The notwithstanding clause is the common name for section 33 of the Canadian Charter of Rights and Freedoms. Governments can invoke this clause when they want to pass legislation that violates rights and freedoms protected by Sections 2 and 7-15 of the Charter. Essentially, it overrides these Charter rights so that a law can operate no matter what the courts say. 

Usually, the notwithstanding clause is invoked after a law has been challenged in court and found unconstitutional but it can be pre-emptively included in legislation too if governments think the courts will find their law unconstitutional.  

Governments are using the notwithstanding clause more and more in recent years to intentionally pass laws that they know violate Charter rights, chipping away at the guarantee of protection that the Charter is supposed to provide. 

Watch our video above to find out more.

Section 1 of the Charter already allows governments to limit our rights when they think it’s necessary, so in BCCLA’s view, the notwithstanding clause isn’t really needed.  

In theory, the notwithstanding clause could be used to undo decisions made by a court that has become corrupt or partisan, but in practice, the laws we’re seeing being passed using the notwithstanding clause represent egregious rights violations.  

It may be possible that a good use of the notwithstanding clause will exist in the future, but BCCLA believes that this unlikely possibility is not worth the harm it’s causing now. 

Section 1 of the Charter allows governments to limit our rights, when they feel it’s necessary. It “guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 

Section 1 allows governments to defend laws they’ve passed when challenged in Court. Essentially, they have to prove – under the Oakes test – that the limitations on Charter rights are necessary and as minimal as possible. It gives governments the chance to limit our rights when they deem it to be necessary, but it also puts up some healthy boundaries, making sure they can’t just pass whatever laws they want. 

The notwithstanding clause doesn’t offer any of this protection. When governments use the notwithstanding clause to pass legislation, it overrides certain Charter rights and freedoms. 

Interestingly, BCCLA opposed Section 1 at the time the Charter was drafted because, in our view, it denies what should be the absolute nature of the rights in the Charter. For BCCLA, Charter rights and freedoms should be protected, no matter what.

Read BCCLA’s 1980 submission

Up until recently, governments used the notwithstanding clause every so often, but not really that much. The ones who did risked a lot of public backlash and even risked being voted out.  

In recent years, governments are increasingly using the clause to directly violate minority rights. BCCLA will not stand for this – abuse of power to undermine rights for one group is an abuse of power that undermines all our rights.  

Governments are using the clause as if it’s a hall pass to violate rights without any accountability. We know that the only thing that has ever truly stopped politicians from using that clause has been the public standing up and saying “no”.

At the time the Charter was created, there was a big debate about whether to include this clause. The federal government did not want to include it, but the provincial leaders at the time felt that the Charter would give too much power to the courts and that it could undermine their ability to make decisions. They only agreed to get behind the Charter if this dangerous loophole was included. 

When the clause was introduced, there was an assumed safeguard that if the public didn’t agree with a government’s use of it, then they could just vote them out at the next election. As you can imagine, this hasn’t always worked in practice. Some people can’t vote, other issues come to the fore, the electorate might forget or public opinion changes. Most importantly, governments tend to use the clause to violate the rights of minority groups, who don’t have the numbers to significantly influence elections. The end result is that people’s rights are violated, and our politicians are not held to account.   

A constitutional amendment to remove section 33 from the Charter is possible. However, it can only be done through something called the 7/50 formula involving the federal Parliament and provincial legislatures. First, resolutions have to be passed by the Senate and the House of Commons, and then at least seven provinces representing at least 50% of Canada’s population must also approve. 

We don’t think that we’ll get everyone to agree on this any time soon. That’s why BCCLA is putting all our energy into stopping the clause from being used NOW. 

It’s better to stop your elected officials from using the notwithstanding clause at all. That means making sure your political representatives know you’re against them using the clause before they invoke it.  

After they’ve invoked it, and passed the relevant legislation, you can still put pressure on politicians to withdraw the clause. In 2022, Ontario Premier Doug Ford passed Bill 28 – Keeping Students in Class Act, using the clause, to force unionized workers who were protesting back to work. Tens of thousands of workers decided to go on strike anyway, and the threat of this general strike caused Ford to back down and hastily withdraw use of the notwithstanding clause. 

The clause isn’t permanent – it expires after 5 years. So, to keep legislation operating, governments must re-pass it using the clause again. If this happens, you can fight against the re-invocation of the clause, or make your thoughts known at the ballot box during elections. Parties have been voted out before because they used or threatened to use the notwithstanding clause.