definition of marriage is within the exclusive domain of the Parliament of Canada, thus finding Bill 202 ultra vires, or beyond the constitutional powers of the Alberta Legislature. New Brunswick
Mandatory vaccinations (2019)
On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause. Cardy said this was to pre empt any court and charter challenges to the bill by "an organized, well financed lobby out there that's intent on derailing efforts to protect vulnerable children". The use of the notwithstanding clause was removed from the bill in June 2020, before the bill was ultimately defeated in a free vote at third reading in the legislature. On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. Shortly afterward, Ford announced his intent to table legislation authorizing an invocation of the notwithstanding clause to overturn the ruling, which, if passed, would have been the first use of the notwithstanding clause in Ontario. Belobaba's ruling was ultimately overturned 3 2 by the Court of Appeal in a full hearing. The Court of Appeal ruling was upheld by the Supreme Court of Canada in 2021; in a 5 4 ruling, a majority of the Court ruled that Ontario's Better Local Government Act violated neither freedom of expression nor the unwritten constitutional principle of democracy. Third party political advertising (2021)
In early 2021, the Ontario government passed the Protecting Ontario Elections Act, 2021, which restricted the ability of private sector organizations from running political advertisements outside of election periods. In June, The Ontario Superior Court found the law to violate freedom of expression, and struck down those sections of the law. The Ontario government then passed the Protecting Elections and Defending Democracy Act, 2021 to enact the restrictions using the Notwithstanding Clause. In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation. Education worker labour rights (2022)
On November 3, 2022, the government of Ontario passed a bill that imposed a contract on Ontario education workers who were part of the Canadian Union of Public Employees to prevent them from striking; the bill used the Notwithstanding Clause in an attempt to prohibit the union from a constitutional challenge regarding the freedom to associate. Despite this, the education workers still went on strike after the bill was passed. The Ontario government faced heavy backlash from the general public over the law. Other unions also threatened to walk off the job and protest the law in solidarity. As a result, the government made a deal with CUPE where the law was repealed with the provisions and penalties deemed to have never been in effect, and in exchange CUPE ended their strike and contract negotiations resumed. Quebec
Blanket application (1982–1985)
After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to section 33 into every law passed by the National Assembly of Quebec, as well as retroactively amending every existing law, in an attempt to ensure that no provincial law could ever be challenged in the courts on grounds in the relevant Charter sections. This stopped in 1985, when the newly elected Quebec Liberals discontinued the practice. Sign laws (1988)
On December 21, 1988, after the decision of the Supreme Court of Canada in Ford v Quebec (AG), the National Assembly of Quebec employed section 33 and the equivalent section 52 of the Quebec Charter of Human Rights and Freedoms in their Bill 178. This allowed Quebec to continue to restrict the posting of certain commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government had the National Assembly rewrite the law to conform to Supreme Court's interpretation of the right to freedom of expression in section 2(b) Charter, and the notwithstanding clause was removed. Wearing of religious symbols by public servants (2019)
On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State). The bill was passed on June 16, 2019, and prevents public workers in positions of authority from wearing religious symbols. It also prevents people from receiving public services with their faces covered. French language requirements for multiple sectors (2021)
The stated goal of Bill 96 was “to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation.” Bill 96 was adopted on May 24, 2022, with 78 MNAs in favour and 29 against (from the Liberal Party and Parti Québécois). Instead of applying the notwithstanding clause only to parts of Bill 96, the Coalition Avenir Québec government applied it to the entire Bill. The amendment expanded the requirements of businesses to communicate in French. Previously, businesses with more than 50 employees faced additional responsibilities to have the common language be French. The amendment lowered that minimum from 50 employees to 25. Employers may not require knowledge of a language other than French during “recruitment, hiring, transfer or promotion,” unless they can show the that additional language is necessary and they took “all reasonable means to avoid imposing such a requirement." The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language. Section 111 gives the OQLF authorization to “enter at any reasonable hour any place, other than a dwelling house,” where a business conducts activity or holds documents. The amendment requires that anyone present with access to a device or data must provide that access to the inspectors; the inspectors also may seize devices and data for future examination and reproduction without a warrant. The amendment also impacted health care and social services, limiting service in English to "historic anglophones" or "ayant droit," immigrants, refugees, or asylum seekers who have been in Quebec for less than 6 months, or "where health, public safety or the principles of natural justice so require." The Minister of Justice and French Language, Simon Jolin Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit. Saskatchewan
Back to work order (1986)
In 1986, the Legislature of Saskatchewan enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back 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. Catholic school funding (2018)
In May 2018, the Saskatchewan Legislature invoked the notwithstanding clause to overrule the Court of Queen's Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212'', 2017 SKQB 109, which stated the government could not provide funding for non Catholic students to attend Catholic separate schools. The Saskatchewan Court of Appeal overturned the decision in March 2020, and the Supreme Court of Canada declined leave to appeal. With the original decision overturned, there was no longer a need for the Notwithstanding Clause.
Согласие родителей на не соответствующую гендерной идентичности в школе (2023)
В 2023 году премьер-министр Скотт Мо заявил журналистам, что провинция готова использовать положение о превалировании (notwithstanding clause) для защиты политики, требующей уведомления и согласия родителей на любое изменение имени и местоимений, запрошенное их ребенком, прежде чем это изменение будет признано в школе. Это произошло после того, как правозащитная группа начала судебное разбирательство против правительства провинции, омбудсмен по делам молодежи провинции опубликовал отчет, критикующий эту политику, а суд в Реджайне выдал временный запрет на ее применение. Законопроект, получивший название "Закон о правах родителей", был принят 20 октября 2023 года.
In 2023, Premier Scott Moe told reporters that the province would be willing to use the notwithstanding clause to uphold a policy requiring parents be notified of and approve any requested name and pronoun change from their child before it be recognized at school. This came after legal action was initiated by an advocacy group against the provincial government, the province's youth advocate published a report against the policy, and a Regina court granted an injunction to stop the policy. The bill, titled the "Parents' Bill of Rights", was passed on October 20, 2023.
Другие обсуждения его использования в Саскачеване
После решения Верховного суда Канады от 30 января 2015 года, признавшего недействительным законодательство Саскачевана об основных услугах, премьер Брэд Уолл публично рассматривал возможность применения оговорки, позволяющей отступать от конституционных норм, для сохранения права провинции принуждать работников основных служб вернуться к работе.
Following a Supreme Court of Canada decision of January 30, 2015, which struck down Saskatchewan essential service legislation, Premier Brad Wall publicly considered using the notwithstanding clause to protect the province's ability to force essential service employees back to work.
Назначения в Комитете (1982)
В 1982 году законодательное собрание Юкона применило оговорку, несмотря ни на что, в Законе о планировании и развитии земель. Это было первое применение кем-либо из канадских законодательных собраний статьи 33, позволяющей отменить конституционные ограничения. Однако, как отмечает эксперт по конституционному праву Питер Хогг, "закон так и не был введен в силу и поэтому вряд ли может служить примером".
In 1982, the legislature of Yukon made use of the notwithstanding clause in the Land Planning and Development Act. This was the first use, by any Canadian legislature, of the section 33 override. However, as constitutional scholar Peter Hogg notes, the "statute was never brought into force and so scarcely counts as an example".