Should the Senate block the notwithstanding clause?

Senator Harder has thoughts.

The temporary home of Canada’s Senate.

I think a sleeper issue, in our age of political turmoil, is the question of how much latitude new governments have to act upon their arrival in power. In France, as he prepares for a crushing defeat in Sunday’s legislative elections, Emmanuel Macron has been speeding up his appointments, to reduce the influence of a new National Rally government. In the United States, the New York Times reports,

A sprawling network of Democratic officials, progressive activists, watchdog groups and ex-Republicans has been taking extraordinary steps to prepare for a potential second Trump presidency, drawn together by the fear that Mr. Trump’s return to power would pose a grave threat not just to their agenda but to American democracy itself.

As we approach a possible change of government at the federal level in Canada, I made a note to look out for possible cases where institutions that have functioned for a decade under Liberal rule might be preparing now for a Conservative government. Then I remembered I’d already heard of one such case. And many of you haven’t. So I thought I’d tell you about it.

On Thursday, May 23, Sen. Peter Harder rose in the Senate to provide notice of a motion he’s preparing to make. Here’s what he said:

“Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

“That the Senate express the view that it should not adopt any bill that contains a declaration pursuant to section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the ‘notwithstanding clause.’”

You know the notwithstanding clause. It’s the provision of the 1982 Constitution Act that says a government can legislate in ways that might otherwise infringe on one or more Charter rights. It’s been controversial from the outset, but it’s been getting a workout lately, thanks to Quebec’s premier, Ontario’s premier, and maybe Saskatchewan’s and New Brunswick’s. In April Pierre Poilievre hinted that he would use the clause in criminal-law legislation.

Senator Peter Harder.

Enter Sen. Harder. (Here he is in a television interview from a couple of years ago, so you can get to know him better.) A Senate that joined the national debate over a hypothetical first-ever federal use of the notwithstanding clause — and especially a Senate that sought to determine the outcome of that debate — would generate a lot of controversy really fast.

I emailed Harder some questions about his plans. Here’s our exchange.

PW: On May 23 you gave notice that the next time the Senate sits, you'll move "That the Senate express the view that it should not adopt any bill that contains a declaration pursuant to section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the 'notwithstanding clause.'" Why do you plan to do that?

PH: The purpose of the motion is to provoke a discussion on the topic at hand. The Parliament of Canada has yet to opine on this issue as, up until recently, it hasn’t been raised by the past six prime ministers. Considering the recent remarks of the Leader of the Opposition, who hinted at the use of the clause federally, we have been put in a position where our minds must turn to this idea and contemplate its use in the context of an independent Senate. The use of the notwithstanding clause ought not be “normalized” in the federal Parliament as it has, unfortunately, in some provinces. In over 40 years since the patriation of the Constitution, including the Charter of Rights and Freedoms, this isn’t a tool that has been used at the federal level and, at that time, was only begrudgingly accepted by the federal government as a compromise to be used sparingly. This should continue.

PW: There's been a strong consensus that the Senate should not block bills passed by the democratically elected House of Commons. Concretely, this has generally meant not sending a bill back to the Commons a second time with new amendments. How do you feel about this convention? And why are you now willing to make an exception?

PH: As you know, I’ve written a piece on the Senate’s purpose called Complementarity: The Constitutional Role of the Senate of Canada, which includes reference to the Salisbury Convention, which I fully endorse. I see this motion as the Senate performing its complementary role in our Canadian context and not as an exception to the convention. The use of the notwithstanding clause involves a profound circumscribing of Charter rights, especially if used preemptively, because it’s an admission of infringement of said rights. As a protector of rights, and especially — as indicated in academic literature — as a protector of minority voices, the Senate is best-equipped, and indeed obligated, to push back in overt circumstances of “tyranny of the majority”, of which this is, I believe, a prime example. There is also an established and necessary dialogue with our appointed courts, who also play a constitutional role in the protection of rights. A preemptive use of the notwithstanding clause takes the judicial branch out of the equation, leaving the protection of rights to the Senate.

PW: What would the concrete effect of your motion be? I assume it's a sort of "mood of the chamber" thing, and that it wouldn't bind future Senators? Or indeed the current Senate, should enough of them change their minds on a future specific bill?

PH: Motions are non-binding in nature. Senators can speak from their respective viewpoints, and I expect that this motion will gain considerable interest in the chamber. It is simply about engaging senators in a conversation. I see it as a useful contribution in the framing of a less partisan, more independent Senate going forward and before a possible use of the notwithstanding clause is before us.

PW: You ran Justin Trudeau's transition team when the Liberals formed a government in 2015. Justin Trudeau appointed you to the Senate in 2016 and you were the government's representative in the Senate until 2019. Did Justin Trudeau or anyone working for the federal government put you up to this?

PH: In a word: no. I would find that inappropriate and I believe Prime Minister Justin Trudeau would as well.

PW: Almost three-quarters of current Senators were appointed by Trudeau or Jean Chrétien. Is the Senate going to be a vehicle for Liberals to govern from beyond the political grave if the Conservatives form the next government?

PH: No Trudeau- or Chrétien-appointed senators have political affiliation with any caucus in the House of Commons, so an independent Senate should have criteria — preferably found with consensus — to deal with government legislation from any political stripe. The following questions could be applied in developing criteria: is the use of the notwithstanding clause preemptive, or in response to a court decision at the highest level? Has the Minister of Justice tabled a Charter statement? Has the government held a public consultation process? Has the House undertaken a comprehensive committee process with sufficient witness testimony? Has time allocation been used to curtail debate?
These questions, and others, are critical to developing a useful framework for senators when considering their positions if confronted with the notwithstanding clause. The Senate should be prepared to exercise its constitutional duty by continuing to make legislation better through amendments, but ultimately acquiescing to the elected House. This is with the caveat that the elected House isn’t passing legislation that is admittedly violating the constitution using the notwithstanding clause.