Why a Notwithstanding Clause?
Shortly after our government was sworn into office in September, 1971, I asked the new Attorney General, Merv Leitch, to prepare an Alberta Bill of Rights. This would be the first item of legislation to be introduced at the first session of the new Legislature in the spring of 1972.
Some weeks later Mr. Leitch asked to see me to discuss an important matter. He came to my office and described his progress in preparing Bill 1, the Alberta Bill of Rights. Merv said to me, "Premier, we will have to provide in this Bill for a notwithstanding clause!" I responded, "What the hell is a notwithstanding clause?"
Merv patiently explained to me that we needed to include a clause which allowed, if public policy dictated, for other Alberta laws to operate notwithstanding the Alberta Bill of Rights. He explained that this was required in the event that either the government wished to propose legislation contrary or at odds with the rights or freedoms contained in the Alberta Bill of Rights or a court ruled that a particular piece of Alberta legislation was invalid because it purported to authorize the abrogation or infringement of any of the rights or freedoms recognized and declared in the Alberta Bill of Rights. Thus came section 2 of the Alberta Bill of Rights.
Nine years later in Ottawa, in September 1980, at an open, televised First Ministers' Conference on the Constitution, Prime Minister Trudeau espoused the desirability of patriating the Canadian Constitution with a Charter of Rights and Freedoms. The Premiers of Saskatchewan and Manitoba, Allan Blakeney and Sterling Lyon, argued just as eloquently that such a Charter was not needed in Canada but that, in any event, the supremacy of Parliament should prevail over the appointed judiciary. I supported them on behalf of Albertans.
It was at this point that Merv Leitch engaged me in a private side discussion and suggested that I intervene by proposing a "notwithstanding clause" along the lines of section 2 of the Alberta Bill of Rights. I did so. My impression was that many around the table were not in any different a position than myself nine years earlier and were not knowledgeable about the concept. They did, though, couch their responses in more diplomatic language than I had done. In fact, a few said to me later that they had never heard of such a concept, although it had existed in obscurity in Mr. Diefenbaker's Bill of Rights for many years.
The concept, sometimes known as non-obstante, became an integral part of the constitutional drama that unfolded during the balance of 1980 and through 1981.
The final "deal" (sadly absent of Quebec) on November 5, 1981 was, as is almost always the case, a trade-off. Essentially Mr. Trudeau got his Charter of Rights and the Western Premiers got both the Alberta Amending Formula and a notwithstanding clause.
The notwithstanding clause reflects a balance between two competing interpretations of our democratic system. Canada has an historic tradition of parliamentary supremacy. This is reflected in the preamble to the Constitution Act, 1867 which expresses the desire that the Dominion have a "constitution similar in principle to that of the United Kingdom."
Cover of a book by David G. Wood entitled The Lougheed Legacy, 1985 David G. Wood -- Toronto : Key Porter Books, 1985. -- v, 250 p.,  p. of plates : ill. ; 24 cm. -- ISBN 0919493483. -- Cover © Estate of David George Wood and the Progressive Conservative Party of Alberta. Reproduced with the permission of the Estate of David George Wood and the Progressive Conservative Party of Alberta.
Cover of a book by Peter Lougheed and René Lévesque entitled Le rapatriement de la Constitution : la correspondance de Lougheed et Lévesque, 1999 Source: Le rapatriement de la Constitution : la correspondance de Lougheed et Lévesque avec une introduction de J. Peter Meekison -- [Kingston, Ont.] : Institut des relations intergouvernementales, Université Queen's, c1999. -- vi, 43, 43, vi p. ; 23 cm. -- ISBN 0889118337. -- Couverture © Institute of Intergovernmental Relations, Queen's University. Reproduced with the permission of the Institute.
Prior to the Charter, the role of the courts was to give effect to the political choices made by the legislators. Subject only to issues relating to the division of powers, courts were bound by the idea that Parliament was supreme and the court's role of judicial review was limited. While the Charter raises to an unprecedented level the protection of rights and freedoms afforded to Canadians, it is acknowledged that democratic society sometimes requires the abrogation of these rights for important reasons.
Through the notwithstanding clause, Parliament or the legislature of a province may expressly declare that legislation passed by it shall operate notwithstanding the fundamental freedoms (of conscience and religion, thought and expression, assembly and association), legal rights or the equality rights guaranteed by the Charter. To invoke the notwithstanding clause, the legislature must make an express declaration that it is overriding a particular right or rights in the Charter.
There are limits to the use of the notwithstanding clause. Section 33 does not affect the guarantee of rights and freedoms in section 1, Democratic Rights (section 3-5), Mobility Rights (section 6), Official Languages of Canada (sections 16-22), and Minority Language Educational Rights (section 23).
As well, a declaration that legislation shall operate notwithstanding the Charter automatically ceases to have effect five years after its enactment. The declaration may be re-enacted, compelling the government invoking section 33 to review its use and subjecting the express infringement to renewed public scrutiny every five years.
In Canada, the debate regarding the notwithstanding clause continues. Is this provision a loophole that devalues and dilutes individual rights permitting abuses by legislators? Reference could be made to the Japanese internment during World War II, the head tax on Chinese immigrants during the early part of this century or the suspension of rights pursuant to the War Measures Act. Or, is section 33 an essential safety valve and check on the power of the judiciary in a system with a tradition of legislative supremacy?
The purpose of the override is to provide an opportunity for the responsible and accountable public discussion of rights issues, and this might be undermined if legislators are free to use the override without open discussion and deliberation of the specifics of its use. There is little room to doubt that, when defying the Supreme Court, as well as overriding a pronounced right, a legislature should consider the importance of the right involved, the objective of the stricken legislation, the availability of other, less intrusive, means of reaching the same policy objective, and a host of other issues. It should not only be the responsibility of the Courts to determine whether a limit is reasonable or demonstrably justifiable in a free and democratic society. If a legislature wishes to take issue with the Court's determination, it too should be required to consider whether the limit is one that is justifiable in a free and democratic society.
The Honourable E. Peter Lougheed was a Member of the Legislative Assembly of Alberta from 1967 to 1986. From 1971 to 1985, he served as the Premier of Alberta, during which time he played a decisive role in shaping the Constitution Act, 1982. The Hon. Mr. Lougheed practises law with the firm Bennett Jones.
This essay was first published in longer form as Why a Notwithstanding Clause? (Edmonton: University of Alberta Centre for Constitutional Studies, 1998).
"Charting the Future: Canada's New Constitution." CBC Archives.