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Notwithstanding clause

The "override power" or "notwithstanding clause" is the name of the legislative power under section 33 of the Canadian Charter of Rights and Freedoms in the Constitution of Canada.

The federal Parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" certain sections of the Charter. Essentially, using it to negate any federal/provincial or judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden.

Such a declaration lapses after five years or a lesser time specified in the clause, although it may be re-enacted indefinitely. The rationale behind having a five-year expiry date is that it is also the maximum amount of time that the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate. Although, if fundamental rights—such as freedom of conscience and freedom of religion; freedom of thought, belief, opinion and freedom of expression, including freedom of the press (which includes other media of communication); freedom of peaceful assembly; and freedom of association—can be overridden, then this begs the question of whether or not the people do have the right to do so. However scholars of British constitutional law, upon which much Canadian constitutional jurisprudence is based, stress that if the fundamental jus commune or law of the land was to be overridden in such a cavalier way by a Parliament exercising such arbitrary parliamentary supremacy the people would have the ability to revolt against their government much as the rebels revolted against the Crown in the thirteen colonies. This is the kind of thinking used in the reasoning of jurists who developed the theory of the Implied Bill of Rights before the adoption of the Charter of Rights and Freedoms.

The inclusion of the clause was a compromise reached during the debate over the new constitution in the early 1980s. Prime Minister Trudeau was originally strongly opposed to including the clause, but eventually agreed under pressure from the provincial premiers.

The use of this override clause is most noted for its inclusion in the Quebec language law known as Bill 101 after sections of those laws were found unconstitutional by the Supreme Court of Canada in Ford v. Quebec (A.G.). On December 21, 1989 the Premier of the Province of Quebec employed the "notwithstanding clause" to override freedom of expression (section 2b), and freedom of equality (section 15). This allowed the Province of Quebec to continue the restriction against the posting of any commercial signs in languages other than French. In 1993, after the law was criticized by the UN, the Bourassa government rewrote the law and the notwithstanding clause was removed.

The only other use of the notwithstanding clause to date was with respect to a labour law passed by the province of Saskatchewan. In this case the law was later ruled to be consistent with the Charter of Rights and Freedoms, making the use of the clause unnecessary.

Ralph Klein, Premier of the province of Alberta has declared that he will use the notwithstanding clause to prevent any Supreme Court of Canada order that allows same-sex marriage. However, this may be mere political posturing. The issues placed before the Supreme Court by the Chrétien government are whether a proposed change in the definition of marriage is legal under the Charter and to confirm that the federal government has the exclusive power to define what marriage means in Canada. Its difficult to image how the notwithstanding clause could be used in this case.

Currently there are no laws in Canada that have been issued using the notwithstanding clause. The use of this clause has come to be seen as an increasingly dangerous political option for governments as the Charter gains more respect with age. Although the Charter was originally greeted with great indifference, the Canadian electorate adopted it as it own once it saw the Charter in action. Polls of the electorate tend to promise a painful political death to politicians or even complete political parties that mess with their Charter. Nevertheless, threats to invoke the notwithstanding clause are common as they are seen as a symbol of protecting local cultural values against the dominance of Ottawa and Central Canada.

Some legal scholars have argued the clause may even become a lapsed power if not used, and will be excluded from use by the large part of Canada's constitution which is unwritten.

Noted right-wing jurist and nominee to the United States Supreme Court, Robert Bork, has advocated for the adoption of a similar clause in the Constitution of the United States.

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