Section 33 allows Parliament or provincial legislatures to enact laws notwithstanding some of the rights provisions of the Charter. These include fundamental freedoms: of conscience, belief and expression; of the press; of peaceful assembly and association such as the right to strike. .
“The clause was designed to be invoked by legislatures in exceptional situations, and only as a last resort after careful consideration. It was not designed to be used by governments as a convenience or as a means to circumvent proper process.”—Roy Romanow and Roy McMurtry Attorneys General Saskatchewan and Ontario, 1981
The “clause” in question is the “notwithstanding clause,” also known as Section 33 of Canada’s Charter of Rights and Freedoms. Over the past few years, premiers have come to see it as a handy tool to avoid court challenges over questionable or controversial legislation. The practice is making a joke of democracy, and the problem is getting worse.
What the notwithstanding clause does
Section 33 allows Parliament or provincial legislatures to enact laws notwithstanding some of the rights provisions of the Charter. These include fundamental freedoms: of conscience, belief and expression; of the press; of peaceful assembly and association such as the right to strike (Charter, Section 2).
Using Section 33 in relation to a particular law, governments may bypass basic rights like that of life, liberty and security of the person, protection from unreasonable search and seizure, arbitrary arrest and detention and right to trial within a reasonable time. This applies also to protections from cruel and unusual punishment and self-incrimination. Section 33 allows governments to suspend Charter principles of equality before the law (Charter, Sections 7 through 15). Governments have used it to pass laws they fear might not meet the constitutional smell test of Canada’s court system.
Section 33 stays in effect for five years, but may be renewed indefinitely. With respect to a certain piece of legislation it can render key rights in the Charter meaningless.
Section 33: A pistol on the wall
Peter Biro is a lawyer and founder of Section 1, an organization formed to stave off democratic backsliding. In conversation, he explained the dramatic principle of Chekhov’s pistol. The writer once noted: “If in Act 1 you have a pistol hanging on the wall, then it must fire in the last act. Otherwise, don’t put it there.”1 Biro likens this to psychology of the political theatre: if a tool is available it’s going to be used.
That pistol was hung on the wall in November 1981 when the Liberal government of Pierre Trudeau was searching for a way to get provincial buy-in for the proposed Charter. Premiers wanted a balance between Charter rights and provincial power in areas like those prescribed in Sections 2 and 7 through 15. Section 33, the “notwithstanding clause”, was a compromise between the federal and provincial governments to insure the Charter came into being.2 At the time, Biro explained, the Charter’s framers thought it would be used rarely—only as a last resort.
But some politicians found Section 33 just too tempting. It has been invoked over two dozen times since its inception, and while nearly half of these instances were in the 80s as part of Quebec’s protest against the constitution, there has been a significant uptick in governments using Section 33 as a relatively recent and worsening phenomenon to justify the violation of rights.
It has been used over the years to enable:
• Quebec to limit the use of English in outdoor signs to that of half the size of French (Bill 178, 1988)
• Saskatchewan to enact back-to-work legislation (Bill 144, 1986 p52) and overrule a court decision to cut funding for non-Catholic students attending Catholic schools (2017)
• Alberta to declare that marriage was legitimate only between two people of the opposite sex (Bill 202, 2000). Section 33 lapsed in 2005 and wasn’t restored
• New Brunswick to override non-medical exemptions to its vaccination rules (2019)
• Quebec to ban public sector workers like educators, lawyers and peace officers from wearing religious garb—“clothing, a symbol, jewelry, an adornment, an accessory or headwear…” (Bill 21, 2019). In 2025, the Coalition Avenir Québec (CAQ) government introduced Bill 9 to extend these secularism rules to ban praying in public parks and streets without a permit and serving so-called religious food without a secular option. Section 33 was applied pre-emptively to shield the bill from legal challenge.
• The Ford government of Ontario to set time limits for third party political advertising (Bill 307, 2021). Bill 307 was overturned by the Ontario Court of Appeal, a decision upheld by the Supreme Court in March 2023. That decision was based on Canadians’ constitutional right to vote, something not covered by Section 33.
• Québec to investigate alleged breaches of its language laws regarding the amount of French used by the public and businesses—notwithstanding protections from arbitrary search and seizure held within the Charter (Bill 96, 2022)
• Ontario to pass back-to-work legislation against low-paid education workers (Bill 28, 2022)
• Saskatchewan to require schools to obtain parental permission for students to use their preferred names or gender identity. Saskatchewan also allowed parents to opt their children out of sexual health education. (Bill 174, 2023)
• Alberta to protect four pieces of legislation: one that broke a strike and three that interfered with the rights of trans youth.
Where are the righteous causes, imperative to preserve fragile provincial rights described in the above examples? The Ford government was facing an election and was worried about the amount of money public groups could raise to oppose them. Saskatchewan, Ontario and Alberta used Section 33 to avoid the hassle of defending union-busting in the courts.
Whatever Québec lawmakers might say about diversity and respect, it’s meaningless in light of its authoritarian moves to preserve “laicity of the state.” How does the CAQ credibly justify any of its protected legislation designed to shelter independent-minded people from predations like praying in public, eating religious food or wearing religious symbols. Labour lawyer, Susan Ursel calls this secular posturing “hypocritical.” The state-as-religion is invoked in the place of what practices people choose to observe. She adds that using Section 33 to pull this off, undermines the political structure, social norms and consensus of what we value in this society.
What about Alberta’s justification for shutting down challenges to its laws concerning gender? Where is the evidence to support this intrusion into doctor-patient relationships? What overwhelming social need justifies restricting kids from choosing their names and pronouns? From excluding Trans women from playing in women’s sport? Questions like these are swept off the table with Section 33.
Section 33 enables governments to keep ill-conceived and malicious laws in place while muffling courts’ fundamental democratic role of challenging them. Its use is becoming a fact of life rather than cause for outcry. Peter Biro calls this habituation—one of several major threats to democracy he outlined in a recent Massey Lecture. Autocracy doesn’t only march in a column of ICE agents; it enters politics gradually, tolerated as people become used to suppression of liberal democratic norms and lower their standards for what is permissible.
Alberta: A closer look—four bills in a month
At the end of October, Smith’s United Conservative Party (UCP) broke a 3-week strike of 51,000 teachers by applying Section 33 pre-emptively to back-to-work-legislation. So, in case the legislation was challenged in court, Section 33 would kick-in automatically and override it. Alberta teachers were forced back to work notwithstanding Charter protections over all of the sections noted above as well as . The UCP also ignored the Alberta Bill of Rights.
It was clear from the outset of the strike that the UCP was not in the mood to negotiate a settlement with teachers. It responded to teachers’ demands, by immediately locking them out. After breaking their strike, it imposed a contract.
Smith and the UCP used the same tactic last in November 2025 to make sure that previous assaults on transgender rights wouldn’t be jeopardized by appeals to the Charter. The provincial government It applied Section 33 to two pieces of legislation passed in 2024: Bill 26 banning the use of puberty blockers and reassignment surgery for trans youth, Bill 27 mandating permission from parents for kids under 16 to use their preferred name or pronoun in school; students over 16 would have to inform their parents. These two laws face court challenges: Bill 26 for interfering in doctor-patient relations and Bill 27 for its “unconstitutional attack on the rights of gender diverse youth in Alberta.” More recently, Bill 29, prohibits athletes not designated female at birth from participating in women’s sports. Danielle Smith said in a recent press conference that it was necessary to use Section 33 to avoid years of litigation—possibly to the Supreme Court.
These four pieces of legislation deserve the scrutiny of court challenges. But like other provincial legislatures, Alberta chose to avoid the inconvenience.
Regarding the back-to-work legislation, the Canadian Bar Association responded: “The government has invoked the notwithstanding clause before the Court has had an opportunity to examine the law and determine whether it constitutes a reasonable limit (to the Charter)…If the notwithstanding clause is to be invoked, it should only be used as a tool of last resort, after the Courts have had a chance to examine the legislation.”
Section 33 was not a tool of last resort. The legislation was embargoed so the press couldn’t release it to the public. The bill was a done deal.
Pushing back against Section 33
It’s going to take a huge public outcry to preserve the rights and freedoms enshrined in the Charter. When Ontario used Section 33 to suspend the right to strike for low-paid education workers in 2022, it sparked a furor. CUPE members went on strike anyway, supported by the labour movement threatening a general strike. The Ford government beat a rapid retreat and repealed the offending Bill 28.
There are other options. Section 33 has no effect until a court rules that a law breaches certain Charter rights. Yet a law that might trip a Section 33 remains in force until it’s challenged—even if it violates the Charter. So, challenging the offending law illuminates the violation of Charter rights. That’s what happened when the 2SLGBTQ+ rights group UR Pride contested Saskatchewan’s 2023 policy requiring teachers to refer to students under age 16 by their birth names and pronouns. UR Pride argued this constituted a breach of the Charter’s security of the person and equality provisions.
The Saskatchewan Court of King’s Bench paused the policy, so the governing Saskatchewan Party promptly turned it into law and protected it with a pre-emptive application of Section 33. UR Pride came back with the argument that the law violated the Charter right to be free from cruel and unusual treatment. Even though this wouldn’t stop the law from being enacted, UR Pride did get the Court to declare that it violated these students’ Charter rights. Saskatchewan challenged that declaration, raised it to the Saskatchewan Court of Appeal and lost. Unwilling to let go of Chekhov’s pistol, Saskatchewan has appealed to the Supreme Court of Canada.
The result? Saskatchewan has shone a bright light on its policy that harms vulnerable young people. Perhaps this case, while unfortunately not prompting the demise of Section 33, might help to stiffen the spines of those in a position to limit it. Some options:
• Introducing term limits to the application of Section 33 to laws so that it can’t be used over and over to deny people Charter rights
• Declining to use Section 33 pre-emptively—at least waiting for courts to rule against a law that may violate people’s rights.
• Limiting the Charter rights that may be violated by Section 33. Shield freedom of the press, belief, speech and association (Section 2), Life, liberty and security of the person protections (section 7), the prohibition of cruel and unusual treatment or punishment (section 12) and equality rights in (section 15).
Actions like these might impede the erosion of liberal democracy in Canada, but they won’t happen without serious pressure on provincial governments that reach for autocracy to replace the inconvenience of governing with respect for people.
Este artículo fue publicado originalmente en Policy Alternatives bajo una licencia Creative Commons
