Notwithstanding clause protects Canada from undemocratic judges: John Carpay
Justice Centre president John Carpay joined Ezra Levant to discuss a new report from the civil liberties organization focusing on the notwithstanding clause and its role as an essential democratic check on unelected judges, as the Supreme Court prepares to hear a case that could limit or strike down Section 33 of the Charter.
The Justice Centre for Constitutional Freedoms has published a new report titled Saving Canada from Juristocracy: How the Charter's Notwithstanding Clause Protects Democracy, written by Nigel Hanniford.
Justice Centre president John Carpay joined Ezra Levant on Monday's episode of The Ezra Levant Show to discuss it — at a moment when the Supreme Court has a Quebec case before it that could be used to limit or eliminate the notwithstanding clause altogether.
Section 33 of the Constitution, which contains the notwithstanding clause, allows a legislature to declare that a law will operate notwithstanding the rights and freedoms guaranteed in the Charter. It lasts five years and must be renewed.
Carpay's core argument is simple: it is literally part of the Constitution, and the people who say it erodes or undermines the Charter are wrong by definition.
More than that, Brian Peckford, the only surviving premier from the Charter's 1982 negotiations, will tell you directly that without Section 33, the document would never have been signed at all. The premiers would not have agreed to transfer centuries of parliamentary supremacy to nine unelected, unaccountable judges without a democratic override.
Recent examples of the notwithstanding clause's usage show it working as designed.
When an activist judge ruled that Alberta's legislation protecting minors from gender surgery and requiring parental notification violated children's Charter rights, Premier Danielle Smith's government invoked Section 33 and proceeded anyway.
When an Ontario court ruled that reducing Toronto city council from 57 to 25 seats violated freedom of expression and the right to vote, Doug Ford used Section 33 to override the ruling while the Court of Appeal sorted it out.
Carpay also targeted what he called the double standard in the criticism.
The same people who pound the table about Section 33 say nothing about Section 1, which allows courts to uphold laws that violate Charter rights if the government can argue the violation is "reasonable."
During COVID, courts used Section 1 repeatedly to rubber-stamp lockdowns, vaccine mandates, and church closures — acknowledging that rights were being violated, then blessing the violation anyway. "If you want to pound your fist about rights and freedoms," Carpay said, "you cannot direct all your ammunition at Section 33. You also have to direct some at Section 1."
The conversation also covered what Ezra called the "court party," a term originally coined by University of Calgary professor Ted Morton, describing the ideological alignment among judges, lawyers, and journalists who share a progressive worldview and treat the courts as sacred.
Carpay noted that when former prime minister Stephen Harper nominated Marc Nadon to the Supreme Court, the existing judges effectively blocked the appointment on a technicality. "The other judges did not want this conservative-minded judge to join them."
Ezra said appointing principled judges was one of Harper's two biggest missed opportunities as prime minister — the other being the gutting of Canada's state broadcaster, CBC. Trump's delegation of judicial vetting to organizations like the Federalist Society, he argued, is the model Canada should follow.
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COMMENTS
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Bernhard Jatzeck commented 2026-09-15 16:44:01 -0400 Flag“Court party” is a good way of describing it. We’ve seen numerous examples of how our judiciary makes reckless decisions without considering the consequences or taking responsibility for them. If Alberta ever succeeds in becoming independent, we should elect our judges rather than relying on the judgement of our politicians.
