Honourable senators, I rise to speak to Senator Harder’s motion regarding the “notwithstanding” clause. I should say at the outset that Senator Harder has introduced to this chamber a very important question, one that I would greatly have preferred to see studied in detail, perhaps, at the Legal and Constitutional Affairs Committee.

That said, senators before me have provided the context for the debate of this motion. I would like to build on that context and propose a tentative framework for considering the profoundly important issues embedded in the motion.

In these few minutes, I’m going to make seven points, but first just some reflections on the Charter. You will recall, I think, that it applies only to federal, provincial and territorial governments and their actions — that is, governments — but not private actors.

Second, it is organized in seven various categories of rights. That’s relevant, in particular, to the way in which the “notwithstanding” clause operates, since it only applies to nullify or suspend rights in some categories.

Third, all of these rights are subject to section 1, which establishes a reasonable limit to the application of those rights.

Fourth, the “notwithstanding” clause provides a structured override, as I say, to some but not all of those rights — the section 2, sections 7 to 14 and section 15 rights but not other rights in the Charter.

My second point is that the idea of a government override of rights is not a new phenomenon. Indeed, it is based on the concept of parliamentary supremacy, an authority that existed in every one of our federal, provincial and territorial governments prior to April 15, 1982, the day when the Constitution was patriated and the day that the Charter kicked in. Indeed, this concept of supremacy of Parliament still operates in the United Kingdom.

Third, it is an overstatement, I think, to say that our Charter rights are capable only of being limited by the “notwithstanding” clause. Indeed, throughout the negotiations that led to the adoption of the Charter, all governments were fully aware of the need to include a limitation-of-rights mechanism, ultimately the negotiated language of section 1, which reads:

. . . subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

I would also say that the Supreme Court of Canada has developed a sophisticated, highly respected approach to the interpretation of section 1 and its application to limitations of Charter rights.

My fourth point is that it’s important to appreciate that the “notwithstanding” clause itself was negotiated into the Constitution. Even if you agree with Prime Minister Trudeau Sr.’s remarks at the time, as Senator Harder does — and, quite frankly, as do I — Mr. Trudeau’s comments at the time were no more than the lament of someone who lost on the issue.

Fifth, it’s helpful to examine how we got to the “notwithstanding” clause in 1982, and I’d like to take a few minutes to recount that.

As negotiations began in 1980 toward patriation of the Constitution from the United Kingdom, the place of a Charter of Rights and Freedoms — long an aspiration of Prime Minister Trudeau Sr. — began to take shape. At the initial first ministers’ conference in September 1980, discussion did turn to a federal draft Charter. It was little discussed, but at that meeting, then-premier of Saskatchewan Allan Blakeney, one of and perhaps the intellectual leader of the provincial side, indicated that Saskatchewan and perhaps other provinces would be amenable to the constitutional entrenchment of rights if it were accompanied by a non obstante or a “notwithstanding” clause. This was the first formal entrance of the concept into the negotiations.

It took on greater resonance following the Supreme Court of Canada decision on the so-called patriation reference. It occurred this way: The court’s decision or advisory opinion, as they are known, indicated that the Government of Canada possessed the legal authority to patriate the Constitution of Canada unilaterally, but this would contravene a constitutional convention in doing so. This put pressure on Ottawa to be more accommodating in negotiations and on the provinces to find a more flexible approach to the Charter out of fear that Ottawa would proceed unilaterally.

As then-attorney general of Saskatchewan Roy Romanow put it:

What we do know is that the Supreme Court’s decision produced the conditions under which the governments of Canada were forced to continue once again their long search for constitutional agreement.

The result was that, with respect to the “notwithstanding” clause, last-minute accommodations were made. At the so-called kitchen cabinet meeting between Mr. Chrétien, Roy McMurtry, then-attorney general of Ontario, and Mr. Romanow, then-attorney general of Saskatchewan, a compromise was sketched out for a package, the so-called kitchen accord, one part of which included the “notwithstanding” clause. Though opposed to this part of the compromise, then-Prime Minister Trudeau reluctantly agreed, and there we have it.

I turn next to a series of cascading ways of thinking about the use of section 33. This is point no. 6 of 7 in my remarks.

Obviously, a default position is to conceive of the “notwithstanding” clause as usable whenever a government wishes to constrain those constitutional rights that can be subject to it. The usage is the most muscular exercise of parliamentary supremacy in the modern context and understandably attracts the greatest criticism. 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.

Cascading from that position, one could consider the use of the “notwithstanding” clause limited to circumstances where a Supreme Court decision has upheld rights and struck down legislation, that is, use of the “notwithstanding” clause but not pre-emptively. This is a somewhat greater justification for the approach, since it at least requires a parliamentary exercise balancing constitutionally protected rights against other rights and values. This was essentially the argument advanced by Premier Lougheed and Premier Blakeney in supporting the “notwithstanding” clause in 1982.

A third approach, stepping down from this, was recently articulated by Tsvi Kahana following an extensive study of the use of the “notwithstanding” clause in provincial jurisdictions. Kahana developed a series of criteria for examining the exercise of the “notwithstanding” clause and specifically identified circumstances in which the clause was used “tyrannically”; that is, where a legislative authority exercised the “notwithstanding” clause essentially as the “tyranny of the majority” in imposing it upon a minority community. This, in his view, is an illegitimate use of section 33.

This was also a concern of John Whyte, a distinguished Canadian constitutional scholar and an adviser to governments during the negotiations. Professor Whyte put it this way:

. . . the anxiety that produced the political demand for entrenched rights cannot rationally be calmed in the face of the legislative power granted by section 33. That anxiety is simply this: political authority will, at some point, be exercised . . . to impose very serious burdens on groups of people when there is no rational justification for doing so.

Finally, one comes to the bottom of the cascade — that the “notwithstanding” clause be used never. This is the seventh and last section of my remarks, and I want to turn to two arguments or viewpoints that support this last approach, at least by the federal government.

The first argument is that it will be recalled that the “notwithstanding” clause adopted in April 1982 has not been used by the federal government in a period of over 42 years — not once.

Hold that thought for a moment while I talk about something completely unrelated — or so it may seem.

In 1867, when Canada became a country, the then British North America Act included provisions that are now sections 55, 56 and 90 of the Constitution Act. These provisions created the authority, in particular in section 90 — I see Senator Gold nodding. He’s probably wanted to use this one from time to time — that allows the federal government to disallow or reserve provincial legislation; that is, the federal cabinet can direct the Governor General to disallow, or void, any provincial law. This is a power that mostly we don’t talk about — and for good reason. That power was used by Ottawa periodically, but it has not been used a single time since 1943.

Today, the powers of disallowance and reservation, while still on the books, are generally considered dormant, prompting some debates about whether they have effectively become obsolete through disuse. Comparative public law scholar Richard Albert has argued the powers fall into “constitutional desuetude,” which occurs, as he states:

. . . when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation . . . .

A similar view was shared by distinguished Canadian political scientist Andrew Heard, who said that these powers reflect the days of a “bygone era,” and the Supreme Court of Canada said as much in the 2014 Senate reference.

These views are predominantly based on a maturing of our country over the decades whereby it is no longer necessary to have the federal government serve as the watchful parent over petulant, misbehaving provinces in the exercise of their legislative authorities.

I think you can see where I’m going. As a reminder, the notwithstanding clause has not been exercised by the federal government in 42 and a half years. I want to suggest that as a result, it has fallen into disuse, or what some commentators would refer to as constitutional desuetude, at least at the federal level, and hence, there is coming or maybe now exists a constitutional convention against its use by the Government of Canada.

In a similar way as the non-use of the powers of reservation and disallowance occurred, over these last 42 years, the argument would be that we have matured as a nation, quite frankly, with the assistance of the Supreme Court of Canada and its own articulation of rights and their limitations. We have matured in our understanding of basic rights and their boundaries to the extent that parliamentary interference to negate those rights is no longer needed — hence a convention, at least with respect to Parliament, that the notwithstanding clause is inoperative.

My second argument — and I’ll try to be brief here — is similar to the first but based on different grounds. It is that our thinking about constitutional rights, the basic rights of all citizens, has evolved. This evolution has taken us to a place where as citizens, we recognize as a matter of principle that it is no longer wise to preserve parliamentary supremacy in ways that can deny basic human rights. I am more comfortable with this line of argument. It acknowledges the legitimacy of the views from 40 years ago of those who championed parliamentary supremacy in order to protect values that may have been, or were thought to have been, jeopardized by an overly rich interpretation of the availability of basic rights. At the same time, it acknowledges that societal values have evolved and that the constitutional protection of basic rights has enhanced, not jeopardized, the ability of our country to function well.

Another way of saying this is to state that we are in a new era in which the preservation of certain rights, those captured in the Charter, adequately defined and circumscribed, ought not to be exposed to the vagaries of parliamentary supremacy. How might we secure this modern, principled position? It might be attractive for us to consider a constitutional amendment to remove section 33. Constitutional amendments are difficult to achieve, though there is an argument with respect to the Parliament of Canada that it would only affect the Parliament of Canada and, therefore, only the federal level and could be done unilaterally.

In the meantime, recognizing that section 33 has become by convention non-usable, or because we accept the view that the evolution of our understanding of rights in the country has evolved, we can commit Parliament to the principle that the use of section 33 in federal legislation is a product of a bygone era and is now a no-go. Thank you very much.

I certainly would.

You will have to ask for five more minutes.

Could I have five more minutes?

Is leave granted?

I’m not going to answer the part about President Trump. I’ll dodge that one. I may answer next Wednesday.

Senator Downe, I am very familiar with the rules with respect to land in Prince Edward Island. Actually, you’re slightly wrong. Saskatchewan has the same rules, and I spent a lot of time overseeing that rule when I was a deputy attorney general.

The point, though, that you’re making is that of the exercise of the notwithstanding clause at the provincial level and how if Ottawa tried to in some fashion intervene, they’d be offside on other constitutional grounds related to division of powers.

I have been trying to limit my remarks here to reflecting on the use or non-use of the notwithstanding clause at the federal level because my argument fails completely at the provincial level in terms of the clause falling into disuse. I think it’s maybe 17 times now — aside from some challenges in Quebec — that it’s been used at the provincial level and, quite frankly, a couple times as recently as this year, including by my own province — in the context of the tyranny of the majority, if I could say — but I leave it to reflection on the provincial use of it.

Here, I think the conversation is focused on the scope with respect to which a federal Parliament could or should or should not exercise it and leave the space for the provinces going forward.