Today, Senator Peter Harder introduced a bill in the Senate adding restrictions to a federal invocation of section 33 of the Charter of Rights and Freedoms, also known as the “notwithstanding clause”. If adopted, the bill, entitled An Act to amend the Constitution Act, 1982 (notwithstanding clause), would ensure that a federal use of the clause could only occur after the Supreme Court of Canada has first ruled on the matter and a supermajority of the elected chamber votes in favour of the clause’s use, among other restrictions.
After multiple pre-emptive invocations of the notwithstanding clause at the provincial level, it has become apparent that political expediency has taken priority over constitutionally entrenched rights of Canadians. Since 2018, the multiple uses by Ontario and Quebec, the use by Saskatchewan, and other hypothesized uses indicate a growing normalization of the undermining of rights, largely at the expense of minority populations.
Then Leader of the Opposition, Pierre Poilievre, hinted at its invocation federally in an appearance before the Canadian Police Association, and outright stated he would invoke section 33 for consecutive sentencing purposes during the recent election campaign. This has never before been attempted at the federal level in 43 years and demonstrates an ambivalence to constitutionally protected rights.
As the inclusion of section 33 in the Charter was to ensure parliamentary supremacy when a conflict of rights arose, the bill would not remove the federal government’s ability to invoke the notwithstanding clause altogether. It would add safeguards to its use federally to ensure dialogue between the judiciary and Parliament as was intended by the original drafters of the clause, including former Alberta Premier, Peter Lougheed.
It is time for the Government of Canada to again take a leadership role in the protection of fundamental and unalienable rights. The bill goes some way to doing this.
QUOTES
“Section 33 of the Charter is increasingly misused by governments. This pattern indicates a contempt for the rights entrenched in the highest law of the land.”
– Senator Peter Harder
“Peter Lougheed was at the forefront of discussions to include the notwithstanding clause during constitutional negotiations and also one to suggest improvements after the fact. The bill includes – and builds off – Lougheed’s suggestions to ensure the clause is used as was originally intended.”
– Senator Peter Harder
For more information:
Renee Allen | Director of Issues Management | Office of the Honourable V. Peter Harder, P.C.
613-943-8039 | Renee.Allen@sen.parl.gc.ca
Cameron Ross | Director of Parliamentary Affairs | Office of the Honourable V. Peter Harder, P.C.
613-943-8039 | Cameron.Ross@sen.parl.gc.ca