Introduction
Section 33 of the Canadian Charter of Rights and Freedoms, which is known as the notwithstanding clause, is a significantly controversial and debated provision. It allows the legislature of a province to be temporarily able to override certain elements of the Charter, like fundamental freedoms, legal rights, and equality rights. This section was inserted as a compromise during the patriation of the Constitution in 1982, and its purpose was to strike a balance between the powers of federalism and the protection of civil liberties Supreme Court of Canada 1998). While section 33 was supposed to be employed only in extreme cases, some provinces have truly overused this statutory provision or have threatened to do so in the past, thereby disputing the essence of the Charter. This paper will explore the original concerns that gave rise to section 33, cite examples where it has been used or threatened, and suggest a more cautious view of its future use.
The essay will start with an introduction to section 33 details its purpose, and the compromise it was during the process of the constitutional patriation. It will then dive into different situations where provinces had used or thought about employing the notwithstanding clause, spotlighting the right and questionable ones. Last, it will disapprove of the excessive use of section 33 and offer suggestions as to how it can be confined exclusively to the extreme situations to which it was originally referring.
Background on Section 33
Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause, has been a recurring subject of both debate and controversy since building the ConstitutionConstitution. This clause authorizes the provincial government to restore the rights and freedoms suspended by the Charter temporarily for 5 years. With the introduction of the notwithstanding clause, the patriation of the Constitution and the Charter of Rights in 1982 became achievable because this gave room to compromise (Bamaby 2009). Although some provinces, especially Quebec, did not welcome a constitutionally enshrined bill of rights, which could be restrictive in the way provinces could legislate, an override provision offered an option for provinces to suspend specific rights temporarily in extraordinary situations.
The notwithstanding clause was seen as a fundamental balance between federal power and provincial interests, a recognition of parliamentary supremacy and a respect for the diverse interests and perspectives of Canada’s diverse political system. Its purpose was defensive, providing a mechanism through which the governments could circumvent the Charter of Rights in unspecified situations or exceptional circumstances, which necessitated a short-term suspension of certain rights guaranteed by the Charter (Government of Canada, 2023). The framers of the Charter, while constructing section 33 in the course of constitutional discussions, believed that it would be invoked in situations of the majority consensus on a genuine public emergency or extraordinary circumstances which required a temporal suspension of the fundamental rights Supreme Court of Canada 1998). The so-called override provision was billed as a temporary solution, with the perspective that it would undoubtedly become obsolete as the Charter got firmly embedded in Canadian society and the legal system.
Additionally, the framers of the Charter were particularly vigilant in setting the limits of the notwithstanding clause. It cannot be used to limit democratic rights, mobility rights, or language rights of Canada’s official languages in any way. Also, the override needs to be expressly invoked prior to every five years, which displays that its use will remain under public scrutiny and debate (Government of Canada, 2023). However, the notwithstanding clause has remained the subject of controversy due to arguments about its possible misuse and suppression of Charter safeguards. Some legal experts and civil rights activists have asserted that the clause should be repealed or at least amended to be more rigid, while others insist that it plays a vital role in the federal systems of Canada and, indeed, protects the doctrine of parliamentary sovereignty.
How Section 33 Has Been Used
The issue of the use or threatened use of Section 33 by various provinces from different parts of Canada is happening and is widely concerned and argued. The clause is a provocation, and it is designed to be used for extreme cases; however, its application often leads to controversy as well as litigation.
Quebec’s Language Laws
Quebec has been the sovereign and most notable in the application of the notwithstanding clause, which is primarily are language law. The province first respected Clause 33 in 1988 by introducing Bill 178, which sought to safeguard the status of French as the language of signs in commerce. This statute is contradictory to the guaranteed freedom of speech and equal rights provided by the Charter (Government of Canada 2024). Since then, Quebec has been using or applying its notwithstanding clause for new or renewal language laws. In 1993, Quebec further limited the display of English on commercial signs by Bill 86, and in 2019, Bill 21 prohibited public servants from wearing religious symbols, again invoking Section 33.
Quebec’s usage of the notwithstanding clause, in this case, has become a focal point of a notable controversy where individuals who are against this particular use claim that it is an unreasonable and unwarranted override of the foundational rights and freedoms Supreme Court of Canada 1998). While it is undoubtedly valid that the protection of the French language is the main objective of these measures, many hold the view that the means used exceed what is actually needed (and at the expense of individual freedoms, as well as a parallel goal).
Saskatchewan’s Labour Dispute
Unlike Quebec’s Language Acts, the use of the notwithstanding clause in the 1980s by Saskatchewan is a ruling example of the quality application of the Override provision. The province of British Columbia, during the dairy workers’ strike, invoked Section 33, which allowed them to override some of the Charter rights and subsequently pass laws that forced the workers to return to their jobs (Government of Canada, 2023). This case is understood by many as a more justifiable application of the override clause, as it addressed a single labour issue and was not used as a blank check deprivation of rights by the government. The province maintained that the temporary curtailment of some rights had been needed to solve the dissuasion and guarantee the supply of essential items. However, while the use of the notwithstanding clause in this context was still viewed as something controversial by some people, it was seen by others as a legitimate use of this provision in response to unique circumstances that warranted, at least for some time, not observing Charter rights.
Alberta’s Potential Use
In 2000, the Alberta government gave its approval to the Alberta Senate Election Act, which has Section 33 in place for resisting or challenging Section 33 legislation in court. The notwithstanding clause, however, was that the provision was never applied since the law was not allowed to last (Supreme Court of Canada 1998). The inclusion of the override clause as a prophylactic measure prompted censure, as it implied that members were prepared to step on the Charter rights before a court had actually come up with a case of violation.
Ontario’s Threat Over Election Advertising
The Ontario government vowed to opt for the use of the notwithstanding clause in 2021 following a court decision that banned certain portions of its amendment on third-party election advertising. The government intimated that it was comfortable initiating Section 33 to give the law precedence over Charter rights but ended up backing off from doing so after a massive public outcry (Government of Canada, 2023). The incident finally exposed the possible uses of the notwithstanding clause as a tool to overrule the court’s decisions and bring in policies that are likely to infringe on Charter Rights, even in cases that are not exceptional. The Ontario government received upheaval for compromising on basic freedoms, including the exercise of freedom of speech, for such a little policy complaint. It raised concerns about the dissolution of Charter protections and overstepping of boundaries.
Critique of Section 33 Overuse
The excessive use or potential use of section 33 by some provinces has brought negative reactions from legal experts, civil liberties groups, and some sections of the public. Several arguments have been made against the excessive invocation of the notwithstanding clause: Several arguments have been made against the excessive invocation of the notwithstanding clause.
Undermining Core Charter Rights
The most critical worry about the abundance of section 33 is that it can feed back to the foundations of the principal principles and protections covered in the Canadian Charter of Rights and Freedoms. The Charter was about ensuring the protection of fundamental rights and freedoms, and the notwithstanding clause was rooted in the premise of being a very rare exception in a few instances, not a usual tool for going around such rights (Slattery 1983). Section 33 is an element that, if overused, can eventually tear down the basis of the Charter and the rights it was designed to safeguard. This has the effect of creating a downward spiral in which Charter rights are becoming more and more subject to legislative oversight, and the popularity of such rights is diminishing.
Lack of Exceptional Circumstances
The authors of the Charter limited the use of section 33 to the very rare occasions where the rights must be temporarily suspended; such cases include national emergencies or any other situation so unusual that warranted exceptional measures. Nevertheless, some provinces have interfered with the notwithstanding clause for just normal policy matters instead of saving it for actual life and death cases. Quebec has been accused of using section 33 to nullify the existing rights laws covering language matters too much. This, however, can never be plausible when there exists no emergency or exceptional circumstances that necessitate such a nullification (Government of Canada 2023). Also, the view that the Ontario threat to make use of the provision for third-party election advertising rules modification was considered an overreach by quite a few because the issue addressed was not exactly a serious national problem but a rather minor policy issue.
Erosion of Public Trust
Even so, clause overuse can also result in a portion of the public losing trust in the Charter and the government’s role in safeguarding civil liberties. If provinces use section 33 too often, people may impute that their constitutionally protected rights need to be properly observed and safeguarded, thus eroding the public’s faith in the authority of the Charter rights (Government of Canada, 2023). This erosion of trust can be hugely destructive, as it might make people feel reluctant to claim their rights or to go to court to ensure that their rights are respected. It may further generate doubts in the public about the power of the government to safeguard and guarantee basic rights and liberties.
Conclusion
While section 33 of the Canadian Charter of Rights and Freedoms was meant as a compromise to balance federal and provincial powers, it became a tool to override the provisions of the Charter and subsequently threaten Charter protections and civil liberties through abusive use by some provinces. The purpose of the notwithstanding clause being recognized as a narrow exception to be used only in serious situations, such as emergencies in the nation or other conditions requiring the temporary suspension of rights. However, politics dictates reality emerged that some provinces, particularly Quebec, have regarded section 33 as a common norm that they normally require to override on matters involving language laws and other policy matters that are not genuine emergencies. The reliance on the notwithstanding clause by the government for this purpose has directly challenged the principles and protections entrenched in the Charter that everyone has come to value. It thus destroys public confidence in the government, whose commitment to fundamental rights and principles has obviously been called into question. It moreover creates a problematic precedent since the constitutional right is the more susceptible to legislative override, so the significance of it is watered out and ultimately, what is so expected from them.
To respond to these issues, setting a higher level for the section 33 activation may be necessary, such as a supermajority vote or other measures to control the clause in the ordinary manner and prevention its usage just in the case of extreme situations exclusively. Besides this, more public debate and investigations should be held to clarify whether section 33 is reformable or should be dropped from the provision if provinces are to carry on shamelessly using this Charter amendment tool.
Bibliography
Barnaby, Dwight Chalmers. “Section 33 of the Canadian Charter of Rights and Freedoms.” PhD diss., University of Toronto, 2009.
Government of Canada. “Section 33 – notwithstanding Clause.” Charterpedia, June 29, 2023. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html#:~:text=33.,to%2015%20of%20this%20Charter.
Government of Canada. The notwithstanding of the Charter (BP194-E). Accessed March 19, 2024. https://publications.gc.ca/Collection-R/LoPBdP/BP/bp194-e.htm.
Slattery, Brian. “The Canadian Charter of Rights and Freedoms-Override Clauses under Section 33-Whether Subject to Judicial Review under Section 1.” (1983). https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1639&context=scholarly_works
Supreme Court of Canada. Vriend v. Alberta – SCC cases. (1998). Accessed March 19, 2024. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1607/index.do.
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