Supreme Court of Canada. Photo from Wikimedia Commons.

The federal government is intervening in the slow-moving Supreme Court case over Québec’s pre-emptive invocation of Section 33, the notwithstanding clause of the Charter of Rights and Freedoms, for Bill 21, An Act Respecting the Laicity of the State. In a filing submitted on September 17, Ottawa argued that courts should be able to prohibit long-term use of Section 33 to override Charter rights, warning that prolonged suspensions amount to an unconstitutional denial of rights themselves.

This is ill-advised. The political left in Canada should oppose any weakening of the parliamentary supremacy preserved in Section 33. As a political theorist with a populist view of democracy, I argue that the final say on legislative authority should remain in the accountable institutions of democratic politics. The left ought to rally to this cause.

The notwithstanding clause was inserted into the Charter during the fraught negotiations over constitutional repatriation in November 1981. For decades, disputes over an amending formula had stalled progress. Pierre Elliott Trudeau’s “magnificent obsession” with an entrenched Charter of Rights was fiercely opposed by the “gang of eight” premiers, determined to block him.

Section 33 emerged as the compromise that allowed Trudeau to peel away the seven English-speaking premiers from René Lévesque and secure support for the new Constitution. The clause was proposed by Alberta Premier Peter Lougheed........

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