Notwithstanding Clause is democracy’s last line of defence

Posted on November 27, 2025 by admin

Alberta Premier Danielle Smith recently invoked Section 33 of the Charter of Rights and Freedoms to end a teachers’ strike and prevent endless litigation. The Alberta Teachers’ Association and the provincial NDP have called it tyranny. But a government using lawful authority is not tyranny.

Section 33, known as the “Notwithstanding Clause,” is a constitutional safeguard. It allows legislatures to pass laws that override certain Charter rights for up to five years. It was built into the Charter deliberately to ensure that elected representatives, not judges, remain supreme on fundamental issues.

The modern Left despises this clause because it breaks their playbook. When they cannot win in Parliament, they turn to the courts. For 50 years, judges have helped them shift policy by interpreting rights creatively. Section 33 blocks that route. That is why they hate it.

They smear it as a tool of the far right. The facts say otherwise. Allan Blakeney, the Saskatchewan NDP premier, helped enshrine it in 1982. The Parti Québécois, under René Lévesque, at the time the most leftist government in Canada, made heavy use of it. They understood something their successors pretend to forget: democracy rests with voters, not with the judiciary, with all due respect to the judiciary.

Blakeney and Alberta’s Peter Lougheed saw the danger. Federally appointed judges, immune from electoral consequence, could render decisions that uproot regional jurisdiction. Section 33 was the firewall. It recognized that while courts serve justice, legislatures serve people.

Two recent rulings show why that firewall matters. First, the Supreme Court struck down mandatory minimum sentences for child pornography in a 5-4 ruling.

Weeks earlier, in August 2025, Justice Barbara Young of the B.C. Supreme Court ruled that the Cowichan Tribes held unextinguished Aboriginal title to nearly 2,000 acres in Richmond, B.C. That land includes homes, businesses, public utilities and Crown land. The court declared Indigenous title overrides existing property rights, even without treaties or compensation.

The ruling makes every deed in that area, many of which were granted by the Crown over a century ago, subject to Justice Young’s retroactive reinterpretation. Your mortgage may rest on land you no longer legally own. Your lease may be invalid. Your development project unsellable. This is not a theory. It is a ruling.

No economy can function under such uncertainty. Property rights are foundational to free markets. If land ownership depends on a judge’s view of historical use, markets freeze. Banks will not lend. Builders will not build. The Cowichan decision casts a shadow over every titled parcel in British Columbia. Its precedent will not stay local.

B.C. Premier David Eby has chosen to appeal but that will take years. Meanwhile, risk deepens. Capital flees from uncertainty. No investor waits patiently while the Supreme Court ponders first principles.

This is the moment Section 33 was designed for. Its use would freeze the legal effect of Cowichan while legislatures restore order. If the prime minister will not act, others must. Premiers should signal now that property rights will be upheld. If not, the chaos of one courtroom may become a national affliction.

The Cowichan ruling, for all its disruption, may be a clarifying gift. It shows Canadians what radical judicial overreach looks like. Even those who trust the courts may now see why elected governments need the power to say: enough.

Blakeney put it plainly: “What matters is who makes the choices. I would be happy if legislatures gave courts all the deference, as long as legislatures were free to make the major governmental decisions.”

That freedom must now be used. Section 33 is not an act of aggression. It is the return of decision-making to where it belongs. In the aftermath of Cowichan, the country cannot wait years while property confidence erodes.

Section 33 is the remedy.

Marco Navarro-Genie is vice-president of research at the Frontier Centre for Public Policy and co-author, with Barry Cooper, of Canada’s COVID: The Story of a Pandemic Moral Panic (2023).

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