Recently, Alberta Premier Danielle Smith tweeted:
and her remarks have stirred up renewed debate over what Canada’s “notwithstanding clause” (Section 33 of the Charter of Rights and Freedoms) is meant to do vs. what it is being used for.
Let’s take a closer look — at what the clause was intended for, how it’s being deployed, and why using it as a blanket tool to override rights departs from the original design.
What the Notwithstanding Clause Is
- Passed in 1982 as part of the Canadian Charter of Rights and Freedoms, the notwithstanding clause (s. 33) gives legislatures the power to pass laws that temporarily override some of the Charter’s protections: specifically, fundamental freedoms, legal rights, and equality rights.
- It doesn’t apply to democratic rights (e.g. the right to vote), mobility rights, or official language rights.
- Critically, any use of the clause must expire after five years, though it may be renewed. That renewal requirement is meant as part of the check — public accountability, electoral pressure, debate.
What the Clause Was Meant To Do
In the drafting and negotiation of the Charter, provinces insisted on including s. 33 so that the courts would not have unbounded power over all legislation. The clause was meant as a political safety valve — a way to allow elected representatives to occasionally override certain rights in exceptional circumstances, without entirely surrendering legislative discretion.
It was not designed as a license for governments to routinely suspend human rights protections simply because rights litigation might be inconvenient or unattractive politically.
What’s Happening Now
When political leaders propose to invoke the notwithstanding clause broadly — or preemptively — to avoid court rulings, lawsuits, or judicial oversight, it raises several concerns:
- Erosion of Rights Protections
Deploying s. 33 not in response to a court decision, but in anticipation of one, transforms it from a safety valve into a shield against accountability. - Potential for Abuse
If government can override Charter protections at will, fundamental freedoms lose stability and predictability. Rights become contingent on what politicians find acceptable at a given moment. - Undermining Democratic Legitimacy
The rates of social trust, fairness, and rule of law depend in part on citizens’ belief that their rights are protected. Overuse or misuse of s. 33 risks eroding that trust. - Distortion of Legal & Constitutional Norms
The Charter was meant to establish basic rights that courts can protect. If legislatures routinely nullify rights, what does it mean to have a constitutionally guaranteed right?
What the Original Intention Was Not
It is helpful to contrast what s. 33 was not meant to be:
- A tool for blanket suspension of human rights — especially without justification, parliamentary debate, or sunset.
- An escape hatch to avoid legal accountability or judicial review.
- A method to enable permanent override of rights, or to override rights in categories for which the clause does not apply.
What We Should Demand of Politicians
Given this background, here are some reasonable expectations citizens and civil society should insist on when a government proposes using the notwithstanding clause:
- Clear Justifications: Governments should explain the concrete reason(s) a law needs s. 33. What rights are at issue? What harm is being prevented? Why are ordinary legislative measures insufficient?
- Narrow Scope: Use should be limited to the specific provisions that are absolutely necessary.
- Time-Limited Application: The five-year limit must be observed; renewals should require fresh debate and justification.
- Transparency & Oversight: Not just internal justification, but public debate, legislative scrutiny, and perhaps judicial commentary should be allowed.
- Respect for Rights Where Possible: Even when s. 33 is used, it should be done in a way that least diminishes the rights in question.
Conclusion
The notwithstanding clause is part of Canada’s constitutional balance: courts protect rights; legislatures legislate laws. But that balance only works if rights are not overridden casually.
Using s. 33 as a pre-emptive shield, or as a tool to broadly suspend rights on political whim, turns the design on its head. It moves the clause from being a rare, accountable exception to a routine tool of legislative power. That’s a fundamental shift — and one that deserves serious scrutiny.