Notwithstanding Minority Rights

A Canadian Democratic Failure

Abstract

This comment takes up the question of what considerations ought to shape our understanding of section 33. We do not engage directly with the attributes or failings of the current and limited judicial treatment of section 33. Instead, our focus is on the political ramifications of using section 33 in the current political climate. More specifically, we use Quebec’s Bill 21 as a reference point to highlight some deep issues about how section 33 has been integrated into and shapes constitutional discourse. Our analysis pays critical attention to the unique position of Muslim women in Quebec and is framed from the perspective of intersectional feminist equality thinking. From this grounding, we argue that the current legal treatment of section 33 establishes, contrary to the promises of proponents of the override, no equilibrium between parliamentary and judicial powers. Rather, section 33 unavoidably guarantees that majoritarian politics prevail, irrespective of the minority rights issues at play. Prioritizing majoritarian opinion and interests in this manner, we suggest, threatens great damage to the constitutional democracy we think we all should want. The result is a democratic comity in which critical aspects of substantive equality and participatory rights for the most vulnerable and marginal are negated.