SOME OBJECTIONS ALSO MISS THE REALITIES OF GOVERNING.

The notwithstanding clause was a vital part of the constitutional negotiations that led to the Charter being adopted in 1982. Without it, some provinces were unwilling to come on board. Without it, there would be no Charter at all. Those who argue that the notwithstanding clause is somehow illegitimate actually bear the onus of explaining how the rest of the Charter would be legitimate without it.

The notwithstanding clause was advocated at the time by premiers of very different political stripes— notably Saskatchewan’s New Democratic Party premier Allan Blakeney and Alberta’s Progressive Conservative premier Peter Lougheed. These premiers had a shared vision of the supreme role of parliament in Canada’s constitutional tradition, and saw the notwithstanding clause as a bridge between that vision and the vision of a constitution with a written bill of rights enforced by judges.

The notwithstanding clause was also not invented in some ad hoc way. It tracked a similar clause in the 1960 Canadian Bill of Rights. So Sec. 33 was part of Canada’s existing legal architecture, and was an important clause in bringing together different constitutional traditions.

Those who oppose its existence may be wedded to a different vision of Canada — one oriented only to individualistic rights — but the clause is properly part of Canadian constitutionalism.

In the Charter’s 35-year history, the notwithstanding clause has not been used