(This article has been translated into French.)

Section 33 of the¬†Canadian Charter¬†of Rights and Freedoms¬†has often been described, including by the Supreme Court of Canada, as an¬†‚Äúoverride provision‚Ä̬†that allows legislation to override¬†Charter¬†rights and freedoms.¬†According to received wisdom,¬†the notwithstanding clause bars judicial review¬†of legislation that is shielded by it.¬†Quebec¬†Premier¬†Fran√ßois¬†Legault¬†so supposes¬†when he¬†explains¬†his government‚Äôs recourse to the notwithstanding clause in¬†Bill 21,¬†An Act respecting the¬†Laicity of the State,¬†as a way to¬†‚Äúavoid lengthy judicial battles.‚Ä̬†

And yet the¬†text¬†of¬†section¬†33 does not support¬†this¬†received wisdom.¬†The¬†word¬†‚Äúoverride‚Ä̬†appears nowhere¬†and¬†there¬†is no¬†mention of¬†‚Äújudicial review.‚Ä̬†Rather, the¬†text¬†of¬†section¬†33¬†focuses¬†on shielding¬†a law‚Äôs¬†‚Äúoperation.‚Ä̬†It¬†states¬†that¬†declaring that a law shall operate¬†notwithstanding¬†one or more Charter rights¬†will secure for¬†the¬†legislation¬†‚Äúsuch operation as it would have but for the provision of this Charter referred to in the declaration.‚Ä̬†The equivalent term in the French version of¬†section¬†33(2)¬†is¬†‚Äúeffet,‚Ä̬†providing that a law invoking the notwithstanding clause¬†‚Äúa¬†l‚Äôeffet¬†qu‚Äôelle¬†aurait¬†sauf¬†la disposition¬†en¬†cause de la¬†charte.‚Ä̬†

In the Charter’s nearly 40 years of existence, no court has addressed the meaning of this phrase in section 33(2), let alone settled it. The Supreme Court of Canada in Ford v. Quebec (1988) ruled on the formal requirements in section 33(1) for invoking the notwithstanding clause. But the Court was not asked about, nor did it rule on, the significance of shielding a law’s operation. What does it mean? 

Normally,¬†if legislation is inconsistent¬†with¬†the¬†Charter,¬†such legislation has¬†‚Äúno force or effect‚Ä̬†by¬†virtue of¬†the Constitution‚Äôs¬†supremacy clause.¬†The French version of the supremacy clause¬†refers¬†to the operation of legislation:¬†‚ÄúLa Constitution du Canada‚Ķrend¬†inop√©rantes¬†les dispositions incompatibles de¬†toute¬†autre¬†r√®gle¬†de droit.‚Ä̬†

Here is the key to understanding the meaning of section 33(2). It does not preclude judicial review. Rather, the chief effect of the notwithstanding clause is to shield the operation of legislation, even if that legislation violates a right or freedom guaranteed in the Charter. It prevents a rights-violating law from being of ‚Äúno force or effect.‚Ä̬†

How does this understanding of section 33 challenge received wisdom? We argue that an individual or group may challenge a law shielded by section 33 in court and that a court may determine whether the law violates Charter rights. If it does, a court may declare that the law violates rights. 

Some will ask, what is the point of judicial scrutiny of legislation if rights are declared violated but legislation still operates? After all, while a law is shielded under the notwithstanding clause, that law will have ‚Äúsuch operation as it would have but for‚ÄĚ the Charter rights and freedoms it violates.

To this question, we offer three answers. First, citizens will be better able to judge a government for invoking section 33 if a court, after full and fair argument, has ruled on whether the law violates rights. Section 33 allows the democratic branches of government to have the ultimate say, but it also invites the electorate to judge a government’s decision to use it. That is why each use of section 33 lasts at most five years, the maximum time allowed by our Constitution between elections. 

People hold up signs during a demonstration in Montreal on April 7, 2019, in opposition to the Quebec government’s newly tabled Bill 21. THE CANADIAN PRESS IMAGES/Graham Hughes

Second, the judicial process offers a precious avenue for minorities that might have little opportunity to make their voices heard by the democratic branches of government. Sensitivity to minorities’ vulnerability to majoritarian will is a key justification for judicial review under a charter of rights.

Third, a judgment on how a law affects fundamental rights may alter the law’s political standing. Informed by the reasoned, evidence-based judgment of an impartial, independent court, the government might amend its policy or decide to allow section 33’s protection to lapse.

Beyond its fidelity to the constitutional text and the value of judicial scrutiny of legislation shielded by section 33, our reading coheres with Canada‚Äôs constitutional order. Within that order, the courts have a crucial role. The Supreme Court has rightly¬†ruled¬†that ‚Äúif people cannot challenge government actions in court, individuals cannot hold the state to account ‚Äē the government will be, or be seen to be, above the law.‚ÄĚ In challenging the received wisdom on section 33, we argue that even legislation invoking the notwithstanding clause is not above the law. The judicial role is resilient, not easily dislodged. Ousting the role of courts in ruling on Charter rights would require explicit constitutional language.¬†

A judicial declaration that legislation invoking the notwithstanding clause violates Charter rights would be true to the judiciary’s duty to say what the law is. Such declarations are consistent with what our courts already do. In the 2010 case of Omar Khadr, for example, the Supreme Court declared that the Government of Canada had violated Khadr’s Charter rights, but left it to the government to right the wrong. 

Furthermore,¬†our understanding is consistent with the respect for parliamentary supremacy that many see as animating the inclusion of¬†section¬†33 in¬†the¬†Charter.¬†The human rights regimes in the¬†United Kingdom,¬†New Zealand¬†and Australia (the¬†Australian¬†Capital Territory¬†and¬†Victoria)¬†all¬†provide that judges may declare legislation incompatible with human rights, but such¬†declarations¬†do¬†not affect¬†the operation of¬†legislation.¬†Parliamentary supremacy does not require that judicial review be silenced.¬†Indeed,¬†in the United Kingdom,¬†where parliamentary supremacy remains constitutionally¬†fundamental,¬†it was¬†predicted¬†that a judicial declaration¬†that a law is inconsistent with rights¬†would¬†‚Äúalmost certainly prompt the Government and Parliament to change the law,‚Ä̬†and it¬†has.¬†

Section 33 secures¬†a law‚Äôs¬†operation; it does not open a Charter black hole.¬†Constitutional scrutiny by courts¬†is¬†an indispensable¬†resource for¬†the public‚Äôs assessment of a government‚Äôs recourse to¬†section¬†33.¬†Returning to the example of Quebec‚Äôs proposed secularism law, we contend that, whether or not Bill 21 eventually operates¬†‚Äúnotwithstanding the Charter,‚Ä̬†Premier Legault will be unable to avoid¬†his government‚Äôs lengthy day in court.¬†

Photo: Shutterstock by Spiroview Inc.

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Grégoire Webber is Canada Research Chair in Public Law and Philosophy of Law at Queen's University and Visiting Senior Fellow at the London School of Economics and Political Science. He is Executive Director of the Supreme Court Advocacy Institute, which provides free advocacy advice to counsel appearing before the Supreme Court of Canada.
Eric Mendelsohn
Eric Mendelsohn is a Montreal-based lawyer and is a member of the Barreau du Québec, the Law Society of Ontario and the New York State Bar. He served as a law clerk to former Chief Justice Beverley McLachlin at the Supreme Court of Canada. 
A lawyer emeritus of the Quebec Bar, Robert Leckey holds the Samuel Gale Chair in the Faculty of Law at McGill University.

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