Constitution Act, 1982

Honourable senators, first and foremost, those of you who, after a long day, are still here tonight, are the giants of this institution. The good news is that you are about to hear a riveting speech.

I rise today to speak to Bill S-218, An Act to amend the Constitution Act, 1982 (notwithstanding clause).

At first glance, Bill S-218 appears to be the most modest procedural reform to provide for conditions that must be met in order for the Parliament of Canada to enact legislation that invokes section 33 of that act.

The scope of Bill S-218 is limited to the federal government and would not concern the provinces. However, when we examine Bill S-218 more closely, it becomes apparent that the debate before us is not merely about parliamentary procedure. It is about a larger constitutional question: Should Parliament impose additional restrictions on a constitutional mechanism that the framers deliberately included in the Charter itself?

To answer that question, we must return to the origins and purpose of section 33.

It is important to remember that the “notwithstanding” clause is not an accident of constitutional drafting nor is it some loophole that escaped the attention of those who negotiated patriation.

Section 33 was consciously negotiated, deliberately included and ultimately became one of the essential compromises that made constitutional patriation possible. Without section 33, there would have been no constitutional agreement and, consequently, no Charter of Rights and Freedoms as we know it today.

The provinces agreed to the Charter because section 33 provided an important assurance: While courts would possess the authority to review legislation and interpret Charter rights, elected legislatures would retain a limited ability in defined circumstances and for limited periods to maintain legislation that reflected the policy choices of the citizens they represent. That compromise was particularly important in a country like ours here in Canada.

We are a vast federation with different regions, priorities and political cultures. I could go on and on about our differences.

The framers understood that a constitutional system serving a country as diverse as ours required both strong rights protections and a continuing role for democratic decision making.

The compromise reached in 1982 was not between rights and democracy. It was between two legitimate constitutional principles: the protection of rights through judicial review and the preservation of democratic accountability through elected legislatures.

As many constitutional scholars have observed, section 33 was not included despite the Charter; it was included in order to secure the Charter. It was deliberately included in the constitutional settlement to strike a balance that remains to this day.

When we are looking at Bill S-218, the question then becomes whether that constitutional balance now requires adjustment.

The sponsor of Bill S-218 argues that safeguards are necessary before Parliament may enact legislation invoking section 33. However, colleagues, the Constitution already contains important safeguards.

First, section 33 cannot be used in relation to every Charter right. It applies only to sections 2, 7 through 14, and 15. Democratic rights, mobility rights and language rights remain beyond its reach. This distinction was deliberate.

The framers of the Charter carefully limited the scope of section 33 because they sought to preserve the balance between rights, protection and democratic accountability.

Certain rights were placed entirely beyond its reach, ensuring that the fundamental democratic structure of the country and key constitutional protections could not be overridden by legislative action.

Far from placing Parliament above the Constitution, section 33 operates entirely within the constitutional framework itself. Its existence serves as a reminder that the Charter was never intended to eliminate the role of the elected legislatures in constitutional governance but rather to balance that role with judicial review.

Second, every “notwithstanding” declaration expires after five years unless it is renewed. Unlike ordinary legislation, its operation is therefore subject to a built-in sunset clause.

This is not an insignificant safeguard. It means that any government invoking section 33 must ultimately return to the electorate and defend its decision. Canadians have the opportunity to pass judgment on that choice through the elections. That accountability mechanism is fundamental in a democracy such as ours.

Courts derive their legitimacy from their independence and impartiality. Legislatures derive their legitimacy from democratic elections and from the people.

Section 33 recognizes that both sources of legitimacy have an important place in our constitutional order and ensures that elected representatives remain accountable for a major public policy decision affecting the citizens they serve.

None of this is to say that judges do not perform an indispensable constitutional role. Right, Senator Dalphond? I think you will agree with that. They interpret the law and protect constitutional rights, but they are not accountable to voters for the public policy consequences of their decisions; governments and legislatures are.

Section 33 recognizes that this constitutional reality does not eliminate judicial review. Courts may still review whether a declaration is validly enacted, whether other Charter rights are engaged and whether constitutional limits outside section 33 apply.

What section 33 does permit is a government, acting through legislation adopted by Parliament, or a provincial legislature, to maintain a policy choice notwithstanding particular judicial interpretations of certain Charter rights.

Section 33 preserves a constitutional dialogue between Parliament and the courts while ensuring that elected governments retain a limited capacity to act on behalf of the citizens who elected them.

More fundamentally, it reflects an important constitutional principle: Canada remains a parliamentary democracy. While the Charter strengthens the role of the courts in protecting constitutional rights, it does not eliminate the role of elected legislatures in making public policy on behalf of Canadians.

The framers of the Charter deliberately adopted a constitutional compromise in which courts would interpret and enforce rights, while legislatures would retain a limited constitutional authority in carefully defined circumstances to override certain judicial interpretations.

Section 33 is the clearest expression of that compromise and reflects the belief that constitutional governance in Canada should be informed, not only by the judicial interpretation, but also by the democratic accountability which is at the core of our democratic system.

In a healthy democracy, difficult questions are not always settled permanently by a single court judgment. Citizens may reasonably disagree about how rights should be balanced against competing social objectives.

Section 33 ensures that those disagreements can, in limited circumstances, be returned to the democratic arena where elected representatives must publicly justify their decisions and ultimately answer to the voters.

Colleagues, this brings me to a point that arose during Senator Harder’s remarks and during our exchange in this chamber. I expressed concern — and I continue to do so — that this unelected chamber is being asked to initiate restrictions on constitutional mechanisms that are expressly entrusted to elected legislatures.

Senator Harder argued that legislation invoking section 33 should originate in the House of Commons because elected representatives possess the democratic legitimacy necessary to begin such a debate.

Working from the premise of that argument, would it not seem equally reasonable to ask whether legislation restricting the future use of section 33 should also originate in the elected chamber?

Regardless, colleagues, we must ask ourselves what fundamental problem is Bill S-218 seeking to address at this point in time?

It must be noted that Bill S-218 is carefully tailored to the federal Parliament. It does not alter how provincial legislatures may invoke section 33, provincial legislatures whose usage has animated much of the recent debates surrounding the clause. Instead, it proposes new restrictions on a power that the federal government has never exercised. Why would we restrict a power that has never been used and was so essential in the creation of this federation?

Bill S-218 takes away the ability to have a Committee of the Whole take up time allocation and requires a new threshold of a supermajority in the House of Commons.

Not only does a government need to win an election and receive a mandate, it would then need a supermajority comprised of two thirds of the House and also a multi-party requirement. On top of that, in the Senate, no such requirements are needed, right, Senator Harder? A simple majority voting against it or in favour of it would suffice.

These new requirements raise further concern. One of the strengths of section 33 is that it currently operates according to a common constitutional framework across Canada. Parliament and the provincial legislatures possess the same constitutional authority, subject to the same constitutional limits.

Bill S-218 would begin to create different procedural rules, depending on which legislature seeks to exercise the same constitutional power.

Such an approach risks creating unnecessary confusion about the nature of section 33 itself. Canadians could reasonably be left with the impression that the “notwithstanding” clause carries one meaning when exercised by Parliament and another when exercised by a provincial legislature.

Section 33 was drafted as a single constitutional mechanism applicable throughout the federation. Introducing different rules for different legislatures risks undermining the clarity and coherence that constitutional provisions are intended to provide.

Colleagues, before Parliament alters a constitutional compromise that made patriation possible, it should be able to identify a clear and compelling problem requiring correction. I have yet to hear that case made, but I suspect it will come in time and we’ll have that discussion.

So what are we doing here, colleagues, and why are we doing it?

We cannot simply decide to impose new restrictions on a constitutional mechanism because we disagree with how it has been used or might be used in the future. That’s not how any of this works. That’s not how democracy as a contract works, not a healthy democracy anyway, and certainly not least of all because one could find themselves on the other side of an issue on any given day.

Section 33 was not an oversight. It was a deliberate part of constitutional compromise and nation building in this confederation that made our patriation possible and secured agreement on things like the Charter itself.

Rather than debating how to further restrict section 33, perhaps the more important question is this: Why have we seen renewed interest in its use in recent years? What does that tell us about the relationship between courts and legislatures? What does it tell us about the balance between judicial review and democratic accountability? Those are conversations that are worth having.

In my view, section 33 is not a flaw in our Constitution. It is one of the safeguards that allows democratic accountability to coexist with judicial review and preserves the principle that laws should ultimately be made by those whom Canadians elect and can remove from office every four years or even earlier.

At its core, this debate is about whether we continue to trust democratic institutions and the choices that people make in their politicians with responsibilities constitutionally and deliberately assigned to them. The framers of the Charter did. They created a constitutional framework in which courts protect rights, legislatures make laws and citizens retain the ultimate authority through the ballot box if they’re not happy with the laws that have been made.

Bill S-218 does not address the reasons behind the renewed interest in section 33. Instead, it seeks to further restrict a constitutional power that was deliberately included in the Charter settlement. In doing so, it risks altering the constitutional balance struck in 1982 by shifting authority away from federal legislatures and toward the courts.

I want to highlight, honourable colleagues, as I conclude, that we are living through a very precarious moment in the history of this country. I think we all are starting to see — both in the West and the East and everywhere in between — that institutions are being called into question. We are seeing more disruption and unrest than we’ve ever seen before, and the process of nation building requires more stability, leadership and responsible hands on the wheel than ever before.

I believe that if we are going to toy with the fundamental, essential element that is the “notwithstanding” clause, both in the Charter and section 33, which has been used on a number of occasions provincially — though never on the federal level — I think it risks throwing out of balance the constitutional equilibrium that we have had in this country.

I agree with Senator Harder that the Constitution and the country are ever evolving and will continue to evolve. The reason I decided to participate in this debate is I think there are some questions, though I think those questions will address issues way down the line, but I suspect Senator Harder wants to be cutting edge and ahead of his time. This is my personal view: I don’t think this is the time to start toying around with section 33 of the Charter, but it does warrant research and discussion. That’s why I decided to participate in the debate.

I encourage other colleagues to do so because there is nothing more important in Canada than nation building. When it comes to the “notwithstanding” clause, those of us who are old enough — after all those Government of Canada courses I took at McGill with Professor J.R. Mallory, I’m starting to understand, over the years I am here, why I took those courses. But we do need to address issues as the country evolves.

I don’t believe, even at the end of the process of review, that I will be in favour of these changes in this legislation, as I highlighted in the bill, but I believe that it warrants review and going to committee.

Having said all that, I plan to be brief on this issue. I know that we’ve had a long day, and I will leave these thoughts with you to reflect on over the weekend and the weeks ahead because I think these are issues worth reflecting on. However, I think now is an appropriate time for us to adjourn for this evening.