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Member of Parliament

Randall Garrison

  • Member of Parliament
  • Member of Parliament
  • NDP
  • Esquimalt—Saanich—Sooke
  • British Columbia
  • Voting Attendance: 67%
  • Expenses Last Quarter: $148,586.11

  • Government Page
Context: House Hansard - 157 - Feb/9/23
Mr. Randall Garrison (Esquimalt—Saanich—Sooke, NDP)
  • 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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