CALGARY, AB: The Justice Centre for Constitutional Freedoms announces the release of its latest report, Saving Canada from juristocracy: How the Charter’s notwithstanding clause protects democracy, written by veteran journalist and public policy analyst Nigel Hannaford. The report argues that section 33 of the Charter, commonly known as the notwithstanding clause, is a vital democratic check that allows elected representatives to have the final say on how specified Charter rights and freedoms are interpreted and applied in legislation.
The notwithstanding clause allows Parliament and provincial legislatures to disagree with a court’s interpretation of specified Charter rights and freedoms. It applies to fundamental freedoms such as expression, religion, and association, as well as legal and equality rights, but not democratic or mobility rights. The clause can be invoked before or after a court ruling, remains in effect for up to five years, and can be renewed.
Built into the Charter as part of the 1981 constitutional compromise, the notwithstanding clause reserved a measure of legislative authority even as the new constitutional framework significantly expanded the power of courts to review and strike down legislation. The premiers of Alberta, Saskatchewan, and Manitoba insisted on preserving legislative supremacy over the courts in specified areas as part of the constitutional bargain.
Report author Mr. Hannaford describes section 33 as Canada’s distinctive safeguard against “juristocracy” — the shift of significant governing power from democratic institutions to unelected judges. Responsible use of the clause, he argues, allows elected legislatures to disagree with judicial interpretations of specified Charter rights and prevents courts from having the final word on major political and social questions.
The report identifies three distinct periods in the history of the notwithstanding clause: heavy early use, primarily by Quebec; decades of relative disuse; and a revival beginning in 2017. Since then, Alberta, Saskatchewan, Ontario, and Quebec have all invoked the clause. Recent uses have involved parental rights, labour disputes, election advertising, religious symbols, and medical interventions for minors.
The report also challenges the assumption that invoking the clause is politically damaging, noting that governments in Quebec, Ontario, and Saskatchewan have been re-elected after using it.
Among its recommendations, the report calls on elected governments to treat the careful and transparent use of the notwithstanding clause as a legitimate constitutional tool, rather than a dangerous “last resort.” Governments that use the clause must ultimately answer to voters for their decisions.
The report also calls on media and academics to recognize the notwithstanding clause as a legitimate part of Canada’s constitutional system, rather than routinely portraying it as a “nuclear option.”
Nigel Hannaford said, “Courts have an important role in our constitutional system, but they are not the only institution with a legitimate voice.”
“Section 33 allows elected governments to disagree with judges and then answer to voters for that decision,” he added.
The Justice Centre is Canada’s leading civil liberties organization fighting for Charter rights and freedoms in the courts of law and in the court of public opinion. Founded in 2010, the Justice Centre funds lawyers across Canada, relies entirely on voluntary donations to carry out its mission, and issues official tax receipts to donors.