Honourable senators, there’s a great old‑fashioned English expression I don’t think we use enough anymore: to set a cat amongst the pigeons. That, of course, is exactly what our colleague Senator Harder has done with his timely and provocative motion.

In an era in which provincial governments are invoking the “notwithstanding” clause more and more casually, without seeming to see any political hazard or consequence, in an era in which one federal leader has mused about invoking the clause pre-emptively to Charter-proof future legislation, it’s a fair question for senators to ask themselves: Should we pre‑emptively attest that we will not pass federal legislation that pre‑emptively invokes the clause in such a way?

I shan’t keep you in suspense. Much though I applaud Senator Harder for asking this vexing question, and much though I deplore and denounce the cavalier way in which we’ve seen provinces weaponize the “notwithstanding” clause to strip fundamental civil rights away from everyone from trans teenagers to Muslim school teachers, I think we should be cautious about vowing not to pass any bills that invoke the clause, because there may come a day or time when the government has a legitimate public policy need to deke around a problematic court decision. We need only look across the border to see when the Supreme Court loses its moral bearings and starts to dishonour the constitutional rights it’s meant to protect. The “notwithstanding” clause is, after all, constitutional because it’s part and parcel of the Constitution itself.

But, with apologies, my speech isn’t quite over just yet because it’s imperative we have a hard and honest conversation about why we have a “notwithstanding” clause at all and why it’s being used so broadly and brutally these days. And to understand that question, we need to go back in time.

In 1971, the newly elected Peter Lougheed, the young reforming Premier of Alberta, decided that he wanted the very first bill he introduced in the Alberta legislature to be the Alberta Bill of Rights. Alberta was the first province in the nation to have a bill of rights, and for Alberta, waking from the thrall of almost four decades of Social Credit government into a modern age, Bill 1 was to be a beacon, a sign of the province Premier Lougheed wanted to create. And so he asked his new attorney general, Merv Leitch, to draw up such a bill.

In a speech he gave 20 years later to the Centre for Constitutional Studies in Edmonton, Lougheed explained that Merv Leitch came to him with a dilemma.

He said:

He came to my office and described his progress in preparing Bill 1, the Alberta Bill of Rights. Merv said to me, “Premier, we will have to provide in this Bill for a notwithstanding clause!” I responded, “What the hell is a notwithstanding clause?”

Merv patiently explained to me (something that he had to do on a number of occasions) that we needed to include a clause which allowed, if public policy dictated, for other Alberta laws to operate notwithstanding the Alberta Bill of Rights. . . .

As Lougheed told the story, Leitch patterned Alberta’s “notwithstanding” clause on a similar clause written into the Canadian Bill of Rights, which had been passed by the Diefenbaker government in 1960. And so the Alberta Bill of Rights was introduced in the spring of 1972 with a “notwithstanding” clause protecting the primacy of the elected legislature.

A decade later, in the heat of debate over the patriation of Canada’s Constitution and the drafting of the Charter of Rights and Freedoms, Alberta’s model of the “notwithstanding” clause helped to broker the compromise that made the Charter a reality. And yet, by 1991, Peter Lougheed himself was having some misgivings about the ease with which some provinces were invoking the clause.

In the same speech, Lougheed said that while he still supported the clause, he would have liked to have seen a higher bar to invoking it.

Lougheed told his audience:

A simple majority does not appear adequate for Parliament or a provincial legislature to introduce legislation including a notwithstanding clause. It is too substantive an action by the elected body and hence requires a higher level of authorization than a simple majority. . . .

Lougheed’s suggestion? Amend the Constitution to require any federal or provincial government that invoked the override clause to win a vote of at least 60% of MPs or MLAs. For better or worse, of course, that never happened. Peter Lougheed himself never did invoke the “notwithstanding” clause as premier.

But in March of 1998, the Government of Alberta’s then-premier Ralph Klein did just that. You may remember that I spoke recently in this chamber about the atrocities committed by the Alberta Eugenics Board under the terms of Alberta’s Sexual Sterilization Act. One of those people who had been sterilized without her knowledge or consent was a young girl named Leilani Muir. Years later, as an adult, Muir sued the province, and she won. She was awarded a judgment of more than $740,000 plus costs.

In an effort to head off more lawsuits and save millions, the Klein government pre-emptively invoked the “notwithstanding” clause to stop other victims from suing and introduced a new law intended to cap damages at $150,000 per person.

The public outcry was instantaneous and led, if I may say, by my own newspaper of the day, the Edmonton Journal, which rained down fire and brimstone on its editorial pages.

Less than 24 hours later, the province backed down and Ralph Klein personally apologized, saying to reporters at the time:

This was presented to caucus in pure, legal technical terms and… yes, my political sense probably didn’t click into gear.

He continued, saying:

It became abundantly clear that to individuals in this country, the Charter of Rights and Freedoms is paramount and the use of any tool… to undermine the Charter of Rights and Freedoms is something that should be used only in very, very rare circumstances.

Three weeks later, in April of 1998, the Supreme Court of Canada brought down its landmark Vriend decision, which established LGBTQ rights in Canada by reading in protection from discrimination on the basis of sexual orientation to both Alberta’s Individual’s Rights Protection Act and the Charter of Rights and Freedoms.

In the wake of the Vriend decision, Ralph Klein came under immense pressure from some in his party — and in the province — to invoke the “notwithstanding” clause. In the end, he pushed back against the social conservative voices in his own caucus. He refused to invoke the clause, in no small part because of the backlash he’d experienced when he’d tried to use the clause to take away the rights of those who’d been sexually sterilized.

Ralph Klein was no constitutional scholar, but he was one canny politician. He judged that the political risks of invoking the clause were just too great. In Alberta, the “notwithstanding” clause worked just the way it was supposed to. It gave Ralph Klein, the democratically elected premier, the final political decision. He could have used the clause to veto the Vriend ruling, but he made a fundamental political decision not to invoke it. The legislation remained supreme, as Merv Leitch and Peter Lougheed had hoped, but only because decent, fair-minded Albertans made it clear they would not accept the use of the clause to strip vulnerable citizens of their rights.

In the end, we didn’t just rely on Ralph Klein’s political instincts or his sometimes wavering moral compass. We relied on the ethical judgment of Albertans who weren’t afraid to speak out. Are the Albertans and Canadians of 2024 any less decent and fair-minded? Are they any less brave? I hope not. I don’t think we’re paying as much attention.

Back in 1998, pretty much every person in Alberta knew about the legal threats to use the “notwithstanding” clause against sexual sterilization victims and gays and lesbians. These were the biggest news stories of the year, covered by every newspaper and broadcast outlet. Everyone was talking about these issues. The whole province was engaged in the debate.

In the last few years, though, when premiers and provinces have invoked the clause, there has been, primarily, silence. It’s disturbing, but I don’t think it can simply be written off as apathy or tacit acceptance. Newspapers and newscasts simply don’t have the same weight and power they did a quarter of a century ago. We have only a tiny fraction of the reporters and editorialists we once did, and — with digital disruptions at every turn — far fewer people are reading newspapers or watching the national news.

It doesn’t help that, thanks to Bill C-18, vectors where people once saw and shared news, such as Facebook and Instagram, are no longer places to see the headlines or discuss the stories of the day.

Meanwhile, the social media ecosystem itself has fractured into so many tiny splinters. Once, when we talked about issues or memes going viral on Twitter or TikTok, we were talking about things that really spread. Now it’s much more difficult to spread any kind of message to a broad general audience, especially if it’s true.

Today’s media consumers are divided, not connected, by their media channels. Once, everyone in a community was sharing the same information at the same time and reacting to it in concert. That doesn’t happen anymore.

Canadians have never been more distracted by the latest news about Donald Trump or Taylor Swift; focused on what’s happening in Ukraine, Gaza or Tigray Province; or simply preoccupied dealing with the daily challenges of feeding their families, making their mortgage payments or finding a doctor. If they follow national or provincial news at all, they probably see headlines about elections, not think pieces about constitutional conventions.

Small wonder that today’s political leaders think they can get away with invoking the clause without backlash. It’s because they’ve already seen that they can. If the citizens aren’t doing their job of holding their elected officials accountable, and if our political culture is this badly broken — and I think after this week’s events in the United States, that is a fair question — how dangerous has the clause now become?

Once, politicians feared to invoke it because of the sense of shame. However, in a political culture without honour, the clause has taken on a new and more sinister dimension because the democratic guardrails are gone.

Yet, in the midst of this muddle, our role in this chamber has never been clearer. We are here to protect the Constitution, the Charter, the civil and equality rights of all Canadians, the right to a fair and timely trial, the right to strike, freedom of religion, the right to abortion and complete reproductive health and to protect trans youth from state bullying.

If and when bills come before us that are prima facie unconstitutional, bills that clearly strip Canadians of their established Charter rights, we should feel empowered to delay, amend or — when necessary — defeat them, even if the party were to run and win on a platform of denying Charter rights.

I respect the legacy of the Salisbury Convention. If a government runs on a platform and is elected with a popular mandate, then we as an appointed chamber, traditionally and correctly, show deference to the bills that flow from that mandate.

This is not the United Kingdom. This is a federation with a written Constitution and a Charter of Rights and Freedoms. While we must show appropriate deference to the other place, which is elected and accountable to voters, we must also, at the same time, be prepared to defend our Constitution and stand up for minority and regional rights and the rights of us all, not because we are radicals or revolutionaries, but because we are the guardians and conservators of the law, and because this chamber exists to be conservative in the very best sense of the word.

Carved above the office of the Speaker of the Senate in the old Centre Block is this quotation from the Roman poet Horace, “Sapere aude,” which means “Dare to be prudent,” or, as it’s been translated by others, “Dare to be wise; dare to use your own reason.”

In any translation, it is an excellent motto for this fraught era and this independent Senate. Let us not tie our hands and take pledges that may someday backfire against us. Let us respect the legacy and proper purpose of the “notwithstanding” clause, which is a part of our Constitution and history. Let us always be courageous in prudently protecting the rights of all Canadians.

Thank you, hiy hiy.