The Notwithstanding Clause of the Charter

Book excerpt: The constitutional notwithstanding clause set out in section 33 of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the Charter of Rights or the Charter) has been controversial since its emergence from a November 1981 Federal-Provincial Conference of First Ministers. The controversy became more pronounced at the time of the 15 December 1988 Supreme Court of Canada decisions in the Ford and Devine cases dealing with the signage provisions of Quebec's Bill 101 (Charter of the French Language) and the subsequent adoption by the Quebec National Assembly of Bill 178 (An Act to Amend the Charter of the French Language). This legislation contained a section 33 override clause (in this case affecting Charter of Rights guarantees of freedom of expression (section 2(b)) and equality rights (section 15)). After setting out the content of the section 33 notwithstanding clause, this paper will trace its development in 1981 and describe the potential use then ascribed to it by its drafters, parliamentarians and others. The paper will then go on to point out actual instances when the notwithstanding clause has been invoked. Finally, it will present a number of arguments for and against the use of the clause.