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Notwithstanding Clause
Most bills of rights make it impossible for a legislature to enact legislation that violates constitutional rights. The Charter of Rights and Freedoms is different in this respect since s. 33 of the Charter makes it possible for the legislature to enact legislation “notwithstanding” certain provisions of the Charter. S. 33 may be applied to fundamental freedoms (s. 2), (the freedom of religion and conscience, the freedom of expression and assembly, and the freedom of association), legal rights (ss. 7 –14), and equality rights (s. 15). In contrast, s. 33 cannot be invoked with respect to democratic rights (ss. 3 – 5), mobility rights (s. 6), or the rights regarding the official languages of Canada (ss. 16 - 23). A legislature’s ability to ignore the rights potentially affected by s. 33 remains constrained in two ways: first, the legislature must expressly declare that the legislation shall apply notwithstanding the Charter provision (s. 33(1)), thereby risking public condemnation; and second, after a period of five years, if the legislature wants the rights-violating measure to continue, it is required to re-enact the measure (s. 33(5)).
This situation exists because there was no consensus regarding the issue of rights when the Charter was adopted in 1982. Then Prime Minister Trudeau introduced the ‘notwithstanding clause’ in the final stages of the negotiations surrounding the patriation of the Canadian Constitution. Confronted by wide differences between the opponents and the supporters of an entrenchment of rights in the constitution, the parties comprised on an entrenched Charter, subject to a ‘notwithstanding clause’, which would then allow legislatures to deviate from the rule of rights protection.
To date s. 33 has been hardly used. It was first used in June 1982, a few months after the Charter was adopted; the Quebec National Assembly enacted the Act respecting the Constitution Act, 1982 (S. Q. 1982, c. 21). This act repealed all Quebec legislation and re-enacted it with notwithstanding declarations. The Quebec National Assembly also included a notwithstanding declaration in every law that was passed in the following three years. This use of the ‘notwithstanding clause’ was not actually aimed at protecting a specific piece of legislation from the Charter, but was an act of political protest against the fact that the Charter was entrenched in the Constitution without the consent of the Government of Quebec. Following the election of a Liberal Government in Quebec in December 1985, this practice stopped.
In addition to this omnibus invocation of s. 33, it was used fifteen other times in Quebec, once in Saskatchewan, and once in Alberta; the other provincial legislatures, as well as Parliament, have never used the ‘notwithstanding clause’. The subject matter of the fifteen acts in Quebec which invoked the use of s. 33 were back-to-work legislation, pension plans, education, agricultural operations, the language used on signage and same-sex marriage.
Most uses of the ‘notwithstanding clause’ did not create any controversy. However, controversy did arise in Quebec 1988 when Premier Robert Bourassa’s government used s. 33 to re-enact legislation which required that all outdoor public signs in Quebec be in French. This use of the ‘notwithstanding clause’ provoked outcry in English Quebec and English Canada. In response to Quebec’s actions, the province of Manitoba withdrew its support from the then pending Meech Lake Agreement (see Meech Lake Accord); an action, many believe, marked the beginning of that accord’s failure.
Scholars are in disagreement about the desirability of the ‘notwithstanding clause’. Some argue that human rights should never be subject to majoritarian politics, and subjecting Charter rights to the ‘notwithstanding clause’ preserves the principle of the supremacy of the majority in Canada. Moreover, the ‘notwithstanding clause’ takes Canada back into a system of parliamentary supremacy (see supremacy of Parliament) and s. 33 might then be used in the service of the tyranny of the majority. Others believe that the ‘notwithstanding clause’ should be viewed not as compromising the supremacy of the constitution, but as compromising the supremacy of the judiciary. These scholars argue that the Charter of Rights and Freedoms is written in a vague language and that judicial review in Charter matters shifts the power related to many social problems from the courts to the legislature. The ‘notwithstanding clause’ makes it possible for the legislature to assert its own understanding of the constitutional values in the case of a disagreement between the courts and the legislature about the interpretation and application of these values.