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The ‘Notwithstanding Clause: History, Function, Implementation, Disuse and Future
Professor: Dr. Kate Puddister
Name: Jack Walsh
Student Number: 0784552
Date: Monday, November 30, 2015
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The constitutional clause inscribed in section 33 of the Canadian Charter of Rights and
Freedoms, has been infamously controversial since its conception in November 1982. Whether
referred to as the ‘Notwithstanding clause’, the ‘override’ clause or “la clause dérogatoire" (in
French) (Foot, 2013), much discourse on the subject of the provision and its many implications,
has been put forth by scholars and politicians alike. Politicians from different party platforms,
including the previous Prime Minister of Canada Steven Harper, have refuted the merit of this
clause and have refused to implement it even though it could have brought about a great benefit
to their respective legislative objectives at the time (Russel, 2015). Similarly, a former Prime
Minster, Brian Mulroney has gone so far as to have… “declare[d]… that so long as… [the
Charter of Rights] contained the 'Notwithstanding clause',…[the Charter] ‘was not worth the
paper it…[was] written on’” (Russel, 2015). In fact, “Brian Mulroney, Jean Chrétien, Paul
Martin, and Stephen Harper have all had encounters with s.33, and all of them ultimately rejected
its usage, either out of principle or political pragmatism”(McAdam 2009, p.2). Although
politicians have voiced concern and vowed not to utilize the clause while in government,
academics have continued to study the phenomena behind the infrequency of s.33’s
In this explicative essay, I will first give an account of the textual content of the provision
of the Canadian Charter of Rights and Freedoms known as the ‘Notwithstanding' clause (s. 33).
Following which, I aim to analyze the context in which the clause came about, the theoretical
framework of its intended function and the historical use of set provision (s.33). From which, a
summarization of literature, in combination with the before mentioned findings, will be deduced
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and applied in an attempt to construe a viable explanation for the disuse of the clause nowadays.
In end, the above mentioned arguments will be observed in order to suggest propositions for the
future of the clause.
The Canadian Charter of Rights and Freedoms is embodied in ss. 1-34 of the
Constitution Act, 1982, Schedule B of the Canada Act 1982, 1982, c. 11 (U.K.) (Slattery 1983, p.
391) and plays an integral part in outlining enshrined rights for all Canadians (bill of rights).
However, Section. 33 of the Canadian Charter of Rights and Freedoms which has come to be
known as the ‘'Notwithstanding clause'’ stipulates:
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.
Marginal note:Operation of exception
(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.
Marginal note:Five year limitation
(3) A declaration made under subsection (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
Marginal note:Five year limitation
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).