Contents:
Notwithstanding Cause
Supreme Court of Canada: The Notwithstanding Cause
Introduction to Notwithstanding Cause
In certain situations, federal or provincial governments can circumvent the Court's power to review the constitutional validity of legislation. Section 33 of the Canadian Charter of Rights and Freedoms provides a notwithstanding clause, which allows either the federal or a provincial government to temporarily suspend some of the constitutional protections given in the charter. After five years, the suspension automatically lapses. At that time, the government can either renew the suspension for another five years or rework the legislation in question to ensure that it is compliant with the charter.
The justification for such an override clause is that in a democratic society ultimate authority and responsibility should rest with the legislature, since the legislature is accountable to the people by election. In contrast, judges are appointed rather than elected. Nevertheless, section 33 has rarely been used. While the section itself is worded broadly, its use has been limited because of expected public opposition. The increased respect and importance given to the courts and the charter in Canadian society and politics has meant that governments only avoid the jurisdiction of the courts in extreme cases.
Section 33 has only been invoked on four occasions-twice by Québec and once each by Saskatchewan and Alberta. Québec first used the clause in 1982 to protest the process by which the Constitution Act of 1982 had been patriated (brought under full Canadian control by removing the oversight of the United Kingdom). The patriation took place without the approval of Québec, and the Québec government responded by passing a bill that automatically attached to each new Québec law a section invoking the notwithstanding clause. When the five-year time limit was reached, the Québec government allowed the bill to lapse and stopped applying section 33 to every law. In 1988 Québec again invoked the clause in support of legislation that prohibited the use of languages other than French on outdoor commercial signs. When the five-year time limit was reached on this legislation, the Québec government did not renew the suspension. Instead it passed a new law, more in line with the charter, that allowed signs in both languages as long as French was predominant. In 1986 the provincial government of Saskatchewan invoked section 33 to protect its legislation requiring striking public employees to return to work. This turned out to be unnecessary because the Supreme Court later found similar legislation in Alberta to be constitutionally valid. In 2000 the Alberta government invoked the clause as part of a law defining marriage as only being between a man and a woman, in order to prevent a possible Supreme Court finding that the law violated the charter by discriminating against same-sex partners.” (1)