Thank you, and thank you, Mr. Chair, for listening to a lengthy argument, but one that I think is very important. Thank you for your leadership on our committee today.
Going back to the question of the Bill of Rights and its interpretation in light of this ruling, and the need for the minister to explain the advice he's been given, I'll just back up.
The Bill of Rights was created by Prime Minister John Diefenbaker in 1960, years before the Charter of Rights and Freedoms. It's important to note that the Bill of Rights contains primacy clauses asserting quasi-constitutional status as opposed to constitutional status.
The Osgoode Hall Law Journal published a piece in 2016 by Vanessa MacDonell entitled, “A Theory of Quasi-Constitutional Legislation”. I will share with you some excerpts from this piece illustrating what I think the minister needs to present to committee and to parliamentarians about his decision to appeal the ruling or not. These excerpts should demonstrate one reason why we believe it's in the interest of the government to consider an appeals process, which might influence the minister's decision-making. Here's the excerpt:
SINCE THE 1970S, THE SUPREME COURT OF CANADA (SCC) has treated a small number of statutes as quasi-constitutional. These statutes, which the Court has described as “not quite constitutional but certainly more than ordinary,” include human rights acts, privacy and official languages legislation, and statutory bills of rights such as the Canadian Bill of Rights and the Quebec Charter of Human Rights and Freedoms. Although quasi-constitutional statutes are enacted in the same way as other laws, they are interpreted in the broad and generous manner usually reserved for constitutional rights. They also trump later, conflicting ordinary laws unless those laws provide otherwise. This trumping rule has significant consequences for laws that fall short of the guarantees found in quasi-constitutional statutes. Despite the longstanding presence of these statutes in Canadian law, however, the Court has yet to articulate comprehensive criteria for recognizing a statute or regulation as quasi-constitutional. Some quasi-constitutional statutes contain supremacy clauses mandating the application of the trumping rule described above and signalling to courts that Parliament intended the law to be treated as quasi-constitutional. Just as often, however, the Court’s decision to treat a statute as quasi-constitutional flows from the close relationship between these statutes and constitutional rights. Much more work remains to be done to develop a theory of quasi-constitutional statutes in Canada.
From this excerpt, I hope that I've given my colleagues something to think about. I also think it's important for the minister to appear before committee so that we can have these important discussions about the Federal Court ruling and whether or not they are planning to appeal it. This is especially important as we draw closer to the date on which the appeal can be filed.