Alberta and the notwithstanding clause.

• Author: Dickson, Gary

In 1998, the Alberta provincial government introduced Bill 26, the Institutional Confinement and Sexual Sterilization Compensation Act. That bill prescribed a formula to settle claims by persons who had been sexually sterilized many decades ago. Bill 26 also represented the very first attempt by Alberta to invoke the "notwithstanding clause" in section 33 of the Charter of Rights and Freedoms (the Charter). Bill 26 was met with an intense and immediate storm of protest. Within 24 hours, a chastened Alberta government announced that it was withdrawing the bill.

Since that time we have heard some demand that government invoke the notwithstanding clause to prevent a number of other statutes from being struck down by the courts under the Charter. In the spring of 2000 the Alberta Legislative Assembly actually passed Bill 202, the Marriage Amendment Act, 2000. This bill would require the notwithstanding clause to be used if and when a court should hold that the provincial Marriage Act offended the Charter. The stated purpose of Bill 202 was to prevent any judicial requirement that marriage be available to same-sex partners.

How does the notwithstanding clause, Section 33, of the Charter operate? It allows Parliament or a provincial legislature to declare that a given statute shall operate notwithstanding anything contained in section 2 or sections 7 to 15 of the Charter. Section 2 lists 4 fundamental freedoms: freedom of conscience, freedom of thought, freedom of peaceful assembly and freedom of association. Sections 7 to 15 set out legal rights such as the right not to have to incriminate oneself, and the right not to be subjected to any cruel and unusual punishment. The effect of a declaration under section 33 is that the statute would then override the provision in the Charter if there were a conflict between the statute and the Charter. The declaration under section 33 is effective for only five years unless Parliament or the provincial legislature makes a fresh declaration for a further five years.

This provision has a very interesting history. The Charter came into force in 1982. The convoluted negotiations that led to the adoption of section 33 are described in Bringing the Constitution Home, an essay by Prime Minister Jean Chretien and included in the book, Towards A Just Society. Mr. Chretien was Pierre Trudeau's Justice Minister at the time and recounts some of the personalities and challenges behind the Charter. In the discussions...