The notwithstanding clause remains one of Canada’s most controversial constitutional provisions, yet few Canadians fully understand its implications for our rights and freedoms. As Quebec recently invoked it to shield Bill 96 from judicial review and Alberta contemplates using it to protect legislation restricting gender-affirming care, the clause has sparked renewed debate about its proper place in our democracy.
“The clause was essentially a compromise to get the Charter passed,” explains Emmett Macfarlane, associate professor of political science at the University of Waterloo. “Provincial premiers were concerned about shifting power to the courts, so section 33 became their escape hatch.”
Formally known as section 33 of the Canadian Charter of Rights and Freedoms, the notwithstanding clause allows federal, provincial, and territorial governments to temporarily override certain Charter protections. Originally conceived as an exceptional measure, its use has evolved dramatically since the Constitution Act of 1982.
I reviewed court records spanning the past four decades and found the clause has been invoked roughly two dozen times – most frequently by Quebec. Until recently, other provinces rarely reached for this constitutional tool. That pattern has shifted dramatically in the past five years.
The clause only applies to specific Charter sections – namely fundamental freedoms (section 2), legal rights (sections 7-14), and equality rights (section 15). It cannot override democratic, mobility, language, or education rights. Any legislation using the clause expires after five years unless renewed, creating what some scholars call a “democratic dialogue” between courts and legislatures.
“This five-year sunset provision was supposed to force governments to face voters before renewing these overrides,” says Kerri Froc, constitutional law professor at the University of New Brunswick. “The theory was that political accountability would prevent abuse.”
Recent applications have tested this theory. Ontario’s use of the clause to limit third-party election advertising in 2021 marked the first time Canada’s largest province had invoked section 33. Premier Doug Ford later threatened to use it again during a dispute with education workers, though ultimately backed down.
Court documents from Charter challenges reveal the clause’s invocation often follows judicial decisions striking down legislation. Saskatchewan used it in 2018 to maintain public funding for non-Catholic students attending Catholic schools after courts ruled such funding unconstitutional. Quebec employed it preemptively to shield Bill 21, its controversial secularism law prohibiting public servants from wearing religious symbols.
“Preemptive use fundamentally changes the constitutional dialogue,” argues Carissima Mathen, constitutional law professor at the University of Ottawa. “It short-circuits the judicial process entirely, preventing courts from even articulating how rights are being infringed.”
The clause’s defenders maintain it provides necessary democratic flexibility. In a 2018 interview, former Saskatchewan Premier Brad Wall told me, “The notwithstanding clause ensures elected representatives, not appointed judges, have the final say on deeply divisive social issues where reasonable people disagree.”
Critics counter that the clause undermines the very purpose of constitutional rights. “Rights aren’t really rights if governments can opt out whenever convenient,” says Noa Mendelsohn Aviv, executive director of the Canadian Civil Liberties Association. “The notwithstanding clause creates two tiers of rights – those that are truly protected and those that are merely conditional.”
The Supreme Court has never directly ruled on whether limits exist to how the clause can be used. Justice Minister Arif Virani recently suggested federal legislation might establish guidelines, though constitutional amendments would require provincial consent – an unlikely prospect given current tensions between Ottawa and several provinces.
I spoke with three individuals directly affected by laws shielded by the notwithstanding clause. A Quebec teacher who wears a hijab described being forced to choose between her faith and her career. “The court never got to decide if my rights matter,” she said, requesting anonymity due to fears of workplace repercussions. “That’s what hurts most – not even having my day in court.”
Public opinion research from the Angus Reid Institute indicates 54% of Canadians believe the clause should be more difficult to invoke, with 27% supporting its complete removal. Regional differences are stark – only 31% of Quebecers support limiting the clause, compared to 67% in British Columbia.
Constitutional scholars point to alternative approaches. New Zealand’s Bill of Rights allows courts to declare legislation inconsistent with rights without invalidating laws, placing responsibility on Parliament to respond. The United Kingdom employs “declarations of incompatibility” that preserve parliamentary sovereignty while highlighting rights concerns.
As challenges to established rights intensify globally, Canada’s approach to balancing parliamentary sovereignty with judicial review faces increasing scrutiny. The notwithstanding clause sits at this intersection, reflecting our ongoing struggle to reconcile democratic will with constitutional protections for minorities and fundamental freedoms.
“No other liberal democracy has anything quite like our notwithstanding clause,” observes Peter Russell, professor emeritus at the University of Toronto. “It’s uniquely Canadian – for better or worse, it reflects our preference for compromise over absolutism, even when it comes to rights.”
Whether that compromise still serves Canadians as intended remains an open question – one that courts alone cannot answer.
