The Weekly Wrap: The radical gamble to rewrite Canada’s constitutional order

Commentary

Prime Minister Mark Carney in The Hague, Netherlands, June 25, 2025. Sean Kilpatrick/The Canadian Press.

In The Weekly Wrap, Sean Speer, our editor-at-large, analyses for Hub subscribers the big stories shaping politics, policy, and the economy in the week that was.

If Carney wants to amend the Constitution, then he should just amend the Constitution 

Prime Minister Mark Carney’s request for the Supreme Court of Canada to provide guidance on the use of the notwithstanding clause may seem rather technical, but it’s actually quite radical. In practice, it risks disrupting the delicate balance in our constitutional system in favour of judicial supremacy.

Section 33 of the Charter—the notwithstanding clause—is plain in its language and unambiguous in its meaning. For more than 40 years, its origins and purpose have gone constitutionally uncontested. That’s because the whole point of the provision (which was a linchpin of the constitutional rounds of the early 1980s) was to balance judicial supremacy with parliamentary sovereignty. Think of it as a system of judicial review but with a democratic backstop.

The logic behind section 33 is straightforward. The courts have an important role in reviewing legislation against the Charter. But the final word in Canada’s constitutional democracy belongs to the people’s representatives. The clause enshrines the principle that judicial rulings aren’t infallible and that Parliament and the provincial legislatures retain ultimate democratic legitimacy. To ask the courts themselves to constrain its use is to turn the Charter on its head.

The proper constraint on the notwithstanding clause has always been politics. By definition, its invocation involves contentious questions—including citizenship, criminal justice, education, and the nature of Canadian governance itself—over which citizens are welcomed and even encouraged to challenge the government’s decision and make the case that it needs to be reversed in the legislature or, if necessary, at the ballot box.

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