Authored By: Fabiha Hassan
Mount Royal University
Fabiha Hassan
When the Canadian Charter of Rights and Freedoms first came into force in 1982, it transformed Canada’s constitutional landscape by entrenching judicially enforceable rights and freedoms.1 At the same time, the Constitution preserved an important legislative safeguard through section 33, the notwithstanding clause, which permits Parliament and provincial legislatures to temporarily override certain Charter rights for renewable five-year periods.2 Since its creation, section 33 has occupied a controversial place within Canadian constitutional law.3
For many years, governments exercised the notwithstanding clause sparingly.4 In recent years, however, its use has become increasingly prominent. Quebec’s pre-emptive invocation of the clause in Bills 21 and 96, Saskatchewan’s use of the clause in its Parents’ Bill of Rights, and the Alberta premier’s public support for broader reliance on section 33 have reignited debate over its constitutional purpose and limits.5
Though the notwithstanding clause remains a legitimate constitutional mechanism, its increasingly politically motivated use demonstrates the need for stronger procedural safeguards that preserve parliamentary sovereignty while protecting Charter rights. Rather than abolishing the clause, reforms promoting transparency and meaningful constitutional justification must be adopted.6
The Constitutional Purpose of Section 33
Section 33 of the Charter permits Parliament or a provincial legislature to declare that legislation shall operate notwithstanding sections 2 and 7 to 15 of the Charter.7 Such declarations can remain effective for a maximum of five years but can be renewed indefinitely through subsequent legislative action.8 Unlike constitutional amendment procedures, section 33 allows elected legislatures to temporarily displace certain Charter provisions without altering the constitutional text itself.9
The inclusion of the clause resulted from one of the most significant political compromises in Canadian constitutional history. During the negotiations leading to the Constitution Act, 1982, many provincial governments were concerned that an entrenched Charter would transfer excessive authority from elected legislatures to the judiciary.10 Section 33 was therefore designed to preserve an element of parliamentary supremacy by permitting the override of specific Charter rights.11
Importantly, the clause was never intended to function as an ordinary legislative tool. Its nature reflects the broader constitutional principle that Charter rights should receive judicial protection, with legislative overrides reserved for rare circumstances in which an override by elected representatives was demonstrably required.12 As many scholars have observed, section 33 represents a constitutional dialogue between legislatures and courts, rather than an invitation to bypass judicial scrutiny altogether.13
The Supreme Court of Canada has repeatedly emphasized that the Constitution is founded upon principles of democracy, the rule of law, and respect for minority rights.14 Though section 33 forms part of the Canadian constitutional architecture, these broader constitutional principles suggest that its exercise should be approached with restraint and careful justification.15 Governments that invoke the clause are expected to remain publicly accountable for limiting fundamental rights.16
The increasing willingness of governments to invoke the clause before courts have even assessed the constitutionality of legislation raises important questions about whether this constitutional balance has begun to shift. Though the clause remains lawful, its common use steadily departs from the role originally contemplated during constitutional negotiations. As governments move from treating section 33 as a measure of last resort to employing it as a pre-emptive legislative strategy, the justification for maintaining the clause without additional procedural safeguards becomes increasingly difficult to defend.17
The Modern Use of Section 33
Though section 33 was originally conceived as an exceptional constitutional mechanism, its recent application suggests a significant shift in how governments employ the notwithstanding clause. Rather than serving as a response to judicial interpretation of Charter rights, the clause has increasingly been invoked pre-emptively. This evolution has transformed section 33 from a constitutional safeguard into an increasingly strategic political instrument.18
Quebec has been at the forefront of this trend. In 2019, the provincial government enacted Bill 21, which prohibits certain public employees from wearing religious symbols while performing their official duties.19 Recognizing that the legislation would almost certainly attract Charter challenges based on freedom of religion and equality rights,20 Quebec invoked section 33 at the time of enactment.21 Rather than allowing courts to determine whether any limitations on Charter rights could be justified under section 1 of the Charter,22 the province pre-emptively insulated the legislation from constitutional scrutiny. The decision generated extensive legal and political debate regarding whether governments should be permitted to override fundamental rights before courts have assessed whether an infringement has occurred.23
Quebec adopted a similar approach in 2022 with Bill 96, legislation strengthening the use and protection of the French language throughout the province.24 Once again, the clause was invoked pre-emptively, despite anticipated Charter challenges concerning freedom of expression, minority language rights, and access to public services.25 Though protecting the French language is a legitimate legislative objective, the pre-emptive invocation of section 33 demonstrates an increasing willingness to bypass judicial review rather than engage in the constitutional dialogue envisioned by the Charter.26
Similar developments have emerged elsewhere in Canada. In 2023, Saskatchewan invoked the notwithstanding clause to support its Parents’ Bill of Rights after a court granted an injunction suspending the provincial policy on students’ preferred names and pronouns in schools, which the legislation then codified.27 Though governments undoubtedly possess democratic legitimacy to enact legislation reflecting public policy priorities, the decision illustrated how section 33 is increasingly being used as an immediate response to constitutional litigation rather than as an extraordinary legislative measure.28
The debate has also intensified in Alberta. Premier Danielle Smith has repeatedly defended the notwithstanding clause as a legitimate constitutional tool and has expressed a willingness to invoke it where legislation is perceived to conflict with federal initiatives.29 Though Alberta has not employed section 33 as frequently as Quebec, the premier’s public endorsement reflects a broader political shift in which the notwithstanding clause is increasingly viewed as a routine legislative option instead of an exceptional constitutional safeguard. This normalization risks altering the constitutional balance established in 1982 by reducing the practical role of judicial review in protecting Charter rights.30
Collectively, these developments demonstrate that the constitutional function of section 33 has evolved. While each government has relied upon the clause for different policy objectives, the common feature is the growing acceptance of pre-emptive legislative overrides. Such practices weaken the dialogue between legislatures and courts that has long characterized Canadian constitutionalism and raise legitimate concerns regarding whether the notwithstanding clause continues to operate in the manner originally intended.31
Protecting Rights Through Greater Procedural Safeguards
The increasing use of section 33 does not necessarily justify its abolition. The notwithstanding clause remains a constitutionally valid component of Canada’s framework, continuing to reflect the principle that democratically elected legislatures should retain a limited capacity to override judicial interpretations of certain Charter rights.32 Nevertheless, constitutional legitimacy depends not only upon legal authority but also upon responsible constitutional practice. As governments invoke section 33 with increasing frequency and before meaningful judicial review has occurred, stronger procedural safeguards have become both justified and necessary.33
Notably, greater limits need not involve restricting the legal availability of section 33 itself. Instead, reform should focus on enhancing transparency and democratic accountability whenever governments choose to exercise this constitutional power. Legislators who invoke section 33 should be required to provide detailed statements explaining why an override is necessary and identifying which Charter rights are affected, and to demonstrate why ordinary justification under section 1 of the Charter is insufficient.34 Such requirements would encourage governments to engage more fully with constitutional principles while enabling the public to better evaluate legislative decisions.35
Additional procedural reforms could further strengthen constitutional accountability. For instance, mandatory committee reviews prior to invoking section 33 would permit expert testimony from constitutional scholars, affected communities, and legal practitioners. Including members of the public on these committees would also ensure that governments consider broader societal perspectives before invoking the clause and limiting fundamental rights. While these measures would not prevent the invocation of section 33, they would reinforce its exceptional nature and discourage its routine use.
Critics may argue that procedural requirements undermine parliamentary supremacy by imposing additional burdens on elected legislatures. However, this concern is overstated, as none of the suggested reforms would eliminate the clause or prevent governments from exercising their constitutional authority. Instead, they would strengthen the constitutional dialogue that section 33 was originally intended to preserve by ensuring that governments publicly justify why overriding fundamental rights is necessary in a democratic society.36
Conclusion
Section 33 remains a legitimate feature of Canada’s constitutional framework, reflecting the balance between parliamentary sovereignty and Charter protection. However, its frequent recent use by governments suggests that the notwithstanding clause is increasingly functioning as a routine legislative tool rather than an exceptional constitutional safeguard. Even so, abolishing section 33 is neither necessary nor desirable. Instead, introducing procedural safeguards, such as written constitutional justifications, legislative committee review, and public consultation, would strengthen transparency and democratic accountability without undermining legislative authority. Preserving parliamentary sovereignty should not come at the expense of constitutional accountability. By ensuring that section 33 is exercised only after careful deliberation and public justification, Canada can better uphold the balance between democratic governance and the protection of fundamental rights.
Footnote(S):
1 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982
2 Ibid s 33.
3 Peter W Hogg, Constitutional Law Of Canada (5th edn, Thomson Reuters 2007) ch 36.
4 Ford v Quebec (Attorney General) [1988] 2 SCR 712.
5 An Act respecting the laicity of the State, SQ 2019, c 12; An Act respecting French, the of icial and common language of Quebec, SQ 2022, c 14; The Education (Parents’ Bill of Rights” Amend Act, SS 2023, c 46.
6 ibid.
7 Canadian Charter of Rights and Freedoms (n1) s 33.
8 ibid.
9 Hogg (n 3).
10 Hogg (n 3 ).
11 ibid.
12 Hogg (n 3).
13 ibid.
14 ibid.
15 ibid.
16 Lorraine E Weinrib, ‘Learning to Live with the Override’ (1990) 35 McGill Law Journal 541.
17 Hogg (n 3).
18 ibid.
19 An Act respecting the laicity of the State, SQ 2019, c 12.
20 Canadian Charter of Rights and Freedoms (n 1) ss 2(a), 15.
21 An Act respecting the laicity of the State (n 19), s 30.
22 Canadian Charter of Rights and Freedoms (n 1) s 1.
23 Hak v Quebec (Attorney General) 2021 QCCS 1466.
24 An Act respecting French, the of icial and common language of Quebec, SQ 2022, c 14.
25 Canadian Charter of Rights and Freedoms (n 1) ss 2 (b), 15, 23.
26 Hogg (n 3).
27 ibid.
28 ibid.
29 Government of Alberta, ‘Premier Smith Responds to Supreme Court of Canada Decision on the Impact Assessment Act’ (News Release, 13 October 2023).
30 Hogg (n 3).
31 ibid.
32 ibid.
33 Lorraine E Weinrib, ‘Learning to Live with the Override’ (1990) 35 McGill Law Journal 541.
34 Canadian Charter of Rights and Freedoms (n 1) s 1.
35 Hogg (n 3).
36 ibid.
Bibliography
Primary Sources
- Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982
- An Act respecting the laicity of the State, SQ 2019, c 12.
- An Act respecting French, the official and common language of Quebec, SQ 2022, c 14.
- The Education (Parents’ Bill of Rights) Amendment Act, 2023, SS 2023, c 46.
- Ford v Quebec (Attorney General) [1988] 2 SCR 712.
- Hak v Quebec (Attorney General) 2021 QCCS 1466.
Secondary Sources
- Government of Alberta, ‘Premier Smith Responds to Supreme Court of Canada Decision on the Impact Assessment Act’ (News Release, 13 October 2023).
- Hogg PW, Constitutional Law of Canada (5th edn, Thomson Reuters 2007).
- Weinrib LE, ‘Learning to Live with the Override’ (1990) 35 McGill Law Journal 541.
