Is the notwithstanding clause bad for democracy?

Front Burner

Section 33 of the Canadian Charter of Rights and Freedoms — the so-called "notwithstanding clause" — allows governments, both provincial and federal, to override sweeping sections of the other rights the Charter grants. It was intended as a last resort to prevent federal and judicial overreach, leaving power with elected officials, accountable to voters. A compromise demanded by premiers like Alberta's Peter Lougheed, the constitution almost certainly wouldn't exist without it.

Since enacted in 1982, the clause has been very rarely used outside of Quebec. But in recent years, politicians have been using it — or promising to — more and more. Alberta Premier Danielle Smith has now used it twice in less than month to preempt court challenges on controversial labour and transgender youth laws.

University of Alberta political science professor Jared Wesley explains why governments are increasingly invoking this supposed last resort to achieve their goals, and the tensions it exposes in Canadian democracy.

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