The notwithstanding clause is a vital safeguard against unelected judges gaining too much power over Canadian laws and public policy, according to a new report from the Justice Centre for Constitutional Freedoms.The Calgary-based constitutional rights organization released Saving Canada from juristocracy: How the Charter’s notwithstanding clause protects democracy, written by former Western Standard Opinion Editor and public policy analyst Nigel Hannaford.The report argues Section 33 of the Charter of Rights and Freedoms gives elected governments an important constitutional mechanism to disagree with court interpretations of certain Charter rights and ultimately remain accountable to voters for those decisions.“Courts have an important role in our constitutional system, but they are not the only institution with a legitimate voice,” said Hannaford.“Section 33 allows elected governments to disagree with judges and then answer to voters for that decision.”The notwithstanding clause permits Parliament and provincial legislatures to override judicial interpretations involving specified Charter protections, including fundamental freedoms such as expression, religion and association, as well as legal and equality rights.It cannot be used to override democratic or mobility rights.Governments can invoke the clause before or after a court ruling. An invocation remains in effect for up to five years but can subsequently be renewed by the legislature.The report traces the clause to the constitutional negotiations of 1981, when the premiers of Alberta, Saskatchewan and Manitoba pushed to preserve legislative authority in specified areas as Canada's new constitutional framework expanded the power of courts to review and strike down legislation.Hannaford describes Section 33 as a safeguard against “juristocracy,” which he defines as the transfer of significant governing authority from elected democratic institutions to unelected judges.The report argues responsible use of the clause ensures courts do not automatically have the final say on contentious political and social issues involving specified Charter rights..It divides the history of Section 33 into three periods: frequent early use, largely by Quebec; decades in which governments rarely invoked it; and a resurgence beginning in 2017.Alberta, Saskatchewan, Ontario and Quebec have since invoked the clause on issues including parental rights, labour disputes, election advertising, religious symbols and medical interventions involving minors.The Justice Centre report also disputes claims that invoking Section 33 necessarily carries a heavy political price.It notes governments in Quebec, Ontario and Saskatchewan have subsequently won re-election after using the clause.Hannaford recommends governments treat careful and transparent use of Section 33 as a legitimate part of Canada's constitutional system rather than regarding it as a constitutional “last resort.”The report argues the ultimate check on governments using the notwithstanding clause is the electorate, because politicians must defend their decisions at the ballot box.It also calls on academics and media organizations to stop routinely characterizing Section 33 as a “nuclear option,” arguing such descriptions misrepresent a mechanism deliberately included in Canada's constitutional framework.
