Examining the Increasing Utilization of the Notwithstanding Clause: Is it a Necessary Check on Judicial Overreach or an Exercise of Political Power?

As governments are increasingly turning to the notwithstanding clause, some see it as a sign of democracy and charter rights eroding, while others argue that it’s a response to courts impeding democratically elected lawmakers from fulfilling their mandates.

The recent focus on the clause was sparked by comments made by Conservative Leader Pierre Poilievre on April 29, stating that he would use “whatever tools the Constitution allows me to use to make them constitutional” in addressing crime.

“I think you know exactly what I mean,” he told the Canadian Police Association audience.

Some view this trend as a means for governments to sidestep Canadians’ charter rights.

On the other hand, some legal and political experts view the increased use of the clause as a rational response to a progressive judiciary that hinders legislatures from passing laws.