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 of this Charter.
What is the Notwithstanding Clause?
Section 33 of the Charter of Rights and Freedoms is commonly referred to as the “notwithstanding clause”. Its function is to prevent a person from bringing an action in court claiming that a law violates fundamental freedoms, legal rights, or equality rights and is therefore invalid. Provincial or federal governments can use section 33 when they want to pre-emptively protect that law. The clause acknowledges that there can be situations where a government will want to pass a law, or maintain an existing law, that disregards Charter-protected rights or freedoms.
Why do we have a notwithstanding clause?
When the Charter was drafted, federal and provincial lawmakers were divided on including section 33 in the Charter. Its supporters believed the clause would protect democracy by giving elected law-makers control over important issues and preventing the unelected judges from having too much power. Those opposed, including then Prime Minister Pierre Elliott Trudeau, thought that the clause could jeopardize the Charter’s purpose of protecting individual rights against the government.
Supporters included provinces such as Alberta, Saskatchewan, and Manitoba. They were worried the Charter would limit their power to make necessary laws. Having section 33 in the Charter preserved provincial sovereignty. Including the notwithstanding clause secured these provinces’ support of the Charter.
When can it be used?
The notwithstanding clause is rarely used. Governments typically invoke it when they have powerful public policy reasons to justify it. The clause can only be used for laws that affect fundamental freedoms in section 2 of the Charter, such as freedom of expression or freedom of religion, legal rights in sections 7-14 such as the right to life, liberty and security, and equality rights in section 15.
For example, in 2000, Alberta tried to apply the clause to override same-sex marriage in the province. The Supreme Court had ruled that same-sex marriage was constitutional but the Alberta government did not want to follow this decision. Therefore, they added the notwithstanding clause to the Alberta Marriage Act to make it clear that marriage should only legal between a man and a woman. However, this use of the notwithstanding clause would likely have been found to be invalid because marriage is not in provincial jurisdiction. Only the federal government can decide what marriages are legal.
How can it be used?
When a government decides to use the notwithstanding clause it must clearly state that its law will operate despite its potential to violate sections of the Charter.
The use of the notwithstanding power can only last for five years, after which it can be renewed for additional five-year periods. A practical effect of the five-year limit is that it generally coincides with the length of electoral terms. As a result, the public has an opportunity in an election to challenge their government’s decision to use the notwithstanding clause if they so wish.
When has it been used?
For more information:
Stefani Langenegger, “Sask. to use notwithstanding clause to override Catholic school ruling”, CBC News (01 May, 2017), online: <www.cbc.ca/news/canada/saskatchewan/sask-notwithstanding-catholic-1.4093835>