Section 33
Notwithstanding Power

The section 33 notwithstanding clause has been ably defended and praised by some of Canada's leading legal and political minds:

• Peter Russell of the University of Toronto;
• Paul Weiler, Canada's expatriate professor of law at Harvard University;
• Alan Borovoy, General Counsel of the Canadian Civil Liberties Association.
• More recently, Peter Hogg, Dean of Osgoode Hall Law School and the most influential constitutional scholar of our generation, counts the notwithstanding clause as one form of "Charter dialogue" between courts and legislatures.
• Indeed, quoting from Hogg, the Supreme Court endorsed the legitimacy of the notwithstanding clause in Justice Iacobucci's 1998 Vriend decision.

Section 33 in History and in Theory

Section 33 was one of the compromises worked out between former Prime Minister Trudeau and seven of the eight provinces that opposed his "constitutional patriation" plans in 1980-81. Eight provinces (all but Ontario and New Brunswick) opposed Trudeau's proposed Charter of Rights because it transferred so much power to judges, especially the Supreme Court. They thought that this empowerment of the judiciary conflicted with Canada's longstanding tradition of parliamentary democracy and that it would undermine the capacity of the provinces to be self-governing. They feared that federally appointed superior court judges would use the Charter to unfairly strike down provincial policies.

Their acceptance of the Charter in November 1981 was conditional upon Trudeau's acceptance of the legislative override power. As described by former Alberta premier Peter Lougheed, "The final 'deal' on November 5, 1981 was, as is almost always the case, a trade-off. Essentially Mr. Trudeau got his Charter of Rights and the Western Premiers got both the Alberta Amending Formula and a notwithstanding clause." Without the notwithstanding clause, there would be no Charter of Rights. As Lougheed later explained:

The then Premiers of Manitoba and Saskatchewan and the Premier of Alberta took the position in the constitutional discussions that we needed to have the supremacy of the legislatures over the courts . . . We did not [want] to be in a position where public policy was being dictated or determined by non-elected people.

Contrary to critics, section 33 was not a right-wing conspiracy. The then NDP Premier of Saskatchewan, Allan Blakeny, was even more adamant than Lougheed about including an override provision. Blakeny successfully insisted on other changes in the wording of the Charter to pre-empt judicial activism. Looking back, in a 1997 interview, Blakeny explained, "I had real reservations about a constitutional Charter of Rights and Freedoms, because of its ongoing tendency to have the courts heavily involved in decisions which are essentially political and hence brings about a politicization of the courts."

Nor was the Liberal government all that opposed to section 33, since it gave the federal government the same power, something that its provincial supporters had not demanded. When Trudeau's then Justice Minister, Jean Chrétien, introduced the amendments in the House of Commons on November 20, 1981, he defended section 33 on principle not just as a "necessary evil." Section 33, Chrétien explained, would serve as a "safety valve" to ensure "that legislatures rather than judges would have the final say on important matters of public policy." According to Chrétien, section 33 would allow elected governments "to correct absurd situations without going through the difficulty of obtaining constitutional amendments."

Commenting at the time of the November 1981 compromise, Alan Borovoy, founder and long-time Executive Counsel of the Canadian Civil Liberties Association, assessed section 33 in glowing tones:

Canada at the moment is a parliamentary democracy in which the will of Parliament is supreme. If there were no notwithstandings in the proposed Constitution, this supremacy would shift to the judges who would decide whether or not a law offended the Constitution . . . By making it legally possible but politically difficult to override the Charter, they have married the two notions . . . The result is a strong Charter with an escape valve for the legislatures.

Since then, academic commentators have provided a variety of descriptions of section 33 that capture its attempt to balance the power of accountable governments and non-elected judges. Professor Paul Sniderman of Stanford University elaborates on this in a book published by Yale University Press in 1996:

The root issue is who shall have the final word: the courts in their role as ultimate authorities on the Charter, or the parliaments, in their role as ultimate representatives of the public? Regimes following the American model have invested final decision-making power in courts; regimes following the English model have put it in Parliament. What distinguishes the Canadian regime is its deliberate effort to forestall an authoritative answer to the question of who shall have the final word. The Canadian political order invests final institutional power simultaneously in the courts, above all the Supreme Court, and in parliaments, both federal and provincial.

While it has since become stylish to dismiss the notwithstanding clause as an unfortunate concession, no less an authority on constitutional matters than Professor Peter Russell of the University of Toronto has given it high marks:

The override gave Canada an opportunity to get the best out of British and American constitutionalism . . . to strike a shrewd balance between the wisdom derived from these two parts of our heritage . . . The Charter … establishes a prudent system of checks and balances which recognizes the fallibility of both courts and legislatures and gives closure to the decisions of neither.

Peter Hogg, Professor Emeritus and former Dean, Osgoode Hall Law School:

Another response to the legitimacy issue is found in the Hogg-Thornton "dialogue" theory (Reading 13.7). Hogg argues that in Charter rulings the Supreme Court rarely has the last word. In his review of 66 Charter cases involving judicial nullification of a statute, Hogg found that there was a "legislative sequel" to the judicial ruling in two-thirds of the cases. That is, governments have responded to judicial nullifications by a variety of means - amending and re-enacting the statute, repealing the statute or by invoking section 33 and re-instating the statute. Thus, rather than "activist" courts "dictating" new policies to governments, Hogg argues that the Charter has created a two-way "dialogue" between courts and legislatures, in which the latter usually have the last say. Hogg's "dialogue" theory has become a popular defence against the charge of undue judicial activism but is not without its critics.

The Charter Dialogue between Courts and Legislatures
Peter W. Hogg and Allison A. Thornton
Policy Options, April 1999. Reprinted with permission.

"Dialogue will not work, of course, if the effect of a judicial decision is to
prevent the legislative body whose law has been struck down from pursuing
its legislative objective. But this is seldom the case. The first reason why
a legislative body is rarely disabled by a judicial decision is the existence in
the Charter of Rights of the override power of s. 33, under which a legislature
can simply insert a "notwithstanding" clause into a statute and thereby liberate
the statute from most of the provisions of the Charter, including the
guarantees of freedom of expression (s. 2(b)) and equality (s. 15). Section 33
was added to the Charter of Rights late in the drafting process at the behest of
provincial premiers who feared the impact of judicial review on their legislative
agendas, and it is the most powerful tool legislatures can use to overcome
a Charter decision they do not accept.

When the Supreme Court of Canada struck down a Quebec law forbidding
the use of English in commercial signs on the ground that the law violated the
guarantee of freedom of expression (Ford, 1988), Quebec answered by enacting
a law that continued to ban the use of English on all outdoor signs. The
new law violated the Charter's guarantee of freedom of expression as much as
the previous one had, but the province protected it from challenge by inserting
a s. 33 notwithstanding clause into it. The Quebec National Assembly recognized
that it was restricting the freedom of expression of its anglophone
citizens, but concluded that the enhancement of the French language in the
province was important enough to justify overriding the Charter value.
...

Both these cases are examples of the dialogue that s. 33 permits. Admittedly, because of the political climate of resistance to the use of the clause, "notwithstanding" is a tough word for a legislature to use. But making tough political decisions is part of a legislature's job. In the dialogue between courts and legislatures, "notwithstanding" is therefore at least a possible legislative response to most judicial decisions."

Justice Iacobucci, Supreme Court of Canada, Alberta. v. Vriend, 1 S.C.R. 493 (1998) (pp.565-566):

137   This mutual respect is in some ways expressed in the provisions of our constitution as shown by the wording of certain of the constitutional rights themselves. For example, s. 7 of the Charter speaks of no denial of the rights therein except in accordance with the principles of fundamental justice, which include the process of law and legislative action. Section 1 and the jurisprudence under it are also important to ensure respect for legislative action and the collective or societal interests represented by legislation. In addition, as will be discussed below, in fashioning a remedy with regard to a Charter violation, a court must be mindful of the role of the legislature. Moreover, s. 33, the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts (see P. Hogg and A. Bushell, "The Charter Dialogue Between Courts and Legislatures" (1997), 35 Osgoode Hall L.J. 75).

138   As I view the matter, the Charter has given rise to a more dynamic interaction among the branches of governance. This interaction has been aptly described as a "dialogue" by some (see e.g. Hogg and Bushell, supra). In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches. As has been pointed out, most of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives (see Hogg and Bushell, supra, at p. 82). By doing this, the legislature responds to the courts; hence the dialogue among the branches.

139   To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.

Who Gets the Last Word?

Despite such an auspicious birth, the notwithstanding clause soon fell upon hard times. Outside of Quebec, it has been used only three times in 22 years. In addition to Quebec's routine use of section 33 between 1982 and 1985, the notwithstanding clause has been used 16 times by four different governments (Yukon (1), Saskatchewan (1), Alberta (1), and Quebec (13). As of 2001, eight instances were still in force. Almost all have been preemptive uses to prevent judicial review. Policy areas include back to work legislation, land-use planning, pension plans, education, agricultural operations, and same-sex marriage (Alberta's 2000 Defence of Marriage Act).