G. W. J. Mercier, Attorney General of Manitoba at the time, stated that:

Allan Blakeney, then Premier of Saskatchewan, described how he believed the notwithstanding clause would be used by Parliament and the legislatures:

These public statements by participants illustrate the tension inherent in the diversity of views in the debate over the entrenchment of rights and the possibility of their being overridden.

Shortly after the First Ministers’ Conference, Prime Minister Trudeau expressed his less-than-enthusiastic acceptance of the notwithstanding clause when he said:

He went on to say later in the same interview:

Roy McMurtry, who participated in the First Ministers’ Conference as Attorney General of Ontario, has written:

Other participants in the 1981 First Ministers’ Conference have also indicated their views.  Thomas S. Axworthy said:

Jean Chrétien, then Minister of Justice, said:

A number of other commentators also subsequently indicated how they expected Parliament and the legislatures to use section 33.  Gérard V. La Forest, then of the New Brunswick Court of Appeal and later of the Supreme Court of Canada, made the following comment in 1983:

And finally, Professor Paul C. Weiler had this to say about the notwithstanding clause:

Experience so far has shown at least three situations where section 33 was used in a way not foreseen by those participating in the 1981 First Ministers’ Conference or by commentators:  the omnibus, routine invocation of section 33 by the Quebec National Assembly between 1982 and 1985; the preventive use of section 33 by Saskatchewan in relation to back-to-work legislation;(26) and the adoption of Bill 178 by the Quebec National Assembly following the 15 December 1988 Supreme Court of Canada decisions in Ford and in Devine.  In this last case, it might be argued that a government claiming to be in agreement with a court ruling enacted a legislative measure said to be consistent with the spirit of that court ruling but, for greater certainty and to avoid future litigation, included a section 33 override clause.

SECTION 33 INVOCATION

Events surrounding Quebec language law stimulated vigorous debate on section 33 of the Charter.  In the 1981 constitutional accord, the federal government and all the provinces except Quebec agreed upon the terms of constitutional change.  The Quebec government expressed its strong opposition to those terms by including a notwithstanding clause in every piece of legislation put before the National Assembly between 1982 and 1985.  It also caused every Quebec law in place at the time the Charter came into force to be amended with like effect.

This practice largely ceased after 1985:  section 33 has been used only occasionally by both Liberal and Parti Québécois governments since that time.  Quebec resorted to the notwithstanding clause after the Supreme Court of Canada, in the Ford and Devine cases on the language of commercial signs, ruled that an outright prohibition of the use of languages other than French was an unreasonable limitation on the freedom of expression guaranteed by the Charter.  The Quebec government thereupon introduced an amendment to the language law that would maintain unilingual French signs outside premises while permitting the use of bilingual signs inside.  To ensure that the amendment would not become the object of another legal challenge, the amending legislation invoked the legislative override authority of section 33 and the similar provision in the Quebec Charter of Human Rights and Freedoms.  This marked the first time that the override had been used in direct response to a Supreme Court of Canada decision, rather than in anticipation of litigation.  The debate that followed was more intensive than it would have been in the latter case, perhaps because the Court had already ruled on the issue, and had identified the rights and freedoms at stake.  Moreover, minority language rights have long been an emotional issue in Canada; there are few subjects where the use of the override would invite more controversy.

In 1993, when the notwithstanding clause reached the end of its five-year life, the Quebec National Assembly lifted the ban on English language signs and amended the law to require only that French be “markedly predominant.”(27)  The amended legislation was not protected by a notwithstanding clause.

Outside Quebec, it would appear that the notwithstanding clause has been used only three times.(28)  The first such use was in Yukon’s Land Planning and Development Act,(29) assented to in 1982 but never proclaimed in force; it therefore hardly qualifies as an example.  The statute provides in section 39 that the provisions of the Act relating to the nomination of persons to be members of the Land Planning Board (established under section 3 of the Act) or Land Planning Committees (established under section 17) by the Council of Yukon Indians operate notwithstanding the Canadian Bill of Rights and section 15 of the Canadian Charter of Rights and Freedoms.

The third use was by the Legislative Assembly of Alberta, which adopted a private Member’s bill in March 2000 amending that province’s Marriage Act to define marriage as exclusively heterosexual and to insert a notwithstanding clause for purposes of overriding the Canadian Charter of Rights and Freedoms.(33)  The widely held view was that these amendments had little legal effect because of federal jurisdiction over the capacity to marry.(34)

A subsequent Supreme Court of Canada ruling on 8 December 2004 confirmed that the federal government has sole jurisdiction to decide who is eligible to marry in Canada.(35)  Alberta’s Minister of Justice and Attorney General, Ron Stevens, responded to the ruling by stating that if the federal government enacted legislation codifying same-sex marriage, his province would not invoke the notwithstanding clause in order to retain the one-man one-woman definition of marriage in Alberta.  Referring to the Supreme Court decision, he stated in part:

Subsequently, on 1 February 2005, Bill C-38, an Act respecting certain aspects of legal capacity for marriage for civil purposes (1^st Session, 38^th Parliament), was introduced in the House of Commons.(37)  If enacted into law, the bill would, for the first time, codify a definition of marriage in Canadian law, expanding on the traditional common-law understanding of civil marriage as an exclusively heterosexual institution.  It defines marriage as “the lawful union of two persons to the exclusion of all others,” thus extending civil marriage to conjugal couples of the same sex.  The bill states, among other things, in its preamble that “the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes.”

Apart from the above uses of the notwithstanding clause in Quebec, Saskatchewan, Alberta, and the Yukon, it would appear that it has not been used elsewhere in Canada.

ARGUMENTS FOR AND AGAINST SECTION 33

Arguments have been made both in favour of and against allowing legislatures to override constitutionally guaranteed rights and freedoms.  Those who argue in favour of section 33 do not see it as inconsistent with entrenched rights and freedoms and contend that it provides a mechanism whereby, in exceptional circumstances, the elected legislative branch of government may make important policy decisions and isolate them from review by the unelected judicial branch of government.  They argue that the threat to individual rights is not great because there is a five-year limit on any use of the notwithstanding power.  Any such legislative override will be subject to public debate at the time of its first enactment and at the moment of any subsequent re-enactment.  They also point out that only some, not all, rights are subject to a possible legislative override.

Supporters of section 33 further maintain that, while it is useful and, indeed, very valuable for the courts to play a role in the elaboration of the rights and freedoms that Canadians should enjoy, it is not proper for them to act as legislators.  Judges may remain in office for many years after their appointment, long after the government that appointed them has left.  That they do so now is not questioned; however, if they had a greater “political” role, their non-accountability to the electorate might well be a source of controversy.  Closely linked to this is the assertion that a policy-making role would compromise the independence and impartiality of the courts and would hasten their politicization.

It may thus be argued that a legislative override, by allowing final political decisions to be made by the elected representatives, mitigates the politicization of the courts.  In the United States, where the courts interpret and apply a constitution that has no equivalent to section 33, judicial decisions about the constitution have a greater finality and the stakes are correspondingly higher.  The significant political element in the selection of judges, particularly at the United States Supreme Court level, has been openly acknowledged; indeed, the president’s power to nominate the judges of federal courts means that the composition of those courts is quite regularly an issue in presidential election campaigns.  A president may have the opportunity to name ideologically compatible judges who will continue to exercise a great deal of power long after he or she has left office.

In contrast, in Canada, there has been little evidence that judges are selected according to how they would rule in various cases.  If, however, the Charter did not contain a notwithstanding clause and the courts were the final arbiters of social values, it seems safe to speculate that this situation would be vulnerable to change.

Closely linked to the submission that legislators, and not judges, should have the final word on public policy matters is the “safety valve” or “unintended consequences” argument.  Simply put, this suggests that the notwithstanding clause is needed where a judicial decision based on Charter guarantees might result in a threat to important societal values or goals.  Because the Charter rights and freedoms are generally stated and are susceptible to varying constructions and interpretation, the courts may render judgments that the drafters did not anticipate (“unintended consequences”).

In short, section 33 has been justified on the grounds that it preserves the principle of parliamentary sovereignty.  As well, legislators, unlike judges, are electorally accountable.  Section 33 also makes it possible for Parliament or a provincial legislature to correct any unfortunate judicial interpretation of the Charter.

In 1989, a number of respected constitutional authorities were asked whether section 33 represented a threat to Canadians’ basic rights and whether it should be repealed.  Professor Wayne MacKay of the Faculty of Law at Dalhousie University spoke in favour of retaining the section:

Professor MacKay went on to say that, until the notwithstanding clause is abused “by some thwarting of the legitimate aspirations of a truly dispossessed or marginalized group in our society,” we should give our legislators and our Constitution the benefit of the doubt.(39)

Professor François Chevrette of the Faculty of Law at the Université de Montréal was opposed to the Quebec government’s use of section 33, since he did not think that the French language was really in jeopardy.  Even so, he, too, spoke out in favour of retaining the clause.  He pointed out that in Canada the balance between political power and judicial power is very delicate, and that in this regard we are different from the Americans, who do not share our tradition of parliamentary supremacy.  In Canada, political power can override a judicial decision on an important or sensitive issue, and there is then an opportunity for national debate.  People would reflect, he said, and the politicians might change their minds when a particular use of the notwithstanding clause came up for renewal.(40)

Section 33 is considered by critics to be inconsistent with the entrenchment of human rights and freedoms.  The basic argument is quite simply that, in the words of former Quebec cabinet minister Clifford Lincoln, who resigned in protest against the language law amendment, “rights are rights.”  In this view, the rights and freedoms in the Charter are subject to judicial interpretation but must be protected against legislative transgression.  It is generally true that governments do not violate rights in defiance of public opinion; rather, it is precisely when the majority of the public is in favour of, or at least not opposed to, the limitation or elimination of the rights of a minority that constitutional constraints are needed.  Moreover, the Charter does not create absolute rights and freedoms that must be applied literally; section 1 of the Charter provides that the rights and freedoms guaranteed are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”  This, say opponents of the notwithstanding clause, should permit the courts enough flexibility to accommodate legislative goals that infringe a guaranteed right or freedom.

Another contrary argument is that, because the legislative override is applicable to only the fundamental freedoms and legal and equality rights, it creates a hierarchy of rights. Other rights are not subject to the override (see above, “Content of Section 33”).

Another argument that has been raised against section 33 is that the “rights and freedoms that can be overridden are so significant as to raise questions about the nature of the freedom that remains.”(41)

Morris Manning expresses it as follows:

It has been argued that the mere existence of the override power can entice governments to use it.  For instance, the Government of Saskatchewan might have relied on section 1 of the Charter when enacting the Saskatchewan Government Employees Union Dispute Settlement Act had it not been able to use section 33.  The Canadian Bar Association, at its 1984 annual meeting in Winnipeg, concluded that section 1 of the Charter provides ample protection for legislative authority,(43) and therefore recommended that section 33 be repealed.  Even if the section were not repealed, the Association felt that the use of the override power should at least be subject to guidelines.(44)

Many people are concerned that the notwithstanding clause might be used in cases where rights and freedoms are most in need of protection.  In 1985, Herbert Marx, who was then the Liberal Opposition Justice Critic in Quebec, stated that “the danger of having a ‘notwithstanding clause’ will become evident when we need protection most – we will not have it.”  In support of his argument, Mr. Marx referred to the October crisis of 1970, when the federal government set aside the Canadian Bill of Rights (which had a notwithstanding clause) by enacting the Public Order (Temporary Measures) Act.(45)

Senator and parliamentary expert Eugene Forsey also spoke out against section 33:

In short, there are a number of compelling arguments both in favour of and against section 33.  Its inclusion in the Charter was, and remains, controversial.  The debate over the clause will undoubtedly continue.