Introduction: a constitutional exception
On 27 October 2025, Alberta tabled a bill to end a province-wide teachers’ strike. Under a motion limiting debate, the legislature passed it effectively within a day, and it took effect on Royal Assent on 28 October, according to ABlawg’s account. It imposed contract terms and declared that it applied whatever the Charter of Rights and Freedoms said about freedom of expression and association.
That episode shows the central tension. An elected legislature claims a mandate to act for a majority. Individuals and minorities hold constitutional rights intended to constrain government power, including decisions supported by electoral majorities. Section 33, the notwithstanding clause, creates a limited exception to those protections, and courts stand between the two. Anyone wary of concentrated authority should ask who holds power at each step, a question also central to personal liberty in Canada.
This article explains what the clause says, why Canada adopted it, how governments have used it and what followed, and it endorses no government. As of 11 November 2026 the Supreme Court of Canada’s docket shows judgment reserved in the Quebec Bill 21 appeals heard in March 2026, and that judgment could change parts of what follows.
What is the notwithstanding clause?
Section 33(1) of the Constitution Act, 1982 lets Parliament or a provincial legislature “expressly declare” that a statute, or part of one, operates notwithstanding a provision of section 2 or of sections 7 to 15. Section 2 covers fundamental freedoms, ss. 7 to 14 legal rights and s. 15 equality. The clause cannot reach democratic rights (ss. 3 to 5), mobility rights (s. 6), official language rights (ss. 16 to 22) or minority language education rights (s. 23). Whether it can reach the equal guarantee for women and men in s. 28 is disputed (Charterpedia).
A declaration ceases to have effect five years after it comes into force, or on an earlier date it specifies (s. 33(3)). The legislature may re-enact it, and a re-enactment runs for its own five years (s. 33(4) and (5)). The period runs from the declaration’s own start, which is not always Royal Assent. Royal Assent makes a bill law, and commencement makes it, or a particular provision, operative. An Act or provision may start later, by proclamation or on a date the Act sets. Where commencement could not be verified, this article gives no expiry date.
In Ford v Quebec (Attorney General) (1988) the Supreme Court held that s. 33 imposes a requirement of form only. The legislature must use express words and identify the provisions it overrides, but need not give reasons or show that the override is justified. Omnibus declarations were accepted, and a declaration operates prospectively.
Section 33 works differently from section 1. Under s. 1 a government must show that a limit on a right is reasonable and demonstrably justified, and a court tests that. Under s. 33 the legislature shields the law from invalidation on the listed rights without passing that test. Judicial review continues: courts enforce the rights s. 33 cannot reach, check a declaration’s form and police the division of powers. Whether they may also declare that an overridden right was infringed, without invalidating the law, is now before the Supreme Court.
The clause does not make legislatures supreme. Canada operates under constitutional supremacy, and s. 33 is part of the Constitution itself. It preserves a defined legislative authority, limited by rights, form and time. Parliament has not used it: Charterpedia says so and lists use in Quebec, Saskatchewan, Yukon, Ontario and Alberta, and the Library of Parliament’s survey to 2018 lists no federal declaration.
Why was it created?
The Charter did not begin with an override. When Pierre Trudeau’s federal government proposed in 1980 to patriate the Constitution with an entrenched Charter, several provinces objected that entrenchment would shift authority from legislatures to courts, a worry participants later described. A Policy Options commentary names Alberta’s Peter Lougheed, Saskatchewan’s Allan Blakeney and Manitoba’s Sterling Lyon as premiers who insisted on the clause. The compromise came in November 1981, negotiated by Justice Minister Jean Chretien and the attorneys general of Saskatchewan (Roy Romanow) and Ontario (Roy McMurtry). The federal government and nine provinces accepted it on 5 November.
The five-year limit was part of that bargain. A draft of the accord dated 5 November 1981 describes a clause covering fundamental freedoms, legal rights and equality rights, each declaration requiring re-enactment not less often than every five years. The Library of Parliament reports, and a Policy Options account agrees, that Trudeau accepted the override for fundamental freedoms on condition that it lapse after five years unless re-enacted. The documents show what was agreed, not why.
Quebec was not a party to the agreement. Other provinces sought the clause, and Quebec then used it early, as a protest.
The text sets no condition on use beyond form. Supporters argue the clause was meant for any legislature acting on considered judgment. Critics, including the Alberta Teachers’ Association, argue that it was meant for exceptional circumstances. Both are readings of the 1981 bargain, and neither is written into s. 33.
How governments have used it
A declaration is pre-emptive when enacted before any court has ruled on the law, reactive when enacted after a court has ruled against the same law or practice (including by interim injunction), and protective when enacted after a court has ruled against a comparable law. “Enacted” means passed with a declaration, and “in force” means operational.
| Year | Government | Law (subject) | Timing | Status, 11 Nov 2026 |
|---|---|---|---|---|
| 1982-85 | Quebec (Levesque) | Omnibus declarations | Pre-emptive | Upheld as to form in Ford; ended after 1985 |
| 1986 | Saskatchewan (Devine) | SGEU Dispute Settlement Act | Protective | Override unnecessary after 1987 ruling |
| 1988 | Quebec (Bourassa) | Bill 178 (signs) | Reactive | Lapsed 1993; replaced by Bill 86 |
| 2000 | Alberta (Klein) | Marriage Amendment Act (private member’s bill) | Pre-emptive | Not renewed 2005 |
| 2018 | Saskatchewan (Wall, Moe) | School Choice Protection Act | Reactive | Never proclaimed; appeal allowed 2020 |
| 2019 | Quebec (CAQ) | Bill 21 (symbols) | Pre-emptive | In force; renewed 2024; judgment reserved |
| 2021 | Ontario (Doug Ford) | Bill 307 (advertising) | Reactive | In force 14 June 2021; limit struck under s. 3 (2025); no 2026 re-enactment found |
| 2022 | Ontario (Doug Ford) | Bill 28 (strike) | Pre-emptive | Repealed 14 Nov 2022; deemed never in force |
| 2022 | Quebec (CAQ) | Bill 96 (language) | Pre-emptive | In force; declaration lapses 2027 unless renewed |
| 2023 | Saskatchewan (Moe) | Bill 137 (pronouns) | Reactive | In force 20 Oct 2023; Supreme Court leave granted |
| 2025 | Alberta (Smith) | Bill 2 (strike) | Pre-emptive | In force 28 Oct 2025; merits hearing July 2027 |
| 2025 | Alberta (Smith) | Bill 9 (gender identity) | Reactive and pre-emptive | Enacted Dec 2025; health provisions proclaimed 7 Jan 2026 |
| 2025 | Quebec (CAQ) | Bill 94 (secularism) | Pre-emptive | In force 30 Oct 2025, with exceptions |
| 2026 | Quebec (CAQ) | Bill 9 (secularism) | Pre-emptive | In force 2 April 2026, with exceptions |
The table lists laws this article identified, not a complete register: no national count was found, and definitions of a “use” differ. Alberta’s Bill 9 appears once although it amended three Acts. Some measures were not uses. Alberta’s 1998 Bill 26 on sterilization compensation was withdrawn the day after introduction. A 1982 Yukon declaration was never proclaimed, and Quebec’s proposed constitution was abandoned in June 2026. A bill to renew the Bill 96 declaration early passed in principle, 76 to 26, on 10 June 2026, but the Assembly record shows no final adoption before dissolution on 27 August.
Each case below asks the same five questions: the government’s aim, the rights affected, what happened, what history allows us to conclude and what remains uncertain.
Saskatchewan, 1986
After the Court of Appeal found comparable back-to-work legislation contrary to freedom of association (s. 2(d)), Saskatchewan legislated an end to a public-service dispute and added a declaration while appealing. The Supreme Court then held that such laws did not violate the Charter, so the declaration was unnecessary. In 2015 the Court reversed course, holding that s. 2(d) protects the right to strike. A declaration shields a law from the court’s view at the time, and that view can change. No court has decided whether the 1986 law would survive the 2015 standard.
Quebec, 1988
Ford struck down Quebec’s French-only sign rule as a breach of freedom of expression. Quebec responded with Bill 178 (22 December 1988), which required French-only outdoor signs and carried a declaration. In 1993 the UN Human Rights Committee found a violation of the Covenant’s freedom of expression article and none of its equality article. It asked for an appropriate amendment to the law and did not rule on whether s. 33 itself complies with the Covenant (text). Bill 178 lapsed and Bill 86 replaced it in 1993, closer to the French predominance Ford had said might be justified.
Alberta, 1998 and 2000
Alberta’s 1998 bill answered hundreds of forced-sterilization damages claims, and public reaction ended it in a day. In 2000 Bill 202, a private member’s bill, defined marriage as between a man and a woman and added a declaration, although the widely held view was that Alberta lacked jurisdiction over capacity to marry. The Supreme Court confirmed in its 9 December 2004 reference opinion that capacity to marry belongs to Parliament under s. 91(26), and the Klein government let the declaration expire in 2005. The case marks a limit: the clause can set aside Charter rights, not the division of powers.
Saskatchewan, 2018
A 2017 trial ruling held that the province’s funding of non-Catholic students at a Catholic separate school breached freedom of religion and equality, and that the funding could not be justified under s. 1. Premier Brad Wall’s government announced an override, and Premier Scott Moe’s government enacted one in 2018, but the Act was never proclaimed. In 2020 a unanimous five-judge Court of Appeal allowed the government’s appeal (2020 SKCA 34). The Regina Leader-Post reported that the Court found the public school division should not have been granted public interest standing, since its arguments were largely financial. The Court also decided the merits. Legal summaries report that it held the funding framework, protected by s. 93 of the Constitution Act, 1867 and s. 17(2) of the Saskatchewan Act, was not inherently discriminatory and did not breach the Charter, and one adds that any breach would be saved under s. 1. The Supreme Court refused leave in February 2021.
The government therefore kept its policy without relying on the override, which in hindsight proved unnecessary in this litigation. That does not show it acted improperly: it legislated after a trial ruling against the policy and could not know how the appeal would end.
Ontario, 2021
After a judge held in June 2021 that Ontario’s 12-month limit on third-party election advertising breached freedom of expression, the legislature re-enacted it within a week, with a declaration, as Bill 307. The Act took effect on Royal Assent, 14 June 2021, so its declaration would have lapsed on 14 June 2026 unless re-enacted. No re-enactment was found, though the consolidated statute could not be read and absence is not proof. The Court of Appeal in 2023 and a 5-4 Supreme Court in 2025 held that the spending limit infringed the right to vote (s. 3), which s. 33 cannot override. That ruling does not depend on whether the declaration lapsed.
Ontario, 2022
In November 2022 Ontario legislated contract terms for school-board education workers and prohibited a strike, with a declaration. After public and union opposition, the legislature repealed the law 11 days after passage and deemed it never in force. Freedom of association, including the right to strike, was affected. The repeal shows political accountability working quickly with no court involved. It does not show the law was unconstitutional; no court ruled.
Quebec, 2019 to 2026
Bill 21 (2019) bars certain public-sector workers from wearing religious symbols. Bills 94 (2025) and 9 (2026) extended secularism rules to schools and, in Bill 9, to daycare staff, subsidized private schools and public prayer, and each took effect on Royal Assent, with some exceptions. Each carries a pre-emptive declaration and affects religion, expression and equality. Defenders describe a longstanding project of state secularism. Critics argue that the laws burden religious minorities, women in particular. After the 5 October 2026 election produced a Parti Quebecois minority government, its education minister said he wants to extend the symbol ban to students. Settled is the form requirement. Contested are whether the laws are justified and whether courts may declare their effects; the 2024 Court of Appeal view that the declaration shields Bill 21 from review is not a Supreme Court holding.
Saskatchewan and Alberta, 2023 to 2025
Saskatchewan’s Bill 137 followed a court injunction against a pronoun policy for students under 16. It overrides ss. 2, 7 and 15 and took effect on assent, 20 October 2023. Alberta’s Bill 9 (December 2025) followed a June 2025 injunction against health care restrictions for gender-diverse youth and invoked s. 33 for three laws. On 18 December 2025 the judge lifted the injunction because the declaration removed its basis, and the health care provisions were proclaimed on 7 January 2026. In May 2026 she dismissed an application to amend the challenge, which the applicants said they would appeal; the original challenge awaits the Supreme Court. The status of Alberta’s appeal of the 2025 injunction is not known. Bill 2 ended the strike and imposed collective agreement terms. A judge refused in March 2026 to suspend it but found a serious issue to be tried, and the teachers’ association moved the merits hearing to July 2027 pending the Supreme Court cases. These cases are too recent for retrospective judgment.
What the courts have decided, and what remains open
The Supreme Court has settled few points. Ford holds that s. 33 requires form only, and the 2025 decision was not a ruling on s. 33’s scope. The Bill 21 appeals (docket 41231, English Montreal School Board v Attorney General of Quebec) were heard on 23 to 26 March 2026, and the docket shows judgment reserved. A Globe and Mail report of 10 June 2026 says the Chief Justice told reporters the Court aims to rule by the end of November, tied to Justice Martin’s retirement window. An aim is not a commitment, and the docket gives no date. The Saskatchewan appeal, UR Pride, has leave but no hearing date.
Two provincial appeal courts have ruled, but neither ruling binds the Supreme Court. The Quebec Court of Appeal held in 2024 that an override immunizes a law from review on the listed rights and that s. 28 confers no independent right. The Saskatchewan Court of Appeal held in 2025, by 4 to 1, that a pre-emptive declaration does not prevent declaratory judgments.
A declaration of rights would not invalidate a law, suspend it or order a remedy. Supporters say it keeps the right visible and informs voters before the sunset. Opponents argue that it gives courts a role the clause was meant to remove. At the hearing the federal government, Manitoba and British Columbia supported declaratory relief, while Quebec, supported by Ontario, Alberta and Saskatchewan, opposed it. A civil liberties summary records them arguing that review would undermine parliamentary supremacy.
Section 28 guarantees rights equally to women and men “notwithstanding anything” in the Charter, and some argue it limits s. 33 where a law burdens women differently. The Quebec Court of Appeal rejected that reading, and the Supreme Court has the question. Also open is whether unwritten constitutional principles constrain the clause, and whether repeated renewal amounts to an indirect amendment, as the federal government’s factum argues.
Is the clause being used differently today?
Pre-emptive use is not new, since Quebec’s 1980s declarations were pre-emptive. What has changed is the spread to other provinces and the use for specific contested policies, which is a characterization and not a legal finding.
Defenders argue that elected legislatures answer to voters, that the sunset forces reconsideration and that questions of value belong to representatives. Policy Options adds that it helps provinces with distinct priorities stay within the federation. Critics argue that rights matter most when a majority would limit them, and that pre-emptive use may deny affected people a court’s assessment at all.
The sunset is a constitutional requirement and also an accountability argument, and only the requirement is certain. Ontario repealed Bill 28 within days and Alberta withdrew its 1998 bill in one day, while Quebec renewed Bill 21 in 2024. Renewal may reflect public support or other priorities, not endorsement of the clause. In April 2026 the Liberal leader was reported as saying that, if elected, he would not renew the Bill 21 and Bill 9 declarations, and in October the Parti Quebecois formed a minority government. The results do not show whether any voter’s choice turned on the clause.
Conclusion: who has the final word?
In November 1981 the federal government and nine provinces accepted a bargain. Rights would be written down and courts would enforce them, but legislatures would keep a narrow, temporary and visible power to say otherwise. The five-year sunset gives voters and legislators a recurring occasion to ask whether a declaration should continue. It creates an opportunity for political accountability, not a guarantee of it.
In forty-five years of use, consequences have varied. A 1998 bill was withdrawn in a day and a 2022 law repealed in eleven, while other laws were renewed by large legislative majorities. The evidence does not show whether the clause has been used wisely. A law that survives is not thereby vindicated, and a repealed law is not thereby shown to be unconstitutional. A clause that lets one institution narrow another’s review deserves scrutiny from anyone wary of concentrated authority.
Neither institution has unlimited power. Voters can replace a government and influence whether a declaration is renewed, but an election does not reverse consequences a law has already imposed. Courts keep authority over the rights s. 33 cannot override, the form of every declaration and the division of powers, though a lawful declaration leaves a minority without a remedy it would otherwise have had. What the text settles is that the legislature may decide, for up to five years at a time, on most rights, and the courts on the rest. What it leaves open, and what the Supreme Court may now clarify, is how far courts may speak about a right the legislature has chosen to override. See also components of personal sovereignty.