Section 33: The Notwithstanding Clause
An escape clause for provincial governments
April 17, 1982
To understand Section 33, you have to go back. Way back. Our parliamentary
form of government evolved in England without a formal, written constitution.
The power to make laws resided first in the monarch, and then in parliament,
and it was almost absolute.
The courts interpreted legislation, but they couldn't make it or override
it. Governments could always pass laws that they felt were necessary.
It was the kind of government Canada had always known, and most people
were comfortable with it.
Making the Canadian Charter of Rights and Freedoms part of the
Constitution changes that. It puts the Charter above the governments.
And it becomes the courts' job to review laws and see whether they comply
with the Charter. If they don't, the laws will be struck down.
Suddenly, Canadian Courts have a lot more authority. In the United States,
the Bill of Rights is entrenched in the American Constitution. Non-elected
American Courts have used their authority to strike down abortion laws
and order an end to racial segregation in schools without the agreement
of the elected Congress. Some people in Canada and especially the provincial
governments are concerned that the Charter will limit democracy and allow
the Courts to go too far.
The compromise solution is Section 33, added at the request of the provincial
premiers. It allows the federal or provincial governments to pass a law
notwithstanding that it violates sections 2 and 715 of the Charter. The
law just has to include a clear statement to that effect.
Section 33 is a Charter escape clause. It allows a government
to make some laws as if the Charter doesn't exist. It can't be used to
override voting, mobility or minority language education rights.
The Charter is a two edged sword. It means that governments
can't just pass laws that trample on human rights, but it also limits
the power of democratically elected officials to carry out the popular
will.
Future Fact
Up to the year 2000, only two Provinces will have invoked the "notwithstanding
clause": Québec and Saskatchewan. (Québec has never
signed the repatriated Constitution.) When the Charter came into
force in 1982, all Quebec statutes were repealed and then immediately
re-enacted with the Section 33 override clause added. As well, all new
Quebec statutes are enacted with an override clause. That practice will
eventually end. Then, in 1988, Québec will use the notwithstanding
clause to protect its language law requiring French only signs, which
the Supreme Court of Canada will rule violates the Charter.
Saskatchewan will use the clause to protect a back-to-work law introduced
during a labour dispute. Ironically, the Supreme Court of Canada will
rule that the law doesn't violate the Charter, so the notwithstanding
clause wasn't even needed.
Déją vu
Passing the Canadian
Charter of Rights and Freedoms
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