By Jeremy Geddert, June 8, 2026
Liberal democracy is in global decline. Strongmen in Russia, Turkey, and El Salvador attack their own constitutions to further their personal agendas. United States President Donald Trump imposes radical new tariffs that upend relationships with long-time democratic allies, including Canada. Mark Carney’s Liberal government likes to think that it is different. But Carney’s quest to neuter section 33 of the Canadian Charter of Rights and Freedoms – more widely known as the “notwithstanding clause” – and his use of the courts to do so, reveals his own illiberalism.
From his “elbows up” campaign to his “greengrocer” Davos speech, the Prime Minister has consistently defined himself in opposition to Donald Trump. Carney’s messaging seems to convince his audiences, even when he repeals counter-tariffs and endorses Trump’s attack on Iran. His team recently went to that well again, in the Supreme Court case English Montreal School Board v. Quebec (better known as the Bill 21 case). There, Carney’s lawyers urged the Supreme Court to muzzle the notwithstanding clause (NWC) by joining the anti-Trump language of other plaintiffs. Appellant Frédéric Bérard scarily predicted that the existing NWC could permit the rise of a “mini-Trump.” Under the NWC, he claimed, “everything, or almost, that is happening in the United States could happen here in a perfectly constitutional manner.” To save Charter values from radical authoritarian capture, went the argument, federal justices must be empowered to veto legislative use of the NWC.
Carney’s lawyers thus portray the neutering of the NWC as the gradual unfolding of Charter logic toward its natural end point. If the Charter empowers justices to veto the legislative branch by overturning laws, it seems illogical to include a robust section 33, which lets legislatures override that very veto. This is why former Prime Minister Pierre Trudeau’s originally proposed Charter included no such override. Trudeau ultimately added section 33 – that stain on constitutional purity – only as the regrettable price of provincial support for the Charter. Carney’s Liberals now have a chance to redeem that original sin.
Yet Trudeau’s original Constitution, lacking section 33, itself reflected an authoritarian radicalism vis-à-vis Canada’s inherited British Constitution. For centuries, British constitutionalism had slowly but surely produced the world’s most advanced liberties. These rights of Englishmen were gradually won through the back-and-forth wrangling between the diverse classes of society, represented respectively by monarch, lords, and commons. Constitutional change was not the work of a few experts, but the product of sustained popular support through space and time. Hence, the final word on constitutional interpretation lay with the King-in-Parliament: a deliberately ambiguous concept that embodied multivocal checks and balances. By contrast, Trudeau sought to recast constitutional interpretation as univocal, and to house it solely within the unelected judicial branch. (Needless to say, Supreme Court Justices would not represent the diverse classes of society so well as they would impersonate the graduating Université de Montréal law classes taught by Professor Trudeau.)
Trudeau’s top-down approach was foreign to the hearts and minds of ordinary Canadians. Like Brits, Canadians had always grounded their rights not in eminences like Blackstone and Coke, but in their own inherited place at the constitutional table. For example, Confederation would build on British Parliamentary checks and balances, by adding provincial voices to the Constitutional discussion. Thus, in 1982, the provinces could welcome the Supreme Court of Canada – now strengthened through Charter-enabled judicial review – as one more voice in the constitutional conversation. Together, they arbitrated the proper balance between rights and “the reasonable limits that can be justified in a free and democratic society,” with legislatures disciplined by the spectre of electoral tests.
But Premiers like Saskatchewan’s Allan Blakeney and Alberta’s Peter Lougheed knew that only section 33 could keep the emboldened Court from dominating the conversation and ending the dialogue. The NWC was not a regrettable political necessity but a salutary constitutional centerpiece. Fittingly, the NWC would subsequently give rise to Canada’s most notable contribution to jurisprudence: “dialogue theory.”
Trudeau, by contrast, initially sought to sideline the provinces by unilaterally imposing the Constitution at the federal level. (Needless to say, this remains a sore spot in Quebec.) He then sought to kneecap the legislative branch through a Charter lacking section 33. And he did so through domineering means that would make Machiavelli proud, preying on rookie premiers, and sidelining a veteran one on the Night of the Long Knives. Trudeau was not a careful builder of the historic Constitution; he was a radical.
As for the current Prime Minister, when Mark Carney’s own lawyers spoke to the Supreme Court on Bill 21, his team again invoked reasoning inconsistent with Carney’s sober-minded persona. The government argued that the NWC cannot abridge sections 2 and 7–15 of the Charter, even though the NWC explicitly empowers legislatures to override those clauses. They asserted that the NWC produces irreparable harm, when in fact any invocation of the clause is limited to a five-year period. They claimed that invocations of the NWC were meant to be temporary, when the mechanism for renewal – negotiated by Trudeau himself – imposed no such limits.
The Liberals’ truth-bending arguments betray their Constitution-skewing aim. Justice Suzanne Côté saw through this rhetoric, flatly telling the plaintiffs that “you are asking us to make a constitutional amendment.” This is not a gradual development of the Charter; it is an illiberal attack on its structure of constitutional interpretation.
It is also an illiberal attack on its amending formula. Carney knows that the Canadian Constitution is rightly amended only by those who built it: legislatures, not judges. Even the brash former Progressive Conservative Prime Minister Brian Mulroney understood that constitutional change required careful persuasion and widespread buy-in. Twice Mulroney showed the courage of his convictions by subjecting his Meech Lake and Charlottetown proposals to the stern test of Canadian democracy. Yet Carney, unable to convince Parliament and the provinces, stealthily cloaks his constitutional changes behind the robes of Liberal-appointed justices.
It is bad enough to leave constitutional interpretation to the Supreme Court alone; it is worse to leave constitutional change with them. Yet the government is doing just that, by asking the Court to rule on a supra-legal question: namely, what is the proper balance between legislatures and courts? Worse, by asking judges to alter the balance of judicial versus legislative power, the government seeks to render the Court an interested party rather than a third party. Should we expect unelected judges to remain impartial when asked to decide how much power they should have?
Ironically, Carney is asking the Court to take up a role akin to the American Supreme Court. Here he follows Pierre Trudeau, who watched progressive American justices invalidate state laws in the Civil Rights era and sought to import the same judicial activism to Canada. Just as activist Courts redeemed America’s “original sin” of slavery, so could Trudeau redeem Canada’s original sin of British constitutionalism, and Carney redeem the Charter’s original sin of Section 33.
Yet, the American experience has long shown that empowering judges to be heroes can also turn them into villains. The first American progressive, Thomas Jefferson, invented rights out of thin air when he helped to write France’s Declaration of the Rights of Man and of the Citizen. Many early French champions of these rights would soon incite the Reign of Terror. When Jefferson returned stateside, he slyly engineered the Marbury case so as to turn the American Bill of Rights into a justiciable Charter. American Supreme Courts would soon use it to entrench slavery (Dred Scott), worker exploitation (Lochner) and segregation (Plessy). Justices in Plessy even cited Jefferson’s own famous phrase from the Declaration of Independence: “separate but equal.” It was activist judicial villainy that begat the very need for activist judicial heroism.
When progressives try to engineer a more perfect world by reference to sacred principles (like “separate but equal”), they often produce unintended consequences (like Jim Crow segregation). And when activist justices radically limit future policymaking by reference to these same principles, they foreclose the possibility of remedy through legislation, forcing progressives to await a new generation of judicial appointments. Thus justices lurch from hero to villain and back again. In true American style, they produce dramatic narratives but chaotic politics.
Traditional Canadian parliamentary sovereignty cuts against this radical outcome. The Westminster Model provides a venue for the give-and-take of a pluralistic society, because Parliament must respond to the full range of voters. This parliamentarism is even better illustrated at the provincial level, where it enables a mosaic of positions best suited to each province’s distinct culture. Even in rare cases where diversity requires provinces to invoke the NWC, a provincial government must renew this invocation every five years until the end of time. Because any such government must face the electorate before each renewal, any province requires a sustained multipartisan consensus in order to wrest legislative power away from the Courts – a stern test indeed.
By contrast, Carney seems to distrust the provincial exercise of Constitutional prerogatives. Once again, he is not the first Liberal Prime Minister to feel this way. Pierre Trudeau pushed through the 1982 Constitution without Quebec’s signature. Yet Quebec has found one constitutional provision much to its liking: the notwithstanding clause. Ironically, the Western-led NWC may have preserved Quebec’s distinct society – and Quebec’s consequent acceptance of the Canadian federation – more than any other federal provision. Unintended consequences indeed.
That irony is a good reminder that political institutions outlive both the ephemeral issues of the day and the partisan figures that drive them. Would Carney be satisfied if a future conservative Court, one that emphasized the Charter’s individual rights (à la Lochner), could override progressive provincial invocations of the NWC? If such a scenario seems laughable, one need only look south, where the Court has gone from progressive to originalist in barely a generation. When Roe v. Wade was overturned, progressives cynically abandoned their elaborate beliefs in judicial supremacy. Once they found themselves a minority, they suddenly embraced the virtues of the same legislative federalism that they had long worked to weaken. Maybe Parliamentary federalism isn’t so bad for minorities after all.
When Carney’s Liberals ask the Supreme Court to police the NWC, they portray themselves to the world as defenders of liberalism against populist Trump-style radicalism. Yet by seeking to gut the NWC, they act in a radical fashion of their own. By weakening Canada’s proud and successful application of parliamentary government, they distance Canada from the world’s best safeguard of liberty over the past millennium. What is more, when the prime minister seeks to radically empower the Court, he also makes Canada more American. No matter how many subtle jabs Carney aims at Trump, it appears he is doing the bidding of the illiberal US President. Is this why Trump said that he preferred a Carney victory?
Jeremy Geddert is associate professor of Political Science at Assumption University. His books and articles explore modern rights-based liberalism, American conservatism, Canadian Arctic sovereignty, the Tory tradition, and George Grant. He writes on Substack at The Laboratory.
