This article originally appeared in the Dorchester Review.
By Rainer Knopff, May 1, 2026
In January 2005, 133 Canadian legal scholars wrote an open letter telling Stephen Harper to use the Charter’s section-33 notwithstanding clause (NWC). 1 At the time, Harper led the official opposition to Liberal Prime Minister Paul Martin’s minority government, which had introduced legislation permitting same-sex marriage. Harper proposed amendments to preserve the traditional heterosexual definition of marriage while allowing civil unions for same-sex couples. These amendments, asserted the open letter, were so “clearly unconstitutional” that to become law they must “include a notwithstanding provision.” That was the only “honest” and effective way for Harper to proceed.
When invoked, the NWC allows legislation to “operate” for renewable five-year periods “notwithstanding” the fundamental freedoms set out in section 2 of the Charter, the legal rights found in sections 7 to 14, or the equality rights in section 15. Just as judges can be activist or restrained in their approach to Charter rights and freedoms, so legislatures can be activist or restrained in their use of the notwithstanding clause. Historically, the clause has been used mainly by Quebec, heavily during the Charter’s early years, less heavily but still regularly thereafter. Its use by other Canadian jurisdictions was “extremely limited” by comparison. 2 Quebec’s legislature was activist while other Canadian legislatures were restrained.
Rainer Knopff is Professor Emeritus of Political Science at the University of Calgary.
