- Member of Parliament
- Member of Parliament
- NDP
- Esquimalt—Saanich—Sooke
- British Columbia
- Voting Attendance: 67%
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- Government Page
- 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/2/23 11:58:47 a.m.
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Mr. Speaker, I thank the member for that question, which I will not take seriously. However, I think he raises a concern. We have seen this rhetoric about “tough on crime”, and we saw it implemented in Canada under the Harper government. Two things resulted from that. One was that, as the Supreme Court pointed out, most of the measures on the tough on crime agenda were unconstitutional and violated the charter. The second was that they were in place for a time in this country. What was the result of them being in place? Did crime rates plummet? No, they did not. Did the costs of the justice system and correction system skyrocket because of those measures? Yes, they did.
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Madam Speaker, I am pleased to be speaking tonight on Bill C-28, though perhaps not to be speaking at this hour, but I am glad to see Parliament acting quickly in response to the Supreme Court of Canada decision in R. v. Brown, which found section 33.1 of the Criminal Code, prohibiting the use of the extreme intoxication defence, unconstitutional. That was on May 13 of this year, only some five weeks ago.
It is important to note that the Supreme Court found section 33.1 violated the charter, both section 7, which provides protection for life, liberty and security of the person, and section 11(d), which protects the presumption of innocence. It is also important to note that our legal system has gone back and forth over time on the legality of using extreme intoxication as a defence in crimes requiring an element of intent.
The Supreme Court of Canada, before the charter, in 1978, in a case called R. v. Leary, said it never could be used as a defence in those kinds of cases. However, after the charter was established in 1994, in a case called R. v. Daviault, the Supreme Court overruled what I guess we could call the previous common law rule and restored the possibility of using extreme intoxication as a defence, finding that the prohibition violated the charter.
The details of the Daviault case were particularly horrible, which other members recounted earlier, and they actually caused Parliament to act fairly quickly in 1995 to restore the prohibition on the use of extreme intoxication as a defence by inserting section 33.1 of the Criminal Code. That is the section the Supreme Court now has said is unconstitutional once again.
I want to stop here and remind everyone that simple intoxication has never been a defence in Canada for crimes of violence of any sort, including sexual assault, and nothing about the current Supreme Court decision or about Bill C-28 changes that. Simple intoxication is not a criminal defence in this country, but there has been a great deal of misinformation, particularly online, that has misled people into thinking that somehow simply being drunk is a defence in criminal law in Canada.
We have to remember that extreme intoxication is a very specific and limited circumstance, a specific circumstance where impairment is so severe that people have no control over their bodies, their minds have no control over their bodies or, in common language, they are unconscious about what they are doing. Even though these cases are rare, like other members who have spoken before me, I am glad to see us acting quickly to restrict the possibility of anyone being able to escape responsibility for their actions by using the extreme intoxication defence and avoiding responsibility, therefore, for the harms that they have caused others.
Many groups have urged us to act quickly, but I acknowledge that there are some others who are concerned that we risk not getting it exactly right by moving too quickly. That is why I am glad to see that the motion we are dealing with tonight has a provision in it for hearings at the justice committee in the fall. It is unusual for us to conduct hearings on a law so soon after passing it, but I think it gives us a chance to review what we are doing here tonight to see if we have in fact had unforeseen problems or to see if in fact there is more that we need to do. That is why I am confident with us moving ahead tonight because we will do that review in the fall.
The Supreme Court of Canada itself pointed out a couple of options available to us as parliamentarians to restrict the possible use of an extreme intoxication defence while still respecting the charter. I believe that Bill C-28 does this well, in ways that would effectively re-establish the principle that in almost all cases, extreme intoxication is no defence.
How would Bill C-28 do this? It would do it in two ways. In order to make a claim of extreme intoxication, defendants will have to provide expert evidence in their own cases that their intoxication was so severe as to amount to what in law is called automatism. This is a well-known legal concept and a specific state already defined in law that the mind is not in control of the body. Therefore, defendants have to present evidence in their own cases, not that it is possible that they were extremely intoxicated and not just claiming that they were extremely intoxicated, but that they were, according to expert evidence presented, in a state of extreme intoxication. That evidence, of course, will have to be presented in court and can be tested in court.
The second way in which Bill C-28 would make it difficult to use this defence is that the prosecution would be able to argue that even if the accused has proved that they were in a state of extreme intoxication, they failed on the standard of criminal negligence because they failed to take the measures a reasonable person would have taken to avoid causing harm.
If a person takes intoxicants or combines prescription drugs and illegal drugs or combines alcohol and magic mushrooms or whatever it is that the accused was doing, and if they, as a reasonable person, should have known the possibility of losing control and the possibility of violence, then they should have taken measures to limit that possibility, and if they did not, then they could not use this defence.
My summary, in plain language, is that the Supreme Court of Canada cracked open the door on the use of extreme intoxication defence, and what we are doing with Bill C-28 is shutting that door as far as possible while still being consistent with the Charter of Rights.
The Minister of Justice has presented a charter statement for Bill C-28 that certifies that Bill C-28 is in fact charter compliant and consistent with the decision of the Supreme Court in R. v. Brown. I have no reason to doubt the content of that charter statement.
As likely the last speaker on Bill C-28 tonight before we adopt it, I do not want to risk going on at too great a length, but let me say that after a House sometimes has had a bad reputation with the public for being overly partisan and polarized and unable to look after the public good, I believe we are demonstrating something different here tonight.
Through the confidence and supply agreement between the Liberals and New Democrats, I believe we have already demonstrated that in a minority Parliament we can co-operate and work together to get things done, but Bill C-28 demonstrates an even broader ability of parliamentarians from all parties to come together co-operatively and to act swiftly in the public interest. That is what we will be doing tonight when we pass Bill C-28 a little over a month after a Supreme Court decision that cracked that door open to escaping responsibility for violent acts by claiming extreme intoxication.
What we are doing tonight is once again, as I said, making that a remote possibility. We are making it the remote possibility that it should be.
I hope we come across other opportunities in this Parliament to have the same zeal for working together. One of those opportunities is on the issue of coercive and controlling behaviour, and there is a link here because we are talking about violence primarily against women.
Twice the Standing Committee on Justice and Human Rights has recommended to the House that the government introduce legislation to make coercive and controlling behaviour a criminal offence. Such legislation would recognize that coercive and controlling behaviour is in itself a form of violence, but it would also recognize that it is very often a precursor to physical violence.
As I said, twice now the justice committee has recommended this to the House, and I hope we will find an opportunity to get the same all-party agreement and the same ability to move forward on that piece of legislation as well.
In conclusion, sometimes I am very proud to be a part of this Parliament, and tonight, on Bill C-28, is one of those nights.
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