To paraphrase Otto von Bismarck (former Prime Minister of Prussia), people who like law and sausages should never watch either one being made. Meaning that if you stop to consider what goes into the process of making law, it can be a pretty distasteful process.
At the federal level, while individual members of Parliament can propose legislation, most bills are introduced by the Cabinet. The process of how a government bill becomes a law is summarised here. Among the steps in the process is that a bill has to be approved by both the elected House of Commons and the unelected Senate. Further, even if a bill is approved by both chambers and becomes law, another group of unelected persons – judges – may have to interpret the law and decide what it means in practice, or to consider whether it is unconstitutional.
Who decides if a law complies with the Charter of Rights and Freedoms?
The idea that unelected persons (the Senate and judges) have a say in what the law of the land is, is a thorn in the side of many people who consider the idea undemocratic. An article I wrote previously considered how judicial activism plays a role in interpreting laws, and how judges can use different tools of interpretation to advance an agenda of what the law should be. When a court strikes down laws because it determines that the law violates the Charter of Rights and Freedoms, there is usually some group that complains about the unelected courts interfering with elected representatives.
However, Pierre Poilievre has made comments recently, suggesting that if he wins the next election, he might use Section 33 of the Charter of Rights and Freedoms – the “notwithstanding” clause – to prevent legislation he passes that breaches a Charter Right from being struck down. He stated that if he wins, he will be “the democratically elected prime minister – democratically accountable to the people,” and that the voters “can make the judgments themselves on whether they think my laws are constitutional”.
Should our elected representatives be able to decide when it is “acceptable” to violate Charter Rights?
The problem is that that sort of approach shows a tremendous misunderstanding of what the purpose of a constitution is. A constitution is meant to set certain fundamental laws that are not easily amended, and amendments typically need to achieve some measure of support that is higher than a simple majority. Further, the party that wins a general election rarely wins a majority of the popular vote (the last time that Canada elected a majority government, the 2015 election, the Liberals won almost 55 per cent of the seats in the House of Commons with just 39.5 per cent of the popular vote). With that in mind, how comfortable should we be with a government thinking it can override the fundamental law of the land – the constitution – simply because it got more votes than any other party, even though they got far less than 50 per cent of the popular vote?
Even if a government was elected with a majority of the popular vote, should it be able to override constitutionally protected rights? Shouldn’t the constitution and the law in general protect minorities and minority rights from the “tyranny of the majority”? When an elected government seeks to pass legislation that infringes on the rights of a minority group in a manner that violates the Charter of Rights, shouldn’t the unelected courts step in to strike the law down as unconstitutional?
However, if the government invokes the notwithstanding clause, then the courts cannot strike the law down. Which brings us to the other unelected group involved in passing federal legislation – the Senate. As noted above, for a bill to become law, it has to be approved by both the House of Commons and the Senate. While our Senate has amended or defeated some bills that were passed by the House of Commons, it has done so relatively infrequently, at least in recent history.
But shortly after Poilievre’s comments hinting at using the notwithstanding clause, Senator Peter Harding introduced a motion in the Senate that the Senate should indicate that it would not pass any legislation that invoked the notwithstanding clause. The motion is largely symbolic, because even if it is heard and passed, it would not bind the Senate if it is faced with a bill that invokes the notwithstanding clause. But should the Senate stand in the way of legislation that invokes the notwithstanding clause simply because it invokes that clause?
Stated differently, should the Senate act as the guardian of Charter rights in the event that an elected government wishes to pass legislation that takes away or infringes on a Charter right? Further, while many uses of the notwithstanding clause dealt with legislation that infringed on the right of a minority or marginalized group, Poilievre has stated that he would only use the clause in respect to “matters of criminal justice”. Should that make the use of the notwithstanding clause less objectionable?
The Notwithstanding clause is problematic
My own view is that the notwithstanding clause is problematic, whether it is used to infringe on minority rights, or to undermine constitutional protections in criminal proceedings such as the presumption of innocence or the prohibition against cruel and unusual punishment or arbitrary detention. Any of us could find ourselves on the wrong side of a misunderstanding with the authorities, and we would want our fundamental rights preserved in such a situation. Messing around with Charter Rights is not a scenario where the end justifies the means.
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Nick Seebruch, editor
