It is difficult these days to find a balanced view on the notwithstanding clause, Sec. 33 of the Constitution Act 1982. At one extreme are those who employ its override power for transparently unjust purposes, as in Quebec’s Bill 21—which became law in 2019—or those, like Conservative Leader Pierre Poilievre, who propose to use it just for the sake of doing so, to flex their populist muscles and show how they are “tough on crime.
One of the deeply worrying developments since the adoption of the Charter, over 40 years ago, is the growing crisis of democracy. They may be connected. Scholars of public opinion and democracy have suggested the rise of government by judges is one of the factors in declining public support for democracy. Legislatures have lost more and more of their previous power to unelected bodies, including the courts. Ninety years ago, less than half the world’s democracies had judicial review regimes.
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