What is the notwithstanding clause?

The notwithstanding clause is section 33 of the Canadian Charter of Rights and Freedoms. It allows the federal Parliament or a provincial or territorial legislature to declare that an Act (or a provision of an Act) operates 'notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter'. The declaration shields the law from judicial review under the listed Charter sections for five years, after which it lapses unless re-enacted. The five-year sunset matches the maximum term of any legislative chamber.

The override reaches the section 2 fundamental freedoms, the section 7 to 14 legal rights, and the section 15 equality guarantee. Several rights are deliberately outside its reach: the section 3 to 5 democratic rights, section 6 mobility rights, the section 16 to 23 language guarantees, the section 35 Aboriginal and treaty rights in the Constitution Act, 1982, and the section 28 gender-equality clause (which is itself worded to operate notwithstanding the rest of the Charter). Section 33 was negotiated into the package during the November 1981 patriation talks as a compromise between Prime Minister Pierre Trudeau and seven dissenting premiers led by Saskatchewan's Allan Blakeney and Manitoba's Sterling Lyon.

Section 33 has been used in roughly two dozen statutes since 1982. Quebec used it in the Act respecting the Constitution Act, 1982 to attempt a blanket shield, and later in the language-of-signage provisions of Bill 178 following Ford v. Quebec (1988). Saskatchewan used it on back-to-work legislation in 1986. Alberta invoked it in the Marriage Amendment Act of 2000. Quebec used it again in Bill 21 (the Act respecting the laicity of the State, 2019) and Bill 96 (the French-language law of 2022). Ontario used it pre-emptively in the City of Toronto Act amendments of 2018 and again in Bill 28 (the Keeping Students in Class Act of 2022, repealed weeks later) and Bill 124 (a public-sector wage limit struck down on other grounds).

The constitutional balance struck by section 33 has been controversial since 1982. Defenders argue it preserves parliamentary sovereignty against judicial overreach; critics argue it makes rights conditional on political popularity. The Supreme Court of Canada has held that the use of section 33 is procedural rather than substantive: governments must invoke the clause expressly, but courts will not review whether the use is justified. The Quebec Court of Appeal upheld this approach in Hak v. Quebec (Attorney General) (2024) regarding Bill 21; the Supreme Court of Canada heard the appeal from March 23 to 26, 2026 in a four-day hearing and reserved judgment.