Section 33 of the Canadian Charter of Rights and Freedoms
Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause, allows the Parliament of Canada or provincial and territorial legislatures to temporarily override sections 2 and 7 through 15 of the Charter.
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The section states:Function
The Parliament of Canada, a provincial legislature, or a territorial legislature may enact a law stating that the legislation, or any of its provisions, operates notwithstanding one or more of sections 2 and 7–15 of the Charter. The notwithstanding clause cannot be invoked by implication; the law must clearly specify which Charter rights are being overridden. There is no special procedure for invoking the notwithstanding clause; the legislation is enacted through the ordinary legislative process and requires only a simple majority, like any other bill. A legislature may also invoke the notwithstanding clause by enacting a separate omnibus statute that specifies one or more laws which will going forward operate notwithstanding the identified Charter rights.Normally, the validity of a law may be challenged in court on the basis that it infringes a Charter right. If a court finds that a Charter right has been infringed, it may nonetheless uphold the law under Section 1 of the Charter if the court determines the infringement is justified in a free and democratic society. However, if the notwithstanding clause is invoked, it overrides the court's ability to review the law's compliance with the specified Charter rights.
Section 33 provides that the notwithstanding clause may only be used to override a "fundamental right", "legal right", or "equality right" under sections 2, and 7–15 of the Charter. The fundamental rights guaranteed under Section 2 of the Charter include: freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association. The legal rights guaranteed under sections 7–14 of the Charter include: the right to life, liberty and security of the person; protection against unreasonable search and seizure; protection against arbitrary detention or imprisonment; right to legal counsel and the guarantee of habeas corpus; rights in criminal and penal matters such as the right to be presumed innocent until proven guilty; protection against cruel and unusual punishment; protection against self-incrimination; and right to an interpreter in a court proceeding. The equality rights under section 15 of the Charter include protection from discrimination perpetrated by the government.
The notwithstanding clause does not apply to other rights enumerated in the Charter, including mobility rights, democratic rights, language rights, the enforcement provision, or the sexual equality clause.
Section 33 provides that a declaration invoking the notwithstanding clause expires after five years, or a shorter period specified in the law. However, section 33 permits the legislature to re-enact the invocation of the notwithstanding clause, which is subject to the five year expiry period. The five-year limit aligns with the maximum term of a legislature or Parliament before an election must be called, ensuring that the public can hold elected officials accountable. Therefore, if voters disagree with the law, they may elect new representatives who can repeal the legislation or allow the declaration to lapse.
Purpose
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. Former Prime Minister 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.History
advocated for the Patriation of the Canadian Constitution and a constitutional bill of rights after becoming Prime Minister in 1968. Various attempts to patriate and include the bill of rights, including the Victoria Charter, failed in the 1970s. Trudeau announced the intent to constitutionalize a bill of rights that would include: fundamental freedoms, such as the freedom of movement, democratic guarantees, legal rights, language rights and equality rights. This proposal gained popular support, but was opposed by the Progressive Conservative opposition. In 1981 the patriation process was accelerated when the Supreme Court of Canada in the Patriation Reference, affirmed that the federal government could unilaterally patriate the constitution, but a constitutional convention existed that some provincial approval should be sought for constitutional reform.The inclusion of the notwithstanding clause in the Charter was proposed by Premier of Alberta Peter Lougheed. In 1972, Alberta passed the Alberta Bill of Rights which included its own notwithstanding clause on the suggestion of Attorney General of Alberta Merv Leitch. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers.
File:Jean Chrétien1.jpg|thumb|Justice Minister Jean Chrétien agreed to the notwithstanding clause in the Kitchen Accord.
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, and Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the Government Conference Centre in Ottawa and sowed the seeds for a deal. This compromise 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 excluded from the negotiations René Lévesque, the premier of Quebec. He refused to agree to the deal, and the Quebec government declined to endorse the constitutional amendment. Chrétien would later say, of the notwithstanding clause, "Canada probably wouldn't have had any Charter without it."
In exchange for agreeing to the notwithstanding clause, Trudeau declined to remove the federal powers of disallowance and reservation from the draft Constitution.
When it was introduced, Alan Borovoy, the general counsel to the Canadian Civil Liberties Association, addressed concerns that the notwithstanding clause was susceptible to abuse from a government by stating that "Political difficulty is a reasonable safeguard for the charter."
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, Prime Minister Paul Martin unexpectedly pledged that his Liberal government, if returned, would support a constitutional amendment to prevent the federal government from invoking section 33, and challenged Conservative leader Stephen Harper to agree. This sparked a debate about how the notwithstanding clause could 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. Others argued that, because the proposal would limit only the federal Parliament's powers, Parliament could make the change alone.
Comparison with other human rights instruments
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention". The United States Constitution gives no such powers to the states, but Article III, sect. 2 does authorize the Congress to remove jurisdiction from the federal courts. Not since World War II has Congress mustered the requisite majority.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, 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, the Quebec Charter of Human Rights and Freedoms, and the Alberta Bill of Rights also contain devices like the notwithstanding clause.
Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation. The 2023 Israeli judicial reform envisaged extending this power to all matters, including the Basic Laws which do not deal with rights and freedoms.
In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities fulfils a similar purpose. The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible.