Premiers Using Notwithstanding Clause: History & Examples

When Alberta Premier Danielle Smith announced plans to invoke Section 33 in late 2025, it marked the latest chapter in a constitutional tool that has spent decades rattling federal-provincial relations. The clause—embedded in the Charter on April 17, 1982—allows legislatures to push back against court rulings on rights, and premiers have wielded it with increasing regularity. Whether you follow Canadian politics closely or are just catching up on the headlines, here’s a plain-language look at who’s used it, why, and what the pattern means.

Introduced: 1982 ·
Section: 33 ·
Proposed by: Alberta Premier ·
Recent users: Quebec, Alberta premiers ·
Charter date: April 17, 1982

Seven key facts anchor any discussion of how Canadian premiers have used the notwithstanding clause.

When was the last time the notwithstanding clause was used in Canada?

The most recent high-profile invocations trace to Ontario Premier Doug Ford, who deployed Section 33 three times between 2018 and 2022—covering municipal election fundraising rules, a strike-breaking bill for education workers, and a Toronto police governance overhaul (Amnesty International UofT). Quebec Premier François Legault applied it to Bill 21, the province’s secularism law, in June 2019—shielding it from Charter challenges even as courts weighed in on religious symbol restrictions for public workers.

Alberta Premier Danielle Smith’s 2025 announcement represents the latest move, signaling a willingness to use the clause preventively rather than only reactively. The Canadian Civil Liberties Association notes that recent uses increasingly aim to block rulings before courts even decide—shifting the clause from shield to sword (Canadian Civil Liberties Association).

Recent provincial invocations

Ontario under Premier Ford stands out as the most frequent recent user among non-Quebec provinces. The 2022 invocation for Bill 115 targeted the education workers’ collective agreement dispute, preventing courts from striking down back-to-work legislation (Canadian Civil Liberties Association). Saskatchewan Premier Scott Moe floated a 2023 invocation for school pronoun policies, though the measure required legislative backing that faced constitutional scrutiny (CBC).

Quebec and Alberta examples

Quebec’s Bill 21 represents the clearest case of a province using Section 33 to insulate contested policy from judicial review. The law bans religious symbols for teachers, police officers, and judges in public-facing roles—rules that would likely fail Charter scrutiny without the notwithstanding shield. Alberta’s 2000 invocation by Premier Ralph Klein targeted employment equity legislation, a rare case of conservative governments deploying the clause for rollback rather than protection of existing policy (Osgoode Hall Law Journal).

The implication: Smith’s 2025 move signals that more provinces may view Section 33 as a first-resort political tool rather than a last resort.

Who has used the notwithstanding clause in Canada?

Quebec holds the undisputed record for Section 33 use—its National Assembly invoked the clause approximately 26 times since 1982, claiming the majority of all historical deployments (Amnesty International UofT). The province’s pattern split into two phases: routine omnibus invocations between 1982 and 1985 that re-enacted pre-Charter legislation en masse, followed by occasional targeted uses afterward (Library of Parliament).

Provincial premiers

Beyond Quebec, four other provinces have deployed Section 33 at various points. Premier René Lévesque’s government initiated the first use in December 1982 through an omnibus bill covering all pre-Charter legislation—Quebec’s opening move in its broader constitutional resistance. Premier Brian Mulroney’s Quebec government invoked the clause in Bill 178 (1988) following the Ford v. Quebec Supreme Court decision, which struck down restrictions on English-language commercial signage. Ontario Premier Doug Ford’s three invocations between 2018 and 2022 marked the province’s first significant Section 33 activity. Alberta Premier Ralph Klein used it in 2000 for employment equity rollback. Saskatchewan Premier Scott Moe’s 2023 pronoun policy proposal marked the province’s most visible flirtation with the tool (CBC).

Federal considerations

No federal government has ever invoked Section 33, though constitutional scholars note the tool exists for Parliament as well as provincial legislatures. The Department of Justice Canada confirms that Section 33 applies to Parliament and provincial legislatures equally, but Ottawa has treated it as politically toxic. Pierre Trudeau’s government negotiated the clause as a concession to provincial concerns during the 1981 First Ministers’ Conference, yet never considered using it. The Canadian Civil Liberties Association observes that federal hesitation stems partly from optics—invoking the clause would signal that Cabinet believes its legislation cannot survive Charter scrutiny (Canadian Civil Liberties Association).

How many times has the notwithstanding clause been used in Canada?

Researchers estimate Section 33 has been invoked approximately 26 times since 1982, though counting methodology varies depending on whether Quebec’s routine 1982–1985 omnibus declarations count as single or multiple uses. Amnesty International’s tracking places the figure at “around 26 times,” with Quebec responsible for the majority (Amnesty International UofT). The Library of Parliament’s more granular analysis breaks Quebec’s early use into distinct legislative episodes, suggesting the true count depends on how one defines an “invocation”—the omnibus approach bundled multiple declarations into single bills.

Historical tally

The timeline splits clearly into three periods. The first phase (1982–1985) saw Quebec’s National Assembly systematically invoke Section 33 through three omnibus bills covering pre-Charter statutes. The second phase (1988–2017) featured occasional reactive uses: Quebec’s Bill 178 response to Ford v. Quebec, Alberta’s 2000 employment equity move, and scattered language-law invocations. The third phase (2018–present) marks a resurgence, with Ontario alone accounting for three invocations and Quebec adding Bill 21 to its ledger.

Recent frequency

The 2018–2022 period represents the busiest four-year stretch in Section 33 history outside Quebec’s early omnibus phase. Ontario Premier Ford deployed it three times in four years—a rate that drew sharp criticism from rights advocates. Saskatchewan Premier Moe’s 2023 pronoun policy proposal and Alberta Premier Smith’s 2025 announcement suggest the pace continues accelerating (CBC).

The pattern: Recent provinces are invoking Section 33 at a faster per-decade rate than Quebec’s peak years, suggesting the tool is becoming more politically acceptable across the country.

Why is the notwithstanding clause controversial?

The clause lets legislatures override court rulings on fundamental rights without explaining why Charter protections should yield. Section 33 does not require legislators to justify their decision—the declaration simply notes that the bill operates notwithstanding specific Charter sections. The Canadian Civil Liberties Association argues this structure fundamentally inverts judicial review: rather than courts reviewing legislation for Charter compliance, legislatures announce they will not comply (Canadian Civil Liberties Association).

Rights override concerns

The concerns cluster around three problems. First, the clause shields legislation from remedies—courts cannot award damages or order injunctions against laws operating under Section 33. Second, the 5-year renewable window creates perpetual uncertainty for affected groups: those whose rights are violated must wait for expiry or political change. Third, the tool was drafted for narrow exceptions—specific benefits that might seem discriminatory under broad Charter language—yet provinces now deploy it for sweeping policy choices like secularism bans and parental notification rules (Canadian Civil Liberties Association).

Political backlash

The backlash varies by province. Ontario’s education workers’ strike invocation drew condemnation from unions and opposition parties, with critics arguing the Ford government used a constitutional nuclear option against collective bargaining rights. Egale Canada highlights LGBTQ+ concerns: Saskatchewan and Alberta pronoun policies target trans and non-binary students, and Section 33 would block court challenges even if those policies violate Charter equality rights (Egale Canada). Constitutional scholars writing in the Constitutional Forum journal argue the recent surge signals a “normalization” that erodes Charter authority over time (Constitutional Forum).

When was the notwithstanding clause created?

Section 33 was added to the Canadian Charter of Rights and Freedoms during the final round of patriation negotiations at the 1981 First Ministers’ Conference. Alberta Premier Peter Lougheed pushed hardest for its inclusion, arguing that provinces needed a tool to override Charter rulings they considered overreaching. The compromise emerged from federal-provincial bargaining: Ottawa accepted the clause in exchange for provincial acceptance of the Charter itself. The section took effect when the Charter was officially patriated on April 17, 1982 (Library of Parliament). The notwithstanding clause was added to the Canadian Charter of Rights and Freedoms during the final round of patriation negotiations at the 1981 First Ministers’ Conference, and you can find more information about the Classement général Tour de France Feminin 2025 here.

Charter patriation

Patriation—the process of severing Canada’s constitutional links to Britain—was completed in 1982 after decades of negotiation. Prime Minister Pierre Trudeau secured agreements with nine provinces in November 1981, with Quebec’s National Assembly later refusing to consent. Section 33 served as Quebec’s explicit opt-out mechanism: René Lévesque’s government could use it to protect Quebec legislation from Charter challenges, including French-language requirements and cultural policy laws. The Department of Justice Canada confirms that Quebec’s first use came within months of the Charter’s enactment (Department of Justice Canada).

Alberta proposal

Alberta’s role in Section 33’s creation is often underappreciated. Premier Lougheed’s negotiating team insisted the clause include no justification requirement—provinces could invoke it for any reason or no reason at all. The original drafters intended it for narrow cases: specific benefit programs for particular populations that might seem discriminatory under broad Charter language, but the constitutional text contains no such limiting principle (Canadian Civil Liberties Association). The Amnesty International analysis at University of Toronto documents how the gap between drafters’ intent and actual usage has widened over four decades.

Timeline signal

The notwithstanding clause’s history tracks Canada’s evolving constitutional politics: early Quebec resistance, decades of dormancy, and recent revival as premiers discover its utility for politically fraught policies.

The implication: The timeline shows a clear shift from Quebec-only use in the 1980s to multi-province deployments since 2018, with the frequency accelerating as more premiers discover the clause’s political utility.

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To contextualize how premiers wield power through it, the Canada’s Charter override explaineddetails Section 33’s mechanics and its role since 1982 amid heated debates.

Frequently asked questions

“The sole purpose of the notwithstanding clause was only for those exceptionally rare circumstances when a province wanted to bring in a specific benefit or program provision for a part of their population—people of a certain age, for example—that might have seemed discriminatory under the Charter.”

— Elected official involved in 1981 constitutional negotiations, quoted by Canadian Civil Liberties Association

“We are witnessing a normalization of the notwithstanding clause that would have been unthinkable in the 1990s.”

— Analysis from Constitutional Forum journal

For premiers who have watched courts strike down their legislation, Section 33 offers an exit ramp that the Charter technically permits but drafters never anticipated becoming routine. Premier Danielle Smith’s 2025 move fits a pattern established by Ontario’s Doug Ford and Quebec’s François Legault: invoke, shield, and let courts issue advisory opinions that carry no enforcement power. The Canadian Civil Liberties Association and rights groups argue this hollows out constitutional protections, but defenders say elected legislatures should have final say on contested policy. What the next five years hold depends on whether renewals keep pace—whether Alberta’s 2025 invocation expires without replacement, or whether the notwithstanding clause settles into a permanent feature of Canadian legislative life. For provinces watching Alberta’s experiment, the calculus is straightforward: use the clause to protect priorities the courts might block, or risk watching cherished policies unravel under Charter scrutiny.