Section 33 of the Canadian Charter of Rights and Freedoms
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (French: clause dérogatoire, clause nonobstant, or, as prescribed by the Quebec Board of the French Language, disposition de dérogation[1]). Sometimes referred to as the override power, it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter.[2]
Comparison with other human rights instruments[edit]
Constitutional scholar Peter Hogg has remarked that the notwithstanding clause "seems to be a uniquely Canadian invention".[11] The United States Constitution gives no such powers to the states (see: nullification), but Article III, sect. 2 does authorize the Congress to remove jurisdiction from the federal courts. Not since World War II has Congress mustered the requisite majority.[12]
However, the concept of the notwithstanding clause was not created with the Charter. The presence of the clause makes the Charter similar to the Canadian Bill of Rights (1960), which, under section 2, states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". A primary difference is that the Bill of Rights' notwithstanding clause could be used to invalidate "any" right, not just specified clauses as with the Charter. The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain devices like the notwithstanding clause.[11]
Outside Canada, Israel added a device similar to the notwithstanding clause to one of its Basic Laws in 1992. However, this power could be used only in respect of the freedom of occupation.[11]
In Victoria, Australia, section 31 of the Victorian Charter of Human Rights and Responsibilities fulfils a similar purpose.[13][14]
The uncodified constitution of the United Kingdom has an implicit equivalent of a notwithstanding clause: following the doctrine of parliamentary sovereignty, the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret. This does not apply to secondary legislation or devolved legislation, which may be ultra vires if incompatible.