Hon. Kristopher Wells: Honourable senators, I would like to begin my remarks today by thanking our colleague Senator Harder for bringing forward this important piece of legislation and for beginning a conversation that is long overdue and can no longer be ignored: the role of the “notwithstanding” clause and the need to protect individuals and minorities from governments that would abuse this extraordinary power.

Over the course of the last several years, the conventions that had surrounded the “notwithstanding” clause have undergone a sea change. What appeared to have been a politically self‑imposed, decades-long moratorium on this power has come to a dramatic — and deeply worrying — end.

I would concede at the outset that the use of the “notwithstanding” clause is not unprecedented. Following the proclamation of the Constitution Act, 1982, the Government of Quebec opted to use the power frequently, invoking it in every piece of legislation as a symbolic protest against a Constitution their government had not signed. However, that invocation was universal. It was not directed at any single policy or group, and just three years later, a new Quebec government ended the practice.

I also note the clause was invoked again in Quebec in relation to French signage laws. Although this invocation followed a fully litigated Supreme Court of Canada decision, the use of the “notwithstanding” clause lasted only the prescribed five years, after which it was replaced by a new law, crafted within the bounds of the Charter.

There is one further historical footnote to add, which includes the use of the clause by the Government of Saskatchewan in 1986 in relation to a labour dispute, which the courts later found to be moot.

These six early years of experimentation with section 33 are the beginning of the story, and for many proponents of the “notwithstanding” clause, they represent the outer limits of legitimate historical use.

However, the fact remains that after this brief period, something remarkable happened. We entered a nearly 30-year era during which the clause was left untouched. It was viewed — quite appropriately, in my opinion — as a dangerous and regressive nuclear option: always present, always a theoretical threat to social progress and minority rights but one that governments understood was best left unused.

Constitutional scholar Peter Hogg famously described the “notwithstanding” clause as a “paper tiger” — a dormant power frightening on paper but politically untouchable in practice.

For three decades, that restraint held. Governments of all political stripes understood that to use section 33 was to cross a moral and democratic line. It was to tell citizens that their fundamental rights and freedoms were negotiable. This informal convention and ensuing political self-restraint represented one of the quiet triumphs of our constitutional democracy. It demonstrated to Canadians that our Charter of Rights and Freedoms had matured and that its guarantees were not only legal principles but shared national values.

Still, for many Canadians, especially those from marginalized and vulnerable communities, the fear of what the “notwithstanding” clause could be used for never fully disappeared. It was always there, lurking just beneath the surface of our democracy.

For 2SLGBTQI+ Canadians, that fear was not abstract. It was personal. It was lived.

After the Vriend v. Alberta decision in 1998, when the Supreme Court of Canada ruled that the exclusion of sexual orientation from Alberta’s human rights legislation was unconstitutional, there was enormous pressure from conservative factions within the province to use the “notwithstanding” clause to override the court’s decision. Those of us who lived through that period will remember the fear, anxiety and uncertainty that followed. It was a moment that forced queer Albertans to ask themselves, “Will my rights be protected by the Constitution or erased by my government?”

Again, after same-sex marriage was legalized in Canada in 2005, there were renewed political discussions in some quarters about whether the “notwithstanding” clause could be used to block or reverse marriage equality. Imagine, colleagues, a world where government had invoked this draconian power to block marriage equality and allow gay, lesbian or bisexual Canadians to be fired from their jobs just for whom they loved. Imagine if these aspects of our pluralistic society that we are rightfully so proud of today had been prohibited by section 33.

In the end, those threats were never realized, but the mere possibility, the fact that such discussions could be seriously entertained, revealed the precariousness of minority rights when they depend on the goodwill of governments rather than the permanence of equality and the fundamentals of human dignity.

For years, this was an uneasy peace: a Charter that promised protection and a clause that hung like an ominous shadow over those promises.

Now, colleagues, the tiger has awakened. In recent years, we have witnessed an erosion of the political restraint that once protected the integrity of our Charter. Governments are no longer shy about reaching for the “notwithstanding” clause — not as a measure of last resort but as a tool of political convenience.

In Alberta and Saskatchewan, we have seen section 33 invoked to strip away fundamental human rights, block access to health care and undermine the privacy and dignity of transgender youth, who are among the most vulnerable members of our society. These are not abstract constitutional exercises. It is a no-holds-barred attack with the intent of telling trans children and their families that their identities are up for debate, that their very existence is subject to the will of the state and that their rights are beholden to the whims and will of others.

It is all the more cruel and vicious that the Government of Alberta opted to invoke the “notwithstanding” clause last week, which also marked the Transgender Day of Remembrance. This day is meant to be a time to mourn and reflect on the countless trans individuals who have been subject to hateful attacks, violence and discrimination. It was on this very solemn occasion that the Government of Alberta shamefully opted to double down and further contribute to ongoing discrimination.

When a government uses the “notwithstanding” clause to pre-emptively shield its legislation from Charter scrutiny — before a single argument has been heard and before a single person has had their day in court — it is not governing with confidence. It is governing through fear.

And when that power is used to target a specific vulnerable group — whether that be the trans youth of today or another community tomorrow — it is not democracy. It is majoritarianism in its most dangerous form.

The Government of Alberta’s recent move to invoke section 33 in relation to labour rights provides yet another warning. When governments begin to normalize the use of the “notwithstanding” clause, they lower the threshold for its invocation across the board. Pick your issue, colleagues, then pick the Charter protections you care about and ask yourselves if you are sure they are not next.

That is what happens when an exceptional measure like this becomes routine and when the once unthinkable becomes accepted. And, slowly, the Charter begins to lose its binding power — not through formal amendment but through habitual disregard. We must be honest about what this means for the health of our democracy.

The Charter was not designed to make governing easy; it was designed to make governing accountable. It places limits on the power of the majority precisely because history teaches us that majorities are not always right, and rights are not truly rights if they can be suspended whenever they become inconvenient.

Section 33 was included as a political compromise — a recognition of parliamentary sovereignty within a new constitutional order. But it is not a casual power. It is not something we can afford to make routine.

When governments begin to treat rights as privileges — to be granted or withdrawn at will — we risk hollowing out the very foundations of our constitutional democracy.

And this is why Bill S-218 is so important. This legislation seeks to restore restraint to our constitutional design and to reaffirm that while the “notwithstanding” clause exists, it must not be abused.

Bill S-218 would limit the ability of the federal government to invoke section 33, thereby setting a standard that provinces cannot ignore.

Just this past month, the Government of Manitoba introduced its own bill to place limits on the use of the “notwithstanding” clause in its own province. Premier Kinew stated, “The charter contains our fundamental freedoms and it’s the responsibility of all of us to protect them.” Bill 50 would require that any proposed provincial legislation invoking the “notwithstanding” clause be required to be referred to the Manitoba Court of Appeal within 90 days. This would ensure the court has the ability to issue an opinion on the constitutionality of any law, which provides accountability to the people of the province.

To conclude my remarks, I would like to return to the human dimension of this debate. At a time when hate crimes against 2SLGBTQI+ people are rising in Canada, and at a time when misinformation and moral panic are spreading with increasing rapidity, the use of section 33 to suppress the rights of trans and gender-diverse Canadians does not just fail the Charter. It fails the test of whether we are a society that protects the most vulnerable.

History will judge us not by the powers we possess but by the restraint we show in exercising them. The choice before us is not about federal versus provincial power. It is about whether our laws will defend those most in need of protection. It is about whether we allow the Charter to remain the shield it was designed to be or whether we let it become a set of perfunctory principles subject to the political whims of the day.

Bill S-218 offers us a chance to draw an important line: to reaffirm that rights are not bargaining chips, and governments must never use constitutional loopholes to silence or scapegoat their citizens.

Colleagues, Canada’s diversity is a source of our nation’s pride and our promise. What makes our nation so extraordinary is how we have made our multiculturalism and pluralism into a defining strength.

The “notwithstanding” clause was meant to coexist with the very principle of pluralism, not to undermine it. But today, we must recognize that the balance has shifted. And without legislative action, the misuse of section 33 will continue to expand, eroding the very moral authority of the Charter.

This is why I strongly support Bill S-218. It is a measured, responsible and necessary step to protect the integrity of our Constitution and to reaffirm the primacy of human rights in Canadian law.

Let us not wait until more harm is done. Let us not tell future generations that we saw the warning signs and did nothing. Let us remember that silence makes us complicit in the very act of discrimination. Let us act as senators, as defenders of the Charter and as Canadians who believe that equality and justice must never be optional.

In many ways, we are not only the chamber of sober second thought but also the holders of Canada’s conscience and, if need be, the defenders of democracy.

Thank you, honourable colleagues. Meegwetch.