Section Thirty-three of The Canadian Charter of Rights and Freedoms - History

History

The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints with the Charter was its effect of shifting power from elected officials to the judiciary, giving the courts the final word. Section 33, in conjunction with the Limitations clause in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers.

The clause was included as part of what is known as "The Kitchen Accord". At the end of a conference on the constitution that was poised to end in deadlock Jean Chrétien, the federal justice minister, as well as Roy McMurtry and Roy Romanow, both provincial ministers, met in a kitchen in the National Conference Centre in Ottawa and sowed the seeds for a deal. This compromise ultimately caused two major changes to the constitution package; the first was that the Charter would include the "notwithstanding clause", and the second was an agreed-upon amending formula. They then worked through the night with consultations from different premiers, and agreement from almost everybody. However, they notedly excluded René Lévesque, the Premier of Quebec, in the negotiations. At any rate, he refused to agree to the deal, and ultimately the Quebec government declined to endorse the constitutional amendment. Chrétien would later say on the notwithstanding clause, "Canada probably wouldn't have had any charter without it."

According to Chrétien, in 1992 Trudeau blamed him for the notwithstanding clause, saying "you gave them that." Chrétien replied, "Sorry, Pierre. I recommended it. You gave it."

During the January 9, 2006, party leaders' debate for the 2006 federal election, Paul Martin pledged that a Liberal government would support a constitutional amendment that would prevent section 33 from being invoked by the federal government, and challenged Conservative leader Stephen Harper to agree. Martin was immediately criticized as this was not part of any prior policy announcements. This sparked a debate as to how the notwithstanding clause can be amended. Some argued that the amending formula required the federal government to gain the approval of at least seven provinces with at least half the national population (the standard procedure). Others argued that since the proposal would only limit Parliament's powers, Parliament could make the change alone.