Democracy and the Notwithstanding Clause

Abstract

This article focuses on the relationship between democracy and the notwithstanding clause in s.33 of the Canadian Charter of Rights and Freedoms. A number of scholars argue that s.33 is inherently ‘democratic’, as it is an assertion of legislative supremacy. The most influential such theory is Jeremy Waldron’s. This article offers a democracy-based critique of Waldron’s democracy-based account of the notwithstanding clause. The argument that the notwithstanding clause is necessarily ‘democratic’ ignores the constitution of the legislature through elections and the risk of self-dealing by the legislative branch, adopts an idealistic view of legislatures at odds with the reality of executive dominance and party discipline, and over-relies on the assumption that the electorate will ensure retrospective accountability for misuse of s.33. Contrary to Waldron and those who have adopted his arguments in Canada in the context of the Charter, the article argues we can be democrats and have faith in the capacities of legislators and voters while still maintaining skepticism about the uses to which the notwithstanding clause may be put. In short, s.33 is not inherently democratic. The political morality of each use of the notwithstanding clause—including whether it helps or harms democracy—must be assessed on a case-by-case basis.