Notwithstanding clause
The Constitution Overide
What is the Notwithstanding Clause?
The Notwithstanding Clause is a provision in Canada’s Constitution that allows federal or provincial governments to temporarily override certain rights in the Canadian Charter of Rights and Freedoms. Also known as Section 33 of the Charter, it allows a government to pass a law that will remain in effect even if it conflicts with specific Charter protections. However, this override is limited: it only applies to certain fundamental freedoms, legal rights, and equality rights, and it must be renewed every five years if the government wants the law to continue operating under the clause.
Why does the Notwithstanding Clause exist?
When the Canadian Charter of Rights and Freedoms was introduced in 1982, some provincial governments were concerned that courts would gain too much power to strike down laws passed by elected legislatures. The Notwithstanding Clause was included as a political compromise between those who wanted strong constitutional rights protections and those who wanted to preserve parliamentary sovereignty.
The clause was generally intended to function as an exceptional or last-resort mechanism—a safeguard that governments could use in rare circumstances if they believed a law was important enough to temporarily override certain Charter rights. Because using the clause requires governments to openly declare that a law will operate “notwithstanding” parts of the Charter and to renew the override every five years, it was designed to carry significant political accountability. In practice, however, debate continues over how frequently and in what circumstances governments should use it.
The Notwithstanding Clause
in Quebec
Quebec has a unique political relationship with the Canadian Constitution. While the province did not formally consent to the 1982 constitutional reforms that introduced the Canadian Charter of Rights and Freedoms, the Charter still fully applies in Quebec and is legally binding. The Quebec government must comply with the Constitution in the same way as every other province.
However, Quebec governments have historically been more willing than other provinces to invoke the Notwithstanding Clause. When a government uses the clause, it allows a law to remain in force even if it violates certain protections in the Canadian Charter of Rights and Freedoms. In Quebec, the clause has often been applied to legislation involving language policy and the secular nature of public institutions.
​
Quebec's abuse of the clause.
In recent decades, Quebec governments have invoked the Notwithstanding Clause to shield provincial legislation from being struck down under parts of the Canadian Charter of Rights and Freedoms. When used, the clause allows legislation to remain in force even if it violates certain Charter protections, including freedom of religion, freedom of expression, equality rights, and certain legal rights.
Some notable examples include:
-
Bill 21 – This law prohibits many public employees in positions of authority, including teachers, police officers, and judges, from wearing religious symbols while performing their duties. The Quebec government invoked the Notwithstanding Clause when passing the legislation to ensure that it would remain in force even if it violates Charter protections, particularly freedom of religion and equality rights.
-
Bill 96 – This legislation significantly expanded Quebec’s language regime under the Charter of the French Language and formally establishes French as the official and common language of Quebec. It strengthens requirements for the use of French in government, the courts, workplaces, education, and commercial activities, while limiting access to English-language services in several areas of provincial jurisdiction. The law expands enforcement powers over businesses and institutions to ensure compliance with French-language requirements. The legislation invokes the Notwithstanding Clause, allowing key provisions to remain in force even if they violate protections in the Canadian Charter of Rights and Freedoms, including freedom of expression and equality rights. The law substantially reduces the role of English in many areas of public administration and services affecting English-speaking Quebecers.
-
Bill 178 – After the Supreme Court of Canada ruled that Quebec’s French-only commercial signage law violated freedom of expression, the provincial government invoked the Notwithstanding Clause to maintain restrictions on languages used in outdoor commercial signs.
-
Bill 1 (proposed) – This legislation proposes to formalize elements of a Quebec provincial constitution and declare Quebec a nation whose official and common language is French. The bill invokes the Notwithstanding Clause, allowing the law to operate notwithstanding protections in the Canadian Charter of Rights and Freedoms. By embedding this override directly in the legislation, the Quebec government can enact provisions that remain in force even if they violate Charter protections such as freedom of expression, freedom of religion, equality rights, and certain legal rights. The legislation also reinforces extensive language provisions that prioritize French in government, institutions, and public life, further restricting the use of English in several areas of provincial jurisdiction. Through the pre-emptive use of the Notwithstanding Clause, these measures are shielded from being struck down under the relevant Charter protections while the override remains in effect.
Bill 21
Bill 21 – This law prohibits many public employees in positions of authority, including teachers, police officers, and judges, from wearing religious symbols while performing their duties. The Quebec government invoked the Notwithstanding Clause when passing the legislation to ensure that it would remain in force even if it violates Charter protections, particularly freedom of religion and equality rights.
