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Section 33 of the Charter of Rights and Freedoms — the "notwithstanding clause" — lets Parliament or a provincial legislature override certain Charter rights for five years at a time. It is one of the most-debated and most-misunderstood features of the Canadian Constitution. This article explains exactly what it does, what rights it can and cannot override, when it has been used, and why it exists.
Section 33 of the Canadian Charter of Rights and Freedoms allows Parliament or a provincial legislature to expressly declare that a law operates "notwithstanding" certain Charter sections. The override applies to sections 2 (fundamental freedoms) and 7-15 (legal and equality rights). It does not apply to sections 3-5 (democratic rights), 6 (mobility), 16-23 (language and minority-language education), or 27-29 (other constitutional rights). The override lasts five years and is renewable. The clause was a key compromise that made the 1982 Charter possible — without it, several premiers would not have agreed to patriation.
The relevant text, in full, from the Charter:
*"Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter."*
*"A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration."*
*"Parliament or the legislature of a province may re-enact a declaration made under subsection (1)."*
Three features matter: it requires **express invocation** (the law has to actually say it's using section 33), it has a **5-year sunset**, and it is **renewable**.
Section 33 can override: - **Section 2** — fundamental freedoms (conscience, religion, expression, peaceful assembly, association) - **Sections 7-14** — legal rights (life, liberty, security of person; protection against unreasonable search and seizure; arbitrary detention; right to counsel; presumption of innocence; right to trial within reasonable time; protection against self-incrimination; protection against cruel and unusual punishment) - **Section 15** — equality rights
Section 33 CANNOT override: - **Sections 3-5** — democratic rights (right to vote, maximum five-year terms of legislatures, annual sittings) - **Section 6** — mobility rights (right to enter, remain in, and leave Canada; right to move between provinces) - **Sections 16-23** — official languages and minority-language education rights - **Section 28** — gender equality guarantee (this one is contested in constitutional scholarship but historically treated as outside the clause) - **Sections 25, 27, 29** — Indigenous rights, multicultural heritage, denominational schools
The carve-outs aren't accidental. They were the rights the framers wanted insulated from political override.
**Federal Parliament:** Never. The federal government has never invoked section 33.
**Quebec:** The most-frequent user. The Bourassa government invoked section 33 in 1982 against every Quebec statute then in force as a protest against the patriation it had not signed. The Bourassa, Bouchard, and Legault governments have invoked the clause on language-related legislation. Quebec's use is the most well-developed jurisprudentially.
**Saskatchewan:** Used in 1986 (back-to-work legislation) and 2018 (school-funding).
**Alberta:** Used the clause to insulate the definition of marriage in 2000 (a provision that became moot after federal marriage law changed in 2005).
**Yukon:** Pre-emptively invoked the clause in the Yukon Land Planning and Development Act, 1982 (later repealed without ever being invoked).
**Ontario:** Used in 2021 (election advertising restrictions) and threatened (then withdrawn) in 2022 (education-strike legislation).
The historical pattern: rare, controversial, and concentrated in specific kinds of legislation (language laws, labour-relations matters, election rules). The recent acceleration in pre-emptive use has been the subject of significant constitutional debate.
The notwithstanding clause was the political compromise that made the Charter possible. At the 1981 first ministers' conference on patriation, several premiers — notably Allan Blakeney of Saskatchewan, Sterling Lyon of Manitoba, and Peter Lougheed of Alberta — opposed an entrenched Charter on grounds of parliamentary sovereignty. Their concern: an unelected judiciary could strike down legislation supported by an elected legislature.
The compromise: a Charter, but with a clause that allowed parliamentary or legislative override of certain rights — the legislative branch retained ultimate authority on the specific rights covered, subject to public debate (the explicit-invocation rule) and periodic renewal (the 5-year sunset).
Without the clause, three premiers would not have signed the 1981 deal. Without their signatures, there would have been no Charter — at least not the one Canadians have.
The clause is therefore not a flaw in the Charter; it's the feature that made the Charter possible. Whether that compromise should still hold — and whether its modern uses have departed from its original purpose — is the substantive debate the clause continues to provoke.
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<article>
<h1>The Notwithstanding Clause, in Plain English. What Section 33 Actually Does.</h1>
<p><em>By Parliament Audit · June 4, 2026 · 5 min read</em></p>
<p><strong>Section 33 of the Canadian Charter of Rights and Freedoms allows Parliament or a provincial legislature to expressly declare that a law operates "notwithstanding" certain Charter sections. The override applies to sections 2 (fundamental freedoms) and 7-15 (legal and equality rights). It does not apply to sections 3-5 (democratic rights), 6 (mobility), 16-23 (language and minority-language education), or 27-29 (other constitutional rights). The override lasts five years and is renewable. The clause was a key compromise that made the 1982 Charter possible — without it, several premiers would not have agreed to patriation.</strong></p>
<h2>What section 33 says</h2>
<p>The relevant text, in full, from the Charter:</p>
<p>*"Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter."*</p>
<p>*"A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration."*</p>
<p>*"Parliament or the legislature of a province may re-enact a declaration made under subsection (1)."*</p>
<p>Three features matter: it requires **express invocation** (the law has to actually say it's using section 33), it has a **5-year sunset**, and it is **renewable**.</p>
<h2>What it covers and what it doesn't</h2>
<p>Section 33 can override:
- **Section 2** — fundamental freedoms (conscience, religion, expression, peaceful assembly, association)
- **Sections 7-14** — legal rights (life, liberty, security of person; protection against unreasonable search and seizure; arbitrary detention; right to counsel; presumption of innocence; right to trial within reasonable time; protection against self-incrimination; protection against cruel and unusual punishment)
- **Section 15** — equality rights</p>
<p>Section 33 CANNOT override:
- **Sections 3-5** — democratic rights (right to vote, maximum five-year terms of legislatures, annual sittings)
- **Section 6** — mobility rights (right to enter, remain in, and leave Canada; right to move between provinces)
- **Sections 16-23** — official languages and minority-language education rights
- **Section 28** — gender equality guarantee (this one is contested in constitutional scholarship but historically treated as outside the clause)
- **Sections 25, 27, 29** — Indigenous rights, multicultural heritage, denominational schools</p>
<p>The carve-outs aren't accidental. They were the rights the framers wanted insulated from political override.</p>
<h2>When it has been used</h2>
<p>**Federal Parliament:** Never. The federal government has never invoked section 33.</p>
<p>**Quebec:** The most-frequent user. The Bourassa government invoked section 33 in 1982 against every Quebec statute then in force as a protest against the patriation it had not signed. The Bourassa, Bouchard, and Legault governments have invoked the clause on language-related legislation. Quebec's use is the most well-developed jurisprudentially.</p>
<p>**Saskatchewan:** Used in 1986 (back-to-work legislation) and 2018 (school-funding).</p>
<p>**Alberta:** Used the clause to insulate the definition of marriage in 2000 (a provision that became moot after federal marriage law changed in 2005).</p>
<p>**Yukon:** Pre-emptively invoked the clause in the Yukon Land Planning and Development Act, 1982 (later repealed without ever being invoked).</p>
<p>**Ontario:** Used in 2021 (election advertising restrictions) and threatened (then withdrawn) in 2022 (education-strike legislation).</p>
<p>The historical pattern: rare, controversial, and concentrated in specific kinds of legislation (language laws, labour-relations matters, election rules). The recent acceleration in pre-emptive use has been the subject of significant constitutional debate.</p>
<h2>Why the clause exists</h2>
<p>The notwithstanding clause was the political compromise that made the Charter possible. At the 1981 first ministers' conference on patriation, several premiers — notably Allan Blakeney of Saskatchewan, Sterling Lyon of Manitoba, and Peter Lougheed of Alberta — opposed an entrenched Charter on grounds of parliamentary sovereignty. Their concern: an unelected judiciary could strike down legislation supported by an elected legislature.</p>
<p>The compromise: a Charter, but with a clause that allowed parliamentary or legislative override of certain rights — the legislative branch retained ultimate authority on the specific rights covered, subject to public debate (the explicit-invocation rule) and periodic renewal (the 5-year sunset).</p>
<p>Without the clause, three premiers would not have signed the 1981 deal. Without their signatures, there would have been no Charter — at least not the one Canadians have.</p>
<p>The clause is therefore not a flaw in the Charter; it's the feature that made the Charter possible. Whether that compromise should still hold — and whether its modern uses have departed from its original purpose — is the substantive debate the clause continues to provoke.</p>
<hr />
<p><small>
Originally published by <a href="https://parliamentaudit.ca/news/notwithstanding-clause-in-plain-english">Parliament Audit</a>
under the <a href="https://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND 4.0</a> license.
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</small></p>
</article>