Notwithstanding Clause

The Notwithstanding Clause is found in Section 33 of the Canadian Charter of Rights and Freedoms, which forms part of the Constitution Act, 1982. It permits Parliament or a provincial or territorial legislature to enact legislation that operates notwithstanding certain Charter provisions — specifically Section 2 (fundamental freedoms such as expression, religion, and association) and Sections 7 through 15 (legal and equality rights). It cannot be used to override democratic rights (Sections 3–5), mobility rights (Section 6), language rights (Sections 16–23), or minority-language education rights.

A declaration under Section 33 must be express, stating that the Act or a provision "shall operate notwithstanding" the specified Charter sections. The override automatically expires after five years, though it may be re-enacted indefinitely. The five-year ceiling was designed to force the issue back before voters at least once each electoral cycle.

The clause was a product of the 1981 negotiations between then–Prime Minister Pierre Trudeau and the provincial premiers, often described as part of the so-called "Kitchen Accord" compromise that broke the deadlock over patriation. Several premiers, particularly from western provinces, insisted on a legislative check against judicial supremacy.

Use of Section 33 has been politically controversial. Quebec invoked it broadly in the years immediately following 1982, most notably to preserve French-only commercial signage in Bill 178 after the Supreme Court's 1988 Ford v. Quebec decision. More recent invocations include Quebec's Bill 21 (2019) on religious symbols and Bill 96 (2022) on the French language, as well as Ontario's use in legislation concerning election spending and, briefly in 2022, education-sector labour relations.

Comparable override mechanisms are rare in liberal democracies. Israel's Basic Laws contain a narrower override in limited contexts, and proposals have surfaced periodically in the United Kingdom, but Section 33 remains the most prominent example of a formal legislative override of a constitutional bill of rights.