DCHP-3

notwithstanding clause

DCHP-2 (Jul 2016)
n. — Politics, Law

Section 33 of the Canadian Charter of Rights and Freedoms. Gives Parliament or provincial legislatures the power to override certain portions of the Charter.

Type: 4. Culturally Significant — This controversial section of the Canadian Charter has the general purpose of protecting legislatures from judicial review. It can only be used with certain parts of the Charter's rights and freedoms, including fundamental freedoms, legal rights and equality rights. Democratic, mobility, language and minority language education rights cannot be affected by the notwithstanding clause. A notwithstanding declaration has a maximum duration of five years, but a legislature may extend the five-year period by re-invoking the notwithstanding clause, since there are no limits to the number of times it can be applied.
One of the the most notable uses of the notwithstanding clause was by the Quebec legislature in 1988 on Bill 101, when the government protected its commercial sign laws by prohibiting the use of languages other than French on exterior signs (see the 1988 quotations). The clause was used to protect the amended legislation from any further judicial review under the Charter. See also Maple Leaf Web reference, "The Notwithstanding Clause: Section 33 of the Charter".
See also COD-2, s.v. "notwithstanding clause", which is marked "Cdn".
Officially, this part of the Charter is known as Section 33, but it is commonly known as the notwithstanding clause or, more rarely, as the "override clause".

Quotations

1981
The "notwithstanding" clause allows the provincial legislatures to opt out of equality rights for up to five years at a time.
1981
In connection with the agreed modification of the proposals for the operation of certain sections of the Charter of Rights, your editorial (The Federation Stands - Nov. 6) appears to tolerate, albeit reluctantly, the concept of "overriding" or "notwithstanding" clauses in provincial legislation on the grounds that the proposed provisions will ensure adequate publicity when the overriding legislation and its renewal come before provincial assemblies.
1981
"Suppose an Indian woman took her case to the courts and this section (of the Indian Act) was found invalid," says McPhedrin, a Toronto lawyer. "Parliament might use the notwithstanding clause to continue to enshrine this discrimination." She then posed an interesting question: "If they're not going to use it, why do they want it? Why else do they want the power? Clearly, the cost of equality is considered to be too great." Justice Minister Jean Chretien, who yesterday opened debate on constitutional resolution, told the Commons that what Trudeau and the premiers agreed to was a "safety valve that is unlikely to be used except in uncontroversial items."
1986
While seven of the eight (all but Quebec's Rene Levesque) eventually gave in and supported the initiative, their compliance came grudgingly and only after Ottawa had agreed to a "notwithstanding" clause in the Charter. That clause -- Section 33 of the Charter -- allows Parliament or a provincial legislature to exempt any law from the Charter simply by inserting in the law or statement that it will take effect "notwithstanding" of the Charter.
1988
The Supreme Court of Canada is expected to rule this fall on the constitutionality of sections of Bill 101, which forbids the use of languages other than French on most commercial signs. If the court strikes it down, Premier Robert Bourassa must decide if he will use the controversial "notwithstanding" clause of the Charter of Rights and Freedeoms to override the decision or modify the law to ease the restrictions. The clause allows governments to exempt any law simply by inserting a statement that it will take effect "notwithstanding" the Charter. Bourassa has hinted he might allow other languages on signs inside stores but retain the requirement for French on outdoor signs.
1988
Now in Quebec, Premier Robert Bourassa behaves as if the offensive distinct-society clause was already law. In that spirit, he's using an even blunter instrument -- the "notwithstanding" clause -- to maintain French-only signs on Quebec storefronts until the distinct-society clause is available. By invoking the notwithstanding clause, Bourassa willfully erodes the guarantee of freedom of expression that the Constitution is supposed to extend to all Canadians.
1997
Wielding the mighty weapon of the notwithstanding clause, the Conservatives, under the spirited leadership of Mr. Harris, would push the appropriate legislation through the legislature, applying maximum power of closure if necessary.
2008
The settlement is a major defeat for British Columbians as taxpayers and voters, one that could have been avoided if the province had invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms.
2013
At the same time, he feared that if they won the case, anglophones would ultimately lose the war because the provincial Liberal government would have a choice between becoming a target for the Parti Quebecois or overriding the decision by invoking the notwithstanding clause in the Constitution. His prediction came true after the Supreme Court rendered a decision in December, 1988, that found the province was within its rights to require businesses to use French as the more prominent language, but English could not be prohibited altogether. So came the notwithstanding clause, which Ms. Brownstein said was one of her father's greatest disappointments.

References