Notwithstanding Clause Defended as Democratic Safeguard, Not Constitutional Flaw
Section 33 of Canada's Constitution Act of 1982, commonly known as the notwithstanding clause, has frequently faced criticism as a potential threat to the rule of law. However, former federal minister and Montreal mayor Denis Coderre presents a compelling counterargument: this constitutional provision is not a flaw but rather a fundamental democratic safeguard designed to maintain institutional balance.
The Constitutional Mechanism and Its Purpose
The notwithstanding clause was never intended to be a comfortable or easily invoked tool. Instead, it was deliberately crafted to be decisive, reflecting a core democratic principle that elected officials must ultimately govern. While the judiciary plays a vital role in interpreting laws, safeguarding rights, and ensuring constitutional compliance, it does not legislate. This boundary between judicial interpretation and legislative authority is not merely technical—it forms the foundation of institutional balance within Canada's democratic system.
When governments invoke Section 33, they do so transparently and accept full political accountability for their decisions. There is no ambiguity or deflection in this process. The clause ensures that responsibility for contentious legislation rests squarely with elected representatives who must answer to voters.
Historical Use and Current Examination
Across Canada, governments of various political stripes have utilized Section 33 throughout the decades since its enactment. Quebec's use of the clause represents no exception or aberration but rather demonstrates the functioning of a carefully negotiated constitutional feature that was intentionally preserved during the 1982 constitutional negotiations.
Some continue to argue that Quebec never formally endorsed the 1982 Constitution. Yet political reality presents a different perspective: using a constitutional mechanism constitutes, in itself, a form of recognition. One cannot selectively deny legitimacy to a constitutional framework while actively relying on its provisions.
The Supreme Court of Canada is currently examining the scope of the notwithstanding clause, including its pre-emptive use in relation to Quebec's Bill 21 concerning state secularism. Any judicial attempt to narrow the clause's application raises significant concerns about the gradual transfer of political authority from elected bodies to the courts.
Democratic Responsibility and Institutional Balance
Section 33 serves as a political instrument whose use and consequences properly belong to elected governments and, ultimately, to the voters who hold them accountable. As Coderre notes, one cannot do indirectly what cannot be done directly through constitutional interpretation.
As a practising Catholic, Coderre acknowledges the importance of religious freedom while recognizing that Quebec has made a collective choice in favor of a secular state. Governments possess both the right and responsibility to legislate within that framework, making difficult decisions and standing by them.
Governing fundamentally involves making challenging decisions rather than avoiding them. Section 33 ensures that responsibility for these decisions cannot be circumvented through judicial interpretation, maintaining its essential role within Canada's democratic architecture.
The bronze statue Ivstitia (Justice) standing outside the Supreme Court in Ottawa symbolizes the judicial branch's role, but as Coderre emphasizes, the notwithstanding clause represents the necessary counterbalance that preserves democratic governance through elected representatives.
