Hon. Peter Harder, pursuant to notice of May 23, 2024, moved:

That the Senate express the view that it should not adopt any bill that contains a declaration pursuant to section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the “notwithstanding clause.”

He said: Honourable senators, let me begin with an excerpt from Notwithstanding . . . Canada, a book on the history of the constitutional discussions that took place in the late 1970s and early 1980s. Speaking to the television cameras pointing directly at him, Prime Minister Pierre Elliott Trudeau said:

There are some powers that shouldn’t be touched by government, that should belong to the people and that is why we call it the people’s package . . . . It is a question of what basic fundamental rights of the people are so sacred that none of us should have jurisdiction in order to infringe those rights.

Prime Minister Trudeau’s message was abundantly clear: Basic, fundamental rights should not be infringed by governments. Yet section 33 of the Charter of Rights and Freedoms, also known as the “notwithstanding clause,” is antithetical and, indeed, hypocritical to the purposes of the Charter itself. This section allows Parliament and legislatures to violate the rights found in sections 2 and 7 to 15 of the Charter — our fundamental freedoms, our legal rights and our equality rights — without judicial recourse.

The acceptance of this section is well-documented as a political compromise from the federal government in exchange for the patriation of the Constitution and the inclusion of the Charter itself.

In earlier discussions on patriation, as written by Roy Romanow, the attorney general of Saskatchewan during these deliberations, the provincial suggestion to insert a general non-obstante clause was rejected by the federal government:

. . . on the grounds that it would defeat the very purpose of entrenchment, namely, a guarantee of rights from abuse by governments.

Unfortunately, this concession was the only one that would solidify the support of nine provinces, minus Quebec, and the federal government but with conditions. One condition was that it didn’t apply to the Charter writ large and the second was that the legislative override provisions contain a sunset period of five years. The intent was that this clause be used with utmost restraint.

At the time, justice minister Jean Chrétien referred to the section as “. . . a safety valve which is unlikely ever to be used except in non-controversial circumstances . . . ” and, to quote further, “. . . to correct absurd situations without going through the difficulty of obtaining constitutional amendments . . . .”

This brief historical allegory is context for caution about the normalization and abuse of its use at the sub-federal level in recent years. Sadly, this normalization has been extended when the Leader of the Opposition hinted at its use should his party form government — something never done federally in 42 years.

This attracted my attention and is the subject of this concern. Numerous federal leaders have acknowledged the shortcomings of section 33. In 2006, then prime minister Paul Martin pledged that, if re-elected, his government would remove the federal government’s ability to use the notwithstanding clause, describing it as:

. . . a hammer that can only be used to pound away at the Charter and claw back any one of a number of individual rights . . . .

Prime minister Brian Mulroney, during the Meech Lake negotiations, called the notwithstanding clause “. . . that major fatal flaw of 1981, which reduces your individual rights and mine.” He also stated that any constitution that:

. . . that does not protect the inalienable and imprescriptible individual rights of individual Canadians is not worth the paper it is written on.

These are damning words from respected leaders. Proponents for the inclusion of section 33 were for the protection of unenumerated rights while safeguarding institutions, including the constitutional independence of our courts. It was never about undermining constitutionally entrenched individual rights. This defeats the purpose of entrenched rights altogether.

The original drafters of section 33 — Jean Chrétien, Roy Romanow and former Ontario attorney general Roy McMurtry — made this crystal clear when they denounced Doug Ford’s first use of the clause provincially in 2018 to circumvent proper process.

In a collection of essays entitled The Notwithstanding Clause and the Canadian Charter, edited by constitutional expert Peter Biro, lawyer Gregory Bordan wrote the following:

Until recently, the nearly universal assumption was that recourse to the notwithstanding clause was an exceptional measure that would be accompanied by political debate and would carry political consequences, an assumption which has largely been proven true over the past 40 years. This can no longer be assumed to be true. Indeed, the reality on the ground may already have changed.

I can’t fault this conclusion. The reality on the ground changed because the political landscape changed since 1982. There has been a coordinated push from provincial, largely populist governments to reassert what they describe as legislative supremacy over existing constitutional and Charter supremacy. We are now in an age of head-butting between bullish majoritarian premiers and those governance and accountability structures attempting, for good reason, to rein them in.

There is a fundamental misunderstanding by these premiers that winning a majority gives democratic legitimacy to the use of section 33. In Ontario, Doug Ford stated that this is equivalent to the approach of Quebec’s Coalition Avenir Québec, or CAQ, government for Bill 21 on laicity and Bill 96 on language rights, as well as Scott Moe’s Saskatchewan Party for his naming and pronoun policy. There is an obvious majoritarian bent for using the notwithstanding clause that denounces judicial decisions on constitutionality or, worse, nullifies them through pre-emptive use of section 33 — that is, the use of the notwithstanding clause before its challenge through the court process.

In my view, pre-emptive use is an admission that the legislation would otherwise have violated constitutionally entrenched Charter rights. If your legislation is constitutional, defend it as such. That ought not be a controversial statement.

Pierre Poilievre is following in their tracks. He has previously said he would use the notwithstanding clause to overturn a 2022 Supreme Court ruling on parole ineligibility. He also hinted at its use for other criminal law purposes when speaking to the Canadian Police Association in April. He said:

I will be the democratically elected prime minister — democratically accountable to the people, and they can then make the judgments themselves on whether they think my laws are constitutional . . .

This phraseology sounds eerily familiar to that of the provincial premiers, but that fundamental misunderstanding remains. Being “democratically accountable to the people” means being accountable to all people, not solely those who voted for you. In 1982, this was part of the reason for the five-year sunset clause. If legislatures have the last word on rights, the ballot box was deemed the appropriate place to accept or renounce a curtailing of those rights.

But the politics of today don’t align with those of four decades ago. Today, we see politics of personal attack over politics of public policy. We see division, disinformation and more rhetoric than substance. These amount to an increasingly disassociated and disengaged electorate who are tired of the clickbait headlines or overtly partisan publications or who, on the other hand, engage with and encourage vitriol and simplistic three-word tag lines.

For the ballot box to be a proper venue of rights determinations, we need an engaged and informed electorate, which is sorely lacking today.

Sabreena Delhon, the CEO of the Samara Centre for Democracy, agrees and has stated:

Section 33 assumes a third party in the perpetual dialogue between the courts and legislatures in Canada, that being an active, informed and empowered electorate.

Canadian politics are arguably the most toxic they have ever been. Majoritarian populist rule breeds distrust in democracy. Findings from the International Institute for Democracy and Electoral Assistance identify the drivers of democratic backsliding. These include the rise of populist parties in government, societal and political polarization, the mimicking of antidemocratic behaviour of others and the spread of disinformation.

This is where the use of the notwithstanding clause falls short, where the idea of tyranny of the majority creeps into the discussion and where minority rights can be tossed by the wayside. And this is where the Senate can play its constitutional role: While the notwithstanding clause can gag the judiciary, the Senate is free to speak on its use.

In the 2014 Reference re Senate Reform, the Supreme Court of Canada reaffirmed that:

. . . each region was provided equal representation in the Senate irrespective of population. This was intended to assure the regions that their voices would continue to be heard in the legislative process even though they might become minorities within the overall population of Canada . . .

Paragraph 16 of that reference speaks to the Senate’s constitutional representation of people largely underrepresented in the House of Commons, such as Aboriginal groups and linguistic, ethnic, gender and religious minorities. At paragraph 57, the court continues:

. . . it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons . . . .

It continues, saying:

The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.

The Senate has a constitutional role to protect minorities, regional or otherwise, and to do so independently. Use of the notwithstanding clause is definitionally short-term and political. Its use to trounce the rights of minorities at the whim of an elected majority is counterintuitive to the Senate’s constitutional role — a Senate that can’t be omitted from a federal section 33 process.

This is argued by Caitlin Salvino in her piece entitled Notwithstanding Minority Rights: Re-Thinking Canada’s Notwithstanding Clause. In it, she writes:

Minority groups are vulnerable to targeting through the notwithstanding clause because the democratic accountability processes embedded in section 33 cannot safeguard their interests. Consequently, the political risk linked to the notwithstanding clause is a weak deterrent when minority groups are the target.

Ms. Salvino goes on to say that:

. . . elected legislators often ignore the rights of minorities who lack political representation and are not required as a voting bloc . . . .

She continues:

. . . the legislature primarily represents the interests of the majority who may be apathetic to or actively support the targeting of minority groups. These instances create situations in which governments can invoke the notwithstanding clause to target minority groups with little opposition in the legislature or need for a fulsome deliberation. . . .

I share those fears. Majority apathy to minority rights, the minimal impact of minority groups at the ballot box and barriers to voting, all amplified under the hypocritically named Fair Elections Act — introduced, by the way, by then-Minister Poilievre — are reflections that the Senate, especially in a more independent context, must consider.

I believe it would be beneficial for the Senate to contemplate a checklist of sorts should we ever receive government legislation invoking the notwithstanding clause from any political stripe. A non-exhaustive list would include the following: One, is the use of the notwithstanding clause pre-emptive or in response to a decision of the Supreme Court? Two, has the Minister of Justice tabled a Charter statement coordinate with the bill at hand? Three, has a public consultation process been held, and has the House undertaken a comprehensive committee process? On this point, if the electorate is the final arbiter for uses of section 33, they must be notified and understand what’s at stake. Four, has the government used time allocation to curtail debate?

Colleagues might have other suggestions, and I am eager to hear them.

Another idea, which would apply in the other place, would be a legislative limit, as Andrew Coyne wrote this summer, or, preferably in my view, to require a supermajority of 60% to 66% to invoke the notwithstanding clause.

This was proposed by Alberta’s Peter Lougheed. Lougheed was a fierce defender of the notwithstanding clause and, in a 1991 lecture, suggested a reform package to prevent its abuse. As one of the framers, his package makes it clear that governments are abusing the purpose of section 33 as originally intended and understood by him.

Beyond the requirement of a supermajority of 60%, the contents of his package included: One, clearly outlining the rationale for the use of section 33 so that the electorate can evaluate the trade-offs; and two, disallowing the pre-empting of judicial review. In his words:

. . . such an action is undemocratic in that the purpose of section 33 was ultimate supremacy of Parliament over the judiciary not domination over or exclusion of the judiciary’s role in interpreting the relevant sections of the Charter of Rights.

With these potential reforms, I would be far more comfortable with the notwithstanding clause’s inclusion in our Constitution. It’s unfortunate that the purpose of the clause as originally intended has been so abused by populist governments at the subnational level in Canada.

I will close with an excerpt from lawyer Marion Sandilands, who contributed a piece to the essay series I mentioned previously. It reads:

The taboo against the use of section 33 has been lifted . . . This is especially worrying in a world with liberal democracies under threat and rising populism everywhere, including Canada. Strong constitutions protect against the vagaries of populism and abuses of power.

The Hon. the Speaker: Senator Harder, your time has expired.

Senator Harder: May I have 10 seconds?

The Hon. the Speaker: Are senators in agreement that Senator Harder can finish his speech?

Hon. Senators: Agreed.

Senator Harder: Thank you. The excerpt continues:

The stakes cannot be any more stark than this: these uses of the override weaken Canada’s Constitution when it is needed the most.

We are caught in a fight between legislative supremacy and judicial supremacy. The question is not which should prevail. The question is this: What about constitutional supremacy?

Thank you.