Does the Notwithstanding Clause Protect or Undermine Democracy? Two Opinions, One Hot-Button Issue

Last December, the OBA hosted a Notwithstanding Clause Education & Policy Summit that brought great legal minds together for an in-depth conversation about Section 33 that delved into trends in, guidelines on, and pros and cons of its use, in contemplation of “where do we go from here?” Two panelists who weighed in from the frontlines, Michael Bryant and Stéphane Sérafin, are keeping the dialogue going, providing two very different perspectives on this controversial topic that challenge us to consider the foundations and functioning of Canadian democracy.  

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Notwithstanding Clause:  Democracy, Flash Frozen

By Michael Bryant

Canada’s notwithstanding clause undermines democracy by truncating the constitutional dialogue between courts and legislatures. Rather than responding to a final court order with legislative amendment to the impugned instrument or action, the debate is ended, with the exercise of Section 33. Instead of a democratic ebb and flow, a hasty retreat takes place by Executive Council, which picks up its marbles and goes home. It’s lazy, invoking non obstante.  

After all, amending an impugned law is skillful, tricky business but that’s the very business of a parliamentary system. Throughout the debate and vote on said legislative amendment, posed as a corrective to court order, public accountability takes place. Debate takes place. Social media purrs, mainstream media pounces, dinner tables and coffee shops shake, rattle and roll. Democracy. Instead, it gets shut down, because the First Minister says so, that’s why. It’s lazy, and lazy is tyranny.  

The origins of the notwithstanding clause is a historical question that has been answered with some satisfaction. PM Trudeau (Sr.) used it as a negotiation pawn, sacrificing rights in the name of patriation and a promised Charter of Rights. Section 33 was a political maneuver of appeasement. Le mieux est l'ennemi du bien, and all that. If constitution-making were transactional, then the art of the deal is all that matters, the thinking goes. But it’s not about getting to yes, in fact. It’s about democracy.  

Democracy is not the tyranny of the majority, which applies when a minority is subjugated, wronged, excluded by a majority, under the thumb of a First Minister. But that’s exactly what has happened when it’s been invoked. All to truncate the dialogue between parliament and judiciary, always in the name of populist pose.  

Democracy can save a government or legislature from itself. This is the crux of democratic debate; of our legislative system, through its Question Period, Committee Hearings, Legislative Orders of the Day, all recorded in Hansard and by video. The formality of it lends a measure of authority to the process, just as does a court proceeding and rendering of judgement. Besides the formality, the due process, which often renders a foregone conclusion, where a majority whips its elected Members, there is time needed, ordinarily. Time plus politics equals democracy, because everything can change in an instant, in politics. But that presumes that time is afforded to permit those instants to happen.  

Section 33’s exercise stops that clock. No wrestling between branches of the state, over time, until something settles, something gives, democracy breathes. No time permitted. The oxygen is sucked out of democracy by use of this provision.  

Not only in the legislature and the courts, but also in the laborious work of the executive and in the public square. The aforementioned due process in legislature is proceeded by sometimes overdue and overdone process in the executive. Ordinarily, much goes into making a government bill. Prior to its 1^st Reading in the legislature, there are stakeholder meetings, Cabinet Committee deliberations, Ministerial reports, Cabinet Meetings, intra-Ministerial and inter-Ministerial discussions, elaborate work done by legislative drafters, and countless meetings between Ministerial (political) staff and the civil service. Not to mention the politicization of the issue, internally and externally, to fertilize the soil of legislative bills.  

If the trend in Ontario and Quebec continues, however, then all that democratic exertion can be prematurely chilled by the prospect of the First Minister’s itchy trigger finger. Once word is out that the fix is in, all that democracy is forestalled. And the word gets out easily – an unnamed source close to the Premier says that ….   A chilling murmur from First Minister to Cabinet Minister, a grumble in a Cabinet meeting, a churlish power play, as if royal edict were issued pre-Magna Carta. In our over-centralized First Ministerial system, an expression of intent to use Section 33 will instantly depress internal debate or any democratic churn. Consultation and analysis cancelled. The Premier has spoken.           

About the author

Michael Bryant was the 35th Ontario Attorney General, and CEO of Legal Aid BC and Canadian Civil Liberties Liberties Association. A Fulbright Fellow at Harvard Law School, Bryant clerked for Rt. Hon. Beverley McLachlin and taught Constitutional Law at King’s College, London, and his alma mater Osgoode Hall. Mjbryant.ca.

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Notwithstanding Clause: Preserving Canada’s Tradition of Parliamentary Democracy

By Stéphane Sérafin

Section 33 of the Canadian Charter of Rights and Freedoms, also known as the “notwithstanding clause” or “Parliamentary supremacy clause”, allows Parliament or a provincial legislature to exempt legislation from judicial review under Section 2 or Sections 7 to 15 of the Charter for a period of five years. This provision was a key part of the compromise reached in 1982, allowing for the introduction of American-style judicial review of legislation while preserving Canada’s tradition of Parliamentary democracy inherited from the United Kingdom.

Given the close connection between Section 33 and Canada’s democratic tradition, it is no coincidence that the five-year sunset clause is the only limit placed upon Section 33 by the constitutional text. It also explains why the sunset period chosen – five years – accords precisely with the maximum duration of Parliament or a provincial legislature provided by Section 4 of the Charter. While Parliament and legislatures are free to exclude judicial review on most Charter grounds for a period of five years, the electorate is guaranteed the opportunity to voice its views on the matter before Section 33 can be invoked for a further five-year term. This ensures that Section 33 serves its purpose as a proper democratic check on the judicial interpretation of the Charter’s vague, open-textured rights guarantees.

Opponents of Section 33 will typically respond to these observations by making one of two potentially overlapping claims. The first contends that Section 33 is not properly democratic, but instead affirms “majoritarianism”. On this view, true democracy is in fact threatened by the use of this device, especially in cases that involve groups that are perceived to be marginalized. The second is that the democratic check provided by the five-year sunset clause is largely ineffective in any event. According to this claim, the invocation of Section 33 will at best be one of many issues presented to the electorate during a given election campaign, and the evidence to date suggests that the electorate has not strongly objected to most of the uses to which Section 33 has been put.

These claims both miss the mark in similar ways. With respect to the claim that Section 33 affirms majoritarianism, not democracy, it rests on the rather disturbing conflation of democracy with a set of contestable political outcomes that are intended to triumph notwithstanding the disagreement of most Canadians. It also ignores the political contestation that is inherent in determining which of many competing rights claims are to be given precedence, even between groups perceived as marginalized. Judges possess no technical competence that allows them to resolve such issues in a satisfactory manner. To leave these claims in their hands, rather than in the hands of democratically-accountable institutions, is to risk solutions that lack broad support and fuel societal polarization. 

A similar issue afflicts the claim that Section 33 fails as a truly democratic check, because the electorate has not generally sanctioned governments for making use of this device. Once again, opponents of Section 33 are simply assuming the necessity of achieving contestable political outcomes. If the electorate has not seen fit to oppose the use of Section 33 in the vast majority of cases where it has been used, then this is a likely sign that the electorate either supported these uses or believed that they were reasonable. In contrast, opposition from the electorate has been effective in those cases where it has materialized. To cite just one recent example, the use of section 33 in back-to-work legislation in Ontario in 2022 was withdrawn after significant public opposition made clear that its use in that case was electorally untenable.

As the preamble of the Constitution Act, 1867 declares, Canada’s Constitution is “similar in Principle to that of the United Kingdom.” While the Charter has introduced American-style judicial review of legislation, the inclusion of Section 33 has ensured that it did so while remaining faithful to Canada’s inherited tradition of Parliamentary democracy. If opponents now wish to revise the compromise reached in 1982, and to substitute full American-style judicial review in the place of Canada’s democratic tradition, then they must do so by way of constitutional amendment. Anything less would amount to an undemocratic attempt to usurp the foundations of Canada’s democracy.

About the author

Stéphane Sérafin is an Assistant Professor in the Common Law Section of the Faculty of Law at the University of Ottawa. He holds a Bachelor of Social Science, Juris Doctor and Licentiate in Law from the University of Ottawa and completed his Master of Laws at the University of Toronto. He is a member of the Law Society of Ontario and the Barreau du Québec. He has published articles in the Canadian Journal of Law and Jurisprudence, the Queen’s Law Journal, the Alberta Law Review, the Supreme Court Law Review, and elsewhere.