Reports

The adoption of the Canadian Charter of Rights and Freedoms in 1982 substantially expanded judicial power to invalidate laws enacted by elected governments – a shift sometimes described as “juristocracy,” rule by the courts. Yet Charter section 33, the notwithstanding clause, protects democracy by allowing Parliament and provincial legislatures to shield legislation from being struck down by courts. After heavy early use by Quebec and decades of disuse elsewhere, several provinces have invoked section 33 more frequently since 2018. The political costs of invoking section 33 have been overstated, with some governments re-elected after using the clause repeatedly. This report argues that section 33 remains Canada’s distinctive institutional check on the power of unelected judges to interfere with the decisions of democratically elected representatives.