One of the most controversial provisions of the Charter of Rights and Freedoms is Sec. 33, the so-called “notwithstanding clause.”.The provision allows the federal or provincial governments to enact laws that override certain Charter rights for renewable five-year terms..Recently, the Quebec government invoked the notwithstanding clause twice to protect a secularism law and a language law from Charter-based legal challenges..With this in mind, Prime Minister Justin Trudeau stated in a January interview with a Quebec-based online news site he would like to limit the use of the notwithstanding clause..“There should be a political consequence to” invoking the notwithstanding clause, Trudeau said. He went on to claim “... we are experiencing a certain trivialization of this suspension of rights.”.Then he added this: “And when you combine that with the rise of populism around the world, you can see that there are concerns about what might be done.”.It seems, then, that his desire to limit the use of the notwithstanding clause is driven — at least partly — by his concern “with the rise of populism around the world.”.Is Trudeau still worried about Donald Trump?.There is much wrong with Pierre Trudeau’s so-called Charter of Rights and Freedoms, but the notwithstanding clause is not one of the problems. In fact, the notwithstanding clause was added at the insistence of mostly conservative-oriented premiers who were concerned about the Charter’s vast — and intentional — expansion of judicial power..Because that clause preserves the power of voters over judges, it can be considered a populist instrument. Sec. 33 allows elected officials to override decisions made by appointed judges. People power over judicial power — that's what has Justin Trudeau concerned..Many Canadians do not understand Sec. 33, but the rationale for it was clearly explained by former premier Peter Lougheed in a lecture he gave at the University of Calgary in November 1991. Fittingly, his lecture was entitled, “Why a Notwithstanding Clause?”.One of Pierre Trudeau’s goals with the Charter was to transfer some political decision-making power from elected officials to unelected judges. The premiers knew this and saw it as problematic. The example of the United States loomed large in this context because the U.S. Supreme Court began to make very controversial — and very left-wing — political decisions in the post-World War Two period, and some of the premiers wanted to avoid that kind of situation here..As Lougheed noted, the Prairie premiers wanted to defend “the supremacy of the legislature over the courts” because they didn’t want “to be in a position where public policy was being dictated or determined by non-elected people.”.Pierre Trudeau wanted unelected judges to have the final say in certain public policy contexts, whereas the Prairie premiers wanted elected officials to have the final say. That was the central issue. Thus, the notwithstanding clause was developed as a compromise between those two positions..As Lougheed put it, “Section 33 of the Charter effectively remedies the problems US legislators have had in responding to judicial decisions with which they disagree. The drafters of the Canadian Charter foresaw the problem created by judicial supremacy in the US, and opted to form a system of checks and balances between the judiciary and legislators before judicial supremacy could assert itself. Thus, at least one premise supporting the existence of Section 33 is that it allows effective political action on the part of legislators to curb an errant court.”.In the U.S., where no such clause exists, the appointment of judges has become a central political issue. Presidents will deliberately appoint judges expected to support their political agenda. Especially at the Supreme Court level, conflict over judicial appointees is intense because the political stakes are so high..Since elected officials in Canada have the option of invoking Sec. 33 to override extremely controversial or harmful judicial decisions, the need to have judges of a particular political stripe on the court is not so crucial. We’re not necessarily stuck with whatever judges decide to impose..It's also important to note the notwithstanding clause can only be invoked for a five-year period. A legislature must re-enact its use of the clause every five years or its invocation will automatically expire. This further restricts the power of the clause by bringing its use under renewed public scrutiny..Judges are not infallible. When they make harmful decisions, it is beneficial to have a provision to fix their mistakes that is less cumbersome and time-consuming than appointing new judges or amending the constitution..There are instances where popular opinion on a particular issue strongly opposes the views of the judicial elite. In such cases, Sec. 33 provides a mechanism for democratic restrictions on judicial power. As Lougheed stated, Sec. 33 is necessary to maintain “the supremacy of the elected Parliament over an appointed judiciary,” and this is why Justin Trudeau considers it to be dangerous in an era of populism.
