The Charter’s two notwithstanding clauses
As the Supreme Court examines Quebec’s Bill 21, it will need to address the longstanding tension between sections 28 and 33
We are at a pivotal juncture for the notwithstanding clause’s future. It is at the centre of this week's Supreme Court hearings on Quebec’s Bill 21, a law that bans public servants from wearing religious symbols.
The Court may reexamine whether there are any limits on section 33, which allows legislatures to override portions of the Charter of Rights and Freedoms for five-year periods, including whether other sections of the Charter limit it.
One central dispute is the tension between sections 28 and 33. Section 28 guarantees rights to men and women equally, notwithstanding anything in the Charter. Section 33 allows laws to operate, notwithstanding the guarantee of equality, including sex-based equality, in section 15.
Which of these two notwithstanding sections should take precedence over the other?
This has enormous implications for Bill 21 itself because the law’s critics argue that women, particularly Muslim women, are disproportionately harmed by the ban on religious symbols. Should the Supreme Court of Canada find that section 28 is a limit on section 33, the challenge to the Quebec law may prove successful.
When examining which “notwithstanding” clause has priority, it’s useful to look at how section 33 came to be.
We know how the story is usually told. To avoid a collapse in constitutional negotiations, Jean Chrétien, Roy McMurtry and Roy Romanow scribbled a solution on a scrap piece of paper in the kitchen of the Ottawa Conference Centre, which included the notwithstanding clause. But the problem is that the documentary record doesn’t support the narrative of a hastily put-together override clause.
The limitations set out in section 33 were exhaustively and intently contemplated from 1980 until they were agreed to in 1981. Some of them are obvious, as they are in the clause itself. For example, the categories of rights to which the override can apply — fundamental freedoms, legal rights, and equality rights.
Initially, the clause was much broader than it is today. It included an override of section 28. When news of a draft that would have allowed governments to override gender equality rights broke, it caused a furor, particularly amongst women’s groups.
For the provinces, section 28 had to be included because premiers feared it would strike down section 15 (equality rights), which they did want to include. It was seen as an insurance policy.
But there was a problem. By including gender equality rights in the override, there was concern that other rights not subject to section 33 could be overridden by 28.
To solve this problem, but keep the insurance policy for the provinces to allow them to override section 15 without fear of section 28 striking it down in the courts, federal officials proposed an amendment: instead of section 28 being fully subject to the notwithstanding clause, it would only be subject to the notwithstanding clause as it relates to section 15.
Roger Tassé, the deputy minister of justice who directed the drafting of the Charter, said in a memo that this proposal made it clear that an override based on sex in section 15 could be invoked without fear of a court challenge under section 28.
And so, with the provinces on board, the federal government introduced the amended override clause in Parliament, establishing the new baseline. However, it wasn't good enough for women’s groups.
Tassé was frustrated because he felt they didn’t realize the extent to which section 33 was limited by section 28 with the amendment. In a memo, the federal government noted that if a province wished to limit freedom of association based on sex using the override clause, it couldn’t be done.
This meant that where a rights violation was sex-based, it could no longer be shielded by the notwithstanding clause, even for rights otherwise within its purview, such as freedom of association.
Nevertheless, women’s rights advocates who fought for section 28 were unsatisfied. And so, caving to public pressure, Parliament and the provinces (minus Quebec) agreed to remove section 28 from section 33 completely.
In light of this drafting history, there is a clear tension between the two sections. Section 28 possesses substantive terms and language that shows gender equality should take priority over other Charter provisions.
However, section 33 references not just section 15 but also expresses its own priority over other Charter provisions. Sections 28 and 33 can appear to be competing priorities. By agreeing to remove section 28 from the ambit of 33, the drafters left a tension in the text.
The Supreme Court will need to address this tension between the Charter’s two “notwithstanding” clauses, and the drafting history may offer the clearest guide to resolving it.
