Ruminations of a Labour Lawyer About the Notwithstanding Clause

Abstract

This article examines the growing controversy surrounding Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the “notwithstanding clause.” As the Supreme Court of Canada considers key questions about its scope and limits, debates have intensified over whether its use by governments constitutes legitimate democratic authority or a threat to constitutional rights. Critics argue that recent invocations by provincial leaders suggest a troubling willingness to bypass judicial oversight and pre-empt rights-based challenges, particularly affecting vulnerable groups. They contend that the clause was intended for rare and exceptional circumstances and should be subject to judicial scrutiny, possibly even prior to its use. By contrast, these debates often rely on hypothetical abuses of power, alongside real-world examples, to justify expanding the courts’ role. The article situates these arguments within broader tensions between parliamentary sovereignty and constitutionalism, questioning whether constraining Section 33 ultimately strengthens or undermines democratic governance.