Understanding Section 33 of the Canadian Charter of Rights and Freedoms: The Notwithstanding Clause

Sara Santos-Vigneault
Apr 29
3 min read

Person in yellow sweater holds a large Canadian flag, facing a blue sky.

Section 33 of the Canadian Charter of Rights and Freedoms, often referred to as the “notwithstanding clause,” is one of the most debated provisions in Canadian constitutional law. It grants legislatures the authority to override certain Charter rights temporarily. While seldom used, its implications for Canadian democracy and civil liberties are significant and ongoing.

What Is Section 33?

Section 33 allows Parliament or a provincial legislature to pass laws that operate “notwithstanding” certain sections of the Charter. Specifically, it applies to:

Section 2: Fundamental freedoms (e.g., freedom of expression, religion, and assembly)
Sections 7–15: Legal rights (e.g., life, liberty, security of the person, and equality rights)

This clause gives elected governments the power to pass legislation that may contravene these rights, so long as they include an explicit declaration stating they are using Section 33.

Text of Section 33(1):

“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.”

How Does It Work?

When invoked, Section 33 of the Canadian Charter renders the specified Charter right inapplicable to the law in question for up to five years. After that period, the override must be renewed. This built-in expiry ensures democratic accountability, compelling legislators to revisit and justify the decision periodically.

Importantly, Section 33 cannot override all Charter rights. It does not apply to:

Section 3: Democratic rights (such as the right to vote)
Section 6: Mobility rights
Sections 16–23: Language rights

Why Was Section 33 Created?

The notwithstanding clause emerged as part of a political compromise during the patriation of the Constitution in 1982. Some provinces were concerned about unelected judges having too much power to strike down laws passed by elected representatives. Section 33 was designed to preserve a balance between judicial oversight and legislative supremacy in a democratic society.

Real-World Applications

While the clause is part of the Charter, its use has been limited due to public scrutiny and political sensitivity. Notable examples include:

Quebec (1980s–1990s): Invoked routinely in response to language legislation to protect French as the official language.
Saskatchewan (1986): Used to legislate an end to a strike by public service workers.
Ontario (2021): Invoked to limit third-party political advertising ahead of elections.

Each use has sparked national debate about the balance between individual rights and legislative power.

Legal and Public Controversies

The use of Section 33 often draws criticism for potentially undermining rights and freedoms. Legal scholars and civil liberties advocates argue that governments should be cautious and transparent when invoking it. Although legally permissible, its use raises ethical and democratic concerns, particularly when applied to laws that affect marginalized communities or fundamental freedoms.

Conclusion

Section 33 of the Charter plays a unique role in Canada’s constitutional democracy. It reflects the tension between parliamentary sovereignty and the protection of individual rights. While rarely used, its presence serves as a reminder of the importance of vigilance, public discourse, and democratic accountability in shaping the laws that govern our society.

For more information, and to download a copy of the Canadian Charter of Rights and Freedoms, visit the Government of Canada website:

https://laws-lois.justice.gc.ca/eng/const/page-15.html