The notwithstanding clause, entrenched in Section 33 of the Charter of Rights and Freedoms, has become a central point of friction between Ottawa and several provinces. The clause permits Parliament or a provincial legislature to pass a law that operates despite sections of the Charter covering fundamental freedoms, legal rights and equality rights. It cannot be used to override democratic, mobility or language rights, and any law passed under it expires after five years unless renewed.

Quebec has relied on the clause in its secularism law, Bill 21, which restricts the wearing of religious symbols by certain public employees. Ontario used it in 2021 to uphold a law limiting third-party election advertising. Alberta has backed the clause in legal arguments, supporting the right of legislatures to invoke it broadly. Conservative Leader Pierre Poilievre has pledged to use it at the federal level to restore consecutive life sentences without parole for those convicted of multiple murders.

The federal government is pushing back, arguing that unchecked use of the clause erodes constitutional protections. Ottawa has intervened in the Supreme Court case over Bill 21, telling the court that repeated or pre-emptive reliance on Section 33 undermines the Charter’s balance. Justice Minister Sean Fraser has said the government is seeking to establish legal boundaries on how far provinces can go when invoking it.

Proposals are also circulating in Parliament to place procedural restrictions on the federal government’s own use of Section 33, such as requiring ministerial sponsorship and broader approval in the House of Commons. While those measures would not affect provinces directly, Ottawa contends that clarifying rules at the national level could strengthen constitutional norms.

The debate highlights the tension between judicial oversight and legislative sovereignty. Provinces argue the clause is a constitutional safeguard allowing elected governments to assert authority, while Ottawa contends it should remain an extraordinary tool, not a routine political device. The Supreme Court’s eventual ruling on Bill 21 is expected to set a precedent that could reshape how Section 33 is used across the country.