Section 33: Should governments have the power to overrule the courts?

Part 1 of a series on the Charter’s notwithstanding clause

Recently, Charles Breton, who directs the Centre of Excellence on the Canadian Federation, analyzed the state of public opinion in Quebec on that province’s Bill 21 and on the use of the “notwithstanding clause” to prevent it from being struck down by the courts. You can (and should) read the full text here, but here is his conclusion:

“Premier Legault might be eager to present Bill 21 as the result of a consensus, but in reality the Quebec population is rather widely divided on various issues like the principles of secularism and who has final say on the constitutionality of laws. But it is especially divided on banning religious symbols for public school teachers and the use of the notwithstanding clause.”

Charles’ update on where things stand in Quebec raises the question of what Canadians in the rest of the country think about the use of Section 33 of the Canadian Charter of Rights and Freedoms. This is worth revisiting, not only because several other provinces have used, attempted to use, or thought about using the notwithstanding clause, but also because it is likely to come up in the next federal election campaign.

Our surveys have asked two questions that relate to the override clause. These are both “legacy questions” – they were written and first used many years ago, and we keep asking them in the same format to track changes in opinion over time. If we wanted to zero in on opinions about current cases, we might re-word them, but that’s not the goal. (Note that the questions don’t ask specifically about the pre-emptive use of the notwithstanding clause, which is more of a concern today than at the time of the first public opinion studies about the Charter.)

The two questions are as follows:

• When a government passes a law but the Supreme Court of Canada says it is unconstitutional on the grounds that it conflicts with the Charter of Rights, who should have the final say, the government or the Supreme Court?

• As you may know, in certain cases the Canadian Constitution gives governments the power to overrule the courts by passing a law, even though the courts have declared it to be unconstitutional because it violates the Charter of Rights and Freedoms. Do you think that governments should, or should not, have this power?

The first question asks about the role of the courts in a liberal democracy, a role which expanded significantly after the Charter came into force in the 1980s. How do Canadians feel about judges overruling their democratically elected representatives? Pretty comfortable. The proportion that says that the Supreme Court should have the final say (57%) is three times higher than the proportion that sides with governments (19%). One in four (24%) are unsure.

But should governments be allowed to overrule a court decision when a law is struck down – by using the notwithstanding clause? There is no overall majority, but Canadians are twice as likely to be against the override concept (49%) as they are to favour it (26%); once again, one in four (25%) are unsure.

Canadians, then, are more likely to side with courts over legislatures when it comes to disputes over rights and freedoms. But how do opinions vary across provinces, and have these opinions changed in recent years in reaction to the public debate on the whether and when the notwithstanding clause should be used?

There is some variation in opinion across provinces, but the differences are fairly modest. In no province does more than one in four say that governments and not the Supreme Court should have the final say (in situations “when a government passes a law but the Supreme Court of Canada says it is unconstitutional on the grounds that it conflicts with the Charter of Rights”). And in no province does more than one in three say that governments should have the power to overrule the courts by passing a law, even though the courts have declared it to be unconstitutional because it violates the Charter of Rights and Freedoms.

It is notable, however, that Albertans and Saskatchewanians stand out as the most pro-courts (or perhaps the most anti-government) on both of the questions.

How have these opinions shifted over time?

The answer to that question, at least in terms of the national average, is “not much”. 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 (for a longer discussion, see the report from the 2020 Confederation of Tomorrow survey).

In the shorter term, there has been no real change since 2020, despite the public debate over the issue prompted by the use of the notwithstanding clause in provinces such as Quebec, Ontario and Saskatchewan.

There has, however, been some modest movement in some individual provinces, most notably in Alberta and Saskatchewan. In those two provinces, preference for the Supreme Court having the final say, and opposition to governments having the power to overrule the courts, have both increased in recent years; the change is more noticeable in Saskatchewan.

What are we to make of the fact that opposition to the idea behind the Charter’s notwithstanding clause is strongest, and has grown stronger, in one of the few provinces where the government has relied on it? I think we’re confronted by the difference between how people respond to a principle in general terms, and how they might respond in a specific case.

When responding to our survey question, people in Saskatchewan, and indeed across Canada as a whole, are expressing a general view on the idea of parliamentary supremacy – the extent to which the majority in the legislature should be constrained by things like a bill of rights. And when answering, they are as likely to be thinking of potential federal government overreach as they are to be thinking of a particular provincial policy that they might, in practice, support.

It's no accident that opinions in Saskatchewan (and Alberta) changed between the 2022 and 2023 surveys (conducted in the first months of each year), at a time when the public was more focused on the federal government’s use of the Emergencies Act than it was on how teenagers might express their gender identity at school.

More on this point to come in the next post, which will look at how the supporters of the different political parties view the relationship between legislatures and the courts.

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.