The Notwithstanding Clause Explained: What Every Canadian Should Know About Section 33

What This Means for You

If you've heard about Alberta using the "notwithstanding clause" to force striking teachers back to work, or Quebec using it to ban religious symbols for public servants, you might be wondering: what exactly is this constitutional tool, and can the government really override your Charter rights?

The short answer is yes—under specific circumstances. Here's your complete guide to understanding Section 33 of the Canadian Charter of Rights and Freedoms, when it's been used, and what it means for your rights as a Canadian.

Understanding Which Rights Can (and Cannot) Be Overridden

Rights that CAN be overridden using Section 33:

The notwithstanding clause can only be used to override specific sections of the Charter:

Section	Rights Covered
Section 2	Fundamental freedoms (religion, expression, peaceful assembly, association)
Sections 7-14	Legal rights (life, liberty, security; protection from unreasonable search; rights in criminal proceedings)
Section 15	Equality rights (protection from discrimination)

Rights that CANNOT be overridden:

These Charter rights are fully protected and no government can use Section 33 against them:

Section	Rights Protected
Sections 3-5	Democratic rights (right to vote, elections every 5 years)
Section 6	Mobility rights (right to enter, remain in, and leave Canada)
Sections 16-23	Language rights (English and French)
Section 35 (Constitution Act)	Aboriginal and Treaty rights

What this means practically:

A government can use Section 33 to override your freedom of association (like the right to strike)
A government can use it to override equality rights (like Quebec's religious symbols ban)
A government cannot use it to prevent you from voting or moving between provinces
A government cannot use it to override Indigenous treaty rights

If Your Province Invokes the Notwithstanding Clause

What happens to your rights:

When a government invokes Section 33, your Charter rights in the affected areas are temporarily suspended for the specific law in question. Here's what you need to know:

The override lasts 5 years maximum. After 5 years, the law becomes subject to Charter review unless the government renews the override.
It must be explicit. The government must clearly state it's using Section 33 and specify which Charter rights are being overridden. They can't do it "by accident" or implication.
Courts cannot strike down the law. Once Section 33 is invoked, courts cannot invalidate the law on Charter grounds—even if the law clearly violates your rights.
You can still challenge procedural issues. Courts can review whether the notwithstanding clause was properly invoked, just not whether the underlying rights violation is constitutional.

Your options when Section 33 is used:

Political action: Vote, organize, contact your MLA/MPP/MNA
Public pressure: The Ontario government backed down in 2022 after public backlash
Wait for expiry: The 5-year sunset means the law can be challenged after that period
Recall petitions (Alberta only): Alberta is the only province with recall legislation

Complete History: Every Time Section 33 Has Been Invoked

Quebec (Most frequent user):

Year	Law/Purpose	Status
1982-1985	Blanket override on all existing Quebec laws	Expired, not renewed
1988	Bill 178 - French-only commercial signs	Expired after 5 years
2019	Bill 21 - Religious symbols ban for public servants	Renewed in 2024, valid until 2029
2022	Bill 96 - French language protections	Active

Saskatchewan:

Year	Law/Purpose	Status
1986	SGEU Dispute Settlement Act - Strike-breaking	Removed after courts said Charter didn't apply
2018	School Choice Protection Act - Catholic school funding	Passed but never proclaimed into law

Alberta:

Year	Law/Purpose	Status
2000	Marriage Amendment Act - "One man, one woman"	Declared ultra vires (federal jurisdiction)
2025	Bill 2 - Alberta Sovereignty Within a United Canada Act amendments	Active
2025	Bill 2 - Back to School Act (teachers' strike)	Active until 2028

Ontario:

Year	Law/Purpose	Status
2021	Better Local Government Act - Election finance rules	Active
2022	Bill 28 - Keeping Students in Class Act (CUPE workers)	Repealed after public backlash

Federal Government:

The federal government has never invoked Section 33, despite occasional political pressure to do so.

The 2022 Ontario Lesson: Public Pressure Works

In November 2022, Ontario Premier Doug Ford used Section 33 to impose a contract on 55,000 CUPE education workers and ban them from striking. The legislation included:

Fines of $4,000/day per individual worker
Fines of $500,000/day for the union
A contract workers had rejected

What happened next:

Despite the law making strikes illegal, CUPE workers walked off the job anyway. Unions across Ontario threatened a general strike. Within days, Ford announced he would repeal the legislation.

Key lesson: While Section 33 is legally powerful, it's not politically invincible. Massive public opposition and the threat of broader labour action forced the government to back down.

Contrast with Alberta 2025: Alberta's Bill 2 followed a similar playbook but has not been repealed. The difference may be political calculation, the scale of opposition, or timing.

How Section 33 Was Created (And Why)

The compromise that made the Charter possible:

When Prime Minister Pierre Trudeau sought to patriate the Constitution in 1981, provincial premiers were divided. Some (like Ontario's Bill Davis) supported a strong Charter of Rights. Others (like Alberta's Peter Lougheed and Saskatchewan's Allan Blakeney) worried about unelected judges having too much power.

The notwithstanding clause was proposed by Alberta Premier Peter Lougheed as a compromise. It would allow legislatures to have the "final word" while still creating a Charter of Rights.

Jean Chrétien, who helped negotiate the Constitution, later said: "Canada probably wouldn't have had any Charter without it."

The intended purpose:

The clause was meant to be a democratic "safety valve" in extraordinary circumstances—for example, if courts made a decision that clearly conflicted with democratic values or if urgent action was needed.

The debate today:

Critics argue the clause is being used too casually for routine political disputes, not the exceptional circumstances it was designed for. Supporters maintain it preserves parliamentary sovereignty and democratic accountability.

What the Alberta Teachers' Strike Means for Section 33

Alberta's use of Section 33 in October 2025 to end the teachers' strike has reignited the national debate about the notwithstanding clause.

The facts:

51,000 teachers went on strike October 6, 2025
730,000 students and 2,500 schools were affected
Teachers rejected the government's offer by nearly 90%
The government passed Bill 2 on October 27, using Section 33
Teachers returned to work October 29
Fines: $500/day for individuals, $500,000/day for the union

The connection to recall petitions:

The use of Section 33 against teachers is a central grievance cited by Albertans organizing recall petitions against Premier Danielle Smith and 17+ UCP MLAs. Ironically, Alberta's recall legislation was created by former Premier Jason Kenney—who has publicly criticized how it's being used.

The Alberta Teachers' Association has filed a court challenge, though the effectiveness of legal action against Section 33 is limited by design.

The News: What Happened

Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause, allows Parliament or provincial legislatures to temporarily override certain Charter rights for up to five years, according to the Department of Justice.

The clause was included in the Constitution as a political compromise in 1981, proposed by Alberta Premier Peter Lougheed to address concerns about judicial overreach, according to the Canadian Encyclopedia. Jean Chrétien, a key negotiator, later stated that "Canada probably wouldn't have had any Charter without it."

To date, the federal government has never invoked Section 33. Provincial governments in Quebec, Saskatchewan, Alberta, and Ontario have all used the clause, according to the Centre for Constitutional Studies. Quebec has been the most frequent user, including for its 1988 French-only sign law and its 2019 Bill 21 banning religious symbols for certain public servants.

Most recently, Alberta invoked the clause in October 2025 to pass Bill 2, the Back to School Act, forcing 51,000 striking teachers back to work, according to CBC News. This followed Ontario's 2022 use of the clause against CUPE education workers—legislation that was repealed after public backlash and the threat of a general strike.

Analysis: Why This Matters

The increasing use of Section 33 by provincial governments represents a significant shift in Canadian constitutional culture.

Three key implications:

1. Normalization of the override: For decades after 1982, Section 33 was considered a "nuclear option" used only in exceptional circumstances. The multiple uses by Quebec, Ontario, and Alberta in recent years suggest it's becoming a more routine political tool.

2. Labour rights vulnerability: Both Ontario (2022) and Alberta (2025) used the clause specifically to override workers' freedom of association and right to strike. This pattern suggests public sector unions may face increasing challenges to collective bargaining rights.

3. Democratic accountability shifts: When courts can't review legislation for Charter compliance, the only check becomes electoral accountability. This places greater importance on voting, public pressure campaigns, and (in Alberta) recall mechanisms.

What happens next:

The Alberta Teachers' Association court challenge will test the limits of Section 33
Quebec's Bill 21 case has been accepted by the Supreme Court of Canada
Future court decisions may clarify procedural limits on Section 33 use
The political consequences of using the clause remain the primary restraint

Your Action Plan

If You're Concerned About Section 33 Use:

This week:

Identify your MLA/MPP/MNA and their position on the notwithstanding clause
Review which provincial parties have supported or opposed recent uses

This month:

Consider joining civil liberties organizations monitoring Section 33 use
If in Alberta, research whether your MLA faces a recall petition
Write to your representative expressing your views

Long-term:

Vote based on parties' positions on Charter rights
Support or oppose candidates who have used/would use Section 33
Engage in public discourse about constitutional rights

If You're a Worker Affected by Section 33 Legislation:

Consult your union about legal challenges and options
Document any concerns about working conditions
Understand the fines and penalties in the specific legislation
Know when the 5-year sunset clause expires

Other Perspectives

Constitutional Scholars:

Many legal experts view the increasing use of Section 33 as concerning. According to the Canadian Civil Liberties Association (CCLA), the clause is being used to "pre-emptively shield laws from Charter scrutiny" rather than responding to specific court decisions.

Supporters of Parliamentary Sovereignty:

Those who support Section 33 argue it preserves the principle that elected legislators, not unelected judges, should have the final say on laws. This was the original intent of premiers like Peter Lougheed.

Labour Unions:

Union leaders warn that Section 33 use for strike-breaking legislation puts "a dark cloud over collective bargaining," according to CBC News. They argue it fundamentally shifts the balance of power in labour negotiations.

Provincial Governments:

Governments that have used Section 33 generally argue they're protecting essential services (education, healthcare) or reflecting democratic will on controversial issues (secularism in Quebec).

Corrections Policy

We strive for accuracy. If you find an error in this analysis, please email us at [email protected]. We will promptly investigate and correct any factual inaccuracies.

Updates:

No corrections to date (as of December 6, 2025)

Canadian Charter of Rights and Freedoms: Official government resource
Centre for Constitutional Studies: Educational resources on Canadian constitutional law
CCLA Notwithstanding Clause Campaign: Civil liberties perspective

Sources

Department of Justice Canada: "Charterpedia - Section 33 – Notwithstanding clause"
The Canadian Encyclopedia: "Notwithstanding Clause"
Centre for Constitutional Studies: "Notwithstanding Clause" analysis
CBC News: "The notwithstanding clause — what it is, why it was used and what happens next"
Library of Parliament: "The Notwithstanding Clause of the Charter"
Wikipedia: "Section 33 of the Canadian Charter of Rights and Freedoms"