Constitution Act, 1982

Honourable senators, allow me to share some remarks on Bill S-218, introduced by our colleague, Senator Harder.

Based on his speech and the interviews he gave, this bill is his response to remarks by the Conservative leader, the Honourable Pierre Poilievre, to the effect that, should he become Prime Minister, he would use the “notwithstanding” clause of the Canadian Charter of Rights and Freedoms to ensure that his government’s criminal law policies, particularly with respect to sentencing and release, would take precedence over court rulings.

I also note that the Conservative leader in the Senate, Senator Housakos, recently introduced Bill S-240, which proposes to use the “notwithstanding” clause to reinstate two minimum sentences and set aside a Supreme Court decision.

For those of you who are unaware, I was always keenly interested in constitutional law, particularly as it relates to fundamental institutions and standards, when I was in law school, where I won the constitutional law award a very long time ago, almost 50 years ago, and also as a lawyer working for various clients, including the speakers of the Senate and of the National Assembly of Quebec, and of course, as a judge presiding over many cases involving the Constitution or the Charter.

So I was very excited when Bill S-218 was introduced, and I’ve been keenly interested in the debates it sparked here and elsewhere. In the style made famous by my friend Senator Cotter, here is an outline of my intervention.

In the first part, I’m going to address the bill’s content and the framework it proposes to constitutionally impose on Parliament.

Second, I will discuss the origin and scope of section 33 of the Canadian Charter of Rights and Freedoms, the “notwithstanding” clause.

Third and last, I will talk about two cases currently before the Supreme Court of Canada that will have a decisive impact on the scope of the “notwithstanding” clause.

Essentially, the bill would add to the Constitution a rigid framework for Parliament’s use of the “notwithstanding” clause. Proposed subsection 33.1(4) seems to indicate that this process would apply in two different situations.

In the first situation, at the government’s suggestion, Parliament is invited to declare that a provision of an existing federal law must continue to apply after a Supreme Court of Canada decision has declared it to be of no force or effect on the grounds that it infringes without sufficient justification on one or more Charter-protected rights.

I would note that this means the Attorney General of Canada would have to go all the way to the Supreme Court in all cases, even if he or she is convinced that trial court or Court of Appeal decisions are sound.

I would also note that the federal government has proposed a number of amendments to acts only after trial court rulings declared some of their provisions to be of no force or effect because they violate the Charter.

In addition to the costs associated with the proposed requirement to exhaust all remedies, it’s also important to recognize that it takes years to get a case all the way to the Supreme Court. The fact is, the time needed for the Supreme Court to issue a ruling will often exceed a government’s maximum four-year term, preventing it from using the “notwithstanding” clause, even if it was elected on a promise to use it to override certain case law. This scenario strikes me as problematic. One might even wonder whether this is a way of amending section 33 without respecting the requirements of the constitutional amendment process, which, of course, requires the provinces’ consent.

The second situation that the bill apparently seeks to address has to do with the passage of a bill that would contain a “notwithstanding” clause, but this time as a preventive measure. Senator Harder is proposing that the Constitution require the government to obtain an opinion from the Supreme Court before passing such legislation. This would ensure that parliamentarians and the public are informed of the proposed legislation’s impact on Charter-protected rights before voting on the proposed legislation, including the “notwithstanding” clause.

This is an interesting idea on the surface. However, such a requirement would add at least several months to the legislative process because of the time required to obtain the Supreme Court opinion. Practically speaking, this would prevent section 33 from being used for at least the final 12 months of a government’s term.

Moreover, such a constitutional requirement would prevent a “notwithstanding” clause from being included in legislation required to deal with a national emergency, even if the clause was deemed to be absolutely necessary.

In light of the challenges I have just described, I wonder whether the better option would be to draw inspiration from the approach used in a recent Manitoba government bill. If passed, this bill would require that any legislation passed by the Manitoba legislature containing a statement that it applies notwithstanding the Charter be referred within 90 days of its passing to the provincial court of appeal for its opinion on whether it violates the Charter.

As an aside, the Supreme Court Act provides for an automatic right of appeal for references, which means that any of the parties involved could then easily seek the opinion of the Supreme Court.

Bill S-218 also imposes as a constitutional requirement that an infringing bill — one that relies on the “notwithstanding” clause — may only be introduced by a minister of the Crown in the House of Commons. In other words, it could not be proposed by a senator or initiated in the Senate by the government, even if it were introduced by a senator who happens to be a minister.

Thus, for example, a senator could not introduce an amendment to the Criminal Code similar to the one introduced by our colleague Senator Housakos a few weeks ago.

For me, as one of the writers of the Quebec Court of Appeal reference case on Senate reform, a decision later cited with approval by the Supreme Court, this seems like a constitutional amendment dealing with the role and powers of the Senate and is thus a provision that, to be amended, requires the consent of seven provinces representing 50% of the Canadian population.

The Supreme Court in its own Reference re Senate Reform has been clear that Parliament alone cannot adopt amendments to the role and powers of the Senate. It can only adopt measures that “. . . change the Senate without altering its fundamental nature and role.” The court went further and gave an example of what it meant, citing the requirement for a senator to have a net worth of at least $4,000. That does not affect the way we conduct business; that does not affect our power. Another one could be removing the compulsory retirement age limit of 75 years, which for someone like me might be an interesting option as I’m getting closer to it.

It is also interesting to note that if this constitutional amendment proposed by Senator Harder were to be adopted in the manner proposed, any senator could subsequently propose to repeal this constitutional amendment by introducing a bill to do so.

Also, any senator could still initiate the procedure to remove section 33 from the Canadian Charter of Rights and Freedoms, since section 46 of the Constitution Act, 1982 provides that the procedures for such an amendment of the Constitution may be initiated either by the Senate or the House of Commons or by the legislative assembly of any province. So, we have the power to remove section 33, but we do not have the power to adopt declarations that the Charter would not apply. I wonder about the logic of such things.

In such a context, I find it surprising, if valid, to put in the Constitution that the authority to propose a bill using the “notwithstanding” clause will rest exclusively in the House of Commons and at the initiative of a minister.

Bill S-218 would also impose a significant constraint on the House of Commons because a bill relying on the “notwithstanding” clause would require a two-thirds majority of MPs to pass third reading. In addition, this supermajority would have to include MPs from at least two recognized parties. In practice, this would almost always require the support of the official opposition or, at least, another major party.

This particular supermajority may make it virtually impossible for a government to use the “notwithstanding” clause, even if it holds a majority of the House of Commons but less than two thirds. To add such a requirement in the Constitution amounts to a major change to the way the House of Commons has always worked.

This supermajority is also surprising, considering that a resolution to amend the Constitution to remove these provisions, if validly adopted, would require only a simple majority of the Senate and the House of Commons. Thus, under the proposed scenario, a majority government in the House of Commons could choose to initiate and push through, including time allocation, a constitutional amendment to repeal the proposed constitutional amendment — everything this bill is trying to achieve — and then get the consent of the Senate.

Colleagues, as you can see, by choosing to proceed through a constitutional amendment, Senator Harder is proposing a route that raises serious concerns about the functioning of our Parliament and the amending process for our Constitution, and all of this will likely lead to constitutional challenges.

As a contrasting example, consider An Act respecting constitutional amendments, enacted in 1996, to express the undertaking of the government — not the Parliament — never to move a motion to make a constitutional amendment without the consent of Quebec, Ontario, British Columbia and a majority of the governments and people in the Prairies and the Atlantic provinces. This was not an amendment to our Constitution but a legislative requirement regarding the process a government would have to follow before it could introduce a motion to amend the Constitution.

It is not about the functioning of the House of Commons or the power and role of the Senate, and it does not strip any MP or senator of any power, unlike Bill S-218.

In my view, the rest of the bill can be described as a matter of form and procedure covered by section 44 and, thus, could be added to the internal constitution of our Parliament without the consent of the provinces. This would be the case for the requirement that any infringing bill include a preamble setting out the reasons for relying on the “notwithstanding” clause, as well as an accompanying Charter statement describing the potential effects of the use of the “notwithstanding” clause on rights contained in the Charter.

I support these kinds of amendments because they favour democratic participation and accountability. If Canadians cannot discern the precise consequences of an override or understand which rights are affected, they are deprived of the ability to assess the government action and it becomes exceedingly difficult to hold parliamentarians accountable.

I now turn to part two of my speech: the effect of a declaration under section 33 of the Charter. I won’t comment on the history of section 33. Previous speakers have covered this very well, especially Senator Saint-Germain and Senator Wallin.

Suffice it to say, as Senator Harder and others have reminded us, “Those who attended the constitutional discussions agree that without section 33, there would have been no Charter.” The clause cannot, therefore, be fairly characterized as an anomaly or an afterthought to the Charter; rather, it is part of the very bargain that allowed it to exist at all.

With these comments in mind, let me turn more directly to the content and mechanics of section 33 as it appears in the Charter.

Section 33 is relatively brief. It permits Parliament or the legislature the option to “. . . expressly declare . . .” that an act or provision of an act shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of the Charter. In practical terms, this means that Parliament or a legislature may, on a temporary basis, shield a law from judicial invalidation on the basis that it violates fundamental freedoms, even if it cannot be justified under the test developed by the Supreme Court in the application of section 1 of the Charter — the famous Oakes test.

Section 33 permits the temporary override of certain Charter rights. The override must appear in an act, not in subordinate legislation such as regulations, and it must be express rather than implied. Section 33 also sets a time limit. It states that a “notwithstanding” declaration ceases “ . . .to have effect five years after it comes into force . . .” — or earlier if it is specified in the declaration — at which time, the legislature has the option of adopting a new declaration, subject to the same maximum five‑year limit.

In addition, section 33 of the Canadian Charter of Rights and Freedoms makes it possible to suspend the application of only certain provisions of the Canadian Charter of Rights and Freedoms, not all protected rights. For example, the “notwithstanding” clause cannot be used for democratic rights, mobility rights or language rights.

Finally, it must be remembered that prior to the enactment of the Charter, Canadians were not living in a country where fundamental rights were not protected. In fact, many fundamental rights have deeper roots than the Charter. Suffice it to say, the preamble and the architecture of the Constitution Act, 1867, were used by the courts to declare that our Constitution was to be read as protecting essential features of a democratic society, including the rule of law, separation of powers and independence of the judiciary.

For example, the habeas corpus procedure was available to any unlawfully detained person prior to the adoption of the Canadian Charter of Rights and Freedoms, this authority being considered inherent to the jurisdiction of the superior courts, which is protected by section 96 of the Constitution Act, 1867.

In addition, various human rights laws were already in place before the Charter, including the Canadian Bill of Rights, enacted in 1960 under Prime Minister Diefenbaker.

In Quebec, a Charter of Human Rights and Freedoms based on European and international sources has been in force since 1976, before the Canadian Charter of Rights and Freedoms.

Of course, the suspension of certain specific rights recognized in the Canadian Charter of Rights and Freedoms does not mean that similar rights — if they exist under another part of the Constitution or another act — are suspended by the use of the “notwithstanding” clause.

The Supreme Court has already recognized that “. . . the scope of one Charter right does not circumscribe the scope of another. . . .”

It follows, then, that section 33 cannot be interpreted in a way that affects constitutional territory beyond the rights enumerated in sections 2 and 7 to 15 of the Charter.

I now turn to the third and last part of my remarks: two pending cases before the Supreme Court of Canada dealing with the “notwithstanding” clause.

Last December, the Supreme Court announced that it will hear the first case — an appeal concerning Quebec’s secularism law, widely known as Bill 21 — for five days in March, next month.

As my colleagues know, this law affirms the secular nature of the Quebec state and prohibits certain public servants from wearing religious symbols or covering their faces while performing their duties. By the time the Supreme Court examines this appeal, almost seven years will have gone by since Bill 21 was passed.

The stage is now set for a landmark decision on a delicate issue, the backdrop of which concerns the pre-emptive use of the “notwithstanding” clause.

It’s no surprise that in addition to the parties to the case — the Attorney General of Quebec and the complainant — we now have as intervenors the Attorneys General of Canada, Alberta, British Columbia, Manitoba, Ontario and Saskatchewan plus more than 50 other intervenors from a wide range of organizations and individuals, including our former colleague senator Serge Joyal.

This appeal raises many relevant questions for us in relation to Bill S-218. The most important one concerns the pre-emptive use of the “notwithstanding” clause. Can a legislature invoke section 33 at the same time it enacts a new law before any court has had the opportunity to assess whether the statute actually breaches a protected Charter right or might be saved under section 1 as a “reasonable limit”? Or must the legislature wait for a judicial decision before turning to the use of the override provision as a last resort?

Unsurprisingly, most provinces involved in that case argue that pre-emptive use of section 33 is legal, with some going even further, arguing that invoking section 33 also removes a court’s ability to issue a judicial opinion that addresses how the subject legislation impacts the rights at issue.

On the other hand, by my count, at least seven organizations have advanced arguments opposing or expressing concerns about the pre-emptive use of section 33 of the Charter. This includes our former colleague Senator Joyal. Senator McPhedran quoted from his factum in the chamber last week. Thank you, Senator McPhedran.

These intervenors are suggesting that the Supreme Court should ignore the comments it made in 1988 in the Ford case. If the Supreme Court were to conclude accordingly that pre‑emptive use is not authorized by section 33, Bill S-218 would become totally unnecessary as an attempt to prevent the pre‑emptive use of the “notwithstanding” clause.

Another issue to be debated is the role of the courts once a declaration to invoke section 33 has been made. Many intervenors argue that even if section 33 can be used pre‑emptively, it does not prevent courts from opining on the content of a provision or bill in light of the Charter. This is a position I personally support.

This is going to be a crucial part of the debate before the Supreme Court and of the judgment to be delivered. This is confirmed by the fact that, on November 6, the Supreme Court granted leave to appeal in another case, this one challenging Saskatchewan’s legislation concerning the use of pronouns and chosen names for students. That law requires parental consent for students under 16 to change their names or pronouns at school. The Saskatchewan bill invoked the “notwithstanding” clause to shield the law from a challenge under three sections of the Charter — sections 2, 7 and 15 — which protect freedom of expression; life, liberty and security of the person; and equality rights.

In the Bill 21 case, the Quebec Court of Appeal held that the Ford decision forecloses any substantive judicial review when a legislature validly invokes section 33. The Quebec Court of Appeal emphasized that, under Ford, review is strictly limited to assessing whether the formal requirements of section 33, to which I referred previously, have been met. It held that the use of section 33 exempts the statute not only from the application of the specific Charter rights but also from judicial review.

In the second case, a four-judge majority, out of five, of the Saskatchewan Court of Appeal came to the exact opposite conclusion. It found that a court retains its jurisdiction to determine whether a law infringes a Charter right and could issue a declaratory judgment, even when that law is shielded by the “notwithstanding” clause. The majority of the Saskatchewan Court of Appeal agreed that Ford sets out the formal requirements for a section 33 declaration but rejected the claim that Ford bars courts from conducting Charter review. It held that courts still maintain a meaningful role in identifying rights violations, even without the ability to declare a law invalid. In a particularly apt passage, the Saskatchewan Chief Justice wrote:

There is no principled reason why the courts’ voice on whether legislation limits rights is legitimate if it is heard before s. 33 is invoked, but not after. . . .

I also note that in England, the English courts can declare that a bill adopted by Parliament breaches a protected right but cannot declare the law ineffective as a consequence. I also add that every five years this “notwithstanding” clause has to be used again if you want to continue the effect of the derogation. Therefore, when it is used again, if it’s attempted, parliamentarians and citizens will be informed about the extent of the breaches that were made when the first bill was adopted. So it is important that we have judicial opinions in order to have a better informed debate in society and, later on, if another use of a similar provision is made after the first five years has expired.

In such a context, the Supreme Court has no choice but to take a stand on this issue. I hope they take the stand I’m proposing. Before it, the intervening Attorneys General of Canada, British Columbia and Manitoba will argue in March that courts retain some role to provide an opinion or conduct a Charter analysis. By my count, close to 20 intervening organizations take this position. On the other side, however, the respondent Attorney General of Quebec and the intervening Attorneys General of Alberta, Saskatchewan and Ontario will sharply contend that a valid override brings such review to an end and prevents it.

If the Supreme Court were to side with the Saskatchewan Court of Appeal, this will mean that Manitoba may not have to enact the legislation they are contemplating adopting, which is, I think, a good piece of legislation. Courts will be able to opine, even if the litigation must not always reach the Supreme Court, as Bill S-218 would require.

A court opinion may do a lot of good in these circumstances. In practice, it would mean that a group or individuals could ask the courts to make a declaratory judgment about the extent of the infringements on protected rights. This will force the enacting government to explain the intent of the contested provision and its scope of application.

This, of course, will inform the public and the concerned legislators about options, such as redrafting to become Charter‑compliant, ending the application of the “notwithstanding” clause or preventing its extension after five years. Thus, it would likely have a chilling effect on legislators who are contemplating over-broad use of section 33, legislators who wish to rely on a blanket exclusion of the Charter and override several rights at once without providing much justification as to why or who expect that the issues will die out over a few weeks or years.

This result would align with the theory that section 33 of the Charter affirms the supremacy of the legislature over the non‑elected judiciary and that it is up to voters to decide ultimately if the use of the “notwithstanding” clause is legitimate and acceptable or not.

Of course, if the electorate is the ultimate check on the legislative misuse of the override provision, then an informed public is essential.

A third issue before the Supreme Court concerns how the override of specific Charter rights interacts with parallel guarantees of those rights found outside the enumerated provisions of the Charter.

These issues are addressed squarely by the Attorney General of Canada in the brief to the Supreme Court, stressing the fact that section 33 is limited in scope. The Attorney General says that, by its very text, it operates only in relation to sections 2 and 7 to 15, and no further. If the rights are otherwise protected under the Constitution or inherent rights of the courts, they are not affected by the “notwithstanding” clause.

This becomes especially important where rights are protected outside the Charter. In his factum, the Attorney General of Canada gave an example involving judicial independence, which has roots not only in section 11(d) of the Charter but also in several provisions of the Constitution Act, 1867, provisions that lie entirely beyond the reach of section 33.

Take the habeas corpus procedure, for instance — as I discussed earlier — the centuries-old vehicle for reviewing the state’s justification for a person’s imprisonment. While section 10(c) of the Charter entrenches this protection explicitly — and could be subject to the “notwithstanding” clause — the remedy long predates the Charter and is deeply rooted in the common law and the inherent powers of the superior courts. Therefore, it is implicitly protected by section 96 of the Constitution, and the “notwithstanding” clause could not remove it.

While one could argue that section 10(c) falls within the scope of section 33, yes, but it will not affect the rights protected under the Constitution Act, 1867.

Also of great interest for us is the fact that some parties and intervenors have focused their arguments on sections 27 and 28 of the Charter, and how those sections must function to place important limits on how section 33 could be used. Again, this is a point that Senator McPhedran briefly referred to in her speech last week.

Section 27 requires that the Charter be interpreted in a way that protects Canada’s multicultural heritage. And section 28 guarantees that rights are enjoyed equally by men and women, “Notwithstanding anything in this Charter . . .” — a phrase understood by some to include section 33 itself.

I myself have doubts about whether an override of section 15 or other enumerated rights could be used to dismantle the guarantees of equality between men and women in section 28 of the Charter. So we’ll have to be careful when we use that “notwithstanding” clause. If the impact is to prevent equality between men and women, this may not be an effective use of section 33.

When the Charter bargain was struck, the original wording of section 33 would have permitted an override not only of the equality guarantees in section 15, but also of section 28. The federal and provincial governments agreed to exclude section 28 from the scope of section 33 in response to massive pressure organized by feminist and human rights groups across Canada, to which I think Senator McPhedran referred to, including during the cold winter. Senator McPhedran, thank you for reminding us of that.

All of this brings me to my conclusions, you will be happy to hear.

Since many issues, such as formal requirements, substantive limits, court jurisdictions and preemptive use, will be canvassed in depth before the Supreme Court in the coming months, and considering that the court’s answers will shape the legal landscape in which any federal legislation about the use of section 33 could be done in the future, what should we do with Bill S-218?

Colleagues, we’re approaching a moment when developments outside this chamber will inevitably shape our work and the content of this bill, if it is still considered useful or necessary.

The legal landscape surrounding section 33 is about to be squarely addressed by the Supreme Court, and its reasons will, I expect, clarify much of the ground on which we can assess Bill S-218. In that context, the wiser course is to be patient. As Rousseau is attributed with saying, “Patience is bitter, but its fruit is sweet.” It’s a reminder, perhaps, that good things take time.

I look forward to hearing further views from colleagues as this debate unfolds.

Thank you for your attention, colleagues.

Yes, I have 45 minutes, and maybe there’s time left.

Oh good; it’s more than I need.

Thank you for this very interesting question. I hope that some people are listening on the other side of Wellington Street. I know the briefs make it clear this is a very important issue; it is the core of the issue.

The solution proposed by the Saskatchewan Court of Appeal is an interesting one. When the legislatures start using the “notwithstanding” clause as an almost routine thing — four times in a few weeks — it is difficult for the public to gauge what is going on, to react, to organize when already there’s the next one, the third one, the fourth one.

If the Supreme Court were to conclude that, despite the use of section 33 of the Charter, the “notwithstanding” clause, the courts still have the ability to review the use of it, that would force the Attorney General of Alberta — in the example you gave — to appear before the courts and justify what they have done: “Well, the rights affected were this, this and this.” The onus would be on those initiating the judicial review to make the case, but they would have to respond to it.

The courts have a quality — and sometimes it’s not considered a quality — but most of the time legal proceedings take time. They have to be informed. There will be factums, briefs, debates and appeals, and the media will follow. Some people are going to better understand. This is going to inform, and inform to the point, I hope, that some people who were silent the first time will say, “Oh, is that what it means? That is going too far.”

I still believe that the addition of this judicial review, after the use of the “notwithstanding” clause, will be an opportunity for the population, the voters, to decide, “We still have the last say on these things, and we’re better informed, and we’ll vote you out because we don’t agree with what you are doing.”

Yes, where is the limit? It is a very challenging question.

The fact remains that this use of the “notwithstanding” clause is subject to some limits: It’s five years, for example. I know five years is too long for those who are affected, and the dates have passed.

Maybe we have to do a different constitutional bargain, but it cannot be done by us. It cannot be done by judges. It has to be done by the constituents and the federal and provincial governments sitting together and making some adjustments, such as removing section 33 from the Charter.

I suspect that this will not happen because the use of it now and the briefs from many attorneys general are absolutely to the contrary.

I believe that we still live in a democracy. At the end of the day, the more chances that we have to be informed, the better choices that society will make.

Would Senator Dalphond take another question?

With pleasure, Senator Aucoin.

Thank you. The initial reaction to the many invocations of the “notwithstanding” clause might suggest that it is considered an abuse and an erosion of the fundamental rights that so many Canadians hold so dear. Without this bill, are fundamental rights sufficiently protected?

I think this bill could turn out to be a Trojan horse, giving the impression of offering protection that, in reality, it does not.

I don’t think that’s the answer to the problem you’re raising. It will be very easy for a majority government to set it aside by amending the Constitution to remove that amendment, and, in the meantime, arguments will be made before the courts as to whether this is valid or not. I see this as a Trojan horse that doesn’t deserve to be allowed to run for too long.