Use of the notwithstanding clause to override court judgments was originally meant to be infrequent. But then judicial activism exploded

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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.

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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........

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