What is the notwithstanding clause in the Charter?

The notwithstanding clause has been invoked roughly two dozen times since the Charter took effect in 1982, and the pattern of use tells the story of how Canadian governments have actually deployed section 33 to override Charter rights. Quebec leads the count by far, with most invocations directed at language and laicity legislation. Saskatchewan and Alberta have used the clause occasionally on labour and family-law issues. Ontario and Yukon have made more recent use during the 2018 to 2024 period. The clause is one of the most contested features of the Canadian Constitution.

Quebec's invocations are the most consequential. The Bourassa Liberal government used section 33 in Bill 178 of 1988 to override Ford v. Quebec (1988), preserving French-only commercial signage; the override expired in 1993 and was not renewed. The Couillard Liberal government invoked the clause in 2014 amendments to Quebec's professional regulation law. The CAQ government of François Legault has used it pre-emptively in Bill 21 (the Act respecting the laicity of the State, June 16, 2019), prohibiting Quebec public-sector employees in positions of authority from wearing religious symbols, and in Bill 96 (June 1, 2022), the major reform of the Charter of the French Language. The PQ government also used the clause in blanket invocations between 1982 and 1985 in opposition to the Constitution Act, 1982.

Anglophone provinces have used the clause more sparingly. Saskatchewan invoked section 33 in 1986 to end a strike by the Saskatchewan Government Employees' Union (the Devine government, the first non-Quebec invocation). Alberta passed the Marriage Amendment Act of 2000 with a section 33 clause to define marriage as opposite-sex, but federal authority over marriage definition under section 91(26) of the Constitution Act, 1867 made the override moot when same-sex marriage was federally legislated in 2005. Yukon invoked the clause in 1982 amendments to the Yukon Land Planning and Development Act, the first invocation under the Charter. Ontario used the clause pre-emptively under the Ford government in the City of Toronto Act amendments of 2018 (overturned in superior court but not pursued on appeal), Bill 28 (the Keeping Students in Class Act of 2022, repealed within a week), and Bill 124 (public-sector wage limits).

The political consequences of section 33 use have been substantial. The 1988 Bourassa invocation contributed to the failure of the Meech Lake Accord. The 2018 to 2024 invocations have produced sharp federal-provincial disagreements, with federal Justice Ministers consistently opposing pre-emptive use. The Quebec Court of Appeal's February 29, 2024 ruling in Hak v. Quebec (Attorney General) upheld Bill 21, holding that section 33 use is procedural and not substantively reviewable; the Supreme Court of Canada heard the appeal from March 23 to 26, 2026 in a four-day hearing and reserved judgment. The Court's eventual ruling is expected to set the limits of section 33 use for a generation.