The Notwithstanding Clause and the New Populism

Abstract

This article asks whether the notwithstanding clause contained in Canada’s Constitution Act, 1982 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).