The Carney government is asking the Supreme Court of Canada to do something unprecedented: give judges explicit power to second-guess whether elected governments should have invoked the Charter’s notwithstanding clause. If successful, this would fundamentally alter the balance between democratic accountability and judicial authority that has defined Canadian constitutional law for over four decades, as well as raise the spectre of a constitutional crisis.
In its recently filed brief in the litigation challenging Quebec’s secularism law, Bill 21, Ottawa argued that courts should be able to declare when a law protected by the notwithstanding clause violates Charter rights, even if they cannot strike it down. More dramatically, Ottawa wants courts to review “prolonged” use of the clause to determine whether that creates an “irreparable impairment” of rights.
If accepted, this would mark the first time in Canadian history that courts could police legislatures’ use of section 33 beyond checking that its formal requirements have been met, transforming what was designed as a democratic safety valve into a judicially supervised device.
To understand what’s at stake, we need to remember why section 33 exists at all. The notwithstanding clause was essential to Canada’s constitutional compromise in 1982. Former premiers, including Peter Lougheed of Alberta and Allan Blakeney of Saskatchewan, insisted on including section 33 as a means by which legislatures could either address clear judicial mistakes or signal their reasonable disagreement with judicial interpretations of the Constitution.
As the Quebec Court of Appeal recently reaffirmed in Hak v. Attorney General of Quebec, one of the decisions underlying this appeal, section 33 is itself part of the Constitution, and there would have been no Charter without it. Section 33 was the compromise that allowed the Charter to exist at all—a deliberate check on judicial supremacy.
This wasn’t an accident or oversight. When considering the crucial role of judges in protecting rights, it’s important to recall that they sit on one branch of the very constitutional state they are meant to govern. It would be naive to assume that judges are incapable of error, or that there might not be room for reasonable disagreement between the judiciary and legislatures about their constitutional decisions.
The federal submission dresses up its proposal as rights protection, but its basic effect would be a dramatic transfer of power from legislatures to courts.
