What if Section 33 becomes an issue in the next election campaign?
Part 2 of a series on the Charter’s notwithstanding clause
Last time, we covered opinions in Canada on the question of whether governments should have the power to use the “notwithstanding clause” to overrule the courts on decisions based on the Canadian Charter of Rights and Freedoms. To recap:
“In the post-Charter era, Canadians have always been more likely to side with the Supreme Court than with Parliament (in terms of which should have the “final say,”) and more likely to say that governments should not (rather than should) have the power to overrule to courts.”
Today’s post looks at whether opinions on this issue vary according to political partisanship: do Liberal Party, Conservative Party and NDP supporters hold different views on the relationship between legislatures and the courts? Here are the results from the most recent survey:
The least surprising finding is that supporters of the Bloc Québécois are the most comfortable with governments overruling the courts (though some observers might still be a bit surprised to find that this group of Quebec nationalists is at best evenly divided on the question; for more about opinions in Quebec see this recent Bulletin).
The fact that supporters of the Conservative Party are the most opposed to the concept behind the notwithstanding clause might be more unexpected. After all, it is that party’s current leader who recently spoke about his readiness to use Section 33 if elected. And outside Quebec, it is conservative provincial governments that have either used or contemplated using the clause to prevent their laws from being struck down by the courts. It is the Liberal Party of Canada that has been willing to campaign against the override provision of the Charter.
Not only are Conservative partisans less supportive of the override, but the gap between Liberal Party and Conservative Party supporters has widened. In 2020, the two groups were more or less just as likely to express support for the courts and to oppose the override; in 2024, there is a more noticeable difference (here’s the results from 2020 and 2024, for each of the two questions).
Is this shift really that surprising? The questions ask in general terms about constitutional limits on government power. It is natural for Conservative supporters to answer this question with the current Liberal federal government in mind. The longer the party they support is in opposition, the more appealing limits on government powers become. And, more specifically, it’s probably no accident that Conservative Party supporters grew even more suspicious of “parliament supremacy” in the wake of the federal government’s use of the Emergencies Act to quell protests against COVID-era public health measures.
The remaining challenge is to reconcile these findings with the statements and actions of conservative leaders and governments. Perhaps our survey questions are not that useful, if they suggest that most Conservative Party supporters oppose Section 33 when in fact they seem quite at ease with the specific instances where is has been used or contemplated.
This apparent contradiction, however, is neither new nor unique to conservatives. Over two decades ago, the most definitive study of public opinion and the Canadian Charter of Rights and Freedoms confirmed that strong public approval of the Charter in general, and its equality provisions in particular, coexists with more limited support for the civil liberties of unpopular groups.
Our survey questions can be helpful, then, in two ways: first, because they suggest that turning the debate on Section 33 into an election issue is risky for both parties; and second, because they draw attention to the importance of issue framing. A Conservative Party campaign targeting the unelected judges of the Supreme Court (tempting as that might be to some conservative academics) would probably have limited appeal. Naturally, a more successful strategy is to argue that it’s common sense to keep criminals behind bars or to ensure that parents have a say in their children’s schooling.
To counter this, Liberal and NDP leaders need to venture beyond the territory where they are the most comfortable, namely a defence of the Charter as a national symbol or of its protection of equality rights. They need to make a broader argument that removing checks on government power is dangerous because no one knows where it can lead. Today’s in-group is tomorrow’s out-group. The question the Liberal Party needs to raise, in other words, is not what the country would look like if Pierre Poilievre makes use of the notwithstanding clause. They need to point out that breaking the taboo against its use at the federal level opens the door for the next Liberal Party (or NDP?) prime minister, the one who will eventually succeed Poilievre, to do the same.
Defending the rights of criminals is always a tough position to take in an election campaign. The only way to do it is to widen the frame to include a discussion of how any future government might treat the people they choose to deem deplorable.
Do you have a different take on these results? Share your interpretation in the comments box below.
This post features data from the 2024 Confederation of Tomorrow Survey of Canadians. The author is solely responsible for any errors in presentation or interpretation.
The Confederation of Tomorrow surveys give voice to Canadians about the major issues shaping the future of the federation and their political communities. They are conducted annually by an association of the country’s leading public policy and socioeconomic research organizations: the Environics Institute for Survey Research, the Centre of Excellence on the Canadian Federation, the Canada West Foundation, the Centre D’Analyse Politique – Constitution et Fédéralisme, the Brian Mulroney Institute of Government and the First Nations Financial Management Board.
The 2024 study consists of a survey of 6,036 adults, conducted between January 13 and April 13, 2024 (82% of the responses were collected between January 17 and February 1); 94% of the responses were collected online. The remaining responses were collected by telephone from respondents living in the North or on First Nations reserves.