After 30 years of relative neglect, Canada’s notwithstanding clause has been invoked in six different provincial laws since 2018. We argue that this resurgence can be explained by the growing judicial invalidation of provincial statutes and federal-provincial partisan conflicts. Drawing from an original dataset of Charter cases decided by the Supreme Court of Canada (1982–2020), we show that provincial statutes have been invalidated at much higher rates since 2010. We also show how increasing partisan conflicts between conservative provincial governments and the Liberal federal government have helped frame the notwithstanding clause as a partisan tool for resisting centralizing rights decisions. The strategic environment facing provinces has shifted as partisan federalism conflicts lower the political costs of using the clause, while rising invalidation rates incentivize provinces to use it to protect their jurisdiction. This supports the “regime politics” understanding of judicial power as partly a function of federal (central) regime power.
