The Decibel The landmark case over rights and freedoms at the Supreme Court
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Mar 23, 2026 David Ebner, The Globe and Mail justice reporter who covers courts and constitutional issues, walks through Quebec’s use of the notwithstanding clause. He explains its origins, why provinces revived it recently, and why this Supreme Court hearing could reset how Section 33 is applied. Short, clear takes on political motives, legal limits and the potential ripple effects across Canadian rights and federalism.
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Why The Notwithstanding Clause Was Created
- The notwithstanding clause was added to preserve elected politicians' power over courts during patriation of the Constitution.
- Provinces demanded it so legislatures could shield laws from judicial strike-downs, and Pierre Trudeau agreed to secure consensus.
Section 33 Has Few Written Limits
- Section 33 lets federal or provincial legislatures override many Charter rights without procedural limits other than a five-year sunset.
- The clause requires reenactment every five years but contains no statutory limits on reasons, frequency, or legislative thresholds.
Quebec's Early Use Was Political Protest
- Quebec used the clause repeatedly in the 1980s as a political protest after being shut out of patriation.
- Alberta later used it symbolically in 2000 around same-sex marriage but it expired when federal law changed.