Honourable senators, I rise today to speak to Motion No. 201 moved by Senator Harder, concerning the notwithstanding clause. I want to thank him for moving this motion.

This is an important issue that deserves thoughtful, careful debate. This issue is fundamental to our role in the Senate.

The Senate is the chamber of sober second thought and it is this chamber that is tasked with representing the interests of the regions and minority groups. That reality would generally put us completely at odds with the use of the notwithstanding clause, a measure that can explicitly deny Canadians their Charter rights.

The “notwithstanding” clause, or section 33 as it’s also known, allows the federal or provincial governments to deviate from certain sections of the Charter — fundamental freedoms, legal rights and equality rights, but not democratic rights, mobility rights or language rights. Importantly, once invoked in legislation, the courts cannot strike down the law despite conflict with the Charter. This particular clause has a five-year tenure and has to be re-enacted to continue every five years.

It is also important to note that invoking the clause does not require the government to identify the rights being denied and does not require substantive justification. Federally, Canadians have the Senate as goaltenders. However, there is no Senate in the provinces and territories acting as goaltenders. It is not hard to see why the “notwithstanding” clause is controversial and has been the subject of debate since day one. The most obvious criticism is that it essentially makes our rights and our freedoms no longer rights and freedoms, as they can be taken away by use of the clause.

Section 33 — as lawyer and legal scholar Peter Hogg, whom we know well in the Senate, put it — “. . . seems to be a uniquely Canadian invention . . . .” There are similar functions in a few other countries, but devices to circumvent entrenched rights and freedoms are not a universal part of the world’s democracies.

Section 33 makes a hierarchy of rights: those that are protected from the “notwithstanding” clause and those that are not. We rightfully say that democratic rights and language rights are so important that they cannot be infringed upon, but we do not extend the same importance to legal or equality rights. I think that is something to consider in the discussion.

Is the use of the “notwithstanding” clause always wrong? I won’t go so far as to say that, but I find it very hard to justify its use. An increasing development is the idea of using the “notwithstanding” clause pre-emptively. This allows the legislature to bypass the important role the courts play in our democracy. It is critical that the courts get to review these laws and provide their perspective. Our courts are a pillar of a functional government and a law-abiding society.

Legal expert Robert Leckey put it this way:

Under this new paradigm, governments will much more readily shield their rights-infringing laws from constitutional challenge. They may denigrate constitutional review by judges, characterizing it as illegitimate interference with the majority’s will —

— in the House of Commons or Parliament.

Under the new paradigm, the government doesn’t bother to claim that evidence justifies its policy choice, or that its chosen path is proportionate in its harms and benefits.

On the other side, one can argue that the “notwithstanding” clause is needed to protect the supremacy of the legislature and the power of the province. But, colleagues, we do have a mechanism for changing that Charter, even though it is difficult by design, as it should be.

There is also broad public opposition to the “notwithstanding” clause. An Angus Reid poll from January 2023 — that’s very recent — found that after recent uses of the clause in Ontario and Quebec, 58% of respondents were concerned or very concerned about the increased use of the clause, and 55% were supportive of abolishing the clause altogether.

Former senator Eugene Forsey said, “The notwithstanding clause is a dagger pointed at the heart of our fundamental freedoms, and it should be abolished.”

Quebec politician Herbert Marx said that “the danger of having a ‘notwithstanding clause’ will become evident when we need protection most . . . .” He resigned over the use of the clause in 1988 by Premier Bourassa.

Clifford Lincoln also resigned at that time, stating, “Rights are rights and will always be rights. There are no partial rights. Rights are fundamental rights.”

It is noteworthy that Senator Harder’s motion calls on the Senate to express the view that the Senate should not pass legislation using the “notwithstanding” clause. I don’t see this as a firm declaration of intent to block bills but as an affirmation that we believe that using the “notwithstanding” clause, particularly pre-emptively, is not something that we will arbitrarily support, which bring us to the Salisbury convention that the Senate may offer reasoned amendments but not block the government’s agenda.

Our role is one of sober second thought, one of defender of minority rights. What do we do when faced with legislation that challenges that role? What will we do? A bill that invokes section 33 is by its very nature declared to be in opposition to some fundamental rights, rights we are here to uphold.

So this is an important question and one that should not be waved away by convention — like the Salisbury convention — that we are to pass the government’s agenda. Are we in a time where we no longer have an agreement on fundamental rights in this country? We can debate and disagree on policy, but we cannot and should not let the politics of the day or the flavour of the month diminish our rights.

I must admit that during Senator Harder’s speech, one could perceive confusion in many senators’ faces. In French, we would say:

Qu’est-ce que ça mange en hiver cette affaire-là? In other words, “what does that actually mean?”

Then I realized that many new senators have no legal or legislative experience, and we as an institution are not providing understanding of the basic tools to do our job, such as the understanding of the Constitution, its Charter, the divisions of power, the Senate, the structure and texts of legislation and the Senate’s role as per the Supreme Court interpretation in 2014. We must understand all of these to do our job. There’s a learning curve, a steep and continuous learning curve.

So I have made a request that at least this basic understanding be provided to senators in a podcast format to listen at any time by all senators in a shared tool box and that these podcasts, or whatever the technical tool that will be used, be available for you to listen and relisten to in French or English at any time if you need to further understand what we are talking about in this place.

In the meantime, I welcome this debate while sincerely hoping we will not face legislation containing a “notwithstanding” clause in our near future. Thank you colleagues.

Will Senator Ringuette take a question?

Senator, I listened with interest to your speech. My question is simple: When we patriated the Constitution in 1982 and entrenched the “notwithstanding” clause, which is when Prime Minister Trudeau and future prime minister Jean Chrétien — who was the Minister of Justice and Attorney General at the time — negotiated with the provincial representatives the “notwithstanding” clause, were they that discombobulated? Or there must have been a substantive reason why they entrenched the “notwithstanding” clause in the patriation.

I believe, Senator Housakos, that it was a negotiation tool in order to patriate the Constitution because there was firm commitment from the Government of Canada in regard to the Charter of Rights being entrenched in the Constitution.

Some provinces — I do not know which ones — were not in agreement in regard to the Charter of Rights. In order to give their support for the patriation of the Constitution, they requested that this compromise be put in it.

No Canadian can forget Premier Romanow — not at that time — nor his very outspoken opinions in the last decade.

Did you say that if a bill presented to us contained a notwithstanding clause, we should refuse to pass it? If that is the case, are you inviting us to flout the Constitution, which provides for the government and Parliament to be able to pass legislation that contains the notwithstanding clause?

Senator Dalphond, I appreciate your question, as a former judge with an excellent reputation.

Essentially, when the Constitution was patriated, there was no question of the federal government ever using section 33. It was a request of the provinces. The fundamental intention of section 33 did not pertain to the federal government. That being said, and I hope that you will reread the speech I just delivered, there are exceptions. There are rights that are absolutely guaranteed. The question I asked in my speech was this: How can we differentiate and give one right more value than another in our deliberations?