Section 33 Notwithstanding Clause Guide 2026

What is Section 33?

Section 33 of the Canadian Charter of Rights and Freedoms is commonly called the notwithstanding clause. It allows Parliament or a provincial legislature to expressly declare in legislation that an Act or provision will operate notwithstanding a provision included in Section 2 or Sections 7 to 15 of the Charter. The clause does not suspend the entire Charter and does not give a legislature power to override every constitutional right. Its scope is expressly limited by the text of Section 33. Democratic rights in Section 3, mobility rights in Section 6 and the Charter provisions outside Section 2 and Sections 7 to 15 are not subject to a Section 33 declaration. A valid Section 33 declaration also does not mean that courts lose all constitutional jurisdiction over the legislation. The declaration has a specific legal effect: during the period it is in force, the covered legislation operates as it otherwise would notwithstanding the specified Charter provisions. Courts can still consider other constitutional provisions that are outside the declaration.

1. Who Can Invoke Section 33?

Section 33(1) expressly authorizes both Parliament and the legislature of a province to make a notwithstanding declaration. It is therefore incorrect to describe the mechanism as a provincial-only power. The declaration must appear in an Act of Parliament or an Act of a provincial legislature. Section 33 is a legislative mechanism rather than an independent power exercised by a minister, court or government department.

2. Exactly Which Charter Rights Can Section 33 Override?

Section 33 applies only to a provision included in Section 2 or Sections 7 to 15 of the Charter. It does not apply to Section 3, Section 6, Sections 16 to 23 or the other Charter provisions outside that specified range.

3. What Must a Section 33 Declaration Say?

Section 33 requires an express declaration. The Supreme Court of Canada held in Ford v. Quebec (Attorney General) that Section 33 establishes requirements of form and does not require the legislature to provide a substantive justification for invoking the override. A declaration may identify the Charter section numbers being overridden. The government does not have to explain in the legislation why it considers the override politically or substantively justified. Where only part of a Charter provision is intended to be overridden, the wording must sufficiently identify the part being overridden. The practical effect is that a legislature can expressly declare that legislation operates notwithstanding Section 2 and Sections 7 to 15 without separately proving the merits of the override inside the declaration itself.

4. How Long Does a Section 33 Declaration Last?

Section 33(3) provides that a declaration ceases to have effect five years after it comes into force, or on an earlier date specified in the declaration. The five-year period is therefore a constitutional maximum for a particular declaration unless it is renewed through a new enactment. Section 33(4) allows Parliament or a provincial legislature to re-enact a declaration, and Section 33(5) applies the five-year limitation to the re-enactment as well. Renewal is not automatic. A legislature must take another legislative step to continue the declaration.

5. Section 33 Is Prospective, Not a Retroactive Override

Section 33 cannot generally be used to retroactively validate past conduct by declaring that legislation operated notwithstanding the Charter for an earlier period. The Supreme Court's decision in Ford confirms that the general presumption against retroactive and retrospective operation applies to Section 33. Accordingly, an Act purporting to give a Section 33 declaration retroactive effect may be constitutionally ineffective to that extent. This is an important distinction when analyzing legislation that attempts to validate government action occurring before the declaration came into force.

6. What Legal Effect Does a Valid Override Have?

Section 33(2) provides that an Act or provision subject to an effective declaration has the operation it would have but for the Charter provision referred to in the declaration. In practical terms, a court cannot declare the covered legislation of no force or effect merely because it is inconsistent with a Charter provision that is validly covered by the Section 33 declaration while the declaration remains effective. However, this does not mean that the legislation is immune from every constitutional challenge. A court may still examine constitutional issues that are outside the scope of Section 33. For example, a law cannot use Section 33 to override Section 3 because Section 3 is not covered by Section 33.

7. Section 33 vs. Section 1 of the Charter

Section 1 and Section 33 are different constitutional mechanisms. Under Section 1, Charter rights and freedoms are guaranteed subject only to reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society. Courts assess the government's justification using the applicable constitutional framework, including proportionality principles. Section 33 instead permits Parliament or a provincial legislature to expressly declare that legislation will operate notwithstanding Section 2 or Sections 7 to 15. A valid Section 33 declaration therefore changes the constitutional litigation landscape for the covered provisions without requiring the legislature to establish a Section 1 justification in the declaration itself.

8. What Section 33 Cannot Override

The notwithstanding clause cannot be used to suspend the Charter as a whole. Several important constitutional protections remain outside Section 33. Section 3 democratic rights are outside the clause, so a legislature cannot use Section 33 to override the constitutional right to vote or to be qualified for membership in the House of Commons or a provincial legislature. Section 6 mobility rights are also outside the clause. Likewise, the official-language and minority-language education provisions in Sections 16 to 23 are outside the declaration power. The existence of Section 33 therefore does not eliminate constitutional judicial review on these provisions.

9. Can Courts Still Review a Law That Invokes Section 33?

Yes, but the scope of review is different. A court can examine whether the formal requirements of Section 33 have been met and whether the legislation remains subject to other constitutional constraints. The Supreme Court's Ford decision established that the clause imposes requirements of form rather than a substantive judicial review of the legislature's policy choice in invoking the override. Most importantly, a Section 33 declaration cannot shield the legislation from challenges based on Charter provisions that Section 33 does not cover. Ontario's 2021 Protecting Elections and Defending Democracy Act illustrates the distinction: the statute expressly invoked Section 33 for Sections 2 and 7 to 15, but the Ontario Court of Appeal later found an infringement of Section 3, which is outside Section 33's scope.

10. Historical and Recent Uses of Section 33

Section 33 has been used primarily at the provincial level. Quebec used it extensively beginning in 1982, including an omnibus approach that became the subject of Ford v. Quebec (Attorney General). Quebec later used it in relation to the 2019 Act respecting laicity of the State and again in relation to the 2022 language legislation. Saskatchewan has also used Section 33, including its 2018 School Choice Protection Act and its 2023 Parents' Bill of Rights legislation. The 2023 Saskatchewan legislation expressly invoked Section 33 and received Royal Assent. Ontario first used Section 33 in enacted legislation in 2021 through Bill 307, the Protecting Elections and Defending Democracy Act. Ontario also enacted the Keeping Students in Class Act, 2022 with a notwithstanding declaration, although that legislation was subsequently repealed and did not remain operative. Alberta became another important recent example. Its Protecting Alberta's Children Statutes Amendment Act received Royal Assent on December 11, 2025 and invoked Section 33 in relation to specified provisions concerning health, education and amateur competitive sport. The Library of Parliament records that Saskatchewan, Yukon, Ontario and Alberta have made Section 33 declarations, in addition to Quebec's historical and later uses.

11. Has the Federal Parliament Ever Used Section 33?

The federal government has not invoked Section 33 to date. This does not mean Parliament lacks the constitutional authority to invoke it. Section 33 expressly gives Parliament the power to make a declaration. There has been continuing federal debate about whether additional procedural safeguards should apply to federal use. Senate Bill S-218, introduced in 2025, proposed constitutional amendments that would impose additional conditions on federal Parliament's use of Section 33. As of February 10, 2026, the bill remained at second reading in the Senate and therefore had not changed the Constitution.

12. Impact on Non-Citizens, Permanent Residents and Workers

Section 33 does not create a separate rule for Canadian citizens versus foreign nationals. Once provincial or federal legislation validly operates notwithstanding specified Charter provisions, the legislation applies according to its own scope and ordinary legal rules. For example, if a provincial Act validly invokes Section 33 in relation to Section 2 or Section 15 and applies to employees, schools, licensees or public-sector workers, a permanent resident, international student, work permit holder or citizen may all be subject to the same statutory rule if they fall within its scope. However, immigration status can matter under other constitutional provisions. Section 33 does not remove Charter protections that are outside its scope, nor does it override immigration legislation or other constitutional rules simply because a province has invoked the notwithstanding clause.

13. Political Accountability and the Five-Year Sunset

The five-year limit creates a recurring legislative decision point, but it does not constitutionally guarantee that an election must occur before an override can be renewed. A legislature can re-enact a declaration after the existing declaration expires, subject to the ordinary constitutional and legislative process. The original five-year period therefore should not be described as a rule that automatically forces an election before renewal. Its constitutional function is to prevent a Section 33 declaration from continuing indefinitely without legislative re-enactment.

14. Practical Section 33 Analysis

When reviewing a statute that invokes the notwithstanding clause, start with the exact wording of the declaration rather than assuming that every Charter protection has been overridden. First identify the Act and the date on which the declaration came into force. Next identify the Charter sections expressly named in the declaration. Then determine whether the alleged constitutional problem falls within Section 2 or Sections 7 to 15. If it instead concerns Section 3, Section 6, Section 16–23 or another constitutional provision, Section 33 does not itself remove that avenue of review. Finally, check whether the five-year period has expired or whether the declaration was properly re-enacted. For current disputes, the exact text and commencement provisions of the statute must be checked.

Important Legal Distinctions

Official Government & Judicial References

• Justice Laws Website — Constitution Acts 1867 to 1982
• Department of Justice Canada — Charterpedia: Section 33
• Supreme Court of Canada — Ford v. Quebec (Attorney General)
• Library of Parliament — The Notwithstanding Clause of the Charter
• Parliament of Canada — Bill S-218
• Government of Alberta — Protecting Youth, Supporting Parents, and Safeguarding Female Sport

Frequently Asked Questions (6 Verified Answers)

Section 33 Key Facts

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