What Is the Notwithstanding Clause – Canada’s Charter Override Explained

Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause, stands as one of the most distinctive—and debated—features of Canada’s constitutional framework. This provision grants federal and provincial legislatures the power to override certain Charter protections for a limited time, creating a tension between democratic governance and fundamental rights that continues to shape Canadian politics today.

Introduced when the Charter was patriated in 1982, the clause emerged from negotiations between the federal government and provinces wary of concentrating too much power in the courts. Over four decades, its use remained relatively rare, but recent years have seen a marked increase in provincial invocations, raising questions about the balance between elected assemblies and constitutional rights.

What Is the Notwithstanding Clause?

The notwithstanding clause refers to Section 33 of the Canadian Charter of Rights and Freedoms. It allows Parliament or a provincial legislature to declare that a law operates “notwithstanding” specific Charter provisions, effectively shielding that law from judicial invalidation for a set period. The clause serves as a legislative override mechanism, enabling elected officials to reassert parliamentary supremacy in exceptional circumstances.

What Rights Does the Notwithstanding Clause Override?

The clause applies only to a subset of Charter rights. According to the Department of Justice explanation, Section 33 covers fundamental freedoms including religion, thought, belief, expression, and press freedom; legal rights encompassing life, liberty, security, search, arrest, detention, and legal counsel; as well as equality rights.

Critically, several important rights fall outside its scope. Democratic rights (Sections 3-5), mobility rights (Section 6), and language rights (Sections 16-23) cannot be overridden using the notwithstanding clause. This limitation reflects a constitutional judgment that certain core democratic principles must remain permanently protected from legislative interference.

Key Insights

• The clause was included as a political concession to provinces concerned about judicial overreach during the Charter’s drafting
• Quebec has invoked Section 33 more frequently than any other jurisdiction, with over 20 uses recorded
• The federal government has never recorded a use of the notwithstanding clause since 1982
• Invocations require explicit legislative declaration but do not need to justify why Charter rights are being overridden
• Most uses have occurred in response to court rulings striking down provincial legislation
• The clause has no built-in review mechanism—renewal depends entirely on legislative will
• Recent resurgence in uses correlates with populist governments testing constitutional limits

Snapshot Facts

How Does the Notwithstanding Clause Work?

Under Section 33(1), a legislature includes a declaration in an Act stating that the law operates notwithstanding specified Charter provisions. This declaration creates a shield against judicial invalidation under Section 33(2), which prevents courts from striking down properly declared legislation on Charter grounds.

The mechanism requires no prior approval from courts, other branches of government, or the public. A simple majority in the legislature can insert the notwithstanding clause into any bill touching the covered rights. This straightforward process has been described by the Library of Parliament as a “safety valve” for elected officials facing exceptional circumstances.

Can the Notwithstanding Clause Be Used Indefinitely?

Technically, yes. Each declaration expires after five years under Sections 33(3)-(5), but the legislature can re-enact the notwithstanding clause to renew the override. This renewal process can continue indefinitely, meaning a province could theoretically maintain a Charter override perpetually through successive legislative acts.

Quebec has demonstrated this approach with Bill 21, the secularism law, extending its notwithstanding declaration through multiple renewals. However, the requirement for explicit renewal creates ongoing political costs. Each renewal reminds the public and media that the government is actively choosing to suspend constitutional rights, which has contributed to significant backlash in several cases.

Why Is It Called the Notwithstanding Clause?

The name derives from the legal phrasing used in the declaration. When a legislature invokes Section 33, it includes language stating that the Act operates “notwithstanding” certain Charter provisions. This terminology, drawn from common law traditions, signals that the law takes precedence over conflicting constitutional protections during the declaration period.

History of the Notwithstanding Clause

The notwithstanding clause emerged from the complex negotiations surrounding the patriation of Canada’s constitution in 1981-1982. Under Prime Minister Pierre Trudeau’s Liberal government, the Charter was designed to entrench fundamental rights while addressing provincial concerns about centralized judicial power.

Provinces, particularly Quebec, worried that an entrenched Bill of Rights would shift too much authority to unelected judges. The compromise solution drew from common law traditions and American states’ rights models, creating an “escape-hatch” that preserved legislative supremacy while maintaining constitutional rights protection.

Early Uses and Quebec’s Pioneering Role

Quebec, which never signed the patriated constitution, became the clause’s most frequent user. Following the Supreme Court’s 1988 ruling in Ford v. Quebec, which struck down French-only commercial signage requirements, Quebec invoked Section 33 through Bill 178 in 1989. This marked the first post-ruling override, targeting public indoor signage in response to the court’s finding that the restriction violated freedom of expression.

The 1989 declaration for indoor signage expired without renewal, but Quebec continued embedding notwithstanding clauses in subsequent legislation through omnibus bills. Saskatchewan, Yukon, Ontario, and Alberta also issued declarations during this early period, though many were not ultimately activated against court rulings.

Why Was the Notwithstanding Clause Included in the Charter?

The inclusion reflected a broader philosophical compromise about the relationship between rights and democracy in Canada. Trudeau’s government wanted an enforceable charter that would constrain legislative majorities, but provinces demanded greater flexibility to address what they viewed as overreaching judicial decisions. The clause became the mechanism for resolving this tension.

Critics at the time and since have argued that the clause undermines the very purpose of a constitutional charter. Defenders counter that it maintains democratic accountability by ensuring elected representatives, not appointed judges, make final policy decisions on contested values questions.

Examples of Its Use in Canada

Over 40 years, the notwithstanding clause has been used dozens of times, with usage patterns shifting significantly between eras and jurisdictions. Early restraint gave way to sporadic use, then a pronounced resurgence beginning in 2018.

Quebec’s Bill 21 and Secularism Laws

Quebec’s An Act respecting the laicity of the State, commonly known as Bill 21, represents one of the most consequential uses of Section 33. Passed in 2019, the law prohibits public sector workers—including teachers, police officers, and judges—from wearing religious symbols in the workplace. The government preemptively invoked Section 33 to shield the law from Charter challenges based on freedom of religion, expression, and equality rights.

Courts have upheld the legislation under the notwithstanding clause, preventing Charter-based strikes despite ongoing legal challenges. Quebec has renewed the declaration to extend Bill 21 indefinitely, signaling permanent use of the override for this policy area. Those interested in broader policy discussions might also explore Carbon Tax Rebate Ontario for context on provincial fiscal debates.

Ontario’s Doug Ford Government Controversy

In 2022, Ontario’s Progressive Conservative government under Doug Ford drew national attention by invoking Section 33 in Bill 28, targeting education worker contracts during labour disputes. The move came after a Superior Court ruling on collective bargaining and the government’s response to inflation-driven protests.

The invocation targeted Sections 2(b), 7, and 15, and represented the first preemptive “pre-legislative” use—declaring the notwithstanding clause before any court ruling. Ford publicly defended the move by calling courts “unelected,” arguing for democratic will over judicial interpretation.

Massive public backlash followed, with protests, editorial criticism, and political pressure mounting within days. The government withdrew the notwithstanding clause declaration, marking a rare instance of political costs forcing reversal.

Recent Uses (2023-2024)

Invocations have surged since 2022, sparking debate about potential overuse. Academic analysis from Osgoode Hall Law Journal and the Constitutional Forum documents this resurgence.

• Ontario (2023): Bill 5 invoked Section 33 for Toronto city council ward reductions following an election court challenge, targeting freedom of expression under Section 2(b)
• Ontario (2024): Declaration renewed despite continued criticism from rights groups
• Quebec (2024): New laws addressing immigrants’ professional access and French-language reforms included Section 33 declarations
• Alberta (2024): Threatened use for school pronoun policies amid parental rights debates
• New Brunswick (2023): Used for policy school policies affecting student gender identity

Which Provinces Have Used the Notwithstanding Clause?

Quebec leads all jurisdictions by a significant margin, with over 20 recorded invocations spanning language laws, secularism legislation, and immigration policies. Other provinces have used the clause far less frequently, typically in response to specific court decisions seen as overreaching legislative priorities.

Federal Parliament has never invoked Section 33, despite the provision being available. Constitutional scholars debate whether this reflects principled restraint or simply different political dynamics at the federal level where minority governments may face different calculations.

Is the Notwithstanding Clause Controversial?

The notwithstanding clause remains one of Canada’s most constitutionally contentious provisions. Critics view it as a mechanism that undermines the rule of law and constitutional rights, while defenders argue it preserves necessary democratic flexibility in a democratic society.

Political Backlash and Electoral Risks

The Ontario Ford controversy demonstrated that notwithstanding clause use carries significant political risks. Public backlash can be swift and substantial, particularly when invocations appear to target vulnerable groups or override court decisions perceived as balanced.

Political analysis suggests that governments invoking the clause face increased scrutiny from media, rights organizations, and opposition parties. Each use generates renewed calls for reform or abolition, keeping the provision politically salient even when not actively employed.

Federal Reform Proposals

Prime Minister Justin Trudeau criticized provincial uses as “totalitarian” in 2024, proposing reforms that would limit notwithstanding clause declarations to three years without legislative renewal and require governments to provide justification for overrides.

However, no federal action had materialized by the end of 2024, with political observers noting that election-year dynamics complicated legislative priorities. The proposals remained under discussion but faced uncertain prospects given the constitutional complexity of amending the Charter’s terms.

Timeline of Key Events

The notwithstanding clause has evolved through distinct phases since its creation, from early emergence through recent resurgence.

1. 1982: Section 33 enacted as part of the patriated Canadian Charter of Rights and Freedoms
2. 1981-1982: Federal-provincial negotiations produce clause as compromise for judicial review concerns
3. 1988: Supreme Court ruling in Ford v. Quebec strikes down French-only signage laws
4. 1989: Quebec invokes Section 33 via Bill 178 for indoor signage—the first post-ruling override
5. 2019: Quebec passes Bill 21, preemptively using Section 33 for secularism law
6. 2022: Ontario’s Doug Ford government invokes Section 33 via Bill 28 for education workers
7. 2022: Backlash forces Ford to withdraw notwithstanding clause within days
8. 2023: Ontario reinvokes Section 33 via Bill 5 for Toronto ward boundaries
9. 2024: Trudeau proposes federal reforms to limit clause use; provincial invocations continue

What Is Established and What Remains Unclear

Established Information

• Section 33 applies to Sections 2, 7-15 of the Charter only
• Declarations expire after five years unless renewed
• Explicit legislative declaration is required for invocation
• Quebec has used the clause more than any other jurisdiction
• The clause does not apply to democratic, mobility, or language rights
• No judicial review of substance occurs—only formal procedural review

Information That Remains Unclear

• The long-term trajectory of recent reform proposals at the federal level
• Whether public opinion will shift sufficiently to alter political calculations around use
• The ultimate success or failure of court challenges to notwithstanding-protected laws
• Whether additional provinces will invoke the clause for social policy issues in coming years

Understanding the Broader Context

The notwithstanding clause reflects a foundational tension in constitutional design: the balance between protecting minority rights from majoritarian overreach while preserving democratic accountability to elected representatives. Canada chose a middle path, entrenching rights while providing a mechanism for temporary override.

This approach differs from the United States, where constitutional rights generally cannot be suspended by legislative act. The American model assumes that constitutional protections are absolute, with courts having final say on their application. Canada’s notwithstanding clause acknowledges that in a democracy, tensions between rights and collective policy choices sometimes require political resolution rather than judicial determination. For those exploring related topics, What Is Canada PR offers perspective on permanent residency pathways and their legal foundations.

The clause’s recent resurgence coincides with broader global debates about judicial power, constitutional interpretation, and the appropriate role of courts in democratic governance. As provinces test its boundaries, Canada continues working through questions that have no definitive answers in constitutional theory.

Sources and Expert Perspectives

The notwithstanding clause acts as a “safety valve” for elected officials to override courts in exceptional cases, reviving parliamentary supremacy temporarily.

— Library of Parliament, Legislative Summary

Critics like CCLA call it a “Charter override” undermining rights; defenders see it upholding democracy.

— Canadian Civil Liberties Association

Over 40 years, uses were rare until recent resurgence, with Quebec leading.

— Constitutional Forum, University of Alberta

Summary

The notwithstanding clause represents one of Canadian constitutional law’s most distinctive features, allowing temporary suspension of certain Charter rights through explicit legislative declaration. Introduced in 1982 as a political compromise, the provision has become increasingly relevant as provinces invoke it more frequently in recent years. Quebec leads all jurisdictions in use, employing the clause for language laws, secularism legislation, and immigration policies. The mechanism remains controversial, with critics arguing it undermines constitutional rights protection and defenders maintaining it preserves democratic accountability. For those seeking to understand how Canada balances rights against democratic governance, the notwithstanding clause offers a window into ongoing constitutional negotiations that continue shaping the country’s legal landscape.

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