Getting guardrails on the notwithstanding clause

A new Senate bill would make it “more difficult but not impossible” for Parliament to use the notwithstanding clause to override fundamental rights guaranteed in the Charter of Rights and Freedoms.

Introduced by Ontario Senator Peter Harder, Bill S-218 sets out the following requirements for any federal legislation that invokes the notwithstanding clause:

• Must be presented in the House of Commons by a government minister
• The Supreme Court of Canada would determine if the legislation overrides fundamental rights
• Would require a supermajority of two-thirds of House of Commons MPs, from at least two parties, to be adopted

In a speech to the Senate, Harder noted that the Canadian Bar Association (CBA) has also proposed guardrails for any use of the notwithstanding clause. The CBA has called for barring its pre-emptive use, proposing “meaningful and transparent public consultation” and a preamble explaining the need for the override.

“These proposed guidelines are all found within Bill S-218,” Harder said.

CBA President Lynne Vicars said in a statement that the association supports the proposed legislation's objective in principle.

“Requiring greater transparency and deliberation before invoking the notwithstanding clause would help protect fundamental rights, reinforce public confidence in our legal institutions, and curtail uses of section 33 that may have the effect of overriding Charter protections to the detriment of the Canadian public and in particular, to the detriment of marginalized or oppressed individuals and communities,” she said.

“We look forward to the opportunity to offer constructive comments on the specific provisions of the bill when it reaches consideration in committee. The CBA remains committed to upholding the rule of law, protecting fundamental rights, and advancing meaningful dialogue on the limits of legislative power in a constitutional democracy.”

Harder told the Red Chamber he was motivated to introduce the bill by Pierre Poilievre, who intended to use the notwithstanding clause if his Conservative Party had formed government to ensure multiple murderers died in jail.

Poilievre specifically mentioned the case of Alexandre Bissonnette, who murdered six men in a Quebec City mosque in 2017. He pleaded guilty, and the Crown asked for him to be ineligible for parole for 150 years, representing 25 years for each person he’d killed. Stephen Harper’s Conservative government had amended the Criminal Code to grant sentencing judges the power under section 745.51 to impose consecutive periods of parole ineligibility for each murder.

The sentencing judge refused and handed Bissonnette a life sentence with no chance of parole for 40 years. That was overturned by the Quebec Court of Appeal, which set his appeal eligibility at 25 years — a move the Supreme Court of Canada upheld. Along the way, section 745.51 was also deemed unconstitutional for violating section 12 of the Charter as cruel and unusual punishment.

To date, Parliament has never used the notwithstanding clause to override Charter rights.

However, several provinces have, including Quebec, Yukon, Ontario, New Brunswick, and Alberta. In some cases, the clause was used preemptively; in others, bills were proposed, adopted, and later revoked.

Wade Pozionka, chair of the CBA's Constitutional and Human Rights Section, says the need for limits on use of the notwithstanding clause is “more front and centre because of Donald Trump,” as the U.S. president defies and ridicules judges in his country who rule against his actions of dubious legality.

Former U.S. president Bill Clinton has warned that the courts might not hold out as Trump undermines foundational institutions, intimidates law firms and universities, stifles the media, and threatens to impeach judges.

“Five years ago, I would have never thought politicians would do stuff like this,” Pozionka says.

He’s concerned the notwithstanding clause could be used more broadly to undo Canadians’ protections under the Charter.

“It’s a mechanism that can trump people’s rights.”

Bill S-218 would apply only to Parliament's use of the clause.

Pozionka says it would take a constitutional amendment under section 38 of the Charter, which calls for at least two-thirds of the provinces, representing 50 per cent of Canada’s population, to change section 33 for the provinces.

“It just won’t happen,” he says. “We just hope this is the beginning of a national discussion.”

The notwithstanding clause states: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

The override was the compromise that won the agreement of all provinces except Quebec to include a national charter of rights in Canada’s Constitution Act, 1982.

Ironically, Quebec is the primary user of section 33, which Premier François Legault's government rebranded as Quebec’s “parliamentary sovereignty.”

Section 33 brought the Canadian Constitution home from the British Parliament in Westminster. Harder said former Prime Minister Pierre Elliot Trudeau, who instigated the repatriation of the Constitution, expressed to him his frustration at being forced to accept a clause allowing governments to diminish fundamental rights.

Errol Mendes, a University of Ottawa law professor specializing in constitutional law, believes a Conservative government under Poilievre would have led to a “slow death of the Charter.”

He concedes that while Bill S-218 may not succeed and a constitutional amendment will not happen, “there has to be a public discussion” about using the override.

Mendes suggested that provincial governments might be inspired by a federal law making the use of section 33 more difficult, and premiers like New Brunswick’s Susan Holt could be interested in following the federal example.

While in opposition, Holt called on then-premier Blaine Higgs to commit to not using the notwithstanding clause in a bill that required parental consent for teachers to use a student's chosen name and pronoun if the student was under 16.

Higgs did not invoke section 33 for the controversial bill, and Holt, as premier, removed the restriction.

Last year, Higgs also mused about using the clause for legislation that would have forced people with severe addiction into treatment against their will.

Anaïs Bussières McNicoll, director of the Canadian Civil Liberties Association’s fundamental freedoms program, shares Pozionka and Mendes' fears that the notwithstanding clause could undo the Charter.

“What do fundamental rights mean if the government can override them?”

Not everyone’s worried, however, Stéphane Sérafin, an associate professor of law at the University of Ottawa, says including section 33 in the Constitution Act, 1982, was “a pretty good compromise.” 

In his opinion, the five-year “sunset clause,” which requires the re-adoption of any bill using the notwithstanding clause, is a sufficient safeguard. 

Sérafin wonders whether a section 38 procedure should be required to meet the aims of Bill S-218.

“There is no reason for this,” he says, adding that Harder’s bill “could easily be amended by another act of Parliament.” 

That’s a view Harder rejects.