Constitution Act, 1982

Honourable senators, I rise today to speak to Senator Harder’s Bill S-218, An Act to amend the Constitution Act, 1982 (notwithstanding clause).

First, I thank Senator Harder for his initiative with this bill, which has already garnered more media attention than most bills ever get. And it is rightly so, both because of Senator Harder’s stature — my favourite term for him is “silver fox” — and because of his clarion call for parliamentarians and citizens of Canada to pay attention to the harms to human rights caused by the misuse of the section 33 non obstante clause, or override, undermining the strength and resilience of our democracy.

This speech is also timely because out of the women’s constitutional activism of 1981 that strengthened equality rights in the Charter came LEAF, the Women’s Legal Education & Action Fund, launched on April 17, 1985 — Equality Day — the moment the government moratorium on Charter equality rights lifted.

This fortieth anniversary of LEAF is being celebrated in the senators’ lounge on February 10, and you have all been invited. Please join Senator Dasko, MP Lisa Hepfner and me to mark the resilience and success of one of the world’s most impactful defence funds for rights.

Senators, you will recall Motion No. 201, moved by Senator Harder in the Forty-fourth Parliament. This motion, and now this bill, go to the heart of our role as senators sworn to serve our nation.

It touched my heart as a human rights advocate involved more than 30 years ago in drafting some of the protections now in the Charter, including section 28, which states:

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

The recent uses of section 33 by certain provinces trouble me deeply, especially the ones that target minorities. As a proud mother of a non-binary person who brings only good into their communities and this world, it is gut-wrenching to see hate language and rights-denying action enabled by the government’s harsh use of section 33, for example, in the bill affecting transgendered people which was adopted in Alberta in 2025 to cheers at 2:20 a.m. on December 10 — ironically, International Human Rights Day.

Where and how we got key laws is important for lawmakers to know. Today, I will briefly recount the origins of the two “notwithstanding” clauses in our Charter to add to our understanding. There is a running debate as to who was truly responsible for section 33 having been put into the Charter. Was it Alberta? Was it Saskatchewan?

As a Manitoban, I take no hard position other than to point out that the late Professor Paul Weiler, of Osgoode and Harvard Law Schools, proposed such a clause well before the November 4-5 “Kitchen Accord” that added section 33 to the draft Charter. Weiler also noted that an override was not new to rights law in Canada, as exemplified by section 2 of the 1960 Canadian Bill of Rights.

Colleagues, I went to law school more than 50 years ago. I was not in the kitchen of this very building with attorneys general Roy Romanow, Roy McMurtry and Jean Chrétien when Constitution making became the Constitution baking of section 33. But I was nearby and quickly helped to lead the national women’s ad hoc campaign to protect the other, often overlooked, non obstante clause in the Charter — the aforementioned section 28 — the sex equality guarantee added to the Charter at third reading of the bill in the spring of 1981, well before section 33.

The Library of Parliament described the ad hoc campaign this way:

Consequently, in public session on 5 November 1981, all governments, except that of Quebec, signed the constitutional accord containing the notwithstanding provision.

The matter was not finished, however. As then worded, section 33 would have allowed for an override not only of section 15 equality rights, but also of section 28, which guaranteed the equality of men and women. As a result of a massive pressure campaign organized by feminist and human rights groups across Canada, both federal and provincial governments agreed to withdraw any reference to section 28.

I recall taking heart when the then-premier of Alberta, Peter Lougheed, an ardent advocate for section 33, stated that the clause was only meant for the rare instances where a legislature disagrees with a judicial interpretation of rights and that section 33 should never be used pre-emptively. That was then; this is now.

So what is the relationship between these two “notwithstanding” clauses, and why does it matter? Having fought for our section 28 equal rights guarantee, notwithstanding anything in this Charter, we were not prepared to accept that section 28 could be overridden by the new section 33. So, we remobilized across Canada.

I will forever be grateful for the role of opposition in the House because of the support and guidance we received from Ed Broadbent, then leader of the NDP, and caucus members Pauline Jewett and Margaret Mitchell, as well as from the leader of the Progressive Conservative opposition, Joe Clark, and MP Flora MacDonald, who, on the day the proposed section 33 amendment was tabled, immediately moved their amendment to restore the original wording of section 28.

That week, women marched all across Canada while some of us hit the phone lines to premiers from inside the office of the Minister responsible for the Status of Women, the Honourable Judy Erola, a story not well known.

In my home province, the front page of the Winnipeg Free Press featured an expected 500-women march in frigid weather against the “barter of rights.” The pressure on the premiers was so great that, by the evening of November 23, Minister of Justice Jean Chrétien confirmed in the House that he had obtained agreement from all premiers to restore section 28 to its original wording. The Conservatives’ motion was then adopted, and section 28 was removed from the ambit of section 33.

Toronto Star columnist Michele Landsberg wrote at that time:

It has been an extraordinary two weeks. Never before in Canada’s history has the moral authority of women stood so high. Never before have so few women accomplished so much on behalf of so many.

And without that massive and, I will add, unfinanced mobilization of women, and without the support from parliamentarians from all parties respecting and amplifying women’s voice, the Charter would be weaker than it is today.

In the course of this current revival of section 33, we’re also seeing increased interest in section 28. Professors Kerri Froc and Bev Baines argue that section 28 has the power to block the effect of the “notwithstanding” clause, section 33, where a law disproportionately harms women.

This idea is gaining traction. In the course of the constitutional challenge to Quebec’s Bill 21, the former chief justice of the Quebec Court of Appeal proactively raised section 28 and asked the parties for submissions on whether Bill 21 might be unconstitutional on that basis.

This is unusual for a chief judge, but then again, we live in unusual times.

I recount this story of section 28 not to enter into a debate about the relationship between 28 and 33, although that is still an open question. Rather, I relate this as an example of a constitutional trialogue among government, courts and people, proving the Charter was not merely the result of a compromise between politicians.

Many key amendments to the Charter originated with civil society advocate citizens, and it is citizens’ trust that ultimately sustains or defeats governments.

At this worrying time, we are seeing that citizens have an important role resisting the rights-denying use of section 33. It is citizens, after all, who can express their disapproval of its use, either on the streets, in community halls and legislatures or at the polls. This is part of a constitutional trialogue and is consistent with understanding the Constitution of Canada as a living tree.

Since 2018, the “notwithstanding” clause has seen a major and troubling revival. When it is used these days, it is often to withdraw the rights of unpopular minorities — religious and linguistic minorities in Quebec and trans youth in Saskatchewan and Alberta, for example.

Most recently, the Premier of Ontario and some mayors proposed overriding the rights of homeless individuals, another unpopular minority. By definition, minorities are uniquely vulnerable to section 33.

Senators Harder, Pate and Kristopher Wells spoke eloquently to this point. In this harsh political climate, using the rights override against unpopular minorities — the poor and homeless people, for example — is politically expedient. It is much easier than facing the rich and powerful.

Oxfam’s report released just weeks ago, The Rise of the Super-Rich: The State of Inequality in Canada, noted:

The combined wealth of Canada’s top 40 billionaires in 2025 is greater than the GDP of many countries, including New Zealand, Columbia, Finland, Chile, and South Africa.

This, even as research from across 136 countries points to inequality rising while political power is becoming more unequally distributed, leading to policy outcomes that reflect the preferences of the wealthy more than the needs of low-income people.

No doubt, Canada’s 89 billionaires were pleased when the Carney government removed the luxury tax on private aircraft, taking care of the richest 1%, who hold more wealth than the bottom 80% combined.

Ask yourself: What does it feel like to be part of an unpopular minority who has been told by high-ranked politicians that you are not worthy of the same rights as everyone else?

At the UN in 1958, Eleanor Roosevelt noted that universal human rights begin “in small places, close to home . . . .” Indeed, it’s everyday environments that ensure justice and dignity.

What becomes of a Canada that weaponizes our Constitution so that only some humans are legally entitled to human rights? This is a time to visualize successful resistance in this chamber, and to be inspired by past success, for which we can look, ironically, to Alberta. Trialogue was evident in the public outcry following Alberta’s attempt in 1998 to override the rights of persons who were forcibly sterilized. Because of that outcry, the Premier of Alberta backed off using section 33 in the wake of Alberta’s previous loss in the Supreme Court’s decision to read in sexual orientation as an equality right in section 15 in the case of the young, gay teacher Delwin Vriend, who was strongly and effectively supported by rights advocates and expert lawyers who fought for gay rights pro bono and won in courts and in society.

With all this said, I would like to address the question of what we as senators should be considering if and when legislation comes to us with section 33 included. In particular, what is our role as senators if section 33 targets members of a minority or marginalized group? In his motion, Senator Harder offered four criteria that the Senate could use to assess legislation that invokes section 33. He invited us to offer more.

In that spirit, I offer one more: Does the legislation unduly harm minorities or marginalized people? If so, I would argue that the Senate has a special role to guard against such abuses of power. In a few short years, the “notwithstanding” clause has been revived and used in ways never imagined by the framers. For those of us who fought hard for a Charter with strong protections, this is devastating to witness. Make no mistake, the future of our universal rights, freedoms and equality is up for grabs, and some elected officials are grabbing them away right now.

We as senators may soon be faced with a situation that will challenge our constitutional role. As I have written in publications on the Charter, making our Constitution work requires sustainable citizen participation in the living of the rights and freedoms articulated in the Charter. Recently, our brilliant retired colleague, the Honourable Serge Joyal, filed his intervener’s factum to the Supreme Court of Canada in Quebec’s Bill 21 case. Asking forgiveness for my French, I will quote it.

May I ask for five more minutes?

Thank you very much.

It denies the courts their role as a fundamental pillar of the democratic system. It diminishes the public perception of the role and status of the courts in constitutional democracy. It weakens the democratic process by depriving citizens of an informed analysis of the state of rights and freedoms. It deprives minorities of constitutional protection of their rights and freedoms. All of these findings lead to the conclusion that section 33 cannot have the effect of setting aside the courts’ jurisdiction to declare that a law contravenes the Constitution, which Canada is the supreme law of Canada.

We as senators have a critical role to play in keeping rights and freedoms alive for all Canadians and for the health of our democracy. We have a committee system with a much-deserved positive reputation for the thorough and substantive study of pressing issues affecting Canadians. Senate studies have the credibility to be cited in peer-reviewed academic journals.

It has been argued by some colleagues that a vote to send a bill to committee for further study requires a belief that the bill should and could become law. This approach would doom this bill. Amending the Constitution of Canada is close to impossible, and this bill is predicated on a major constitutional amendment.

From another perspective, some honourable members in this chamber have spoken about the intrinsic value of sending this bill for further study at committee. For example, last fall, Senator Ringuette stated, “I support this bill going forward to committee.” Senator Klyne advised, “I will support sending this bill to committee.” Senator Saint-Germain closed her speech in June last year with:

Bill S-218 raises a real and important question for the health of our democracy, and while I do not believe that in this current form the bill is the right solution, I still want it to proceed to committee so it can be studied with the seriousness and application that is required of a constitutional amendment.

At no time has this been more important than right now. This decision is ours to make. Let’s send this bill to committee for the careful consideration for which senators are relied upon, trusting that our colleagues will give Canada the benefit of sober second thought to such a serious concern, and better prepare us to defend democracy. Thank you, meegwetch.