Last month, Alberta Premier Danielle Smith ended a three-week teachers’ strike by passing Bill 2—the Back to School Act, a nasty piece of legislation stripping teachers of their Charter-protected right to strike. To do so, her government invoked Section 33 of Canada’s Charter of Rights and Freedoms. This is the infamous notwithstanding clause, which allows governments to pass legislation that infringes on Charter rights and grants them immunity from challenges in court.

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The blowback was immediate. Amnesty International declared that Smith’s government had placed “political expediency ahead of people’s human rights.” Howard Sapers, executive director of the Canadian Civil Liberties Association, said it was unhealthy for Canada’s democracy. Of course, Smith had her defenders. Former Alberta premier Jason Kenney defended the government and irately condemned Sapers as a “left-wing activist,” and conservative-leaning law professor Mark Mancini wrote in the National Post that the constitutional right to strike wasn’t even real, having been “invented” by an “activist Supreme Court” in a prior decision.

The throwdown over Bill 2 was just the latest in a string of commotions related to the notwithstanding clause across Canada, all of which have followed the same dynamic: a conservative government invokes the clause in order to pass legislation that would otherwise be prohibited by the Charter. Outraged leftists then decry the abuse of the Charter—and curse the notwithstanding clause that makes it possible.

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It happened in 2019, when François Legault’s CAQ government in Quebec invoked Section 33 to pass Bill 21, which barred some public employees from wearing religious symbols—an infringement of Charter-protected rights to freedom of religion. In 2023, the government of Saskatchewan used Section 33 to pass a law requiring parental consent for students under 16 to change their pronouns at school. And this year, an Ontario judge put a pause on Doug Ford’s plan to force the city of Toronto to remove bike lanes, stating that it would violate Charter rights to security of the person by putting people at increased risk of harm and death. Ford then floated the idea of using the notwithstanding clause to override the judge.

The use of the notwithstanding clause, and the reactions to it, are sharply polarized. This is an example of partisan sorting, the phenomenon in which every issue in society is ideologically coded and folded into the set positions of one political tribe or another. On the left, we now hear more voices calling for restrictions on the use of the clause, or even its repeal. At the same time, conservative voices have calcified into a hard stance in its favour. They argue that because the notwithstanding clause protects legislation from being overturned by courts, it’s a way to push back against an activist judiciary that’s getting out over its skis. Howard Anglin, former deputy chief of staff to Stephen Harper, made exactly this case recently writing in The Hub: “The Supreme Court of Canada’s unjustified and sometimes whimsical treatment of the Charter as its personal plaything has vindicated the clause’s inclusion in the Charter and justifies its more frequent use.”

To lay my cards on the table, my own political home is on the social-democratic left. I’m an educator who has spent more than a day or two on picket lines, and I find the Alberta government’s move to bar the right to strike utterly abhorrent. I disagree with Section 33 being used to limit expressions of religiosity in the public sphere, or to remove bike lanes or to target gender-nonconforming kids. Partisan sorting being what it is, most people with my views would be expected to join a like-minded chorus, and condemn Section 33.

But I’m not going to do that. The notwithstanding clause’s defenders on the right believe it to be an important, even necessary tool to return a degree of legislative supremacy to its rightful home in parliament. On this, at least, I think they’re right. In fact, that’s why it exists in the first place. In 1982, when Pierre Elliott Trudeau was seeking to repatriate Canada’s constitution from Britain and include a new bill of rights, he faced opposition from the so-called Gang of Eight premiers. They feared the Charter would vest too much power in the courts, and the compromise was the notwithstanding clause: a last-resort safety valve, intended to restore parliamentary supremacy over parts of the charter. It was designed with the assumption that its use would be exceedingly rare. The chutzpah required to deliberately pass laws that contravene Charter-protected rights would, it was assumed, be too politically toxic.

For decades, that was true. But in the past few years, at the same time as the taboo around the clause’s use has begun wearing off among conservatives, Canadian courts have been handing down Charter decisions on issues like abortion, medically assisted death, implied consent and accommodation of religious diversity that have been victories for progressive causes. The right to strike is one of these—this right is not explicitly laid out in the Charter. In 2015, the Saskatchewan Federation of Labour took the provincial government to the Supreme Court over a law that limited public-sector workers’ right to strike. The court ruled that apparently the time had come to grant “constitutional benediction” to striking on the grounds that it was intrinsic to the Charter’s guarantee of freedom of association.

I worry that these kinds of victories have made some on the left deaf to very reasonable arguments about over-concentrating power in the courts. I also worry that in so stridently opposing use of the notwithstanding clause, they are forsaking a valuable political instrument—especially because the perception that Canada’s courts have become cynical, unelected agents for progressive causes is far from a slam-dunk case. In fact, there’s plenty of contrary precedent. For example, in 1987, as part of three rulings that have become known as the “Labour trilogy,” the court decreed that the Charter did not guarantee a constitutional right to strike. Judges then also sided with employers on heavy-handed measures to resolve labour disputes, like legislated wage controls and back-to-work legislation. In 1989, leftist legal scholar Michael Mandel responded to these decisions by urging progressives to normalize use of the notwithstanding clause to defang the Charter, which was then being weaponized by anti-labour forces.

But by pre-emptively neutralizing that option, advocates of progressive causes can find themselves grasping for legal solutions to political problems. Conservatives might complain that the Supreme Court pulled the right to strike out of thin air in 2015, but those who defend that ruling do need to answer where it came from—which was from the bench, not from an elected and accountable legislature. We have become too used to treating the decisions of courts, when they are in our favour, as unimpeachable: the proclamations of sage individuals of elevated intellect, divining inalienable rights from the sacred texts. But they’re just people, and where there are people, there are politics. I prefer my politics to be democratic. It shouldn’t be controversial to worry that centralizing rights in the courts can contribute to a democratic deficit, where the institutions of our democracy fail to live up to adequate standards of transparency, accountability and responsiveness to public input.

Is my pro-democracy argument bulletproof? No. Our electoral system can produce strange, distorted results, including grossly false majorities, with seats in government dramatically offside with popular votes. Rigid discipline imposed on MPs hinders their ability to authentically represent the interests of their ridings. Loyalty trumps competence far too often. Certainly, it’s laughable to defend Alberta’s passage of Bill 2 as a lofty victory for democratic decision-making. It was passed using time allocation, a parliamentary mechanism that allows the government to limit debate. Jared Wesley of the University of Alberta was right to point out that by “fast-tracking Bill 2, the UCP is preventing the assembly from providing this important oversight.” The three readings of Bill 2 sailed through the legislature in less than 12 hours, with Premier Danielle Smith en route to Saudi Arabia by the time the deed was done.

This is why I don’t see those going to bat for Bill 2 as truly principled defenders of democracy. Yes, Smith has correctly used a legitimate provision of the constitution to prevent a court challenge to Bill 2. She may not like what she’s summoned, however. A recent poll suggests the UCP is losing support to the opposition NDP. Members of the governing UCP caucus face petitions for recall that could potentially force them out of their seats in a by-election. The deep roots of Albertan populist direct democracy are being stirred. By grandstanding her supposed deference to democracy with Bill 2, Smith may soon be reminded that all who draw the sword will die by the sword.

Dónal Gill teaches Political Science at Dawson College and Concordia University in Montreal