Canada’s derogation clause, listed in Section 33 of the Canadian Charter of Rights and Freedoms, allows for laws that do not respect fundamental freedoms for up to five years. The clause has been controversial, with Quebec refusing to accept it. Most provinces have not used it, and the UN has criticized its discriminatory use. The clause was denied in a 2005 federal decision to uphold gay rights.
The waiver clause is part of a 1982 revision of Canada’s constitutional law that allows for new laws to be enacted, for periods of up to five years, that do not specifically respect Canada’s fundamental freedoms. The controversy over the use of the opt-out clause became more pronounced in 1988-1989, when the Supreme Court of Canada had to hear a case related to Quebec’s Bill 101 on the Charter of the French Language. Legislative derogation powers such as the derogation clause limiting fundamental constitutional rights are a uniquely Canadian development that had no contemporary reflection in other Western democratic laws or international human rights declarations at the time, although provisions in Israeli and Australian law now are somewhat parallel.
Officially, the Canadian Charter of Rights and Freedoms enacted in 1982 is the specific Canadian law that contains the derogation clause, listed in Section 33, Part I. The elements of Canadian constitutional law that the clause has the potential to ignore are listed in the Section 33 These include fundamental freedoms such as freedom of expression, freedom of assembly and equality rights listed in section 2 of section 33 and legal and equality rights in sections 7-15 of section 33, which include the right to life, to liberty and the security of the person; freedom from arbitrary arrest; and so on.
The controversy over the adoption of the Section 33 derogation clause was alive at the time of its implementation and continues to be. Formal acceptance by all provinces took place except Quebec. The notwithstanding clause got its final definition through an informal meeting known as the Kitchen Accord, during which Canada’s Attorney General and two provincial ministers met in a kitchen at the National Conference Center in Ottawa to discuss the language of the compromise the final. They have worked with several premiers since this meeting to reach an agreement, while the Premier of Quebec at the time, René Levesque, was noticeably absent. He later publicly refused to accept the Kitchen Accord, and the Quebec government soon followed suit, but it still became Canadian national law.
Balanced views on the waiver clause saw it as a compromise between protecting the rights of provincial institutions versus protecting the rights of individual Canadians. Most Canadian provinces and territories have not invoked the opt-out power of the opt-out clause, and this is in part due to Quebec’s 1989 attempt to use it in Bill 101 to continue a policy of restricting commercial signs from posting in Quebec only in French. The United Nations Human Rights Committee saw such actions as discriminatory in 1993, and Quebec later revoked the authority of the derogation clause from their version of the Canadian Charter of Rights and Freedoms.
The use of the opt-out clause has been considered politically costly, but it remains a part of Canada’s constitutional law. A key case in which the opt-out clause was denied as a provincial law was the decision by the Canadian Parliament at the federal level in 2005 to uphold the rights of gay couples in civil unions. Ignoring any provincial intentions to waive such legislation by invoking the waiver clause was a victory for same-sex civil unions in Canada.
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