Since Canada’s Constitution was patriated from the British Parliament’s authority to Canada’s federal and provincial legislatures in 1982, the Canadian Charter of Rights and Freedoms (the Charter) was added at the same time. Section 33 of the Charter is known as the notwithstanding clause. This override clause, allows federal, provincial, or territorial governments to temporarily override, or bypass, certain Charter rights. Although the clause has been used only a handful of times by various provinces, it has set out some dangerous recent precedents where it has been used arbitrarily by Quebec and Ontario in particular.
For example, this November the province of Ontario proposes to introduce back-to-work legislation in advance of a potential strike by thousands of education support workers. The government intends to use the notwithstanding clause as part of a controversial bill that would impose a contract on provincial education workers. The province wants to avoid a constitutional challenge against the bill by labour unions and others which see the legislation as a violation of their right to collectively bargain, something that courts have agreed with in the past. Prime Minister Justin Trudeau told CBC News that: “Using the notwithstanding clause to suspend workers’ rights is wrong”. The federal government has never invoked the clause. Section 33 was intended for use by governments in extraordinary circumstances, and not to resolve government initiatives by circumventing citizens’ Charter rights.
In 1988, the Quebec Liberal Party invoked the notwithstanding clause to pass a bill that limited the use of English-language signage and advertising in the province. This was clearly a violation of freedom of expression under the Charter. When it came up for renewal five years later, the legislation was replaced by another bill which complied with Charter rights. In 1986, Saskatchewan’s Progressive Conservative government invoked the notwithstanding clause in back-to-work legislation that the Saskatchewan Court of Appeal had earlier ruled violated Charter rights. In Alberta in 2000, the Progressive Conservative government used the clause to pass legislation against same-sex marriage. However, the Supreme Court ruled in 2004 that marriage legislation was under federal jurisdiction which subsequently led to the federal government making same-sex marriage legal across all provinces and territories in 2005. The Ontario government’s 2021 use of the notwithstanding clause to protect a campaign finance law turned out to be very problematic when it came to actual election financing.
In 2019, Quebec’s government passed Bill 21 into law, the so-called secularism bill, invoking the notwithstanding clause to block individuals or groups from challenging the law for violating Charter rights. The law bans public employees — teachers, police officers, judges, etc. — from wearing religious symbols at work. The law sparked protests and debate and was criticized by many as a form of legalized discrimination, and is expected to be challenged in the courts. In 2022, Quebec’s controversial French language law reform was enacted proactively using the notwithstanding clause once again to shield the law from constitutional challenges. Some experts argue that this law represented a political manoeuvre to avoid having a negative judicial ruling that would be inevitable if they hadn’t used the notwithstanding clause. With numerous future lower court reviews, most believe that how Section 33 is used will eventually have to be decided when a case reaches the Supreme Court of Canada.
These are a few examples of the use of the notwithstanding clause under Section 33 of the Charter. This provision was introduced at the time of the Constitution’s patriation to politically placate the provinces in order to obtain their needed agreement to proceed with the new constitution. In retrospect, this may have created more jurisdictional problems than it was supposed to resolve. When the Charter was drafted in 1982, the unprincipled pre-emptive use of the notwithstanding clause was not envisioned. Some claim its misuse has become totally unacceptable and all too prevalent. Governments are hiding their political agenda behind its use, thereby undermining the protections afforded to people under the Charter. Laws should not be allowed to avoid Charter challenges! Where in the Constitution does it say that government authority should void the rights of citizens — particularly minorities — without proper recourse through our democratic and judicial processes?
FROLITICKS 
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