The Notwithstanding Clause and the New Populism

Abstract

The following article asks whether the notwithstanding clause contained in Canada’s Constitution Act, 1982 [Constitution Act]1 remains defensible where populists are in power. It ultimately dismisses two conventional justifications of the clause — one based on a principle of interinstitutional dialogue, one based on a majoritarian principle of legislative supremacy — before briefly considering possible amendments to the clause that may render it justifiable in a populist context (or more generally, where the political convention against using section 33 substantially weakens).