This article originally appeared in the Financial Post. Below is an excerpt from the article.
By Philip Cross, August 9, 2024
Many commentators decry both the increasing invocation of the notwithstanding clause by conservative or populist governments in central and western Canada, as well as Pierre Poilievre’s endorsement of it. The notwithstanding clause, embedded in Section 33 of the Charter of Rights and Freedoms, allows governments to override specific parts of the charter for five years on a renewable basis.
Critics maintain the clause was intended to be deployed only in exceptional circumstances and its increasing use violates that spirit. But if the premiers and prime minister who put Section 33 into the constitution in 1982 thought it would only be used rarely, that was probably because judicial activism was almost unknown in Canada at the time. Since then, however, judicial overreach has become the norm, forcing public policy into directions many Canadians feel are unfounded, unbounded and unaffordable.
Curbing the influence of unelected judges is not the only reason to applaud the increasing use of the notwithstanding clause, however. Section 33 also helps protect the provinces from the Trudeau government’s frequent meddling in their jurisdictions, including health care, education and natural resources. And it acts as a check on court-mandated increases in government, which violate the principle of “no taxation without representation,” the key to holding governments accountable dating back to the Magna Carta.
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