Geoffrey Sigalet: What’s at stake in the fight over the notwithstanding clause

Constitutional law is often seen as the domain of courts and legal scholars, but one provision—the notwithstanding clause—has become a flashpoint in Canada’s ongoing debate over the balance of power between legislatures and the judiciary.

Once a political safety valve that sealed the deal for the Charter of Rights and Freedoms in 1982, section 33 is now at the center of a national conversation about who should have the final say on fundamental rights.

To unpack the history and stakes of this debate, Professor Geof Sigalet joins Peter Copeland to explain how the notwithstanding clause was born out of provincial insistence on preserving democratic self-government, and how its use has evolved in response to rising judicial activism and federal-provincial tensions.

Sigalet delves into the recent controversies surrounding Quebec’s Bill 21 and the federal government’s intervention, highlighting the clause’s role as both a shield for provincial autonomy and a lightning rod for national debate. 

As courts and governments clash over the limits of the notwithstanding clause, the future of Canada’s constitutional balance hangs in the balance.