Section 33 of the Canadian Charter of Rights and Freedoms

In effect, it protects the British tradition of parliamentary supremacy under the American-style system of written constitutional rights and strong courts introduced in 1982.

[4] Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression.

Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word.

Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers.

This compromise 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.

"[3] In exchange for agreeing to the Notwithstanding Clause, Trudeau declined to remove the federal powers of disallowance and reservation from the draft Constitution.

[7] When it was introduced, Alan Borovoy, the general counsel to the Canadian Civil Liberties Association, addressed concerns that the Notwithstanding clause was susceptible to abuse from a government by stating that "Political difficulty is a reasonable safeguard for the charter.

"[3] During the January 9, 2006, party leaders' debate for the 2006 federal election, Prime Minister Paul Martin unexpectedly pledged that his Liberal government, if returned, would support a constitutional amendment to prevent the federal government from invoking section 33, and challenged Conservative leader Stephen Harper to agree.

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).

In 2021, Ontario passed a law invoking the clause to increase the time period during which third-party groups must limit their activities in the lead-up to an election.

[6] There were also discussions to invoke the notwithstanding clause following the Supreme Court of Canada's 1998 decision in Vriend v Alberta, but were resisted by Premier Ralph Klein at the time.

[45] On November 22, 2019, Education Minister Dominic Cardy introduced a bill in the Legislative Assembly of New Brunswick to end non-medical exemptions to vaccinations in school children, which includes invoking the notwithstanding clause.

Cardy said this was to pre-empt any court and charter challenges to the bill by "an organized, well-financed lobby out there that's intent on derailing efforts to protect vulnerable children".

Premier of Ontario Doug Ford stated that the council had "failed to act on the critical issues facing the city", and claimed cost savings of $25 million over the next four years.

[48][49][50] On September 10, 2018, the act was struck down by Superior Court Justice Edward Belobaba as unconstitutional, ruling that the larger wards infringed voters' rights to an election whose outcome provides "effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression.

During the oral argument for that case, the counsel for the attorney general stated that the provincial government would not proceed with the legislation to invoke the notwithstanding clause if the stay was granted.

In March 2023, the Court of Appeal for Ontario struck down the law again, this time for violating a section of the charter not protected by the notwithstanding clause relating to voter participation.

[62][20] The Quebec Liberals did successfully invoke the notwithstanding clause to apply to a number of pieces of legislation pertaining to education and pensions between 1986 and 1992.

[2] Due to the mass opposition that its use, or even threatened use, as in the case of Alberta (listed above), would evoke, the act of invoking the notwithstanding clause would be more politically costly even than had always been apprehended, according to some.

On March 28, 2019, the recently elected Coalition Avenir Québec (CAQ) government applied the notwithstanding clause in Bill 21 (An Act respecting the Laicity of the State).

The amendment also granted search and seizure laws to the Office québécois de la langue française (OQLF) and the Minister Responsible for the French Language.

Section 111 gives the OQLF authorization to "enter at any reasonable hour any place, other than a dwelling house," where a business conducts activity or holds documents.

The Minister of Justice and French Language, Simon Jolin-Barrette, said that access would not change for English speakers, but critics suggested that the law is unclear, especially since unlike in the Act respecting the laicity of the State, no special exemption is explicit.

The Court of Appeal for Saskatchewan had previously held that a similar back-to-work law was unconstitutional because it infringed workers' freedom of association.

In 2023, Premier Scott Moe told reporters that the province would be willing to use the notwithstanding clause to uphold a policy requiring parents be notified of and approve any requested name and pronoun change from their child before it be recognized at school.