Lecture: Notwithstanding Rights, Review, or Remedy? w/ Professor Gregoire Webber

The Canadian Charter’s notwithstanding clause (section 33) makes exception to something, but what is that something?

Received readings of the notwithstanding clause assume that it makes exception to rights or to judicial review. In this lecture, however, Professor Gregoire Webber (Queen's Law) argues that the clause makes exception to the remedy that follows from a finding that legislation is inconsistent with targeted rights and freedoms.

Doug Ford, Voting Rights, and the Notwithstanding Clause: Interview with Professor Mike Pal

Section 28: Gender Equality

What is Section 28?

Section 28 of the Charter of Rights and Freedoms is a special provision of the Charter that prioritizes gender equality. The exact words of section 28 are: “Notwithstanding anything else in this Charter, the rights and freedoms in it are guaranteed equally to male and female persons.”[1]

While section 28 doesn’t create a distinct, standalone right to gender equality, it guarantees that all of the rights in the Charter are granted equally to men and women. It can be cited along with section 15 (the general equality rights section of the Charter) in cases where gender discrimination is at play.[2]

Section 28 and Section 1

Section 28 interacts with section 1 of the Charter in a unique way. Section 1 outlines the idea that our rights and freedoms can be justifiably infringed by the state.[3] The Oakes test, devised by the Supreme Court in R v Oakes,[4] set out a general framework for assessing whether a law or government action that violates a Charter right can be justified under section 1.

According to Beverley Baines, the activists who argued (successfully) for the inclusion of section 28 in the Charter in the early 80s did so “in order to exempt the right to sex equality from the reach of the section 1 limitations provision.”[5] The aim, in other words, was to ensure that gender equality rights could not be justifiably infringed the way that other Charter rights could.

However, in practice, section 28 has not protected gender equality rights from infringement but has merely been factored into the courts’ section 1 analyses. For example, while the Supreme Court has held that criminal offences that only apply to one sex – like the criminalization “a female person” who commits infanticide[6] — can be justified under section 1, section 28 means that someone accused of such an offence cannot be denied the Charter rights and freedoms that are guaranteed to all persons.

On the other hand, the sex of people other than the accused can be a valid justification for infringing Charter rights. This was the case in R v Osolin, which concerned fair trial rights in the context of a sexual assault trial. There, Justice Cory wrote that “[t]he provisions of section 15 and section 28 of the Charter guaranteeing equality to men and women … should be taken into account in determining the reasonable limits that should be placed on the cross-examination of a complainant” in a sexual assault trial.[7] Recognizing that sexual assault is a predominantly gender-based crime that disproportionately victimizes women, Justice Cory held that “[c]ross‑examination … which relies upon groundless rape myths and fantasized stereotypes is improper and should not be permitted,”[8] regardless of the impact that this has on an accused’s right to a fair trial.

Section 28 and Section 33

Section 28 is sometimes regarded as the “notwithstanding” clause to the section 33 “notwithstanding clause.”[9] Section 33(1) reads as follows: “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.”[10]

Provincial and federal governments can use this “notwithstanding clause” to protect a law from Charter challenges under section 2 and sections 7 to 15. Notably, section 28 is not mentioned in section 33, suggesting that it is immune to the section 33 notwithstanding clause. Thus, while the notwithstanding clause can be used to override section 15 equality rights, it can’t override the requirement under section 28 that the rights and freedoms found in the Charter must be guaranteed equally to men and women.

This situation has recently given rise to controversy. In 2019, the Quebec government used the section 33 notwithstanding clause to pass Bill 21, a law that banned certain public sector workers from wearing religious symbols at work. To the extent that Bill 21 disparately impacts Muslim women — if they wish to wear a hijab at work, for example — some scholars have argued that the use of section 33 doesn’t shield it from invalidation by the courts.[11] Instead, these scholars claim that section 28 is a shield against section 33.[12] They assert that Bill 21 results in the unequal protection of Charter rights for men and women in Quebec, which would be a violation of section 28. Since section 28 can’t be overridden by section 33, Bill 21 may accordingly be vulnerable to judicial invalidation.[13]


[1] Canadian Charter of Rights and Freedoms, s 28, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[2] R v Park, [1995] 2 SCR 836, 99 CCC (3d) 1.

[3] Charter, supra note 1, s 1.

[4] R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200.

[5] Beverley Baines, “Section 28 of the Canadian Charter of Rights and Freedoms: A Purposive Interpretation” (2005) 17 Canadian J of Women & L 45 at 55.

[6] Criminal Code, RSC 1985, c C-46, s 233.

[7] R v Osolin, [1993] 4 SCR 595, 109 DLR (4th) 478.

[8] Ibid.

[9] Kerri Froc, “Shouting into the Constitutional Void: Section 28 and Bill 21” (2019) 28:4 Const Forum Const 19-22 [Froc].

[10] Charter, supra note 1, s 33(1).

[11] See Froc, supra note 9.

[12] Ibid.

[13] Ibid.

Notwithstanding Clause

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 court from invalidating a law that violates Charter provisions relating to fundamental freedoms (section 2), legal rights (sections 7-14), or equality rights (section 15).

Provincial or federal governments can use section 33 when they want to pre-emptively shield a law from judicial invalidation on these specific grounds, or when they want to revive a law that has already been invalidated by a court on these grounds. While an invocation of section 33 expires after five years (as per section 33(3)), there is no limit on the number of times that the clause can be reused for a given law (section 33(4)).

Crucially, section 33 cannot be used to shield a law from invalidation on the grounds that it violates democratic rights, mobility rights, or minority language rights under the Charter. It also can't be used to shield a law from invalidation on the grounds that it violates the Aboriginal and Treaty rights that are "recognized and affirmed" by section 35 of the Constitution Act, 1982.

Why do we have a notwithstanding clause?

When the Charter was being drafted, federal and provincial leaders were divided on whether it should contain a notwithstanding clause. For the most part, the clause's proponents (such as the premiers of Saskatchewan and Alberta) argued that it was a democratic backstop that would prevent unelected judges from holding too much power vis-à-vis the interpretation and enforcement of the Charter. By contrast, those opposed, including then Prime Minister Pierre Elliott Trudeau, thought that the clause could undermine the Charter by letting legislatures ride roughshod over rights. In the end, Trudeau was forced to compromise on the notwithstanding clause to ensure that the Charter was passed with the support of most provinces (all except Quebec).

When has it been used?

The notwithstanding clause has never been used by most provinces, nor by the federal government. It has, however, been used by Quebec, Saskatchewan, Alberta, and, most recently, Ontario. Here are a few well-known examples:


  • Quebec did not sign the Constitution Act 1982 and subsequently passed legislation that added a standard notwithstanding clause to every law in force at the time. The clause was added to every new law passed until December 2, 1985, when a new government stopped the practice.
  • In 1988, Quebec used the clause in response to a Supreme Court of Canada decision that the province’s law allowing French-only on commercial signs offended freedom of expression.
  • In 2019, the Legault government used the clause preemptively to pass Bill 21, a law that prohibited certain public sector workers from wearing religious symbols in their workplaces.
  • In 2021, the Legault government used the clause preemptively for a second time to pass Bill 96, a law that included sweeping amendments to Quebec's Charter of the French Language, e.g. the expansion of the investigative powers of Quebec's language office.


  • Saskatchewan added the clause to protect strike-ending legislation in 1986. The government used the clause because they thought the law forcing strikers back to work would violate freedom of association. However, the clause was removed when the Supreme Court said that the law would not affect Charter rights.


  • In 2021, the Ontario government used the notwithstanding clause for the first time to revive a law that was struck down by the Ontario Superior Court on free expression grounds. The law placed a $600,000 limit on expenditures for third party political advertising that applied for a full-year before the beginning of an official election campaign.