Caroline Elliott: The balance of the notwithstanding clause must be respected

Expanding the already significant power of the judiciary is perilous for Canada's federal system.

(Canada’s nine justices of the Supreme Court at the ceremonial opening of the judicial year.)

Canada’s longstanding debate around the Charter’s notwithstanding clause has reared its head again. This time, it was prompted by Alberta’s promise to invoke the clause to protect its gender identity laws from being struck down by the courts.

Other recent instances of its use include its invocation by Alberta in October to order teachers back to work, by Quebec in 2024 to protect its secularism laws, and by Saskatchewan in 2023 for its law requiring students under 16 to obtain parental consent to change their pronouns at school.

The comparatively frequent use of the notwithstanding clause of late has led scholars to refer to its “resurgence.” Geoffrey Sigalet and Dave Snow attribute its increased use to the fact that provincial statutes have been invalidated at notably higher rates since 2010. They also suggest that conflicts between conservative provincial governments and the Liberal federal government play a role in helping to frame the clause “as a partisan tool for resisting centralising rights decisions.”

With the clause being invoked more often, and with the causal factors Sigalet and Snow identify being unlikely to go away, it’s worth taking a moment to understand the unique balance the notwithstanding clause represents. The clause, which forms section 33 of the Charter, allows the federal or provincial governments to protect their laws from being overturned by the courts. Essentially, it can be used by legislatures to prevent the courts from invalidating proposed laws under specific provisions of the Charter.

Critics of the clause have long been concerned about the potential for elected representatives to use a majority to override rights established in the constitution that they say are necessary to the proper functioning of a democracy. It was on this basis that Pierre Trudeau argued in 1990 that it was “in flagrant contradiction with the very essence and existence of the Charter.” Writing around the same time, John Whyte suggested that “political authority will, at some point, be exercised oppressively,” including by democratic majorities.

These criticisms overlook that the notwithstanding clause is not only a component of the Charter, but a condition of its very existence. It was originally included at the insistence of western premiers, whose approval was necessary for the Charter’s passing. They were worried the Charter would give greater power to unelected, unaccountable judges at the expense of democratically elected representatives. They also had concerns about its potentially centralising and homogenising impacts in a federal system that had long allowed for provincial particularisms.

Given these concerns, proponents of the clause insisted that it enhances democracy by placing final authority as to how we define rights into the hands of elected representatives, and offering the ability to course correct when a legislature believes the courts have misinterpreted the Charter.

As Peter Russell wrote over 30 years ago, the ability of legislatures to use the clause to override the judiciary sends a signal “that Canadians have not yet given up our capacity for debating and deciding great issues of political justice in a popular forum.” And while Paul Weiler admitted that the courts can play a role in restraining the tyranny of the majority, he also insisted that the definition and limits of our rights “is always an ambiguous and debatable matter.”

Today, the notwithstanding clause is unique among national constitutional democracies, and it deserves recognition as an innovative means of harnessing a crucial tension that exists in constitutional democracies. Political theorists call this tension the “democratic paradox.”

As Bonnie Honig explains, the paradox arises from the fact that “we cannot have democracy with constitutionalism, and we cannot have democracy without constitutionalism either.” Constitutional democracies “impossibly but necessarily” combine written constraint with free popular sovereignty, and then derive their legitimation from that “impossible, tense combination.”

Chantal Mouffe similarly writes that the concept of ‘liberal democracy’ is based on the articulation of two different, incompatible and irreconcilable traditions. The ‘liberal’ component of liberal democracy is “constituted by the rule of law, the defence of human rights and the respect of individual liberty,” while the ‘democratic’ component is based on “equality, identity between governing and governed, and popular sovereignty.” These ideas are in a constant state of tension because “there is no guarantee that a decision made through democratic procedures will not jeopardize existing rights” and thus “limits are always put on the exercise of the sovereignty of the people.” In a liberal democracy, it is therefore “legitimate to establish limits to popular sovereignty in the name of liberty. Hence its paradoxical nature.”

The constraints on democratic power referenced by Honig and Mouffe usually take the form of a constitution. Put simply, the liberties outlined in constitutions are a condition of a democracy’s proper functioning, yet they by their very nature limit the options available to democratic governments. The two competing sides of the paradox – the rights and liberties embodied by constitutions on the one hand, and popular sovereignty embodied by democratically elected legislatures on the other – vary greatly in the way they are weighted in different systems.

In Canada, the notwithstanding clause provides a unique balance. As Weiler put it (at the risk of oversimplifying his point), it is “an innovative institutional arrangement that combines the best features of British parliamentary supremacy and American judicial supremacy.” Following Honig and Mouffe, the notwithstanding clause means we don’t have to rigidly determine which of the two ‘halves’ of liberal democracy ought to take priority. Instead, we can accept and even embrace a dynamic of contestation between them both.

When the judiciary disagrees with the scope given to Charter rights in a legislative initiative, they can overturn it after a process of contestation before the courts. While the way this plays out in practice may be fairly criticized, this process represents the ‘liberal’ side of the liberal democracy equation taking priority, with all of its unaccountable imperfections. When the notwithstanding clause is used to pull such an issue back into the domain of elected representatives, we see the democratic side of the equation reasserted, with all of its potential for majoritarianism. This is usually accompanied by a healthy public debate that should be seen as a welcome part of the process.

Those who repudiate any use of the notwithstanding clause whatsoever, or who seek to impose limits on its use, miss the nuance of what it represents. It’s far from perfect, but it comes as close as anything to achieving a productive push-and-pull between the “impossible, tense combination” of the competing principles that underlie our constitutional democracy.

Caroline Elliott holds a PhD from Simon Fraser University in democratic theory and Canadian government. She is a co-founder and contributor to Without Diminishment.