Hon. Marty Klyne: Honourable senators, Nelson Mandela said, “To deny people their human rights is to challenge their very humanity.” I rise to join our second-reading debate on Bill S-218. This is Senator Harder’s proposal to amend the Constitution Act, 1982, to establish process requirements to use the “notwithstanding” clause at the federal level.

In other words, we’re debating whether to make it more difficult for Parliament to use section 33 of the Charter to infringe constitutionally protected human rights in Canada’s federal law.

At second reading, we debate the principle of legislation. I will support sending this bill to committee. Thank you, Senator Harder, for bringing the debate forward.

Today, in the style of a future star witness on this bill, the Honourable Brent Cotter, I’ll speak on five subjects: one, the contents of Bill S-218; two, the importance of upholding Charter rights in our federal jurisdiction, including with any reasonable limits that can be justified in a free and democratic society under section 1 of the Charter; three, developments in Saskatchewan; four, as a helpful example, the international and Canadian framework for upholding individual human rights in the exercise of collective rights in Indigenous jurisdictions; and five, two questions raised by this bill in considering potential amendments.

Let’s begin with the contents of Bill S-218. As a refresher, this bill proposes multiple process requirements for Parliament to use the “notwithstanding” clause.

Under the bill, the following new requirements would apply: Infringing legislation must originate in the House of Commons and be introduced by a minister; next, a bill using the “notwithstanding” clause may only be introduced following a ruling of the Supreme Court, by reference, that the bill at issue would infringe a Charter right or freedom; in addition, the bill’s preamble must include a specific declaration of the proposed infringement and the reasons; further, the minister must table a statement in the House of Commons outlining the potential effects of the bill on the infringed rights and freedoms, and why the measures cannot be justified under section 1; as well, neither the other place nor the Senate may use time allocation to curtail debate and force a vote on the bill, and their committee processes may not be completed by a Committee of the Whole; and finally, the third-reading vote on the bill in the other place would require a two-thirds supermajority, including members of at least two recognized parties.

Bill S-218 would achieve these requirements by amending the Constitution Act, 1982, with the unilateral federal formula in section 44 of that act, which I’ll return to.

For my part, the bill’s changes would enhance accountability, transparency, due diligence and the degree of support required to infringe Charter rights at the federal level. At the same time, the federal government would retain the possibility of doing so in extraordinary circumstances, provided there is sufficient support from MPs and senators.

Of course, provincial and territorial jurisdictions are free to adopt their own process requirements for using the “notwithstanding” clause if they wish.

I turn to my second subject, the importance of upholding Charter rights in our federal jurisdiction, including with any reasonable limits that can be justified in a free and democratic society under section 1 of the Charter.

If a government or legislature acts to limit Charter rights through section 1, known as the “reasonable limits” clause, that limitation must meet the four criteria of the Oakes test in a court of law: First, the objective of the law must be pressing and substantial; second, the law must be rationally connected to that objective; third, the law must impair the Charter right in a minimal way to achieve its objective; and fourth, the benefits of the law must not be outweighed by the negatives — there must be proportionality.

Unlike section 1, the “notwithstanding” clause appears to grant Parliament a virtually unlimited power to override the human rights and freedoms contained in sections 2 and 7 to 15 of the Charter. These sections include the following: freedom of religion, belief, expression and the press; freedom of peaceful assembly; freedom of association; the right to life, liberty and security of the person; the right to be secure against unreasonable search or seizure; rights in relation to detention and criminal matters, such as habeas corpus, the presumption of innocence and the right against cruel and unusual punishment; and equality rights against discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Senators, these values are fundamental to human dignity, freedom and well-being. The Canadian Charter of Rights and Freedoms of 1982 is a product of the relative global consensus around human rights following the horrors of World War II. Related developments have included the Universal Declaration of Human Rights, authored primarily by Canadian lawyer John Peters Humphrey and adopted by the UN in 1948, and the Canadian Bill of Rights of 1960.

Today, Charter rights are at the heart of Canadian society, restraining government, upholding justice, preserving freedom and setting an example for the world. However, individual rights and freedoms must often strike a balance with collective rights and objectives.

For this reason, as I mentioned, section 1 of the Charter authorizes Canada’s federal, provincial and territorial legislatures to place reasonable limits on the rights I listed.

Again, in contrast, the use of the “notwithstanding” clause allows infringement of fundamental rights beyond these reasonable limits. By inference, this means that the “notwithstanding” clause can be used to override human rights without a pressing and substantial objective, without a rational connection to the objective, with an unnecessarily heavy-handed approach to achieving the goal, and in such a way that the harms would far outweigh the benefits, according to the evidence and judgment of the Supreme Court. With this context, I turn to developments in Saskatchewan.

In 2023, the Legislative Assembly of Saskatchewan passed Bill 137 to require consent in schools for students under 16 who want to use their preferred name or pronoun. The bill pre-emptively used the “notwithstanding” clause as regards several sections of the Charter. This year, the Court of Appeal for Saskatchewan ruled that the Court of King’s Bench may still comment on whether the law complies with the Charter. The Saskatchewan government has not conceded that Bill 137 limits Charter rights.

Personally, I have an open mind on striking a balance on parental rights and young people’s rights in this area.

I was also moved by Senator Wilson’s powerful speech on this bill. In general, on any subject, I would like to see an attempt to comply with the reasonable limits in section 1 before the “notwithstanding” clause is used, if justified in the judgment of a legislature. After all, the “notwithstanding” clause may not be needed to achieve a given purpose, and a tailored approach may be best.

As Senator Cotter said of the “notwithstanding” clause on October 31 last year when speaking on a related motion:

It pre-emptively delegitimizes many rights and, implicitly, the value of section 1 — the rights-limiting clause — and the jurisprudence of the Supreme Court of Canada in crafting a sophisticated approach to section 1.

I agree with the Right Honourable Brian Mulroney when he said:

For me, the backbone of our democracy, the strength of our democracy is the independence and confidence of the court system in Canada. . . .

He added of the “notwithstanding” clause: “How the [bleep] did this thing get in our Constitution . . . .”

Yes, you can chuckle.

In my view, it’s prudent to continue to treat the “notwithstanding” clause as an extraordinary measure. We must never normalize infringing human rights in Canada. Consider that even actions taken under the Emergencies Act, such as during a terrorist attack or a war, must also comply with the Charter.

I turn to my fourth subject as a helpful example: the international and Canadian framework for upholding individual human rights in the exercise of collective rights in Indigenous jurisdictions.

In 2007, the UN adopted the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, as an international legal framework for Indigenous Peoples’ collective human rights. In 2021, with Bill C-15, Parliament adopted UNDRIP in federal law. Notably, the declaration emphasizes that collective rights must be exercised consistently with individual rights. Article 1 states:

Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.

Accordingly, distinct Indigenous nations must exercise self-determination, including collective cultural rights, in balance with the individual rights upheld in the Universal Declaration of Human Rights. In Canada, Indigenous jurisdictions’ embrace of UNDRIP, including collective and individual rights, is a positive example in our federation.

Senators, I turn to my fifth subject: two questions raised by this bill as regards potential amendments. These questions are for the consideration of our sponsor, scholars inside and outside our chamber and hopefully our Legal and Constitutional Affairs Committee with expert testimony.

My first question — a legal one — relates to the unilateral amending formula. As an overview, using section 44 of the Constitution Act, 1982, Parliament can only unilaterally amend the Constitution in relation to “. . . the executive government of Canada or the Senate and House of Commons.” However, this power is subject to sections 41 and 42.

Section 41, requiring unanimity of the provinces and both houses of Parliament, does not appear relevant to this bill. Section 42 requires the general procedure for some changes, which is the support of at least seven provinces representing at least 50% of Canada’s population. Notably, section 42(1)(b) requires the general procedure for changes involving “the powers of the Senate.”

In their 2014 decision in Reference re Senate Reform, the Supreme Court clarified how section 44 can be used:

It does not permit amendments that engage the interests of the provinces by modifying the Senate’s fundamental nature or role. . . .

Therefore, my first question is this: Does limiting the power to introduce an infringing bill to a minister in the House of Commons modify the Senate’s fundamental nature or role and, thus, fall outside the scope of the section 44 unilateral federal amending formula?

Though not a lawyer by any means, I answer this question in the negative. For one, the Senate’s main job is sober second thought. For two, the “notwithstanding” clause has never been used federally. It, therefore, seems like a stretch to construe introducing infringing bills as fundamental to the Senate’s nature or role. However, if this question is answered in the affirmative, this clause could be amended.

My second question — a procedural one — relates to barring the use of time allocation to pass an infringing bill in either chamber. Though time allocation may be used to cut off debate, it is also a remedy to excessive delay, and I have had experience with that. The intent here, I trust, is not to grant a parliamentary minority a procedural veto against ever having a vote.

My second question, then, is this: Would barring time allocation allow a parliamentary minority to block a vote on an infringing bill? If the answer is “yes,” rather than barring time allocation, an amendment could be adopted to establish a minimum period of debate before voting, such as a certain number of days, like in the Senate Rules for voting on Ethics Committee reports.

In raising these questions, I support sending this bill to our Legal Committee for thorough study. In other words, let’s get the legal beagles on the trail and see if this dog can hunt.

To conclude, I note that the interpretation of the “notwithstanding” clause is currently before the Supreme Court. However, the interpretation of the existing clause is distinct from whether this bill would better protect Charter rights at the federal level. It would, and that’s why I support it going to committee.

Thank you. Hiy kitatamihin.