Section 33(1) of the Canadian Charter of Rights and Freedoms (the Charter) permits Parliament or the legislature of a province to adopt legislation to override certain rights and freedoms for a limited period, subject to renewal. Such a use of the notwithstanding power must be contained in an Act, not in subordinate legislation (such as regulations), and must be express rather than implied.
The existence of the notwithstanding clause has been controversial since it was passed. This provision, which is seen as the key element that enabled the participants in the November 1981 Federal–Provincial Conference of First Ministers to reach agreement on the Charter, has given rise to widely differing views among both constitutional scholars and politicians.
The past few years have seen a resurgence in the use of the notwithstanding clause, and recent invocations of section 33 have reignited the debate over the notwithstanding clause.
This HillStudy sets out the content of section 33, the sequence of events leading to its adoption in 1981, and the way in which its drafters, parliamentarians and others at the time expected it would be used. It then goes on to describe the circumstances in which the notwithstanding clause has been invoked. Lastly, it presents a number of arguments for and against the use of the clause.
Read the full text of the HillStudy: The Notwithstanding Clause of the Charter
By Laurence Brosseau, Marc-André Roy and David Johansen, Library of Parliament
Revised by Laurence Brosseau and Sarah Dodsworth, Library of Parliament
Categories: Executive summary, Government, Parliament and politics, Law, justice and rights