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INDEPTH: CANADIAN GOVERNMENT
Notwithstanding clause - FAQs
CBC News Online | Jan. 25, 2005

Many national bills of rights do not allow any exceptions. For example, the first 10 amendments to the U.S. Constitution (commonly referred to as the Bill of Rights) expressly guarantee that "Congress shall make no law" that restricts freedom of religion, freedom of speech, freedom of the press, or a host of other rights. No exceptions are allowed.

Constitutional Conference, Nov. 5, 1981. (CP Photo/ Ron Poling)

Canada's Charter of Rights and Freedoms, on the other hand, includes an out. The notwithstanding clause (sometimes called the "override clause") is laid out in section 33 of the Charter.

There was legislative precedent for an override clause in Canada. The Canadian Bill of Rights and human rights codes in Alberta, Saskatchewan and Quebec all have or had provisions that allow for overrides.

What does the notwithstanding clause do?

The notwithstanding clause allows the federal government or a provincial legislatureto enact legislation to override several sections of the Charter that deal with fundamental freedoms, legal rights and equality rights.

These include freedom of expression, freedom of assembly, and freedom from unreasonable search and seizure, to name a few. But a number of otherCharter rights cannot be overridden. These include democratic rights, mobility rights, and the equality of men and women.

Simply put, this override power allows governments to create laws that will operate in spite of (or "notwithstanding") some Charter rights that the laws appear to violate.

This override power is temporary. Any notwithstanding clause declaration expires after fiveyears, but can be re-enacted indefinitely.

How did the clause come about?

The notwithstanding clause had its genesis in First Ministers Conferences in 1980 andfederal-provincial meetings through 1981, leading up to patriation of the Constitution in 1982.

Various factions in the discussions argued over whether the new Constitution should include an entrenched Charter of Rights. Several compromises were proposed and abandoned.

Prime Minister Pierre Trudeau argued against the idea of a notwithstanding clausebut faced opposition from provinces that wanted a way to override some Charter guarantees.

Finally, on the night of Nov. 4, 1981, then Justice Minister Jean Chrtien and Saskatchewan Attorney General Roy Romanow hammered out the so-called "Kitchen Accord" – a compromise that included an entrenched Charter of Rights but also included notwithstanding provisions.

Following some more tweaking (all without Quebec's participation), the federal government and nine provinces (Quebec refused to go along) signed the constitutional accord on Nov. 5, 1981 – an accord that included a notwithstanding clause.

How many times has it been usedand by whom?

Most people think the notwithstanding clause has been used only once. But ithas been invoked more than 15 times.

The Saskatchewan government invoked the clause as a preventive measure in a mid-1980s labour dispute with provincial government workers. The Supreme Court later ruled that the law didn't violate the Charter, so the notwithstanding clause didn't need to be invoked.

The Parti Québécois government in Quebec chose to object to the new Constitution's terms by including a notwithstanding clause in every piece of legislation it introduced from 1982 to 1985. But this was a political protest, not aimed at protecting a specific law from a Charter challenge.

It was Quebec's later use of the clause to override minority language rights that caused the most controversy by far. The Supreme Court of Canada had ruled that parts of Quebec's language law (Bill 101) were an unreasonable limitation on the Charter's guarantees of freedom of expression.

The Bourassa government then introduced a new language law (Bill 178) that would require all commercial outdoor signs to be in French only, while allowing English signs inside. The new amendment invoked the notwithstanding clause.

The Bourassa government subsequently amended the law and removed the override provision.

It's been very quiet on the notwithstanding front since then. Override powers are controversial tools and politicians have shied away from using them. The same-sex marriage debate has served to reignite the debate anew.

Sources: Parliamentary Research Branch of the Library of Parliament,Department of Canadian Heritage, Canadian Legal Dictionary.

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QUICK FACTS:

The "notwithstanding" clause

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.

– Section 33(1) of the Charter of Rights and Freedoms

EXTERNAL LINKS:

Canadian Charter of Rights and Freedoms

Department of Canadian Heritage: a Guide to the Canadian Charter of Rights and Freedoms

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