The Evolving Debate Over Section 33 of the Charter

Abstract

The desirability and normative legitimacy of section 33 of the Canadian Charter of Rights and Freedoms has been a perennial debate within constitutional scholarship and commentary since the patriation of the Canadian Constitution in 1982. Responses to this so-called “notwithstanding clause” and its prospective use have fallen along any number of points on a spectrum between vehement opposition and resigned acceptance to emphatic support and cautious optimism. More recently, these debates have considered the operative effects of section 33’s invocation, including how the clause functions in relation to other constitutional provisions. The purpose of this literature review is not to provide a complete survey of the voluminous scholarship on section 33 that has been published since 1982. Rather, I aim to provide a broadly representative summary of the assessments that have been offered of the notwithstanding clause over the course of the Charter’s 40-year history.

Keywords: notwithstanding clause, section 33, canadian charter, rights, freedoms, charter of rights and freedoms, override