44th Parl. 1st Sess.
February 9, 2023 10:00AM
- Feb/9/23 10:28:02 a.m.
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Mr. Speaker, the driver cannot really complain about the route that is taken. Members of the federal government hold more keys to the Constitution and the back rooms of the Supreme Court than Quebec sovereignists or the provinces and territories.
It would be surprising if the federal Parliament were to make use of a constitutional provision that serves to protect it from itself. History being what it is and future prospects being what they are, it is understandable that that did not seem realistic to us.
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- Feb/9/23 10:36:57 a.m.
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Mr. Speaker, I must admit that I am a little surprised to see a Bloc Québécois motion that defends our Canadian Constitution so strenuously.
Given my colleague's speech, does the leader of the Bloc Québécois agree with me on the legitimacy of our 1982 Canadian Constitution?
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- Feb/9/23 10:37:28 a.m.
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Mr. Speaker, can I have another 20 minutes?
Even I was still young in 1982, which is when the Constitution was imposed, shoved down the throats of Quebeckers and the René Lévesque government, after the common front shown by the provinces broke down on several issues, as it would do later on.
No, there is no legitimacy whatsoever. The notwithstanding clause is the only part of the Constitution that does anything to help preserve who we are and who we have a right to be.
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- Feb/9/23 10:39:03 a.m.
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Mr. Speaker, I get the sense that the Bloc Québécois members did not like the question I asked their leader. I will continue my speech.
Our charter also inspired many other countries around the world, who drafted their own similar constitutions. I am proud that, as a society, we decided to adopt this instrument 40 years ago.
Section 33 of the charter, better known as the notwithstanding clause, made a political compromise possible among the disparate entities that made up Canada at the time of its adoption. Section 33 authorizes Parliament or the legislature of a province to derogate from certain sections of the charter, namely those protecting fundamental freedoms, legal rights and equality rights. Simply put, it is a tool that allows governments to short-circuit charter protections.
What is clear is that legislation that invokes the notwithstanding clause is violating fundamental rights. Using the notwithstanding clause is allowed, of course, even though the intention was always for it to be used rarely and in exceptional cases.
However, in my opinion, the pre-emptive use of the clause is very problematic. By pre-emptively invoking the notwithstanding clause, a government is basically saying that it knows it is violating Canadians' fundamental rights but that it is going to go ahead anyway, without giving the courts a chance to weigh in.
Let us be clear. By pre-emptively invoking the notwithstanding clause, a government is saying that it knows it is violating Canadians’ fundamental rights and freedoms, that it knows it is doing so but that it is going ahead anyway, without giving the courts a chance to weigh in.
The Prime Minister, our Minister of Justice and other members of cabinet have been clear that our government is concerned with the pre-emptive invocation of the notwithstanding clause, and our federal government is firmly committed to defending the rights and freedoms protected by our charter.
This charter is an expression of some of the most fundamental values of Canadian society. It guarantees our rights and freedoms. I dare say that it represents what it is to be Canadian. These rights and freedoms are the very foundation of our country and of our democracy. However, even with these crucial rights, the charter recognizes that they are not absolute, and that is why section 1 exists.
Section 1 of the charter provides a workable, pragmatic framework for balancing different rights and freedoms, and it is there because sometimes a government can justify limiting constitutional rights and freedoms. Through decades and decades of jurisprudence, Parliament and provincial legislatures have been engaged in this ongoing dialogue with our courts.
The pre-emptive use of the notwithstanding clause ends that dialogue. It short-circuits the dialogue that is necessary to ensure that our charter is functioning as it should.
Our constitutional tradition is one marked by dialogue, mainly between the legislator and the courts. The pre-emptive use of the notwithstanding clause limits that dialogue by limiting legal debate.
When the notwithstanding clause is used pre-emptively, this dialogue and debate become mainly theoretical, because the courts are not given the opportunity to order remedies.
It is also important to remember that a strong, independent judiciary is the cornerstone of a healthy democracy. The pre-emptive use of the notwithstanding clause limits the work of our courts, which cannot fully assume their role under our Constitution.
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- Feb/9/23 10:48:41 a.m.
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Mr. Speaker, as I have said many times, of course the notwithstanding clause can be used, but when it is used pre-emptively, that does not allow the courts and legislators to have the dialogue that is necessary in a free and democratic society.
My colleague appears to be defending clauses in the Constitution while at the same time challenging its legitimacy. He needs to take a position. Either he supports the Constitution or he does not.
The Bloc Québécois cannot have it both ways.
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- Feb/9/23 11:12:18 a.m.
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Mr. Speaker, we signed off on the Charter of Rights and Freedoms and brought the Canadian Constitution home back in 1982. I cannot imagine that, at the time, Pierre Elliott Trudeau and Jean Chrétien envisioned, for example, the Province of Ontario using the notwithstanding clause in a pre-emptive way to put limits on labour. As we go through the debate today, it is important just to recognize how, in recent years, some provinces seem to use the clause as a pre-emptive measure. I think a great majority of Canadians would disagree with that kind of usage. Could my colleague provide his thoughts on governments, whether national or provincial, taking advantage of that clause and using it in a pre-emptive way?
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- Feb/9/23 11:20:57 a.m.
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Mr. Speaker, I am raising the issue of relevance. We are debating the notwithstanding clause, the Constitution and the Charter of Rights and Freedoms. There is all sorts of room in which the member could provide comment on that. I do not think the member has been even remotely relevant, unless he is suggesting that we use the notwithstanding clause for bail.
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- Feb/9/23 11:31:04 a.m.
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Mr. Speaker, I believe there is an issue that must be raised.
Let us be clear. We in the Conservative Party believe that there are important issues in our country. In our view, inflation is the most important challenge at this time for Canadians and for Quebeckers.
With respect to the Bloc Québécois motion, it is a question of facts. The Constitution is clear on the provinces. It 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 Bloc is asking us to vote on a question of fact. The facts are clear. It is in the Constitution. We believe what is written in the Constitution.
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- Feb/9/23 11:49:26 a.m.
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Mr. Speaker, I am pleased to rise today to talk about the broader topic, the Canadian Charter of Rights and Freedoms, and I will eventually, after a bit of a diversion, come back to the motion before us.
It is important to note that at the time of its adoption, the Canadian Charter of Rights was controversial. At the time of the patriation of the Constitution, we were not used to the idea of a written charter, something that comes from a civil law tradition, because our institutions had been founded on the British system, which revered the supremacy of Parliament. A compromise was reached when the Constitution was patriated, and the national Parliament and provincial parliaments agreed to limit themselves with a written Constitution and written Charter of Rights and Freedoms.
I would argue that, at the time, this was exercising parliamentary sovereignty and a voluntary restriction. We recognized that we had to agree on the basic rules by which we work together and that those should be difficult to change, so we have a written Constitution. We also recognized that even in a British system, a written Charter of Rights and Freedoms would help preserve the rights and freedoms of Canadians.
As an aside, my own enthusiasm for the charter at the time was tempered by what was often called the omission of sexual orientation from a section of the charter, as if it was somehow unknown or forgotten at the time. That is not the case, and I knew this well. I was very fresh out of university and working here at the House of Commons for Ed Broadbent at the time. When the Constitution Act was before the House in committee, New Democrat MP Svend Robinson moved to add sexual orientation to section 15 as a protected ground against discrimination.
This was at committee stage. There was a debate and vote on whether sexual orientation should be one of those protected rights. The proposal to add sexual orientation was defeated 22 to two, with only Svend Robinson and Lorne Nystrom of the NDP voting in favour. It took a series of court cases following the adoption of the charter to affirm that sexual orientation was a prohibited ground for discrimination analogous to the enumerated grounds listed in the Constitution.
Members will see in a moment where I am going with this. I am going to tie it to the notwithstanding clause.
Members of LGBTQ+ community continued to fight for recognition of equality rights. There was a series of court cases starting in 1992 with Haig and Birch v. Canadian Armed Forces, continuing in 1995 with Egan v. Canada and culminating in 1998 with the case of Vriend v. Alberta. All of these cases served to make sure it was understood that just because a right like citizenship or the prevention of discrimination against sexual orientation was not listed, it was a still a protected ground.
In 1998, the Supreme Court of Canada noted the omission of sexual orientation from the Alberta Human Rights Act. We should remember that this is the Supreme Court deciding on Alberta legislation. What the court found was that it violated the equal protection of the law guaranteed in the charter not to list sexual orientation. In other words, the Supreme Court of Canada at the time ordered Alberta legislation to respect the Constitution and the charter by protecting against discrimination on the basis of sexual orientation.
Immediately after, there were calls in Alberta for the use of the notwithstanding clause. It was immediate. Why did the Alberta government not proceed? It was because there was a public outcry against the use of the notwithstanding clause. It was very strong at that time because the Alberta government, just months before, had brought forward a bill to use the notwithstanding clause. In that case, there had been a decision against the government, which had proceeded with forced sterilization of those with intellectual disabilities. They had won a large settlement against the Alberta government, so the Alberta government brought in a bill that proposed to use the notwithstanding clause to limit compensation for those who had been forcibly sterilized.
There was a huge public outcry about the attempted use of the notwithstanding clause to prohibit payments that had justly been won in court for this discriminatory treatment. That precedent, just a few months before, led to the same kind of debate about the use of the notwithstanding clause to get around the Supreme Court decision that forced the Alberta Human Rights Act to include sexual orientation.
This is the way those who adopted the Constitution and charter thought the notwithstanding clause would work in response to court decisions or legislative decisions that were controversial. It was not pre-emptive but in response to developments within the legal system. Ultimately, who would decide whether the use was legitimate? It was the Supreme Court of Canada, because we have a country that operates on the rule of law.
We see a motion that says, in quite simplistic terms, that it is up to the provinces if they want to use the notwithstanding clause or not, and that is clearly not true legally. It is also not true in a political sense. It is not clearly just up to the provinces. It is up to Canadians to decide what is appropriate action and to judge their governments.
I will go back to Alberta. Two years after a series of court decisions recognized the right to same-sex marriage, Alberta added to its Marriage Act a notwithstanding clause to allow it to say that marriage is only between a man and a woman. In a reference case in the Supreme Court in 2004, the Supreme Court found that, on jurisdictional grounds, Alberta could not use the notwithstanding clause. In other words, it said that because marriage is within federal jurisdiction, Alberta cannot use the notwithstanding clause to get around it. It is exclusively a power of the federal government to make this decision.
Once again, we have an example where it is not up to a province to decide if it wants to use a notwithstanding clause. There were jurisdictional reasons for why the Supreme Court found it could not do so.
After this very long detour through issues that are very important to me personally and to a large number of Canadians, we come back to where we are with the motion before us, which says, “it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.” Clearly, the arguments I made today show that is not the case. It is not something that a government can decide to do.
We have the Constitution and we have the rule of law. However, most importantly, the three examples in Alberta illustrate how those who designed the charter and the Constitution thought it would operate. Public opinion plays an enormous role in deciding what governments can and cannot do when it comes to the use of the notwithstanding clause. That is why I think the pre-emptive use is problematic.
This is before we have had any public debate, before we have had any court decisions and before we have done anything on an issue, so for a province, and it is the provinces that have tried to do this, to insert a notwithstanding clause pre-empts all those things that should take place. It presumes outcomes. It indicates an attitude where rather than trying to find a solution to the problem in front of them, it becomes simpler to pre-empt the debate altogether and say we will not talk about this and will just go ahead and do whatever we want to do. Unfortunately, I think the Bloc motion reinforces the kind of idea that this would be appropriate in Canada in the democracy we have.
If we look at when the notwithstanding clause has actually been used, it has been most frequently used for expedience when collective bargaining fails. The 1986 use of the notwithstanding clause by the Conservative Devine government of Saskatchewan was to implement back-to-work legislation after it failed to reach an agreement with public employees.
Most recently, we had the 2022 use of the notwithstanding clause by the Ford government, which pre-emptively made it illegal for education workers to strike and imposed a contract on them. I would argue there is a right to collective bargaining, and pre-empting that right through the notwithstanding clause meant the government simply did not want to sit down and bargain fairly with the workers.
Between 1990 and 2018, there were only four uses of the notwithstanding clause, and many of us believed it was fading away. The fact that we are debating it today, as if it is an unlimited power of the provinces, is disturbing. As I have said, we already know it is limited. It is limited in time, as it can only be used for five years. It does not apply to certain sections of the Constitution. It is limited by Supreme Court decisions on the question of jurisdiction.
Hopefully, the use of the notwithstanding clause will always be limited by public opinion in this country and by the part of our political culture and our political values that say we are very proud of our Charter of Rights and Freedoms, and suspending any part of those rights and freedoms should not be taken lightly.
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- Feb/9/23 12:17:13 p.m.
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Madam Speaker, my question is this. If the federal government wants to bring the notwithstanding clause before the Supreme Court of Canada in order to amend it or limit its scope, is it not opening the door to renegotiating the Constitution?
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- Feb/9/23 12:17:37 p.m.
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Madam Speaker, I thank my colleague for her question, which is pertinent, as always.
She is right. This touches a bit on what my colleague across the way was asking a few moments ago. Should the federal government stand idly by? If the federal government is not satisfied with its own legislation, it can amend it or propose to amend it.
The Constitution Act, 1982, can be amended. We realize that it would be a complicated process, but it can be amended. If the government is unhappy with the way it is currently written, it can propose constitutional talks. Let us see what the provinces have to say. We will see whether or not there would be changes and, if so, what those changes would be.
One thing is certain: This legislation was meant to lock us in, despite the fact that we did not agree to it. Do not push an interpretation that defies logic, because that goes against what the Supreme Court of Canada said, against what Trudeau senior said at the time, and against common sense.
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- Feb/9/23 12:29:07 p.m.
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Madam Speaker, the only thing to do at this point is to throw my colleague from Trois-Rivières a softball.
He gave an excellent speech, I have to say. Perhaps my colleagues are not too eager to rise and speak because his speech was so eloquent and powerful.
I would like to ask him whether he thinks Quebec's specificity, distinct identity and way of living together in harmony could be preserved without the existence of the notwithstanding clause in the Canadian Constitution.
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- Feb/9/23 12:29:42 p.m.
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Madam Speaker, I thank my colleague from Drummond for his question.
We feel very strongly about the notwithstanding clause in the 1982 Constitution, even though Quebec has still not ratified it. This provision has ensured our survival, our identity, our culture and our distinctiveness all this time. Without this provision, we would drown.
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- Feb/9/23 12:44:39 p.m.
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Madam Speaker, I thank my colleague for his speech. He is a passionate man who, in my opinion, respects the rights and freedoms of individuals and peoples. I have two questions for him.
First, am I to understand from his speech that he supports the Constitution Act, 1982, except for section 33?
Second, does he believe that the same reasoning should apply to all peoples of the world; in other words, that all peoples, including in Sri Lanka, where he is from, should be free to decide on certain laws, but only on the condition that they abide by certain dictates of the United Kingdom, for example?
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- Feb/9/23 12:45:35 p.m.
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Madam Speaker, we have an international human rights instrument that defines fundamental rights and freedoms. The Canadian Charter of Rights and Freedoms is a reflection of that in many ways, and in some ways it has gone much further than international norms.
I think it is important that we all abide by a basic set of values; sections 7 to 15 of the charter are critical components of the protection of rights for individuals. As a result, I think that any derogation of that should be thoughtful, should not be pre-emptive and should be able to withstand the test of the court. Therefore, it is important that, while section 33 is in the 1982 Constitution, it should not be used lightly.
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- Feb/9/23 12:46:35 p.m.
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Madam Speaker, I am really pleased we are having this discussion because whether we stand up for the Canadian Charter of Rights and Freedoms or not is something we have to confront. We either have constitutional rights for the protection of minorities or we do not. It is becoming very concerning when we see how laws are being crafted that target Muslim Canadian women, resulting in them being fired. We saw provincial governments using this tool to strip labour rights from low-paid workers, allowing these governments to evade review by the courts and stripping away minorities' rights to actually question whether a law is fair or valid.
I would ask my colleague this: Is the federal government willing to stand up for the Canadian Charter of Rights and Freedoms, or is it going to continue to wring its hands and say that it is unfortunate any time a provincial government decides it is easier to just arbitrarily strip away rights out of the Constitution? Are we going to protect the Constitution and the charter, or are we just going to say that what is happening is really not nice?
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- Feb/9/23 12:48:23 p.m.
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Madam Speaker, it is my turn to congratulate my Liberal colleague on his speech.
I asked my colleague from Trois-Rivières a question earlier, and I was expecting his answer. I will say that quite candidly.
I would like to ask my colleague opposite the same question. Quebec is recognized as a nation in its own right with its own language, culture, values and model for living in harmony, which is different. This model often needs to be defended because it is misunderstood and not always respected.
If this notwithstanding clause were not in the Constitution, which we did not sign, by the way, what would Quebec have left to protect its values and its vision for living in harmony?
I would like to hear what my colleague has to say about that.
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- Feb/9/23 1:21:28 p.m.
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Madam Speaker, I am pleased to speak on this topic today.
I just want to take a few seconds at the beginning of my speech to send my best wishes to the families affected by the tragedy in Laval yesterday, as this is the first time I have had the opportunity to do so in the House. My heart goes out to them.
The motion today is much simpler than many parliamentarians seem to think. It is a reminder of how this provision is written and what function it has served for the last 40 years or so. It works.
The intent of today's motion is not to change anything, it is to remind the government that there is only one part of the Constitution—which we are forced to live with—that we can rely on when we need to protect our uniqueness. I ask members not to fall into the ridiculous trap of asking me to recognize this Constitution today. Everyone already knows the answer. We are simply asking that this part, at least, be respected. That is what we are doing today.
I am going to go back to a couple of comments that were made today. The member for Charlesbourg-Haute-Saint-Charles wonders why the Bloc is still here. It is because we are hard-working people and we do not give up on our cause. Of course, we would have liked it to take less time, but it has not happened yet. Until it is done, we need to be here to salvage what we can. We are doing an excellent job and we will keep doing it wther they like it or not. What I think is a little more outdated is Conservative populism. I would encourage them to come up with constructive solutions rather than sloganeering all day long.
As for our colleague from Lac‑Saint‑Louis, who was referring to what a beautiful, great country Canada is, I could not agree more. It is a great country. However, I regret to inform him that it is not mine, and I will explain why.
Today we are talking about the Constitution, which we have to live with even though the people of Quebec never agreed to it. Governments of Quebec never agreed to it. This is not a new thing. It has been going on for some time. I think this is yet another attempt to weaken Quebec and its ability to protect its social integrity, its unique society and its pursuit of true community, which is stronger than individualism. These are conflicting visions. If that is not the intention, I would like to hear it from government members.
I would sure like to give a little history lesson so people here can see that every constitutional law ever passed was not approved by Quebec. Anytime such a law benefited Quebec a bit, it was only because people wanted to use us. In this Confederation, one government is dominating another, and that does not always work for us. Actually, it never works for us. It should not even be called a confederation. If it really were a confederation, we might have far fewer problems.
The Constitution contains the notwithstanding clause, which allows us to pass reasonable laws collectively. Later on, I will share some examples of reasonable laws so my colleagues can see that this is of vital importance to Quebec, contrary to all the other anti-francophone laws that have been passed in Canada's history and to the federal government's determination to always block Quebec's emancipation.
I would also like to remind the House that Quebec's relative weight within Canada is constantly—
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- Feb/9/23 1:27:03 p.m.
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Madam Speaker, regarding the bill on farm succession, as a society, Quebec has decided to give young people a leg up as they are starting out in agriculture. This is certainly discriminatory, because it provides them with financial support that we are not offering to older people. The notwithstanding clause is being used. It may come as a surprise, but we are talking about ordinary laws.
The notwithstanding clause in the Employment Equity Act has been used to encourage the hiring of women and visible minorities. As my colleague from Rivière-du-Nord mentioned earlier, lawyers are not allowed in small claims court, so that people can avoid having to mortgage their homes to defend cases involving smaller amounts of money. Otherwise, someone could say they have a right to a lawyer and scrap the whole system. It is used in intelligent ways like that.
Is it really unreasonable to protect children's privacy in cases involving the rights of youth? I think the Quebec government has demonstrated that it is reasonable.
As I was saying earlier, today we are seeing a clash of cultures. The 1982 Constitution was imposed on us. We live with it because we do not have a choice and because a court decided that it was all right. Now we are being asked to give up the opportunity to use the notwithstanding clause and to give this power to those same judges. Seriously?
We are talking about the power of elected members to get elected, to make collective choices and to present their vision of society to their voters. Today individualism is being pitted against collective values. In Quebec, we decided that we live together with shared values, and we want that to continue to work.
The federal government constantly obstructs the work we have to do as administrators. We saw it again this week. We cannot get our own damned money back so we can manage our hospitals. Federal laws constantly interfere with Quebec's laws. There is constant duplication of legislation, especially in immigration, which was mentioned by someone earlier, and horrible delays are created by the federal government. That is a constant.
When we do get a reasonable measure we can use to create our own laws and protect them, we are told that we cannot use it unless we spend 10 years in court first. Let us be reasonable.
The motion is not revolutionary. We are calling on the government to acknowledge the contract it made behind our backs and have a modicum of decency and respect it.
Quebec needs it to protect our language. Who could blame anyone who arrives in Quebec from anywhere else from opting for English, when they realize that using English is no problem and there is a pool of 400 million anglophones around? That is why we need legislation.
As far as religion is concerned, it was mentioned earlier, people are pitting Canada's model of religious neutrality against the model of secularism that we have chosen in Quebec. Quebec has a history with this. One day we finally had enough and said everyone can have their own religion, but not in the government. Individual rights get mixed up when we have these debates. My individual right ends where the rights of others begin. If I represent a government, then I should not be imposing my personal symbols on people I welcome or serve. It is as simple as that. It is not discrimination, but because of the Constitution, which we did not sign, we have to use this notwithstanding clause. We need it. It is a democratic tool.
I want members of the House to stop with the rhetoric about the big beautiful country where everyone is different. I would like them to try for just 30 seconds to stop trampling over and muzzling Quebec. Any time the least little thing happens, the government lets a bit of time go by and then finds another way to try to once again bury Quebec and deprive it of its tools.
Fortunately, the Bloc Québécois is still in Ottawa after all these years. It is a good thing we are here to hold down the fort. Today, Quebec is faced with a choice. It can assimilate into the Canadian model or retain its differences and become independent. I think the choice is becoming more and more obvious. Long live independence.
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- Feb/9/23 1:32:32 p.m.
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Madam Speaker, my colleague said that this was not his Constitution.
However, the Bloc Québécois is currently defending section 33 of that same Constitution, the same Constitution that guarantees the Bloc's right to participate in this Parliament and the same Constitution that enables my colleagues to hold this debate today.
What other sections of this Constitution that is not his would he like to keep besides section 33?
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