Portico Press

Since the inception of the Canadian charter in 1982, a clause within its pages has caused consternation among the judicial and legislative branches of government.  Section 33 was included as a non obstante clause, giving the legislative branch of government the ability to enact legislation that may, or may not, conflict with existing laws.  Section 33 may be curious for many people unfamiliar with constitutional law as it is a rather esoteric study.  The idea of giving legislators the ability to override our laws and rights for a period of time can bring about ideas of tyrannical government.  To explain this perceived discrepancy in democratic order a history of its theory and formation proves beneficial.

The origins of the “notwithstanding” clause predates its role in the formulation of the Charter, as its concept had been used previously in Canadian history to the same effect of empowering legislators.   The clause began as a “legal drafting technique …  to overcome inconsistencies in  legislative provisions” (Howe & Russell, 2001).  The core of the concept was to ease the role of legislators in remedying and amending legislation in spite of pertaining laws.  As time shows, this role changed but still retains aspects of this principle. Within the 1936 Diefenbaker “Bill of Rights” a non obstante clause was included which protected the right of Parliament to, “exercise sovereign authority in situations where this sovereignty might be challenged” (Howe & Russell, 2001). Upon the election of Pierre Trudeau in 1968 efforts were once again made toward creating an entrenched charter in Canada, referred to as the Victoria charter.  This too included a non obstante clause, with the theory of creating a tool to be used by legislators in order to amend laws.  Trudeau sr. ‘s ideas failed to gain traction and as the sixties gave way to the turbulent seventies provincial legislatures sought greater autonomy.

The period of late 1970’s was a contentious time for federal and provincial relations in Canada.  The jingoistic Parti Quebecois won a landslide victory in 1976, threatening to tear away from Canada.  During that same era of the late 1970’s, there was increasing Western alienation, particularly experienced in Alberta and Saskatchewan as those provinces saw the newly created federal National Energy Program as infringing on provincial entitlements and powers.  While each province had their own distinct catalyst, each province would find cause to support the concepts behind Section 33.  

Section 33 became a hot topic in the discussions on the Charter and a proposed compromise was made by the provincial governments of Saskatchewan and Newfoundland to “restrict its application to sections 7–15, legal and nondiscrimination rights” (Howe & Russell, 2001).  This was countered by Alberta to encompass section 2, regarding religious freedoms, as well. Trudeau proposed the five-year sunset limitations, and the process was signed by nine provincial leaders and patriated.  These last revisions happened upon the night of November 4th, of 1981, over phone calls between all provincial leaders and the federal government, notable exceptions to the participants were Quebec and Manitoba leaders who had shown no conceivable interest in attempting to find compromise on patriating the constitution.  The whirlwind in which the charter was created allowed for the provincial leaders to exert control over the concepts that would come to define the controversy surrounding the clause such as; the time period of its effects and its overreach of certain sections of the charter.

Immediately upon the creation of the Charter of Canada, Quebec used Section 33 to unilaterally protect all of its legislation from judicial review.  The province would go on to be the most prolific and contested user of the clause, often enacting it to protect legislation that the provincial leaders saw as likely to be struck down by the supreme court.  The clause was notably used by Albertan legislators to protect against lawsuits seeking compensation for forced sterilisations, and to attempt to limit same-sex marriages in the province.  Both cases were eventually struck down.  In most examples; between Quebec’s uses to exert religious and cultural rights and Alberta’s intent to protect its government from lawsuits and perceived moral conundrums, the clause’s uses have always coincided with contentious legislation.  It has allowed for; Bill C-21 to discriminate against entrenched religious freedoms, legislators to force unions back to work, and redistricting in a municipal election.  Its varied uses and effects have all returned to the fundamental theory that legislators should have some access to overriding the rulings of the judiciary.  For Canadian governance it has tipped the scales moderately towards the legislature.  A decision that can be said to, albeit as long as it is kept in check, entrench the healthy balance of our democracy.

Citations

Paul Howe, Peter H. Russell. “Section 33; The Notwithstanding clause a Paper Tiger?”   Judicial Power and Canadian Democracy, edited by Paul Howe and Peter H. Russell. 2001.

John Diefenbaker. “Bill of Rights”. Statute. [1960]

Sotomayor, William Fernando, and William Fernando Maton. “The Canadian Constitutional Charter, 1971.” The Victoria Charter,

The Editors of Encyclopaedia Britannica. “Parti Québécois.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 19 Jan. 2018,

Peter W. Hogg. “The Charter Dialogue between Courts and Legislatures” Judicial Power and Canadian Democracy, edited by Paul Howe and Peter H. Russell. 2001.

Justice Beverly Mclachlin. “Courts, Legislatures, and Executives in the Post Charter Era”  Judicial Power and Canadian Democracy, edited by Paul Howe and Peter H. Russell. 2001.

F.L. Morton. “Dialogue or Monologue?”  Judicial Power and Canadian Democracy, edited by Paul Howe and Peter H. Russell. 2001.