Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or ), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter.
Text
The section states:
Function
The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". Other rights such as section 6 mobility rights, democratic rights, and language rights are inviolable.
Such a declaration lapses after five years or a lesser time specified in the clause, although the legislature may re-enact the clause any number of times. The rationale behind having a five-year expiry date is that it is also the maximum amount of time the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed, they have the right to elect new representatives who would have the power to do so. (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).)
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
The idea for the clause was proposed by Peter Lougheed as suggested by Merv Leitch. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints with the Charter was its effect of shifting power from elected officials to the judiciary, giving the courts the final word. Section 33, in conjunction with the limitations clause in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers.
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, as well as 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 ultimately 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 notably excluded René Lévesque, the premier of Quebec, in the negotiations. At any rate, he refused to agree to the deal, and ultimately the Quebec government declined to endorse the constitutional amendment. Chrétien would later say on 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, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns that the override was susceptible to abuse by stating that "[p]olitical difficulty" would be 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."