The Quebec National Assembly’s use of the notwithstanding clause, contained in section 33 of the Charter of Rights and Freedoms, is highly controversial. While this use is undoubtedly legal under currently applicable case law, considerable effort is spent to bring the Supreme Court of Canada to reverse its interpretation of section 33, which authorizes the use of the notwithstanding clause under purely formal conditions.

In this regard, the political cultures of Canada and Quebec stand in sharp contrast to each other. While Quebec has invoked the clause in a variety of contexts, debate has centred on legislation relating to religious freedom and language issues. The intensity of this controversy can be traced to the circumstances surrounding the defeat of the constitutional reform package known as the Meech Lake Accord in 1990.

In effect, Quebec is using the notwithstanding clause as a partial substitute for the distinct society clause, the most vilified section of the Meech Lake Accord. Many in Quebec thought that the Accord would have changed the judicial interpretation of different aspects of the constitution with respect to Quebec, which considered itself a distinct society. These hoped-for objectives are partly met by use of section 33.

Quebec is also using the notwithstanding clause as a shield against the Constitution Act, 1982, which was adopted without the consent of the National Assembly and without a referendum, and is therefore widely seen as lacking democratic legitimacy.¹ This lack of legitimacy was exacerbated by the defeat of the Meech Lake Accord, which despite its insufficiencies was meant to restore that legitimacy.

Quebec regards language and religious issues as vital elements of its national identity, and Canada as having inadequately accommodated these concerns. Quebec’s identity continues to evolve. At present, based on the indifference of non-francophones to the decline of French-language minorities outside Quebec, the majority in Quebec feel that the French language in Quebec is under existential threat.

The debate over the notwithstanding clause in the Canadian constitution is not merely a continuation of the constitutional wars of the years between patriation of the constitution in 1982 and Quebec’s referendum on sovereignty in 1995, marked by lack of progress toward the satisfaction of Quebec’s basic grievances. The more recent debate also raises major questions about varying conceptions of liberalism and the possibility of their cohabitation within a single Western state.

Quebec’s distinct society and the Supreme Court

The Supreme Court does recognize at times that Quebec is a distinct society. For example, in Ford v. Québec in 1988, it acknowledged that Quebec is distinct and that the predominance of French as a public language is part of this distinctness.² Therefore, maintaining it is a “pressing and substantial objective” that would justify infringements on the freedom of expression of people like Valerie Ford.

More recently, in the Reference re Supreme Court Act, ss. 5 and 6,³ which dealt with a completely different part of the Constitution, it went further. In that extraordinary case, the Supreme Court deemed that the nomination of one of its own members was unconstitutional because it was incompatible with Quebec’s nature as a distinct society. Prime Minister Stephen Harper had selected a Federal Court judge, Marc Nadon, who was from Quebec but had no professional experience in Quebec civil law. This is what six of the seven members of the Supreme Court sitting in that case had to say:

The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights. Put differently, s. 6 protects both the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada. This broader purpose was succinctly described by Professor Russell in terms that are well supported by the historical record:

The antipathy to having the Civil Code of Lower Canada interpreted by judges from an alien legal tradition was not based merely on a concern for legal purity or accuracy. It stemmed more often from the more fundamental premise that Quebec’s civil-law system was an essential ingredient of its distinctive culture and therefore it required, as a matter of right, judicial custodians imbued with the methods of jurisprudence and social values integral to that culture.⁴ (emphasis in original)

The Supreme Court is telling us here that it does not need a distinct society clause to apply those parts of the constitution that already reflect the distinct nature of Quebec. By using the notwithstanding clause, Quebec is saying it needs more to adequately protect its distinctness and, in many cases, cannot rely on the Supreme Court to do so.

What is a notwithstanding clause?

A notwithstanding clause, also known as a clause dérogatoire or non obstante clause, allows the legislative branch to immunize laws from constitutional review by the courts by using explicit language that the law will operate “notwithstanding” some entrenched constitutional principle. Notwithstanding clauses are common in modern charters of rights. There is thus nothing unusual about having included one in the Canadian Charter. But the breadth and unevenness of section 33’s applicability are somewhat troubling. It punches a hole in the Charter of which it is a part. However, to state that this hole is unconstitutional is a contradiction in terms. The clause is a major component of the Canadian constitution. It is a defining feature of the Charter, which probably would never have been adopted without it.

Section 33 of the Canadian Charter of Rights and Freedoms reads as follows:

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under section (1).

(5) Section (3) applies in respect of a re-enactment made under section (4).

The scope of section 33 is more evident when it is compared with other modern charters of rights.

Under international law, a notwithstanding clause can be found in article 4 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly in 1966 and ratified by Canada 10 years later. The Covenant is therefore legally applicable in Canada.

Article 4 can only be invoked in a time of public emergency which threatens the life of the nation and is officially proclaimed. Derogating measures must be strictly required by the exigencies of the situation and may not include discrimination. Here, international law is clearly more strict than Canadian constitutional law. On the other hand, Canada’s Emergencies Act, adopted in 1988 and applied in 2022 to deal with a group of truckers and their allies known as the Freedom Convoy, states that it does not curtail the application of the Charter, and does not invoke the notwithstanding clause.

Two other major contemporary treaties under international law whose purpose is to affirm fundamental human rights also contain notwithstanding clauses: article 27 of the American Convention of Human Rights, which applies to most countries in the Americas; and article 15 of the European Convention of Human Rights. These are regional legal instruments which are not applicable in Canada, but are relevant for comparative purposes.

Article 27 of the American Convention is titled “Suspension of Guarantees.” Its first paragraph reads as follows:

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

Article 27 is similar in this regard to article 4 of the International Covenant and to article 15 of the European Convention. Section 33 of the Canadian Charter is more permissive and falls short of international standards. It is not limited to times of war, public danger or other emergency that threatens the independence or security of Canada or one of its provinces. Indeed, unlike section 1 of the Charter, which provides for “reasonable limits” on rights and freedoms, it does not require the government to justify infringements at all. Once section 33 has been invoked – at least on current doctrine – the courts have no further business inquiring into why.

It also falls short in another sense. It states that a notwithstanding clause can be included in legislation exempting sections 2 and 7 to 15 of the Charter from judicial review. Such a provision cannot apply to section 23, which guarantees official minority language of education rights, nor to aboriginal rights preserved by section 35 of the Constitution Act, 1982 (the Charter stops at section 34). The problem here is that sections 2 and 7 to 15 cover the most basic and universal individual rights and that international treaties forbid any derogation or notwithstanding clause in many of these cases.

In Canada, official minority language of education rights are better protected legally than fundamental freedoms. This is rarely seen elsewhere and reveals a curious hierarchy of rights that ought to raise questions of principle.

Section 2, which provides both for “freedom of conscience and religion” (s. 2(a)) and “freedom of expression” (s. 2(b)) is a universal right, but it is not universally understood the same way. Quebec’s use of the notwithstanding clause in Law 21 on secularism is designed to prevent the application of section 2(a) as interpreted by the Supreme Court. This would be impossible under the American Convention which governs the Organization of American States, to which Canada is not a party, because paragraph 2 of article 27 quoted above exempts the guarantee of freedom of conscience and religion from the possibility of derogation. Similarly, the International Covenant does not allow derogations to its article 18, which also guarantees freedom of religion and conscience.

These treaties allow for reasonable limitations to guaranteed rights, which are also permitted under section 1 of the Charter. Limitation clauses are quite different from notwithstanding clauses because the reasonable character of such limits is debated before the court. Notwithstanding clauses preclude the possibility of judicial scrutiny altogether. Limitation clauses in a constitution are so logically necessary that, in cases such as the U.S. Bill of Rights where they do not exist, courts are forced to invent them jurisprudentially.

Similarly, the Supreme Court of Canada added a jurisprudential limitation clause to the interpretation of aboriginal rights guaranteed by section 35 of the Constitution Act, 1982, to which the limitation clause of section 1 of the Charter does not apply. Courts never invent notwithstanding clauses because by doing so they would deprive themselves of jurisdiction. Limitation clauses are an aspect of judicial scrutiny while notwithstanding clauses are its antithesis.

The international treaties mentioned contain derogation or notwithstanding clauses that are clearly not limitation clauses. They, along with the Canadian and Quebec charters, were all adopted in the wake of the Universal Declaration of Human Rights, enshrined by the newly minted United Nations in 1948 to reaffirm the dignity of human beings after the horrors of World War II. The Universal Declaration does not contain a notwithstanding clause. However, it does limit the definition of some fundamental rights, as in article 14:

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Such restrictive definitions, which can also be made by the courts, can have the effect of a notwithstanding clause. On the other hand, courts, including the Supreme Court of Canada, have also often expanded the generally understood definitions of fundamental rights. Such unexpectedly expanded interpretations may trigger the use of the notwithstanding clause by politicians uncomfortable with them, which is the democratic justification for section 33 in Canada.

For example, the Supreme Court of Canada, following the U.S. Supreme Court, greatly expanded its definition of the constitutionally protected expression in section 2 of the Charter to cover commercial speech in advertising by business entities a few years after the adoption of the Charter. Simultaneously, it gave corporations, as well as labour unions and nonprofit organizations, the right to the protection of the Charter, which was also unknown in Canadian law in 1982. These actions triggered Quebec’s use of the notwithstanding clause to protect its language legislation.⁵

The notwithstanding clause in Canada

The progressive Saskatchewan government led by Tommy Douglas did not wait for the UN’s Universal Declaration of 1948. It adopted the Saskatchewan Bill of Rights a year earlier. This was the first human rights legislation enacted in the Commonwealth since the English Parliament’s original Bill of Rights in 1689. It was also the forerunner of modern human rights legislation in Canada.

The Saskatchewan Bill of Rights continues to be in force, through incorporation into the Saskatchewan Human Rights Code, the provincial statute protecting human rights since 2018. The 1947 Bill of Rights did not have a notwithstanding clause. The Human Rights Code does, in section 52, and it is even more sweeping than section 33 of the Charter since it may apply to all guaranteed rights without exception and without any time limit. The same is true of the Ontario Human Rights Code, enacted in 1962, in section 47, and Quebec’s Charte des droits et libertés de la personne, adopted in 1975, in section 52.

Canadian law is riddled with notwithstanding clauses. At the federal level, the Canadian Bill of Rights, which applies only to federal legislation and was adopted by Parliament under the Diefenbaker government in 1960, is no different. It contains a notwithstanding clause in section 2 which is as wide-ranging as the provincial clauses. Indeed, section 33 of the Charter may be seen as progress when compared to these earlier efforts because it is limited to a five-year period unless renewed and because it can only impair a restricted number of rights in the Charter, although these are the most fundamental.

The single use of the notwithstanding clause in the Canadian Bill of Rights came in the War Measures Act, which was invoked in the October Crisis of 1970. This act had been adopted in 1914 and was in effect in both world wars. It was used in peacetime in 1970 because of an apprehended insurrection in Quebec. This measure, which suspended habeas corpus for all the citizens of Canada, is now generally seen as excessive. The most notorious user of the notwithstanding clause was Pierre Elliott Trudeau.

In 1960 the Bill of Rights had amended the War Measures Act to insert a pre-emptive notwithstanding clause in it. This version was the most far-ranging notwithstanding clause in Canadian history since it sought to shield not only the War Measures Act itself from scrutiny, but also all police or military action which derived from it. Section 33 of the Charter does not go that far, since it only protects legislation, which includes regulations, but cannot be used to prevent people from getting remedies against executive action that is otherwise incompatible with the Charter.

It has been commonplace since the adoption of the Charter for abusive police measures to be struck down by the courts even if the sections of the Criminal Code that authorize them are unchallenged. It may therefore be asserted, although it has not yet been decided, that administrative or state action that is not compatible with the Charter cannot be protected by a notwithstanding clause even though its authorizing legislation is.

The judicial scrutiny of laws or regulations is clearly distinct from judicial control of administrative action, such as inspections by Quebec’s Office de la Langue Française under Law 96, adopted in 2022. Law 96, which substantially amended Law 101, the Charter of the French Language adopted in 1977, is at the time of writing before the Superior Court. If this view is correct, specific inspections by the Office de la Langue Française could be successfully challenged under the Charter even if the notwithstanding clause protecting Law 96 turns out to be valid.

Human rights and constitutional democracies

Seven English Canadian premiers agreed to the Charter of Rights and Freedoms in 1981 only because the notwithstanding clause was included. That package became known in English Canada as the Kitchen Accord, and in Quebec, which was excluded from the accord, as the Night of the Long Knives. Widely different perspectives on a foundational constitutional moment were apparent at the outset. More than 40 years later, this polarization has not been resolved. It has crystallized around the use of the notwithstanding clause.

It was clear at the time that what became section 33 of the Charter was a key element of the accord which allowed the federal government to obtain substantial support of the provinces, which had been required by the Supreme Court in the Patriation Reference that came down shortly before the final negotiations.⁶

Trudeau Senior briefly defended the notwithstanding clause he agreed to include in the constitutional reform package negotiated in November 1981 – which became the Constitution Act, 1982 – since his use of the notwithstanding clause in 1970 had not been controversial.

Trudeau changed his position when a few months after the Constitution Act, 1982, was signed by Queen Elizabeth on April 17, René Lévesque’s National Assembly inserted a notwithstanding clause into each of Quebec’s hundreds of laws as a form of political protest. The Supreme Court validated Lévesque’s use of section 33 almost unconditionally in the Ford case in 1988, which holds as the applicable precedent to this day. It refused, however, to allow Lévesque to make the notwithstanding clause retroactive to April 17, 1982, and it declared the section of Quebec’s Charter of the French Language which had been challenged in that case invalid under the Quebec Charter because Lévesque had not used Quebec’s own notwithstanding clause in that charter, section 52.

By this time Quebec had a Liberal government led by Robert Bourassa, who had let Lévesque’s numerous notwithstanding clauses lapse. Bourassa nevertheless added one to Law 101 after the Ford decision as a short-term stopgap measure on the issue of the language of commercial signs. This infuriated English Canada and significantly contributed to the demise of the Meech Lake Accord, which Trudeau Senior actively opposed. From that point, the distinct society and notwithstanding clauses became intertwined. Quebec was denounced in English Canada as a society where distinct meant illiberal.

Interestingly, the notwithstanding clause is one of the few longstanding disagreements between Trudeau Senior and his trusted lieutenant Jean Chrétien, who in 1981 was the Justice Minister who negotiated with the provinces on his behalf. Chrétien has always defended the notwithstanding clause. According to him, in 1992 Trudeau blamed him for the notwithstanding clause, saying, “You gave them that.” Chrétien replied, “Sorry, Pierre. I recommended it. You gave it.”⁷

This disagreement reflects the difference between political and legalistic notions of constitutional democracy. In the United Kingdom, the struggle against royal power was ultimately understood in terms of parliamentary supremacy: the elected House of Commons, not the King’s judges, were thought to be the best guarantors of liberty.

By contrast, the American Constitution of 1787 placed the judicial branch in a coequal relationship with the executive and legislative branches. The Bill of Rights that was added to it a couple of years later was designed to restrain both. The American Founders, influenced by political philosophers of the French Enlightenment, rejected British-style parliamentary supremacy.

In 1803 the U.S. Supreme Court, in the celebrated case of Marbury v. Madison, decided that this structure of the Constitution gave the court the implicit power of judicial review that could lead it to declare federal laws that were incompatible with the Bill of Rights or other parts of the Constitution null and void. Marbury is regarded as the single most important decision in American constitutional law. It established that the U.S. Constitution is actual law, not just a statement of political principles and ideals, unlike the contemporaneous French Declaration of the Rights of Man. This was accepted by the political class. French courts did not reach that point until the latter half of the 20th century.

A few years after Marbury, the British Parliament created the Judicial Committee of the Privy Council to serve as the highest court of the Empire. The Judicial Committee followed the lead of the U.S. Supreme Court and assumed as a matter of course that it could strike down colonial legislation incompatible with British laws – something the House of Lords, the highest court in the British Isles, could not do for lack of a written constitution in the United Kingdom. Since Canada’s founding constitution, the British North America Act, was an imperial statute, federal or provincial laws thought to be “repugnant” to it could be struck down. The tradition of constitutional judicial control over both the executive and legislative branches was therefore long set in Canada before the adoption of the Charter of Rights, which greatly reinforced it by giving courts the ability to strike down laws based on substantive values, not merely which level of government had jurisdiction to enact them.

The insistence by most premiers from English Canada that a notwithstanding clause be included in the Charter of Rights was therefore a throwback to the British legacy of parliamentary supremacy. The premiers opposed the massive transfer of power to the judicial branch which had taken place in the United States almost two centuries earlier. This transfer of power had also partly taken place in Canada since 1867 because the Judicial Committee played a great and often critical role in shaping the distribution of powers in Canadian federalism, often to the advantage of the provinces.

It was clear from the American example that a Charter of Rights would greatly increase judicial power. The notwithstanding clause was the last hurrah of the British system in which bills of rights were seen as counterweights solely to the executive branch. A Charter of Rights that would replace the supremacy of Parliament with the supremacy of the constitution brought in a considerably different constitution that relies more than ever on an independent and legitimate judiciary. Would-be authoritarian governments that seek to weaken the rule of law in a democracy attack the independence of the judiciary by changing the process for naming judges (Poland and Hungary), attempt to limit the jurisdiction of the courts (India), or try to enact unlimited notwithstanding clauses that would apply to the entire constitution (Israel).

Canada is heir to the most significant developments in the history of constitutional democracy in the Western world. The issue here has been complicated by Quebec’s efforts at self-determination. Quebec now sees itself as a distinct nation rather than a mere distinct society. This has legal consequences, because a distinct society is not a concept known to the law while peoples and nations have the right of self-determination. Law 99, which proclaimed Quebec’s right of self-determination, was declared valid in its entirety by the Quebec Court of Appeal in 2021.⁸ Quebec now in effect equates the notwithstanding clause with internal self-determination.

This is really a battle of two nationalisms in legal clothing. One of the most potent tools of Canadian nationalism is to deny its own existence and to claim that Canada has moved beyond such a primitive state of political consciousness while Quebec has not. This is a favoured ideological position of the Trudeau political dynasty. From Quebec’s perspective, it is a Canadian Big Lie, and the Canadian Charter, as interpreted by the Supreme Court, is often seen as the product of an alien form of nationalism. Another Big Lie in Quebec’s view is that Quebec can join Canada’s so-called postnationalist project without renouncing its own national identity.

This very basic misunderstanding is so deep outside Quebec that even moderate forms of Quebec nationalism open to multiracial diversity are frequently distorted. Quebec’s basic laws on language and secularism are routinely condemned in the House of Commons or in national political debate as being tinged with racism.

One particularly silly statement came from Prime Minister Justin Trudeau in response to Law 21 on secularism when he said that Canadian law does not tell women how to dress, when in fact it does in very many ways from construction wear to army uniforms. Such statements are often seen in Quebec as expressions of a deluded form of nationalism that the notwithstanding clause, provided by some sort of poetic justice, can brush aside. Freedom of religion of teachers is ranked lower than freedom of conscience of children in Quebec, and that is a justifiable and ethical position to take in a modern liberal society, whatever pious Canadian wokism says. Frequent accusations of racism and intolerance are widely seen as a form of intellectual mediocrity that disqualifies those who make them from Quebec political discourse because they are perceived to be reflections of Canadian irrationality.

Ultimately, the notwithstanding clause is a safety valve for Canadian unity. Efforts to shut it down or to make it more difficult to use only reinforce the argument that Canada is intolerant of its own diversity in its wilful lack of understanding of the unique situation of Quebec.⁹

Notes

¹ The Constitution Act, 1982 is one of Canada’s two major constitutional documents, along with the Constitution Act, 1867, originally called the British North America Act. Its major components are the Charter of Rights and Freedoms which includes the notwithstanding clause, the affirmation of aboriginal and treaty rights under s. 35 and a constitutional amending formula. It was enacted by the Parliament of the United Kingdom at the request of the federal Parliament as a key project of then–Prime Minister Pierre Elliott Trudeau, with the support of the nine English Canadian provinces after a deal in November 1981. That deal did not include the government of Quebec under the leadership of René Lévesque, who was excluded from the deal, and both major parties in the Quebec National Assembly at the time expressed their opposition to a new constitutional document going forward without the consent of Quebec.

The Progressive Conservative federal government of Brian Mulroney attempted to obtain Quebec’s consent through what became known as the Meech Lake Accord, which recognized Quebec as a “distinct society.” Despite having the agreement of all the first ministers, the Meech Lake Accord was controversial in English Canada and was ultimately not ratified by the legislatures of Manitoba and Newfoundland.

Another attempt at constitutional reform, the Charlottetown Accord, was defeated in an October 1992 referendum. Three years later, on October 30, 1995, the Yes option for what was widely seen as the independence of Quebec was narrowly defeated by a margin of only 54,288 votes out of a total of 4,757,509 cast. In the intervening generation, there has been no further attempt at comprehensive constitutional reform.

² (1988) 1 S.C.R. 712.

³ 2014 SCC 21.

⁴ At paragraph 49. The reference is to section 6 of the Supreme Court Act, R.S.C. 1985, c. S-26, which is entrenched in the constitution, which means that, although it is federal legislation, it can only be modified by following the constitutional amendment procedure. The quote is from Peter H. Russell, The Supreme Court of Canada as a Bilingual and Bicultural Institution (Ottawa: Royal Commission on Bilingualism and Biculturalism, 1969), p. 8.

⁵ These major changes in the interpretation of freedom of expression in Canada were partly made in the Ford case, cited above, in 1988. I analyzed this case in greater detail in the special issue of the Revue du Barreau du Québec devoted to the 20th anniversary of the Charter: ‘’Le pouvoir dérogatoire de l’article 33 de la Charte canadienne et la structure de la Constitution,’, March 2003, pp. 107–149. I also wrote about commercial expression in ‘’La liberté d’expression commerciale,’, Les Cahiers de droit, Vol. 28, No 2 (1987).

⁶ Re Resolution to amend the Constitution, (1981) 1 S.C.R. 753.

⁷ Jean Chrétien, My Years as Prime Minister (Toronto: Vintage Canada, 2008), p. 392.

⁸ Law 99 was enacted in 2000 as a response to the federal Clarity Act, S.C. 2000, c. 26, which had itself been adopted in the wake of the Supreme Court decision in the Quebec Secession Reference, (1998) 2 SCR 217. It can be argued reasonably that Law 99 better reflects the decision of the Supreme Court. Its full title is An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, RLRQ, c. E-20.1.

⁹ I personally encountered Canadian legal intolerance in my very first case before the courts in 1982 while articling at the constitutional law division of the Ministère de la Justice du Québec. The judge in that case, who was the Chief Justice of the Superior Court, stated that Law 101’s trampling of individual rights was like the steamrolling of the Soviet kolkhoz system that cost millions of lives in the Holodomor. Ten years later, this former Chief Justice called me personally to state that his views had changed after a stint at the UN Subcommittee on the Rights of Minorities. I tell this story in L’identité des juges. Canadian legal and political hyperbole is highly counterproductive.