The removal of section 33 of the Constitution would leave interpretation of legislation entirely up to the courts, and effectively make Canada a judiciary supreme state. The ongoing debate between the systems of parliamentary supremacy and judicial supremacy holds that judicial review is against the principle of majority rule because the courts are unrepresentative of the people. The essence of a democracy is to ensure that the ideas, criticisms, and general concept of a society are represented by its elected officials, a task currently unmet by the Supreme Court Justices of Canada. .
It is the aim of the Charter of Rights and Freedoms to protect the rights of all Canadians equally, majority or minority. Since the courts are not elected by the people, as politicians are, they are minimally coerced or swayed by majority opinion. Rather, judicial institutions have constraints and an extensive interpretive process of the law that create the basis for their decisions. The courts are also bound by stare decisis, the principle that precedents from previous similar cases are binding to future cases, and are also subject to the process of appeal (at a provincial level) as methods of control. With the power of the notwithstanding clause, legislatures can, against the principles of the Charter of Rights, arbitrarily deny the rights of a minority in response to majority benefit or in response to political trifle. Professor John Whyte suggests that the primary reason for wanting to abandon the notwithstanding clause is:.
the anxiety that produced the political demand for the entrenched rights cannot rationally be calmed in the face of the legislative power granted by section 33. That anxiety is simply this: political authority will, at some point, be exercised oppressively; that is, it will be exercised to impose very serious burdens of groups of people when there is no rational justification for doing so.
