Egale Explains: The Notwithstanding Clause

The following information was last updated: November 3, 2025

More governments across the country are turning to the notwithstanding clause – a powerful tool that can limit certain Charter rights. Canadians are asking what this means for democracy and equality in our country.

This explainer unpacks what the clause is, how it’s being used, and what we can do to protect our rights.

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What is the Notwithstanding Clause?

The notwithstanding clause refers to section 33 of the Charter, which is a part of Canada’s constitution. Thisclause allows governments to pass laws that are likely to violate fundamental rights and freedoms protected by  the Charter and prevents courts from striking them down.

Canada is the only constitutional democracy with this kind of clause.

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A legal loophole

In 1982, the Charter of Rights and Freedoms (“the Charter”) was added to the Canadian Constitution to protect fundamental rights and freedoms in the country’s highest law. Some of these rights and freedoms include:

  • practicing your own religious and spiritual beliefs
  • speaking your mind through advocacy or protest
  • the right to life, liberty and security
  • being able to form a union
  • having a fair trial
  • not to be subjected to cruel or unusual treatment or punishment

If a government passes a law that violates any of the rights and freedoms in the Charter, the courts have the authority to hold the government accountable and strike down the law for being unconstitutional.

When the Charter was added, some premiers felt that the Charter would take away too much of their power and would only agree to support it if a loophole were included. Section 33 was offered as a political compromise and became known as the “notwithstanding clause.”

What rights can the notwithstanding clause override?

The notwithstanding clause does not apply to the whole Charter, it can only apply to section 2 and sections 7-15:

  • ✖ S. 2: freedom of (a) conscience and religion, (b) thought, belief and expression, (c) peaceful assembly, and (d) association
  • ✖ S. 7: right to life, liberty and security of the person
  • ✖ S. 8: right to be secure from unreasonable search and seizure
  • ✖ S. 9: right not to be arbitrarily detained or imprisoned
  • ✖ S. 10: rights upon arrest or detention
  • ✖ S. 11: rights upon being charged with an offence
  • ✖ S. 12: right not to be subjected to cruel and unusual treatment or punishment
  • ✖ S. 13: right against self-incrimination
  • ✖ S. 14: right to an interpreter in legal proceedings
  • ✖ S. 15: equality before and under the law, equal protection and benefit of the law

How does the notwithstanding clause work?

The clause can be used by the provincial and federal governments, though the federal government has never used it. If a government wants to use the notwithstanding clause to override a Charter right, they must propose legislation that clearly states they are using section 33 (aka “the notwithstanding clause”) and list the Charter sections they want to override. Once the law is passed, the courts are not able to strike down the law for being unconstitutional for 5 years. After 5 years, the government must pass
the law with the notwithstanding clause again, or it will no longer be in effect. There is no limit to how many times a law can be re-enacted. The 5-year period is meant to allow voters to hold governments accountable through elections.

Use of the Notwithstanding Clause

For decades the notwithstanding clause was rarely used and governments who did use it, faced significant public backlash. In recent years, governments are becoming increasingly emboldened in using the clause as a free pass to override Charter rights. Here are some examples:

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Saskatchewan

Saskatchewan used the clause in 1986 in back to work legislation.

They used it again in 2023 to override the Charter rights of gender-diverse students, after a court granted an injunction against a policy that banned those students from using their chosen names and pronouns in schools without formal parental consent.

Québec

Québec invoked the clause in 2019 with Bill 21, banning people working in the public service from wearing religious symbols like crosses, hijabs, turbans and yarmulkes.

This law was renewed after the 5-year time limit in 2024.

Ontario

In 2018, Doug Ford became the first Ontario Premier to use the notwithstanding clause in a law reducing the Toronto municipal council by 50%. This law was struck down by the court as unconstitutional for violating sections of the Charter not protected by the notwithstanding clause.

Ontario is also currently (as of 2025) threatening to use the clause to pass aggressive laws criminalizing homeless encampments.

Alberta

In 2000, in response to Canada legalizing same-sex marriage equality, the Alberta government used the notwithstanding clause to pass legislation against same-sex marriage. However, marriage is federally regulated, so the law had no effect.

On October 27, 2025, the Alberta government passed a law using the notwithstanding clause in back to work legislation for teachers.

The current threat to invoke the notwithstanding clause in Alberta

In December 2024, the Government of Alberta passed Bill 26 which bans gender affirming healthcare for youth under the age of 18. Egale Canada, Skipping Stone, and five gender diverse youth (with the support of their parents) took legal action against the Government of Alberta, arguing that the law violates the Charter rights of gender-diverse youth. They also asked the court for an injunction, a court order that would prevent the law from being enforced until after the court decided whether the law violated the constitution. In June 2025, the court granted an injunction, preventing Bill 26 from coming into effect.

On September 18, 2025, the Canadian Press revealed that the Government of Alberta plans to reintroduce Bill 26 in October, this time using the notwithstanding clause. They also plan to reintroduce two other laws with the notwithstanding clause: Bill 27, requiring gender-diverse youth to have parental permission to informally change names or pronouns and requiring parent opt-in for lessons on human sexuality, gender diversity, and/or sexual orientation; and Bill 29, banning transgender women and girls from sports teams.

Manitoba (in good news)

In October 2025, the Manitoba government announced that the current government will never use the notwithstanding clause and introduced Bill 50 which would require any future legislation using the clause to be automatically referred to the Manitoba Court of Appeal for an opinion on whether the law violates Charter rights.

“This bill acknowledges that Section 33 is a constitutional reality while enforcing accountability and the importance of a democratic check on legislative power,” said Justice Minister Wiebe. “It reinforces our belief that the ultimate power must lie with the people of Manitoba.”

What Can be Done to Stand Against the Notwithstanding Clause?

Public Pressure!

The surest way to stop governments from using the clause to override rights and freedoms is public pressure, and it works!

For example:


Ontario
In 2022, the Premier of Ontario tried to use the clause for back to work legislation, but workers made it clear they would not tolerate the weaponization of the clause to strip away their rights. The threat of a general strike caused the government to back down.


New Brunswick
In 2020, New Brunswick legislators voted down a controversial bill using the notwithstanding clause to make vaccinations mandatory for children in the province’s schools and daycares. The public backlash was so great that members of the Progressive Conservative government’s own party voted against it.

Alberta
In 1998, the Alberta government tried to pass a bill limiting compensation for victims forcibly sterilized by the government. The bill was withdrawn by the government after public outcry.

Some actions you can take up:

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  • Contact your local politician(s) such as Members of Legislative Assembly (MLAs), and your Members of Parliament (MPs) to voice your concerns; ask them to pass a law similar to Manitoba’s Bill 50.

What can courts do?

The courts can still strike down a law that violates other sections of the Charter or other parts of Canadian constitutional law.

For example:
In 2021 when the Ontario government passed a law limiting third party advertising spending before an election, essentially limiting free expression. The law was struck down by the courts as unconstitutional, so the Ontario government re-introduced the law with the notwithstanding clause. The law was struck down again by the courts as unconstitutional, finding that it violated the right to vote under section 3 of the Charter which is not protected by the clause.

In 2026, the Supreme Court of Canada will hear a case called Hak et al v. Attorney General of Québec. As part of this case, the Court will consider whether courts can provide “declaratory relief” when the notwithstanding clause is invoked. Declaratory relief is when the court releases a judgment analyzing whether the law in question violates Charter rights, as alleged by the party that brought the challenge, even if the court cannot order the law struck down. This is powerful because it offers the public a greater understanding of how laws impact their rights, empowering voters to make informed decisions on election day.

Egale is intervening in Hak and will argue that the Supreme Court must consider the unwritten constitutional principle of the protection of minorities in its analysis, because the notwithstanding clause is being used to target marginalized groups.

This resource is part of Egale Canada’s work to combat anti-2SLGBTQI hate.

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