Section Thirty-three of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada
. It is commonly known as the notwithstanding clause (or "la clause dérogatoire" in French), or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter
. As such, it is a controversial provision.
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 eleven jurisdictions may suspend the core rights of the Charter. The rights to be overridden, however, must be either a fundamental right (e.g., section 2
freedom of expression, religion, association, etc.), a legal right (e.g., liberty, search and seizure, cruel and unusual punishment, etc.), or a section 15
equality right. Other rights such as section 6
mobility rights, democratic rights, and language rights are inalienable.
Such a declaration lapses after five years or a lesser time specified in the clause, although the legislature may re-enact the clause indefinitely. The rationale behind having a five-year expiry date is that it is also the maximum amount of time that the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate. (The provisions of the Charter that deal with elections and democratic representation are not among those that can be overridden with the notwithstanding clause.)
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. Retired politician 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.
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, as well as Roy McMurtry
and Roy Romanow
, both provincial ministers, met in a kitchen in the National Conference Centre in Ottawa
and sowed the seeds for a deal. This compromise ultimately 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 notedly excluded René Lévesque
, the Premier of Quebec
, in the negotiations. At any rate, he refused to agree to the deal, and ultimately the Quebec government declined to endorse the constitutional amendment. Chrétien would later say on the notwithstanding clause, "Canada probably wouldn't have had any charter without it."
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."
During the January 9, 2006, party leaders' debate for the 2006 federal election
, Paul Martin
pledged that a Liberal government would support a constitutional amendment
that would prevent section 33 from being invoked by the federal government, and challenged Conservative leader Stephen Harper
to agree. Martin was immediately criticized as this was not part of any prior policy announcements.
This sparked a debate as to how the notwithstanding clause can 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 since the proposal would only limit Parliament's powers, Parliament could make the change alone.
The history of its use by provincial and territorial legislatures is given below.
that the definition of marriage is within the exclusive domain of the Canadian Parliament.
Alberta
once abandoned an 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.
, did not renew them. However, the most notable use of the notwithstanding clause came in the Quebec language law known as Bill 101 after sections of those laws were found unconstitutional by the Supreme Court of Canada
in Ford v. Quebec (A.G.). On December 21, 1989, the National Assembly of Quebec
employed the "notwithstanding clause" to override freedom of expression (section 2b), and equality rights (section 15). This allowed Quebec to continue the restriction against the posting of any 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 provincial parliament rewrite the law to conform to the Charter, and the notwithstanding clause was removed.
, enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back to work. Because the government was uncertain whether this law would constitute a violation of the Charter's guarantee of Freedom of Association, a clause was written into the act, invoking the Section 33 override. The law was later found by the courts to be consistent with the Charter, meaning that the use of the clause had been unnecessary.
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 Peter Hogg notes, the "statute ... was never brought into force and so scarcely counts as an example."
has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention." There is no such device, for example, in the United States Bill of Rights
. 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 its Basic Law
in 1992. This power, however, could be used only in respect to "freedom of occupation
".
In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities
fulfills a similar purpose.
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
. It is commonly known as the notwithstanding clause (or "la clause dérogatoire" in French), or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. As such, it is a controversial provision.
Text
The section states:Function
The federal Parliament or a provincial legislature may declare a law or part of a law to apply temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
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 eleven jurisdictions may suspend the core rights of the Charter. The rights to be overridden, however, must be either a fundamental right (e.g., section 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
freedom of expression, religion, association, etc.), a legal right (e.g., liberty, search and seizure, cruel and unusual punishment, etc.), or a section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
equality right. Other rights such as section 6
Section Six of the Canadian Charter of Rights and Freedoms
Section Six of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice...
mobility rights, democratic rights, and language rights are inalienable.
Such a declaration lapses after five years or a lesser time specified in the clause, although the legislature may re-enact the clause indefinitely. The rationale behind having a five-year expiry date is that it is also the maximum amount of time that the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate. (The provisions of the Charter that deal with elections and democratic representation are not among those that can be overridden with the notwithstanding clause.)
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. Retired politician Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech
Hate speech
Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
and child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
as freedom of expression.
History
The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints with the Charter was its effect of shifting power from elected officials to the judiciary, giving the courts the final word. Section 33, in conjunction with the Limitations clause in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister TrudeauPierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
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, as well as Roy McMurtry
Roy McMurtry
Roland "Roy" McMurtry, OC, OOnt is a judge and former politician in Ontario, Canada and the current Chancellor of York University.-Early life:McMurtry was born in Toronto and educated at St. Andrew's College, graduating in 1950...
and Roy Romanow
Roy Romanow
Roy John Romanow, PC, OC, QC, SOM is a Canadian politician and the 12th Premier of Saskatchewan ....
, both provincial ministers, met in a kitchen in the National Conference Centre in Ottawa
Ottawa
Ottawa is the capital of Canada, the second largest city in the Province of Ontario, and the fourth largest city in the country. The city is located on the south bank of the Ottawa River in the eastern portion of Southern Ontario...
and sowed the seeds for a deal. This compromise ultimately 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 notedly excluded René Lévesque
René Lévesque
René Lévesque was a reporter, a minister of the government of Quebec, , the founder of the Parti Québécois political party and the 23rd Premier of Quebec...
, the Premier of Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
, in the negotiations. At any rate, he refused to agree to the deal, and ultimately the Quebec government declined to endorse the constitutional amendment. Chrétien would later say on the notwithstanding clause, "Canada probably wouldn't have had any charter without it."
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."
During the January 9, 2006, party leaders' debate for the 2006 federal election
Canadian federal election, 2006
The 2006 Canadian federal election was held on January 23, 2006, to elect members of the Canadian House of Commons of the 39th Parliament of Canada. The Conservative Party of Canada won the greatest number of seats: 40.3% of seats, or 124 out of 308, up from 99 seats in 2004, and 36.3% of votes:...
, Paul Martin
Paul Martin
Paul Edgar Philippe Martin, PC , also known as Paul Martin, Jr. is a Canadian politician who was the 21st Prime Minister of Canada, as well as leader of the Liberal Party of Canada....
pledged that a Liberal government would support a constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
that would prevent section 33 from being invoked by the federal government, and challenged Conservative leader Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...
to agree. Martin was immediately criticized as this was not part of any prior policy announcements.
This sparked a debate as to how the notwithstanding clause can be amended. Some argued that the amending formula
Amendments to the Constitution of Canada
Amendments to the Constitution of Canada are changes to the Constitution of Canada initiated by the government. Only since 1982 has there been an official protocol to amend the Constitution.- History :...
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 since the proposal would only limit Parliament's powers, Parliament could make the change alone.
Use by provinces and territories
As Peter Hogg notes, "seven of the ten provinces and two of the three territories have never used the power of override; nor has the federal parliament." Moreover, the manner in which the clause was invoked by the Quebec legislature in the late 1980s has significantly diminished public respect in the rest of the country for Section 33. Some observers have therefore speculated that the act of invoking the notwithstanding clause could prove to be politically costly.The history of its use by provincial and territorial legislatures is given below.
Alberta
In March, 2000, the Alberta Legislature 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 in order to insulate the definition from Charter challenges. However, the provinces may use the "notwithstanding clause" only on legislation that they otherwise have the authority to enact, and the Supreme Court ruled in Reference re Same-Sex MarriageRe Same-Sex Marriage
Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79, was a reference question to the Supreme Court of Canada regarding the constitutional validity of same-sex marriage in Canada...
that the definition of marriage is within the exclusive domain of the Canadian Parliament.
Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
once abandoned an attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations
Compulsory sterilization in Canada
Compulsory sterilization in Canada has a documented history in two Canadian provinces, Alberta and British Columbia. Canadian compulsory sterilization operated via the same overall mechanisms of institutionalization, judgement, and surgery as the American system. One notable difference is in the...
approved by the Alberta Eugenics Board
Alberta Eugenics Board
In 1928, the Province of Alberta, Canada, passed legislation that enabled the government to perform involuntary sterilizations on individuals classified as mentally deficient. In order to implement the Sexual Sterilization Act of Alberta in 1928, a four-person Alberta Eugenics Board was created. ...
before the Sexual Sterilization Act was repealed.
Quebec
After the Charter came into force in 1982, Quebec inserted a notwithstanding clause into all its laws; these expired in 1987, when the Quebec Liberals, having ousted the Parti QuébécoisParti Québécois
The Parti Québécois is a centre-left political party that advocates national sovereignty for the province of Quebec and secession from Canada. The Party traditionally has support from the labour movement. Unlike many other social-democratic parties, its ties with the labour movement are informal...
, did not renew them. However, the most notable use of the notwithstanding clause came in the Quebec language law known as Bill 101 after sections of those laws were found unconstitutional by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in Ford v. Quebec (A.G.). On December 21, 1989, the National Assembly of Quebec
National Assembly of Quebec
The National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...
employed the "notwithstanding clause" to override freedom of expression (section 2b), and equality rights (section 15). This allowed Quebec to continue the restriction against the posting of any commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Human Rights Committee
Human Rights Committee
The United Nations Human Rights Committee is a United Nations body of 18 experts that meets three times a year for four-week sessions to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights,...
, the Bourassa
Robert Bourassa
Jean-Robert Bourassa, was a politician in Quebec, Canada. He served as the 22nd Premier of Quebec in two different mandates, first from May 12, 1970, to November 25, 1976, and then from December 12, 1985, to January 11, 1994, serving a total of just under 15 years as Provincial Premier.-Early...
government had the provincial parliament rewrite the law to conform to the Charter, and the notwithstanding clause was removed.
Saskatchewan
In 1988 the legislative assembly of SaskatchewanSaskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
, enacted a law, the SGEU Dispute Settlement Act, in which workers were ordered back to work. Because the government was uncertain whether this law would constitute a violation of the Charter's guarantee of Freedom of Association, a clause was written into the act, invoking the Section 33 override. The law was later found by the courts to be consistent with the Charter, meaning that the use of the clause had been unnecessary.
Yukon
In 1982, the legislature of the YukonYukon
Yukon is the westernmost and smallest of Canada's three federal territories. It was named after the Yukon River. The word Yukon means "Great River" in Gwich’in....
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 Peter Hogg notes, the "statute ... was never brought into force and so scarcely counts as an example."
Comparison with other human rights instruments
Constitutional scholar Peter HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention." There is no such device, for example, in the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. 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
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
(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
Quebec Charter of Human Rights and Freedoms
The Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
(1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause.
Outside Canada, Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
added a device similar to the notwithstanding clause to its Basic Law
Basic Laws of Israel
The Basic Laws of Israel are a key component of Israel's constitutional law. These laws deal with the formation and role of the principal state's institutions, and the relations between the state's authorities. Some of them also protect civil rights...
in 1992. This power, however, could be used only in respect to "freedom of occupation
Right to work
The right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so...
".
In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities
Victorian Charter of Human Rights and Responsibilities
The Victorian Charter of Human Rights and Responsibilities Act 2006 is an Act of Parliament of the state of Victoria, Australia, designed to "protect and promote" human rights....
fulfills a similar purpose.