Explainer: Canada’s Notwithstanding Clause

What Is the Notwithstanding Clause?

The notwithstanding clause, formally known as Section 33 of the Canadian Charter of Rights and Freedoms, gives federal or provincial legislatures the power to temporarily override certain Charter rights. It applies specifically to fundamental freedoms, legal rights, and equality rights. When invoked, a law can operate “notwithstanding” those Charter protections for up to five years, after which the government must renew it if they want it to continue.

Why Was It Created?

The clause was added to the 1982 Constitution as part of a compromise to secure provincial agreement to the Charter. Its purpose is to maintain a balance between the judiciary and elected legislatures, ensuring courts do not have absolute final authority over all rights matters. In effect, it is a political safeguard that allows legislatures to assert supremacy in rare, exceptional cases where they believe public policy outweighs certain individual rights.

Why Does It Matter?

The notwithstanding clause reflects a uniquely Canadian approach to constitutional democracy. It acknowledges entrenched rights but also preserves the sovereignty of elected legislatures. While intended to be used sparingly, the clause remains a highly controversial tool because it raises important questions about:

• the limits of rights under the Charter,
• the role of the judiciary in interpreting laws,
• and the accountability of governments that choose to override rights.

How Often Has It Been Used?

Although Section 33 has been part of the Constitution since 1982, it has been rarely invoked. When governments consider using it—often in high-profile or divisive cases—the decision sparks national debate about the balance between protecting rights and respecting legislative authority. Its very existence continues to shape Canada’s political and constitutional landscape.

The Debate Continues

For some, the clause is a necessary democratic safety valve. For others, it risks undermining the integrity of Charter rights by allowing governments to bypass protections too easily. As Canadian politics evolve, the notwithstanding clause remains one of the most contested features of the country’s constitutional framework.