Concerns over an inevitable conflict between a future Poilievre-led Conservative government and the post-Trudeau reformed Senate were brought into stark focus by Paul Well’s recent interview with Senator Peter Harder. Harder’s comments suggest that federal politics will experience a constitutional crisis once there is a change of government takes place in Ottawa.
Keen observers raised problems with the Trudeau government’s reforms to the Canadian Senate to make it independent and non-partisan. Rather than appointing people with partisan political backgrounds, the Trudeau government has primarily appointed individuals with academic, civil service, and elite roles in volunteer or community organizations. As one political scientist noted, “They may not be Liberals, but they are ‘liberals.’ “
Senator Harder is a career senior civil servant, a past deputy minister of foreign affairs, and helped with the Liberals 2015 transition efforts. Mr. Harder embodies the upper house that Justin Trudeau has initiated. Wells reached out to Senator Harder to discuss his motion from May which calls on senators to refuse to adopt any bill coming from the House of Commons that uses the notwithstanding clause. Senator Harder said his motion was a direct response to the leader of the Opposition’s comments that a Conservative government would use the Charter’s notwithstanding clause to stiffen criminal sentences.
If adopted, this would be a major obstacle for a future Conservative government and would trigger the kind of constitutional crisis about which Howard Anglin and Ray Pennings have raised alarm. Harder’s comment aptly reflects the pattern of officials in Ottawa “Pierre proofing” many aspects of the federal state before the next election. Yet Senator Harder’s interview with Wells also reveals a concerning and impoverished understanding of the Canadian Constitution. Given Harder’s influence among independent senators and his past role as the Liberal government’s representative in the Senate, his comments should be taken seriously.
What is most concerning about Senator Harder’s views is his “court-centric” account of the Canadian Constitution and the Charter of Rights and Freedoms. This is unfortunate, as a reformed Senate ought to serve as an additional parliamentary check on rights issues that are distinct from the courts, rather than one that merely duplicates and reinforces judicial interpretations of rights. What seems to motivate Harder (and other opponents of the notwithstanding clause) is that elected governments, not courts, are getting to weigh in on rights issues. Evoking the metaphor of a “dialogue” between courts and legislatures, Senator Harder frames “preemptive use of the notwithstanding clause” as a regrettable development because it “takes the judicial branch out of the equation.”
Harder continues: “The use of the notwithstanding clause involves a profound circumscribing of Charter rights, especially if used preemptively, because it’s an admission of the infringement of said rights.”
This statement is incorrect at two levels. First, Senator Harder presumes that only courts can articulate the meaning of rights. But this is contested within the Canadian legal tradition, and the notwithstanding clause permits legislative interpretations of rights. Second, Senator Harder is wrong that preemptive uses of the notwithstanding clause are tantamount to conceding a rights infringement.
As Dave Snow has shown, preemptive use of the notwithstanding clause is the historic norm, and such preemptive uses are often justifiable as the only feasible legislative route to achieve government policy. Most uses of the notwithstanding clause have been “pre-emptive,” and concerns with this use of the notwithstanding clause are primarily an end-run effort to stigmatize the clause in general.
Later in the interview with Wells, Senator Harder is asked whether the independent Senate will allow the Trudeau Liberals to continue to influence policy “from beyond the political grave” and cause headaches for a future Conservative government. Harder states that the following criteria would be used to assess bills initiated by governments “of any stripe”: “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?”
In addition to his misplaced concern with preemptive uses, Harder’s mention of the presence of a Charter statement from the minister of justice is something of a red herring. As Joanna Barron has shown, these statements are often talking points and rationalizations of the PMO about the constitutionality of a proposed statute. I doubt a future Conservative government will make use of them, but even if they did, it is unlikely they could ever be leveraged by a Conservative government to satisfy Senator Harder’s concerns, given his candid comments about the notwithstanding clause.
It is in Harder’s closing remarks, however, that he demonstrates the most troubling understanding of the Constitution. Harder states that the Senate will continue its historical role in improving legislation through amendment and acquiescing to the lower house, but with “the caveat that the elected House isn’t passing legislation that is admittedly violating the Constitution using the notwithstanding clause.” It is remarkable that a sitting parliamentarian needs to be reminded of this, but the notwithstanding clause is part of the Charter and part of the Constitution. That someone with such an influential role in shaping legislation has provided such a sophomoric account of the notwithstanding clause and its role within the Canadian Constitution is remarkable.
If the House of Commons does choose to invoke the notwithstanding clause, it will likely be to channel constitutional disagreement with broader judicial interpretation of a rights issues. Senator Harder is correct that there ought to be a “dialogue” between courts and legislatures. Unfortunately, what Mr. Harder proposes is a continued monologue, where courts do the talking and parliamentarians have to listen.
