Can Using the Constitution be Unconstitutional?

Author: Tim Platnich

Date: January 5, 2026

There is much press these days concerning provincial use of the 'notwithstanding clause'. This clause is part of the Canadian Constitution. It is section 33 of the Canadian Charter of Rights and Freedoms. It is as much a part of the Constitution as are the sections of the Charter that can be overridden with its use.

Section 33(1) says: "Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter." [emphasis added]

Section 2 says 'Everyone has the following fundamental freedoms ..." and then lists the freedoms of: conscience and religion; thought, belief, opinion and expression; peaceful assembly; and association.

Sections 7 - 15 deal with legal rights (as opposed to freedoms). These legal rights include the right to life, liberty and security of the person; procedural rights related to arrest, detention, and the manner of being charged and tried; rights to not be subjected to cruel and unusual treatment or punishment; the right against self-incrimination; and equality rights.

The starting point is this: the rights and freedoms set out in the Charter are not absolute rights. All the rights and freedoms are subject to 'reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. This is set out in the first section of the Charter - Section 1.

Additionally, the rights and freedoms set out in section 2 and sections 7 - 15, what I will call the 'qualified sections', are further qualified, or you might even say conditional. They are qualified by section 33. Section 33 allows a duly elected government, be it Parliament or a provincial legislature, to override the qualified sections of the Charter.

How can the use of section 33 be unconstitutional? It is in the Constitution. Its use is constitutionally permitted.

Those opposed to the use of section 33 want to argue that the qualified rights are not qualified but absolute. But this is not what the Constitution says. If opponents want to eliminate section 33, their only legitimate option is to try and have the Constitution amended. Part V of the Canada Act 1982 sets out a procedure for amending the Constitution. Indeed, Part V is entitled: "Procedure for Amending Constitution of Canada". It is an onerous procedure requiring: resolutions of the federal government, both the House of Commons and the Senate; and resolutions of two thirds of the provinces that in aggregate represent at least half of the population of Canada. But this is the procedure that was agreed to as part of the package. The amendment procedure requires a political, democratic process.

I say this is the only legitimate option because there are many legal scholars and activists that prefer a different approach: judicial activism. They seek to amend the Constitution through judicial fiat.

Section 33 was included in the Constitution just to prevent such judicial activism. It would be ironic indeed if judicial activism became the mechanism for eliminating the use of section 33!