In today's polarized political climate, the notwithstanding clause stands as one of Canada's most contentious constitutional tools. But what many Canadians don't realize is that this controversial provision once enjoyed strong support from an unlikely quarter: the political left.
The historical record reveals a fascinating paradox. During the constitutional debates of the early 1980s, socialist and social democratic voices actively championed Section 33 of the Charter as a vital democratic safeguard. They saw it not as a threat to rights, but as a necessary check on judicial power that would keep final authority in elected legislatures.
The Progressive Case for Parliamentary Sovereignty
Early socialist supporters argued that the notwithstanding clause protected democracy from unelected judges who might strike down progressive legislation. Their reasoning was straightforward: if courts could overturn laws passed by democratically elected governments, what would stop them from dismantling hard-won social programs?
This perspective reflected a deep-seated belief in parliamentary sovereignty—the idea that elected representatives, not appointed judges, should have the final say on major policy questions. For socialists concerned about protecting workers' rights and social programs, this wasn't just theoretical; it was a practical defense against potential judicial activism.
The Turning Point: From Champion to Critic
So what changed? The transformation in left-wing attitudes toward the notwithstanding clause has been dramatic and relatively recent. Several factors contributed to this shift:
- Quebec's Bill 21: The use of Section 33 to shield Quebec's secularism law from Charter challenges marked a watershed moment
- Saskatchewan's School Pronoun Policy: The province's invocation of the clause to protect its education policies further alienated progressive supporters
- Changing Judicial Landscape: As courts became more receptive to progressive arguments, the left's suspicion of judicial review diminished
The Modern Dilemma: Principle Versus Practical Politics
Today's progressive politicians face a constitutional conundrum. The very tool their ideological predecessors saw as protecting democracy is now frequently deployed for purposes they oppose. This creates tension between their commitment to parliamentary sovereignty and their desire to protect minority rights.
The debate raises fundamental questions about Canadian democracy: Should elected legislatures have the final word on contentious social issues? Or have courts become better guardians of rights in our diverse society?
A Tool Transformed by Usage
The notwithstanding clause's journey from socialist darling to progressive pariah reflects broader changes in Canadian political culture. What was once seen as a bulwark against elite judicial power is now often viewed as a threat to vulnerable communities.
This transformation speaks volumes about how constitutional provisions can be reinterpreted through changing political lenses. The clause itself hasn't changed, but its perceived purpose and legitimacy have shifted dramatically in the eyes of the Canadian left.
As constitutional battles continue to shape Canadian society, understanding this historical evolution provides crucial context for today's debates about the proper balance between parliamentary sovereignty and Charter rights.
