The notwithstanding clause remains one of the most misunderstood and controversial elements of Canada's constitutional framework. While critics often portray Section 33 of the Charter as a democratic aberration, a closer examination reveals that these arguments fundamentally misrepresent both its purpose and proper function.
The Historical Compromise That Built a Nation
Section 33 emerged from intense negotiations during the patriation of Canada's Constitution in 1982. This wasn't an afterthought but a carefully crafted compromise that balanced individual rights with parliamentary sovereignty. The clause represents a distinctly Canadian approach to constitutional governance—one that acknowledges that elected legislatures sometimes need the final word on fundamental policy matters.
Dispelling the Common Myths
Critics frequently make several flawed assumptions about the notwithstanding clause:
- Myth 1: It undermines the Charter's protection of rights
- Myth 2: It represents an authoritarian power grab
- Myth 3: It violates international human rights standards
Each of these criticisms collapses under proper constitutional analysis. The clause operates as an integral part of the Charter framework, not as an exception to it. The requirement for explicit declaration and five-year sunset provisions ensure transparency and accountability.
Parliamentary Sovereignty vs. Judicial Supremacy
The heart of the debate centers on a fundamental question: Who should have the final say on major social policy decisions? The notwithstanding clause preserves the Westminster tradition of parliamentary sovereignty while still establishing robust rights protection through judicial review.
This creates a dynamic balance where courts interpret rights, but elected officials retain ultimate responsibility for difficult policy choices that affect the entire community.
The Reality of Section 33 in Practice
Contrary to alarmist predictions, the notwithstanding clause has been used sparingly throughout Canadian history. When invoked, it has typically addressed genuinely complex policy questions where reasonable people can disagree about how to balance competing rights and interests.
The political costs of using Section 33 ensure that governments don't invoke it lightly. The requirement for renewal every five years forces ongoing public debate about controversial measures.
A Tool for Democratic Dialogue
Rather than seeing the notwithstanding clause as a threat to rights protection, we should understand it as a mechanism for sustaining democratic conversation about fundamental values. It ensures that elected representatives, not just appointed judges, remain central players in determining how rights should be balanced in a diverse society.
The clause embodies the wisdom that in a democracy, difficult value choices should ultimately remain with the people through their elected representatives.
As Canada continues to grapple with complex social issues, the notwithstanding clause stands as a testament to the founders' vision—a Constitution that protects both individual rights and democratic governance.
