Guiding the use of the notwithstanding clause

In a nutshell

The CBA calls for safeguards to address the growing reliance on Section 33 to shield legislation from constitutional scrutiny in cases where its use may undermine fundamental rights and freedoms.

Section 33 allows legislatures to explicitly declare that a law will operate notwithstanding Charter rights and freedoms enumerated in Section 2 (fundamental freedoms) and Sections 7 to 15 (legal and equality rights). These provisions protect essential rights, such as the right to life, freedom of conscience and expression, and equality. The notwithstanding clause was a compromise included in the final draft of the Charter to address provincial concerns over its impact on legislative powers. Without it, the Charter might not have been enacted.

Recent examples of its use include Ontario’s Keeping Students in Class Act, 2022, Saskatchewan’s Education (Parents’ Bill of Rights) Amendment Act, 2023, and Quebec’s Bill 21, An Act Respecting the Laicity of the State, 2019.

Guidelines needed

The frequency and contexts of these invocations have prompted renewed scrutiny.

The CBA previously adopted a resolution in 2020 recommending the following guidelines for the use of the notwithstanding clause:

• It must not be used pre-emptively, i.e., without prior consideration by the courts.
• It must not be invoked without meaningful and transparent public consultation.
• A two-thirds majority vote in the legislature or Parliament should be required to invoke it.

In its recent submission to the federal government, the CBA recommends a fourth: that any invocation of Section 33 should include a preambular statement explaining why it is necessary. Such a requirement would compel legislatures to give voters a clear and transparent justification for the use of the notwithstanding clause.

Read the submission.