The Alberta Teachers' Association and its informal legislative branch, the provincial NDP, have discovered a new word to brandish like a crucifix at vampires: “notwithstanding.” Premier Danielle Smith invoked Section 33 of the Charter to end a teachers' strike and shield her legislation from protracted judicial activism. The opposition calls it tyranny. This is a curious complaint from those who would rather have a single, unelected judge overturn the work of a whole legislature.
Section 33 is not complicated. When Parliament or a provincial legislature passes a law, it can declare that the law will operate "notwithstanding" certain rights for up to five years. After five years, the legislature must renew it or let it expire. That's all. No secret tribunals. No midnight decrees. The elected representatives simply say: we understand your constitutional concerns, but we are answerable to voters and we choose differently.
The constitution framers included this clause precisely because they understood something the current opposition pretends to forget: judges are not elected. They serve for life (until age 75). They answer to no constituency. When a judge in Vancouver makes a ruling that upends property law across a province (and the country), the rancher in Long View has no recourse except to hope the next judge sees things differently. Section 33 exists so that elected legislatures can say, with the full weight of democratic legitimacy: not here, not now, not to our people.
The clause affirms something essential to free democracy: that elected lawmakers, not black-robed interpreters, should have the final say on deeply contested political questions. Premiers like Saskatchewan's Allan Blakeney and Alberta's Peter Lougheed saw the danger of letting judges, who are federally appointed and understandably unelected, permanently override the judgment of those who answer to voters.
Canada, unlike the United States, chose not to place final authority solely in the hands of the judiciary. That was no accident. So the notwithstanding clause is distinctly Canadian. It should be popular with the “elbows up” crowd, except that it is not.
The political left despises this clause because it stands between them and successful judicial activism. Unable to persuade voters, they persuade judges. Unable to win elections on policies that redistribute property or expand state control, they win court cases that achieve the same ends through constitutional interpretation. That creates policy by a judge's pen, bypassing legislatures. It is efficient, no doubt. And it has remade Western democracies without the inconvenience of campaigning. In the United States, where no notwithstanding clause exists, it is nearly irreversible.
Yet the contemporary left's outrage is selective. The most leftist government in Canada's modern history, the Parti Québécois under René Lévesque, embraced wholesale use of Section 33. Blakeney's NDP government in Saskatchewan helped ensure its inclusion in the Charter. They were socialists who understood what some pretend to forget now: that the clause is a democratic mechanism to protect the primacy of legislatures in a federal system. It interrupts judicial activism. It is a democratic firewall, a reminder that courts in Canada are not infallible or untouchable. Activist rulings can be, and occasionally must be, overridden by lawmakers with courage.
This is not lawlessness. It is the constitution working exactly as intended.
Those prairie premiers understood what urban progressives often do not: that farmers need clear title to plant crops, that oil companies need secure tenure to drill wells, that a young family needs certainty to take out a mortgage. They understood that a single judge, however learned, however well-intentioned, could with one ruling destroy the assumptions on which an entire economy rests. Section 33 was their insurance policy against that kind of chaos.
Then came Cowichan.
