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Context: House Hansard - 160 - Feb/14/23

Feb/16/23 12:04:35 p.m.
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Madam Speaker, I want to begin by saying that I agree with my colleague from Jonquière. He is very reasonable. I would add to the list of the problems with this government the fact that it has been unable to issue paycheques properly for years. I have been a member of the House since 2015, and we have been hearing about the Phoenix pay system all this time. I was a lawyer before I became an MP, and I had business clients. If they had not been able to give their employees paycheques, they would have gone bankrupt and been taken to court. I will move on to other topics, but let us just say that this government has not proven it has the competence to manage the affairs of the provinces. I would say that there are two big problems with this NDP motion. First, it does not respect the division of powers set out in the Constitution Act, 1867. We know that health is not a federal but a provincial jurisdiction. The federal government's role, with all due respect to my colleague opposite, is to transfer money to the provinces so they can manage their health care systems. As was mentioned, the federal government has no competence in many areas, certainly including health care. The federal government does not manage any hospitals, clinics or anything else to do with health care. It is dreaming if it thinks it can impose its vision on the provinces. Second, there is the issue of the Canadian Charter of Rights and Freedoms. The Supreme Court ruled that, under the charter, the federal government cannot restrict access to private health care in the provinces. I will talk about that in more detail later. When I look at this constitutional problem, I realize that the NDP does not seem to understand that the feds have nothing to do with health. I was thinking about it this morning and thought it felt like a legend. The NDP dreams of a totalitarian federal government that controls everything and of a country where the federal government is all-powerful, like a supreme authority. That is the federal legend and the NDP's dream. Mr. Mario Simard: Is it the myth? Mr. Rhéal Fortin: Madam Speaker, the myth, the legend, that is what we are talking about today. Beyond the legend, there is a constitutional problem, because health is not a federal responsibility, but rather a provincial one. There is also a problem in relation to the Charter of Rights and Freedoms, which protects a certain number of rights. It protects privacy in section 7, among other things. This is not the first time a situation of this kind has been brought before the courts. My colleague from Jonquière talked briefly about the Supreme Court of Canada's Chaoulli decision from 2005. The chief justice, Justice McLachlin, supported by Justices Major and Bastarache, agreed with the findings of Justice Deschamps. I quote: [T]he prohibition on private health insurance violates s. 1 of the Quebec Charter and is not justifiable under s. 9.1...The prohibition also violates s. 7 of the Canadian Charter and is not justifiable under s. 1...While the decision about the type of health care system Quebec should adopt falls to the legislature of that province, the resulting legislation, like all laws, must comply with the Canadian Charter. Again, it states that “the type of health care system Quebec should adopt falls to the legislature of that province”. The Supreme Court wrote that over 15 years ago, but the NDP members did not read the Supreme Court decisions, and that is okay. I know they have other things to do, like dreaming up this legend of a totalitarian Canadian government and trying to promote it. That cannot be easy, and I would not want to be in their shoes. I understand why they might be busy. However, it is still important to read the Constitution and the charter at least once, to know what we are talking about and to avoid such huge traps. The New Democrats set this trap for themselves by proposing, on the one hand, that the federal government meddle in provincial and Quebec jurisdictions and, on the other hand, that the federal government completely violate the provisions of the charter. That said, is it a fatal error? Yes, interfering in provincial jurisdictions is a fatal error. I do not think that the federal government has any business meddling in areas under provincial jurisdiction. It can try, but it will end up in court. After a few years, the Supreme Court will say, as it already has, that this cannot be done. The federal government can try if it wants. We shall see. Is the charter question fatal? No, it is not. I must concur. We could contravene the provisions of the charter and say, “Too bad for section 7, we are still going ahead with a measure that would prohibit nurses from accessing private health care.” Even if it violates the charter, it could be done. How would we go about it? It is easy. The charter contains just such a provision. It is section 33, which reads as follows: 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 Chaoulli decision dealt with section 7. When I read the charter, I see that it can be overridden. Yes, what the NDP is proposing violates the provisions of the Canadian Charter of Rights and Freedoms. That is a major sacrilege, clearly, but section 33 allows for the charter to be overridden. The only problem is that just this week, mere hours ago, the NDP was getting all worked up and crying foul because Quebec had the nerve to use this notwithstanding clause to protect French and secularism in Quebec. Scandalized, our Canadian federal Prime Minister said that he would go to the Supreme Court and ask it to declare that the provinces cannot use the notwithstanding clause that his father gave them many years ago when he had this legislation passed. He said that they should have to go through the courts first and so on. We argued that this did not make much sense since section 33 states, “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature”. That is what Quebec did, that is what the federal government detests and that is what the NDP finds so outrageous and astounding. However, that is what the NDP will have to do if they want to follow their motion to its logical conclusion. Are they going to follow their motion to its logical conclusion? Perhaps. If they do, we will bring back our motion, which they defeated this week. After all, a person cannot enjoy ice cream one day, be allergic to it the next, and then enjoy it again the day after. It either works or it does not. If they want it to work, I am willing to consider it. There will still be the jurisdictional issue, which remains unresolved, but we could at least resolve the charter aspect. If they want to continue down that path, with that reasoning, we will follow their lead and allow them to apply for a charter exemption. We know that they are entirely within their rights. However, if they persist in saying that we are not allowed to do it, it is hard for me to see how they can logically say to us that they want to contravene the charter and violate the division of powers. Again, this legend exists only in the minds of my esteemed colleagues in the New Democratic Party or, should I say, the New Liberal-Democratic Party. I am not sure what to call it anymore.

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Context: House Hansard - 160 - Feb/14/23

Feb/14/23 2:40:30 p.m.
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Mr. Speaker, the notwithstanding clause has basically only been used by Quebec, in order to protect and promote our national language and our unique values. It is no coincidence that the Liberals and the NDP are attacking it today. They want to contest Bill 96, which protects French in Quebec, and Bill 21, which protects state secularism. They want to prevent Quebec from tabling any other legislation that they do not agree with. The real problem is that Quebec is different and the notwithstanding clause allows it to live differently. Is that not what the Liberal government's real problem is?

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Context: House Hansard - 160 - Feb/14/23

Feb/14/23 2:39:07 p.m.
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Mr. Speaker, it seems complicated and difficult. Maybe my colleague should reread the Constitution, or perhaps read it for the first time. Nowhere in section 33 does it say that the notwithstanding clause represents the first or the last word. It is exclusively up to Quebec and the provinces. That is written in black and white. Therein lies the rub for the Liberals and the NDP. The notwithstanding clause guarantees in black and white that certain decisions can be made by governments other than the federal government, without having to ask its permission. Is the real problem with the notwithstanding clause the fact that the Liberals do not get the last word?

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Feb/14/23 2:37:46 p.m.
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Mr. Speaker, I am going to talk about the notwithstanding clause, the only bit of autonomy that the Constitution guarantees Quebec and the provinces. It was the compromise that Prime Minister Trudeau senior came up with so that the provinces would agree to his Constitution, which, by the way, was never signed by Quebec. The notwithstanding clause gives Quebec and the provinces the right to make different societal choices without having them overturned by the courts or the federal government. Yesterday, Prime Minister Pierre Elliott Trudeau's son's Liberals and the NDP voted against that right. Why is it that the Liberals and the NDP think that any little bit of autonomy for Quebec and the provinces is too much?

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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 12:19:17 p.m.
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Madam Speaker, Ottawa has the right to provide comments. We all have the right to provide comments, because we live in a free country. Freedom of expression is important. I am not saying it does not have the right to comment. I am saying that this is a provincial matter. My colleague across the way has no authority to dictate to the Ontario government how it must act, any more than he has the authority to dictate to the Quebec government how it must act. That is up to the provincial legislatures and Parliament to decide. It is not up to the government. Once again, we must live with the law as written. Ontario's democracy does not need to be identical to Quebec's democracy or to that of the other provinces.

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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 12:16:37 p.m.
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Madam Speaker, the answer is short and sweet: yes. The Supreme Court said it, and I will say it again: yes. Decisions by the provinces do not concern the federal government, as long as those decisions are legal. The courts will overturn legislation or not based on a broad range of criteria, a series of conditions that legislation must respect. However, their compliance or non-compliance with the Charter of Rights and Freedoms falls under section 33, not under the federal government, which is not the arbiter of the values, interests and decisions made by the legislative assemblies.

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Feb/9/23 12:15:26 p.m.
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Madam Speaker, I thank my colleague, whom I respect, for his question. I will repeat what I said when finishing my speech because he is addressing an important matter. I briefly spoke about this at the end of my speech. This is what democracy is all about: I do not have to agree with Doug Ford and he does not have to agree with François Legault. We are talking about two different states that make different decisions based on what is best for their voters. If they make a mistake, which they are allowed to do, their voters will punish them for it at the next election.

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Context: House Hansard - 137 - Nov/29/22

Feb/9/23 12:04:46 p.m.
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Madam Speaker, I will be sharing my time with the member for Trois-Rivières. I have only one river and he has three, but we will still share the time equally. Today's motion states, and I quote, “That the House remind the government that it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.” The notwithstanding clause refers to section 33 of the Canadian Charter of Rights and Freedoms. It gives elected representatives of the people in the Quebec National Assembly, the federal Parliament and the provincial and territorial legislative assemblies the ability to pass legislation that could contravene one or more provisions of the charter. Section 33 reads, and I quote: 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. Then it goes on to say that the effect of the act in question is independent of the provisions of the charter, that the act will have to be renewed every five years or it will expire and that all of this is legitimate. Others will tell me that that is obvious. They may say that all that has already been settled, that it has been enshrined in our legislation since 1982, so for 41 years now, and that, ultimately, in principle, we are now speaking to no purpose. I wish this motion did not have to be moved in the House today, because I too believe the matter has been settled. However, we have heard the Prime Minister suggesting for some time that the notwithstanding clause can only be used after the courts have overturned a law. This Prime Minister is suggesting that we allow people to waste their time and money pursuing needless legal proceedings only to ultimately be told that, win or lose, they have lost. They will have to spend tens or even hundreds of thousands of dollars seeking a judgment from the Superior Court, the Court of Appeal and the Supreme Court. If they are lucky enough to win, the government will say too bad, because with the notwithstanding clause, even when they win, they lose. That seems totally illogical to me. Our courts are currently overloaded. They are so backed up that it can often take years before a trial begins. Who would want to make the backlog even worse? I have no clue. We should ask the Prime Minister why he is saying that. It seems so absurd to me. However, I would say that it is a fascinating position in some ways. First, the Supreme Court ruled in Ford in 1988 that the National Assembly of Quebec is perfectly free to include the notwithstanding clause in any law it passes, if it wants to. It can do so pre-emptively, without waiting for a court to overturn the legislation first. The court does not have authority to judge the substance of the legislation or the legitimacy of invoking the notwithstanding clause. The court's only role is to determine whether the notwithstanding clause adheres to the prescribed form. In other words, it must be explicit and indicate the section of the charter from which it intends the legislation in question to derogate. As we all know, the government of René Lévesque enacted the Act respecting the Constitution Act, 1982, which introduced, again in a pre-emptive manner, notwithstanding clauses for all Quebec legislation. In short, the act is clear, it has been in force for 40 years, and it has faced few or no challenges. The Supreme Court has upheld the interpretation, but for some reason, the Prime Minister does not seem to be aware of it. I cannot wait to see how our Liberal colleagues will vote on this motion, especially the Prime Minister. In a 2016 research note, University of Sherbrooke law professor Guillaume Rousseau counted 41 laws passed by the Quebec National Assembly that included at least one mention of the notwithstanding clause. At least 11 of those laws are still in force. Furthermore, nine of the total 41 included exemptions from both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. In total, there were 32 exemptions from the Quebec charter and 18 exemptions from the Canadian charter. These are all statistics. It is interesting to see some of the examples, including the Act respecting La Financière agricole du Québec, which provides for financial assistance to be granted to young farmers aged 40 and under. We agree that this is discrimination based on age. It is terrible from the point of view of the charter, but it makes sense to Quebec society. Therefore it was decided that the act would apply despite the provisions of the charter. The notwithstanding clause was invoked without any shirt rending whatsoever. The employment equity act directs the government to give preference to people from under-represented communities. Again, this violates both charters; it is a form of discrimination. However, since Quebec society thought it made sense, the act was passed despite the provisions of the charter, by invoking section 33, the notwithstanding clause. I also want to talk about small claims court, which was set up to ease the court process in cases that are less financially significant, with claims of $15,000 or less. The idea was that it does not make sense in a case with a $10,000 claim, for example, for people to have to wait years in court and pay a lawyer $20,000 or $30,000 to maybe get a ruling for $15,000 or $10,000. In small claims court lawyers are not authorized to represent clients. People represent themselves. The court makes a decision after having heard all the parties and looked at all the evidence. This goes against the charter, which recognizes the right to a lawyer. As a society, we thought it made sense. It was adopted with the use of the notwithstanding clause. The Court of Quebec's youth division protects children's anonymity. In Quebec, this was considered important. I believe that it is the same everywhere in Canada. However, anonymity goes against the charter because trials are public. Recently, we saw a case that proved otherwise, but I will not talk about it, because I only have 10 minutes, and it would take me 20 minutes to talk about it. I was saying that under the charter, trials must be public. The youth division was created using the section 33 notwithstanding clause. These are all choices made by the Quebec National Assembly. It had the opportunity to do so because of one thing. Although the federal government decided to pass the Constitution Act, 1982, behind Quebec's back, without Quebec's sign-off, it still had the decency to allow Quebec to get out of it using the section 33 notwithstanding clause. That was the agreement reached in 1982 between the Prime Minister of Canada and the premiers of the nine other provinces, without Quebec. I would like to point out that in 1982, our current Prime Minister's father was there. Although he was not always considered to be a decent person in some ways, he did have the decency to say that even though he was doing this behind Quebec's back, he would give it an escape hatch. Why is the current Prime Minister now questioning decisions made by his father back then? Why is he trying to undermine the autonomy of the provinces and of Quebec? I think that is appalling. I was listening to my colleagues talk about various pieces of legislation in Canada that they do not agree with. I might not agree with decisions made elsewhere either. The fact remains that democracy is all about the right to pass legislation, and that includes the right to be wrong. We must not forget that. A democratic state does not pass laws that suit the citizens of other states. A democratic state passes laws that suit its citizens, who are the subjects of that democracy. I want to respect the democracy that allows the Ontario government or any other government to pass laws that may not suit us Quebeckers. I respect that. It is up to their citizens to decide. They hold elections there as well. In Quebec, we want to avail ourselves of our right to democracy. We want our government and our National Assembly to pass laws that fit with our values and reflect who we are, without having to impose standards that the federal government has decided to impose on everyone, once again behind Quebec's back, without our consent.

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Context: House Hansard - 35 - Feb/20/22

Nov/29/22 6:17:39 p.m.
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Re: Bill C-295

Madam Speaker, Bill C-295 is a bill that makes sense. It is a bill that we want to study in committee, that we want to support so that it moves forward. Like most bills in their original form, it is far from perfect, but it is worth examining. In Quebec, like elsewhere in Canada, the pandemic tested us in ways we never wanted to experience. The worst of what we went through was the abandonment of our seniors. Some seniors had a much harder time during the pandemic than most people, particularly those living in long-term care facilities. They were sometimes left alone in wretched conditions. They were isolated from their loved ones. They were often inadequately fed or only given something to eat at odd hours. I think that is shameful. In this situation, we behaved like ungrateful children towards our seniors. I hope that this sort of situation never happens again. We have a duty to work on that. In Quebec we have the law to combat elder abuse and the abuse of any vulnerable adult. This legislation provides for fines to be imposed and protects informants, because there are people in long-term care facilities who will testify and intervene to try to prevent certain situations from deteriorating. We need to protect those people. We must encourage people to blow the whistle on untenable situations. In Quebec, with this legislation to fight against abuse, we are able, or we try by giving ourselves the tools, to better protect people who assume their responsibilities and intervene in situations like that. The federal government's legislation parallels Quebec's legislative provisions, but in my opinion, and at first glance, it is doing so within its own jurisdiction. For now, from what I have seen of Bill C‑295, I am satisfied. We will have to take a closer look at the bill. There are some aspects that could easily go off the rails. We know that the issue of protecting jurisdictions is relevant to almost every bill introduced in the House. We will have to look at this more closely, but I agree, at first glance, Bill C‑295 seems to stay within the parameters set for federal jurisdictions. The bill refers to the Criminal Code, and that is obviously a federal law that was passed and amended under federal jurisdiction. That particular aspect seems to be appropriate. However, the bill must not push boundaries and lead to interference in Quebec's and the provinces' jurisdictions. Having said that, I am somewhat concerned. When I look at Bill C-295, I am concerned that this bill will be considered as a panacea and that we will ease our consciences by believing that passing Bill C-295 means that we will have done what needed to be done to protect seniors and give them better living conditions. Everyone knows that is far from true. The federal government's first responsibility is to properly manage the taxes it collects. We know that the taxes the federal government collects far exceed the cost of its own responsibilities, which means that it must return some of that money to the provinces, especially for health care. At first, 50 or so years ago, the federal government was paying around 50% of the health care costs of each province and Quebec. Today, the proportion is around 20% to 24%, and it keeps going down all the time. The provinces are calling for a health transfer equivalent to 35% of their expenses. That is a reasonable figure that takes into account all the formulas. I would even say that this figure is lower than it should be, but it is still too high in the eyes of the federal government. The provinces can no longer manage. I was talking earlier about a scandal—elderly people left in beds without care, medication and adequate services for hours, people often not eating all day because there was no one to bring them a meal. These situations are unworthy of us as a society. They are 99% due to a lack of funding. The institutions are no longer able to pay the staff they need to take care of our seniors. How much longer will we tolerate this? I think we have a responsibility to prevent this. The primary responsibility of the federal government is to give the provinces the excess money it has collected in taxes. It must transfer the money to the provinces so that the provinces can manage their health care institutions properly. That is the only way to address the problem. I recognize that this bill is about looking after seniors, and of course that is commendable. I am certain that not one of the 338 members in the House would say that that is unimportant or that the money should be used for something else. We all agree it is important. However, we cannot lose sight of the fact that in order to run health care facilities properly and take care of our seniors properly, the money needs to be transferred. It is cruel and pointless to keep this money here in Ottawa when it is the provinces that need it. Health transfers are essential. We recognize this and the provinces are asking for it. What is the federal government's response? It says there are conditions. It will transfer the money if we use it in a certain way, if we provide this or that type of care in a given facility, if we expand business hours, if we do this, that or the other thing. There are conditions. Let us keep in mind that this money does not appear out of nowhere. It is tax money the government takes from Quebeckers. The government says it will give the money back, but only if they comply with its conditions. It can impose conditions when it has jurisdiction the other level of government does not. If I give children pocket money, I may tell them they cannot spend more than a dollar on candy. I may impose conditions in an attempt to teach them to manage their money properly. The thing is, the federal government does not manage any health facilities. The federal government manages health care for indigenous people and veterans and looks after new drug approvals and quarantines, but it does not manage a single long-term care facility or hospital. What makes it think it has the authority to impose conditions? The conditions that the federal government wants to impose on the provinces are very likely to do much more harm than good, not to mention that they will prevent a rapid resolution of the problematic situation that has continued year after year. The provinces do not have the money to operate hospitals. The federal government says that it will not provide funds unless the provinces agree to its conditions. In my view, this stubborn refusal is unworthy of a responsible government and leads to situations such as those that occurred during the pandemic. I do not want to put all the blame on the federal government. We all have some soul searching to do, especially the governments of each province, and I am certain that is what they are doing. The Quebec law I mentioned earlier was passed specifically to prevent this type of situation from happening. That is a good example. However, the money is there to provide dignified care for our seniors. I am asking our government to carry out its responsibilities, to be fair, to be responsible with respect to our seniors and to transfer the money to the provinces to provide better care. Bill C-295 is a bill that we must study, that we are going to study and that we will probably improve. I think the idea behind it is good, and we will work hard on it.

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