The notwithstanding clause is one of the most powerful, misunderstood, and politically explosive provisions in Canadian law. It sits inside the Canadian Charter of Rights and Freedoms as section 33, and it allows Parliament or a provincial legislature to pass a law that operates despite certain Charter rights.

That sounds simple, but it is not.

The clause is often discussed as if it is a magic wand, a constitutional emergency brake, or a democratic override of judges. It is all of those things, in a sense, but only within strict limits. It does not erase the Charter. It does not apply to every right. It does not last forever. It does not automatically revive a law after a court strikes it down. And it cannot be invoked casually through a press conference, cabinet order, or political threat.

It has to be done through legislation. It has to be express. It applies only to specific Charter sections. And its protection expires after five years unless renewed.

It came out of the 1980–81 patriation/Charter negotiations, especially the last-minute Kitchen Accord in November 1981.

Canada was moving from a more Westminster-style model, where Parliament and legislatures had the final democratic word, toward a Charter model where courts could strike down laws for violating rights. Several premiers worried that this gave judges too much power over elected governments. Section 33 was the compromise: the Charter would exist, courts would gain strong review powers, but legislatures would retain a limited, visible, temporary override for certain rights. The Library of Parliament describes section 33 as allowing Parliament or a provincial legislature to override certain Charter rights for a limited period, provided the declaration is express and in an Act.  

The political bargain was that Trudeau got the Charter; the provinces got a democratic pressure valve. Or, rights became constitutionalized, but legislatures kept a trapdoor.

The famous “Kitchen Accord” involved Jean Chrétien federally, plus Roy McMurtry of Ontario and Roy Romanow of Saskatchewan, working out a compromise after the constitutional talks were near collapse. The notwithstanding clause and the amending formula were part of that deal. Quebec Premier René Lévesque was excluded from that overnight deal and Quebec did not endorse the final constitutional package, which is why section 33 is also tangled up with the later politics that led to the Meech Lake Accords.  

1981: Kitchen Accord / patriation compromise creates the notwithstanding clause.
1982: Charter comes into force with section 33 included. Quebec objects to the constitutional deal and later uses section 33 broadly as protest.
1987–1990: Meech Lake attempts to resolve Quebec’s exclusion/non-endorsement problem.

Ten things worth knowing about one of the most controversial legislative clauses in Canadian history:

1. It is section 33 of the Charter

The notwithstanding clause is not a separate statute or emergency power. It is part of the Canadian Charter of Rights and Freedoms itself. Section 33 allows Parliament or a provincial legislature to declare that a law will operate notwithstanding certain Charter rights.

That means the override power is built directly into Canada’s rights framework. It was not added later as a loophole. It was part of the constitutional compromise that produced the Charter.

2. It can be used by Parliament or provincial legislatures

Section 33 can be invoked by the federal Parliament or by a provincial legislature. That matters because both levels of government can pass laws that affect Charter rights within their own constitutional areas of jurisdiction.

A province can use it for provincial legislation. Parliament can use it for federal legislation. But one level of government cannot use section 33 to legislate outside its jurisdiction. A province cannot use it to rewrite the Criminal Code. Parliament cannot use it to take over purely provincial powers. (Municipalities cannot use it independentlybecause they strictly exist as functions of the provincial governments.)

The clause overrides certain Charter objections. It does not override the division of powers.

3. It can override some Supreme Court rulings, but not by magic

This is one of the most misunderstood parts.

A Supreme Court ruling does not disappear because a government invokes section 33. The court’s interpretation of the Charter still exists. What the legislature can do is pass or re-pass legislation with an express notwithstanding declaration attached to it.

In practical terms, that means a government can say: yes, this law would otherwise be vulnerable under certain Charter rights, but we are declaring that it operates anyway.

So yes, section 33 can allow legislation to operate despite a Supreme Court ruling based on covered Charter rights. But it must be done through a valid law, not by simply announcing disagreement with the Court.

4. It only applies to some Charter rights

Section 33 does not override the whole Charter.

It can be used against section 2, which covers fundamental freedoms such as expression, religion, assembly, and association. It can also be used against sections 7 to 14, which cover legal rights, including life, liberty and security of the person, search and seizure, detention, trial rights, and punishment. It can also be used against section 15, equality rights.

That is a broad set of rights, but not all rights.

5. It cannot override democratic rights, mobility rights, or language rights

Section 33 cannot be used against every constitutional protection.

It cannot override democratic rights such as the right to vote. It cannot override mobility rights. It cannot override language rights. It cannot override minority-language education rights.

This is why the clause is powerful but not unlimited. It is not a general constitutional escape hatch. It is a targeted override for specific categories of Charter rights.

6. It must be express

A government cannot invoke the notwithstanding clause by implication.

It is not enough for a law to conflict with a Charter right. The law has to expressly declare that it operates notwithstanding one or more of the covered Charter provisions.

That express requirement is important because it forces political accountability. A legislature must say openly that it is using the override. It cannot hide the move inside vague statutory language.

7. It must be invoked through legislation

A premier or prime minister cannot simply “invoke” the notwithstanding clause by saying so.

The override has to be contained in an Act. That means it has to pass through the legislative process. It is not a regulation, press release, executive order, or political statement.

This is why the clause is both legally simple and politically heavy. It requires elected legislators to put their names to the override.

8. Its use expires after five years

A notwithstanding declaration expires after five years, or sooner if the legislation says so.

The five-year period is not tied to the date of a court ruling. It is tied to the law invoking section 33. A legislature can respond to a court ruling years later if it chooses. The clock starts when the notwithstanding declaration is enacted, not when the court case was decided.

After five years, the declaration stops protecting the law unless it is renewed.

9. It can be renewed repeatedly

The five-year limit is a sunset, not a permanent ban.

A legislature can re-enact a notwithstanding declaration for another five years. In theory, it can keep renewing it. Politically, that is the point of the sunset: voters get a chance to judge the government before the override has to be renewed.

In practice, this means section 33 is temporary in each use, but potentially renewable indefinitely.

That is part of what makes it so unsettling. It is not a one-time emergency power, but it also does not automatically end a policy if the government is willing to keep paying the political cost.

10. It is Canada’s “constitutional hobgoblin“

The notwithstanding clause is rarely understood in proportion to how often it is invoked in political argument.

It is not used very often. But it is constantly present in Canadian political discourse because it represents something unusually stark: elected lawmakers saying that a law should operate even if it violates certain Charter rights.

Supporters frame it as democratic accountability, a way for legislatures to have the final word in exceptional cases rather than leaving everything to courts.

Critics see it as a rights override, a way for governments to sidestep fundamental freedoms, legal rights, and equality protections.

Both readings explain why the clause has such strange power in Canadian politics. It is legal. It is constitutional. It is sometimes defensible. It is also unusually powerful by design.

That is why section 33 feels like the hobgoblin of Canadian constitutional law: rarely seen, often threatened, and never casually summoned. It is not a loophole in the Charter. It is one of the Charter’s most controversial design features.

Examples of How It Could be Applied: Bill C-36 and MAID

The notwithstanding clause is easiest to understand through examples. It does not let a government simply announce that a court ruling no longer matters. It has to be attached to legislation. It also only applies to certain Charter rights.

Two current or recent policy areas show how different the analysis can be: privacy legislation and medical assistance in dying.

Example 1: Bill C-36 and Privacy Legislation

Assume the federal government passes Bill C-36, the proposed Protecting Privacy and Consumer Data Act. As privacy legislation, the bill would regulate how organizations collect, use, disclose, protect, and manage personal information in commercial activity.

Could the notwithstanding clause apply?

In theory, yes, but only if the law created a Charter problem under one of the sections covered by section 33.

For example, if a provision of Bill C-36 were challenged as violating freedom of expression under section 2 of the Charter, Parliament could try to shield that provision by expressly declaring that it operates notwithstanding section 2.

Or, if enforcement powers under the law were challenged as violating legal rights under sections 7 to 14 (for example, search, seizure, procedural fairness, liberty, or security-of-the-person issues) Parliament could try to invoke section 33 for those provisions.

But it would have to do so clearly. The legislation would need to say that the Act, or a specific provision of the Act, operates notwithstanding the relevant Charter section.

It could not be done by rumour. It could not be done by a ministerial statement. It could not be done by regulation alone. It would have to be in an Act of Parliament.

The override would then last for up to five years. After that, it would expire unless Parliament renewed it.

So in the Bill C-36 example, the key point is this: section 33 would not automatically protect the bill from every constitutional challenge. It would only protect it from challenges under the Charter rights that section 33 covers, and only if Parliament expressly invoked it in the legislation.

Example 2: MAID and the Supreme Court’s Carter Decision

Medical assistance in dying is a clearer example because the Supreme Court of Canada’s 2015 Carter decision was based largely on section 7 of the Charter: life, liberty, and security of the person.

Section 7 is one of the rights that can be overridden by section 33.

That means Parliament could, in theory, pass a law eliminating or severely restricting MAID and include a notwithstanding declaration saying the law operates despite section 7 of the Charter.

This would not erase the Carter ruling. The Court’s reasoning would still exist. But the new law could be shielded from being struck down on the same section 7 basis for up to five years.

After five years, Parliament would have to renew the notwithstanding declaration if it wanted the override to continue.

There are still limits. Parliament would need to legislate within its jurisdiction, most likely by amending the Criminal Code provisions that create exemptions for MAID. A province could not simply use the notwithstanding clause to rewrite the Criminal Code or abolish MAID across Canada.

A province could try to restrict how MAID is delivered within provincial health systems, but it could not use section 33 to take over federal criminal law. The notwithstanding clause overrides some Charter rights. It does not override the constitutional division of powers.

So the MAID example shows the real force of section 33: Parliament could theoretically legislate contrary to a Supreme Court ruling based on section 7, but only through express legislation, only for renewable five-year periods, and only within Parliament’s constitutional powers.

The Practical Lesson

Bill C-36 and MAID show two different kinds of notwithstanding-clause scenarios.

With Bill C-36, the issue would depend on whether specific privacy, data, enforcement, or speech-related provisions violated a covered Charter right.

With MAID, the connection is more direct because the Supreme Court’s core reasoning in Carter relied on section 7, which section 33 can override.

In both cases, the basic rule is the same:

A government cannot simply say “notwithstanding” and make the Charter disappear. It has to pass legislation. The declaration has to be express. It has to name or clearly apply to rights covered by section 33. It lasts only five years unless renewed. And it cannot give a legislature powers it does not otherwise have.

Notable Uses of the Notwithstanding Clause to Date

The notwithstanding clause has never been invoked by the federal Parliament. Its use has been provincial and territorial, with Quebec by far the most frequent user.

The list below separates enacted uses from bills that were proposed, defeated, repealed, or never brought into force.

Quebec

1982–1985: Blanket override after patriation

Quebec responded to the Constitution Act, 1982 by attaching notwithstanding language to existing Quebec laws and to new laws passed between 1982 and 1985.

This was the broadest use of section 33 in Canadian history. It was not aimed at one policy area or one court ruling. It was a political and constitutional response to Quebec’s objection to the 1982 constitutional settlement.

1986: Pension legislation

Quebec used the notwithstanding clause in pension-related legislation affecting certain teachers and government/public employees. These are among the less publicly discussed uses of section 33, but they matter because they show that the clause has not only been used in headline cultural or language disputes.

1988: French-only commercial signs

After the Supreme Court of Canada ruled in the Ford and Devine cases that Quebec’s French-only sign law violated freedom of expression, Quebec passed Bill 178 to maintain French-only exterior commercial signs while permitting some bilingual signs indoors.

This was one of the clearest examples of section 33 being used directly in response to a Supreme Court ruling.

2019: Bill 21, secularism law

Quebec invoked section 33 in Bill 21, the Act respecting the laicity of the State. The law restricts certain public employees in positions of authority from wearing religious symbols.

This is one of the most politically prominent modern uses of the clause. Quebec renewed Bill 21’s notwithstanding protection in 2024 for another five-year period.

2022: Bill 96, French-language law

Quebec invoked the notwithstanding clause again in Bill 96, An Act respecting French, the official and common language of Québec.

The law strengthened Quebec’s language regime and included a broad override of sections 2 and 7 to 15 of the Canadian Charter.

2025: Bill 94, education-sector secularism measures

Quebec used section 33 in Bill 94, legislation aimed at reinforcing secularism in the education network. The bill extended Quebec’s secularism framework further into schools and education governance.

2026: Bill 9, reinforcement of laicity

Quebec again invoked the notwithstanding clause in Bill 9, An Act respecting the reinforcement of laicity in Québec. The law expanded secularism rules, including into childcare and other public or publicly connected settings.

Yukon

1982: Land Planning and Development Act

Yukon’s Land Planning and Development Act included a notwithstanding declaration related to appointments to land planning bodies.

However, the relevant law was never proclaimed in force. It is therefore an example of a passed statute containing section 33 language, but not an operational override.

Saskatchewan

1986: Back-to-work legislation

Saskatchewan invoked section 33 in labour legislation protecting back-to-work measures after a court ruling raised freedom-of-association concerns.

This was one of the earliest non-Quebec uses of the clause.

2018: School Choice Protection Act

Saskatchewan invoked section 33 in the School Choice Protection Act, passed in response to litigation over public funding for non-Catholic students attending Catholic schools.

The clause never came into force because the underlying court ruling was later overturned.

2023: Parents’ Bill of Rights

Saskatchewan invoked the notwithstanding clause in The Education (Parents’ Bill of Rights) Amendment Act. The law related to parental consent and school rules around students’ use of names and pronouns.

This became one of the major recent examples of section 33 being used pre-emptively in a rights-sensitive culture-war context.

Alberta

2000: Marriage Amendment Act

Alberta invoked section 33 in legislation defining marriage as between a man and a woman.

The use was largely ineffective because the legal definition of marriage falls under federal jurisdiction. The notwithstanding clause can override certain Charter rights, but it cannot give a province powers it does not constitutionally have.

2025: Back to School Act

Alberta invoked the notwithstanding clause in the Back to School Act to end a teachers’ strike and legislate teachers back to work.

This was a modern labour-use example, similar in broad category to earlier back-to-work disputes, but politically sharper because it came during the renewed national debate over pre-emptive and aggressive use of section 33.

2025: Protecting Alberta’s Children Statutes Amendment Act

Alberta invoked the notwithstanding clause again in the Protecting Alberta’s Children Statutes Amendment Act. The law shielded a group of measures concerning gender-affirming care, parental consent in schools, and participation in female sports divisions.

This became one of the clearest examples of section 33 being used to protect legislation in active or anticipated Charter litigation over gender identity, equality, liberty, and security-of-the-person claims.

Ontario

2021: Bill 307, election advertising

Ontario invoked section 33 in Bill 307, the Protecting Elections and Defending Democracy Act, to protect limits on third-party political advertising before elections.

The law was later struck down on the basis of democratic rights under section 3 of the Charter. That matters because section 33 cannot override section 3. Ontario had properly invoked the notwithstanding clause for the rights it could cover, but the decisive Charter right was one section 33 cannot touch.

2022: Bill 28, Keeping Students in Class Act

Ontario invoked section 33 in Bill 28 to impose a contract on education workers and prohibit strike activity.

The law triggered major political backlash and was repealed shortly after passage. The repeal legislation deemed Bill 28 never to have been in force.

Proposed, Threatened, or Failed Uses

Ontario, 2018: Toronto City Council legislation

Ontario introduced Bill 31, the Efficient Local Government Act, after court conflict over the province’s move to reduce the size of Toronto City Council during an election period.

The bill included notwithstanding language but did not proceed past second reading.

New Brunswick, 2019–2020: Proof of immunization bill

New Brunswick introduced Bill 11, An Act respecting proof of immunization, which initially included notwithstanding language. The clause was later removed, and the bill was defeated at third reading.

Alberta, 1998: Forced sterilization litigation proposal

Alberta considered using the notwithstanding clause in legislation connected to lawsuits over forced sterilization under the former Eugenics Board regime. The proposal was abandoned.

Other recent proposals and threats

In recent years, premiers and legislators have increasingly threatened or discussed using section 33 in areas including encampments, gender identity policy, school policy, labour disputes, and public order. These threats matter politically, but they should not be counted the same way as enacted uses.

The Pattern

The notwithstanding clause has moved through three broad phases.

First, Quebec used it as a constitutional protest tool after 1982.

Second, it appeared occasionally in discrete policy disputes involving language, labour, education, marriage, or pension issues.

Third, since roughly 2018, it has re-emerged as a more aggressive political instrument, often used pre-emptively to shield laws from Charter review before courts have fully ruled.

That shift is why section 33 no longer feels like a rarely used constitutional safety valve. It increasingly looks like a standing political weapon.