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What Is the Notwithstanding Clause?

In a dispute over its notwithstanding clause in 2005, Canada ruled to support the rights of gay couples in civil unions.
The notwithstanding clause can help protect individuals from arbitrary arrest.
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  • Written By: Ray Hawk
  • Edited By: E. E. Hubbard
  • Last Modified Date: 22 October 2014
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The notwithstanding clause is part of a 1982 revision to Canadian Constitutional law that allows for the enactment of new laws, for periods up to five years, that do not specifically comply with Canadian Fundamental Freedoms. The controversy over use of the notwithstanding clause became most pronounced in 1988-1989, when the Supreme Court of Canada had to hear a case dealing with Quebec's Bill 101 over the Charter of the French Language. Legislative override powers such as the nothwithstanding clause that limit fundamental Constitutional rights are a uniquely Canadian development that had no contemporary reflection in other western democratic law or international human rights declarations at the time, though provisions in Israeli and Australian law now parallel it to some degree.

Officially, the Canadian Charter of Rights and Freedoms enacted in 1982 is the specific Canadian law that contains the notwithstanding clause, listed in Section 33, Part I. The elements of Canadian Constitutional law that the clause has the potential to override are listed under Section 33. These include Fundamental Freedoms such as freedom of expression, freedom of assembly, and equality rights as listed in section 2 of Section 33, and Legal and Equality rights in sections 7-15 of Section 33, that include the right to life, liberty, and the security of the person; freedom from arbitrary arrest; and so on.

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Controversy surrounding the adoption of Section 33's notwithstanding clause was vocal at the time it was implemented, and continues to be so. Formal acceptance by all provinces took place with the exception of Quebec. The notwithstanding clause obtained its final definition through an informal meeting known as the the Kitchen Accord, at which the Canadian justice minister and two provincial ministers met in a kitchen at the National Conference Center in Ottawa to discuss final compromise language for it. They worked with different premiers from this meeting to reach an agreement, while the Premier of Quebec at the time, Rene Levesque, was notably absent. He later publicly refused to agree to the Kitchen Accord deal, and the Quebec government soon followed suit, but it became national Canadian law anyway.

Balanced opinions of the notwithstanding clause saw it as a compromise between the protection of the rights of provincial institutions versus protection of rights of individual Canadians. Most Canadian provinces and territories have not invoked the override power of the notwithstanding clause, and this is partially due to Quebec's 1989 attempt to use it in Bill 101 to continue a policy of restricting commercial signs to being posted in Quebec only in the French language. The United Nations Human Rights Committee saw such actions as discriminatory in 1993, and Quebec later revoked the nothwithstanding clause authority from their version of the Canadian Charter of Rights and Freedoms.

Making use of the nothwithstanding clause came to be seen as politically costly, yet it remains a part of Canadian Constitutional law. A key instance where the nothwithstanding clause provision was denied as a provincial right was with the federal level Canadian Parliament decision in 2005 to support the rights of gay couples in civil unions. Overriding any provincial intent to opt out of such legislation by invoking the nothwithstanding clause was a victory for same-sex civil unions in Canada.

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