Should the Senate draw a line at the notwithstanding clause?

John A. Macdonald once assured the pre-Confederation Legislative Assembly of Canada that an appointed Senate, then under consideration, would “never set itself in opposition against the deliberate and understood wishes of the people.”

It’s important to note what Macdonald said immediately before those words.

“There would be no use of an Upper House if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House,” the future first prime minister said.

“It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body …”

Macdonald’s words offer a nuanced take on the Senate. They describe an institution that would have no purpose if it didn’t periodically exercise its constitutional powers — an institution that’s also bound by deference to the elected House of Commons. In that sense, the question is not whether the Senate should be willing to oppose, amend or postpone, but when or how — or to what extent.

A motion tabled by Sen. Peter Harder this spring suggests at least one answer to the question of when. His motion, which is likely to be debated this fall, proposes that the Senate “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.'”

Even if a majority of senators were to agree, the motion is non-binding. And because of the Senate’s rather quaint rules of debate, Harder’s motion might not even come to a vote before the next election.

But as Harder notes, the motion at least starts a conversation. And that conversation might be both necessary and inevitable — because of what the person the polls say is in line to become the next prime minister is promising to do.

The notwithstanding clause, which allows Parliament and provincial legislatures to shield legislation from any court ruling related to certain Charter rights, was a fundamental element of the Charter of Rights and Freedoms negotiated between the provinces and the federal government and enacted in 1982. But after falling into disuse, the clause has lately been revived by provincial governments who have shown a new willingness to invoke it.

The clause has never been used at the federal level. But Conservative Leader Pierre Poilievre, whose party currently enjoys a sizeable lead in opinion polls, has said he would use the notwithstanding clause to advance his preferred criminal justice policies — to, for example, impose sentencing standards the Supreme Court said violated Canadians’ right to be protected from cruel and unusual punishment.

To do so, Poilievre’s government would have to get such legislation through the Senate — a chamber that is both newly independent and largely beyond his direct control (there are just 12 Conservative senators).

So if Poilievre makes good on his promise to use the notwithstanding clause, what should the Senate do? 

Even Conservatives — some of whom are already gearing up to declare a “constitutional crisis” if the Senate obstructs the agenda of a Poilievre government — might have a hard time arguing the Senate is duty-bound to simply wave through whatever the House sends it.

While Conservatives have long insisted that senators should be elected, Stephen Harper didn’t apologize in 2010 after Conservative Senate appointees killed a private member’s bill sponsored by then-NDP leader Jack Layton. And Conservatives senators still regularly vote against legislation introduced by the Trudeau government.

But even if there was broad agreement that the Senate, however anachronistic its composition, would be within its rights to act, there would still be the question of when it should act to amend, oppose or delay.

Should the Senate take a stand?

Harder, who served as the first government representative in the Senate after the Trudeau government started making independent appointments to the upper chamber in 2016, has argued that the Senate should broadly follow what’s known as the Salisbury doctrine — a British parliamentary convention that says the unelected upper house will generally stop short of blocking legislation that implements a commitment outlined in the governing party’s election platform. 

But what if Poilievre’s Conservatives openly campaign on using the notwithstanding clause in specific cases, and then follow through on that promise? Would the Salisbury doctrine then override any senator’s misgivings about the notwithstanding clause?

In a paper he published in 2018 to lay out his thoughts on how the reformed Senate might govern itself, Harder never explicitly cited the notwithstanding clause. But he did allow that “certain rare cases” might not be sheltered by the Salisbury doctrine.

The convention, he wrote, “would not serve the Canadian public — nor would it respect the Senate’s role as a safeguard against the tyranny of the majority and defender of regional and minority rights — if the doctrine precluded the Senate from blocking egregious deprivations of basic rights and freedoms.”

The use of the notwithstanding clause might qualify as an “egregious deprivation.”

A government wielding the clause surely would still insist that it was acting in line with the “deliberate and understood wishes of the people.” And the Senate is generally at a disadvantage when discussion turns to the public will.

Who would win a fight over the notwithstanding clause?

But on the question of Charter rights, governments aren’t always standing on solid ground either.

When Environics asked Canadians earlier this year who should have the final say when a law is found to conflict with the Charter of Rights, 57 per cent of respondents pointed to the Supreme Court and just 19 per cent cited the federal government (the remaining 24 per cent were undecided).

Asked whether a government should have the power to overrule the courts, 49 per cent said it shouldn’t and just 26 per cent said it should. (Support for giving the Supreme Court the last word was highest in Alberta and Saskatchewan, the two provinces where the Conservative Party is most popular.)

It doesn’t follow that the Senate should feel no hesitation about asserting itself as the ultimate guardian of Charter rights, entitled to vote down any legislation that uses the notwithstanding clause. But that survey does at least undercut any suggestion that the Senate should simply roll over.

The original theory of the notwithstanding clause was that it would be used rarely and that “political accountability” would keep it from being normalized. But the fear now is that it has become too easy for governments to press a button that allows them to override civil liberties — and that every time someone’s civil liberties are denied, it gets much easier to set aside someone else’s rights.

As Harder noted in his paper, the Senate has only defeated four government bills outright since the Second World War. So any such move would qualify as extraordinary. But if it simply delayed legislation or subjected it to extensive hearings before allowing it to pass, the Senate might reestablish at least some of the political accountability that currently seems to be lacking.

Poilievre might relish any kind of obstruction, of course. He might accuse senators of being undemocratic Liberal agents. He might say they’re only standing up for the rights of criminals and murderers. He might send out fundraising appeals asking for more money to take on another entrenched group of elites. Poilievre likes — maybe even needs — enemies to fight, and the Senate might be a very convenient foil.

But even if Poilievre wants the fight, the Senate might still have good reasons to give it to him.