Evidence of meeting #107 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was inquiries.
A recording is available from Parliament.
Liberal
The Chair Liberal Anthony Housefather
I call the meeting to order.
Good afternoon, everyone. Welcome to this regular meeting of the Standing Committee on Justice and Human Rights.
I would like to welcome Mr. Clement to our committee, as it is his first meeting.
It's a pleasure to have you.
Liberal
The Chair Liberal Anthony Housefather
Thank you.
Murray, do you mind if we first move that Tony be a vice-chair? It should take about one minute.
Liberal
The Chair Liberal Anthony Housefather
Perfect.
Mr. MacKenzie, can I have a motion for the vice-chair?
Conservative
Dave MacKenzie Conservative Oxford, ON
I move that the Honourable Tony Clement be named a vice-chair of this committee.
Liberal
The Chair Liberal Anthony Housefather
The motion is to make Tony Clement the first vice-chair.
Do I have any other motions?
Not hearing any, is it the pleasure of the committee to accept Mr. Clement as the first vice-chair?
(Motion agreed to)
Liberal
The Chair Liberal Anthony Housefather
Mr. Clement, it is a pleasure to have you as our first vice-chair.
Liberal
The Chair Liberal Anthony Housefather
It is also a pleasure to now turn the meeting over to Mr. Rankin's motion. Mr. Rankin properly gave a notice of motion on a study on the notwithstanding clause.
Mr. Rankin, the floor is yours to move the motion and to speak to it.
NDP
Murray Rankin NDP Victoria, BC
Thanks very much, Chair. Thanks for your support in getting this before members in a timely way.
Welcome, Tony Clement, to our committee.
This motion is before everyone. You will have received it. I sent a letter out on September 13, and then formally entered the motion on September 14.
It calls on the committee to undertake a study—nothing more, nothing less—into the potential for the routine use of section 33, or the so-called notwithstanding clause of the Constitution Act, 1982.
I've asked that constitutional experts and Attorneys General come to this committee to participate in a true dialogue about the nature of this clause under our Constitution and how Canadians should agree to deploy it in the future.
At the outset, Chair, I have four points to make about the motion.
First, I emphasize that this is not about a particular premier or event. The reason for the motion is that it now appears that some political leaders in our country may believe that the so-called notwithstanding clause can be used in a repeated and routine way, rather than as a tool of last resort to be reserved for very serious public policy matters. I believe that the founders of the charter intended it to be used sparingly, as Alberta Premier Peter Lougheed told his legislature in 1981.
Second, I recognize and acknowledge from the outset that the notwithstanding clause is an integral part of the charter. History will show that in 1981, it was inserted at the instigation of Premier Lougheed, and affirmed by B.C. Premier Bennett, as a compromise, in order that the rest of the charter could be enacted. It was truly the price of admission. I get that. I accept that it is every bit as much a part of the charter as other provisions that are better known and more frequently used.
Third, I'm not now arguing that this important debate needs to take place immediately. I understand that we are conducting a very important study of Bill C-75 right now. I also know that we're intending to study discrimination on the basis of HIV/AIDS. There are many other reasons of timing that may argue against proceeding right away with this study. I get that. I'm perfectly content to delay this conversation until later. All that I'm seeking is a clear commitment from this committee that we will undertake the study. Today all I want is a vote on this matter so that we have it on the record as to whether we are prepared to move forward or not.
Lastly, I believe there is no better forum for a critical conversation like this to take place than the justice and human rights committee.
Colleagues, I can't imagine a more important justice and human rights issue than the potential erosion, indeed trivialization, of our Charter of Rights and Freedoms.
Members, what is my motion about, and what is it not about? This is not a partisan issue. It goes to the very basis of the constitutional arrangements that Canadians entered into in 1982, some 36 years ago. My motion concerns the possibility of any senior government—federal, provincial, territorial—routinely invoking section 33 of the Constitution Act.
As all members of this committee know, when a government invokes section 33, it passes a bill that suspends, for five years, a court decision relating to key charter rights. The notwithstanding clause overrules freedom of expression, freedom of religion, freedom of conscience, and freedom of association. It also deals with legal rights, like the right to life, liberty and security of the person, which was the foundation of a woman's right to choose. That was upheld in the Supreme Court of Canada, of course, in the Morgentaler case, and it was upheld more recently in the right to medical assistance in dying. It can override search and seizure rights and equality rights.
There are many decisions of Canadian courts that have made a difference to the LGBTQ2 community, from equality rights to same-sex couples in social benefits, from Nesbit and Egan all the way to same-sex marriage. These gains could be eroded at any time by a provincial or federal government. Indeed, the record will show, for example, that Alberta Premier Ralph Klein contemplated the use of this clause to override aspects of the same-sex marriage debate in his province.
I reiterate that my motion may have been prompted by, but is not about, a particular decision made in a particular province.
The context of my motion, of course, is well known: the decision by a premier in Ontario, for the first time in that province's history, to use the notwithstanding clause to deal with a dispute between the City of Toronto and the Province.
People may perhaps differ as to whether this kind of situation was what the framers of the charter intended with the notwithstanding clause.
As members know, the Ontario Court of Appeal made it unnecessary in this instance for the Ontario government to invoke the notwithstanding clause.
Again, that particular case is not in issue. However, it was a statement by the Premier that he would routinely and repeatedly use the notwithstanding clause that has caused constitutional lawyers across Canada such grave concern. The Ontario Premier's statement to use it repeatedly has been condemned by most constitutional lawyers and equality-seeking groups across Canada.
I don't know about you, Mr. Chairman, but I have been inundated by calls from prominent constitutional lawyers. I'd refer members to YouTube to see, for example, two colloquiums—one at the University of Ottawa, another at the University of Toronto—that were prompted by recent events and the fear that the Charter of Rights will be eroded.
The possibility of systematic recourse to the notwithstanding clause, and the erosion of the Canadian Constitution are extremely troubling for the generation of lawyers like myself who grew up and practised at the time when Canada adopted the Charter. I believe that over the last 36 years since it came into effect, the Charter was used only 15 times, and by only three Canadian legislatures. This bears witness to the fact that its exceptional use was the express intent of the provincial premiers and the Prime Minister of Canada at the inception of the Charter in 1982. It was meant to be a measure of last resort. The fact that it was only used 15 times in 36 years in only three legislative assemblies attests to that reality.
Both Prime Minister Chrétien and premiers Romanow and Davis, as well as the Honourable R. Roy McMurtry, energetically contended that that was not the intention at the outset. They knew, since they were there.
It is not sufficient to simply express one's disappointment to see the Premier of Ontario use clause 33 to systematically request that judicial decisions in connection with our constitutional rights be annulled, or simply to declare that we have to defend our Constitution. Former Prime Minister Martin swore to never use the notwithstanding clause in connection with federal laws. Former Prime Minister Mulroney is also firmly opposed to the use of this provision.
Could the committee recommend to the federal government that it respect the clear commitment made by two prime ministers, one from the Liberal party and the other from the Conservative party?
Let me be clear. Some have stated that the only two ways to address this issue are to either open up the Constitution and make an amendment to limit the inappropriate use of section 33, or to invoke something that most of us think is a constitutional dead letter, the so-called disallowance power. I want nothing to do with either of those options. I hope I've made that clear.
The reason for my motion is to see if experts and Attorneys General can generate other options. For example, is it now a “convention”—that is, part of our unwritten Constitution—that since the resort to section 33 has been so infrequent, and since the politicians who brought the charter to us have all confirmed the original intent, perhaps there is already a convention to that effect? Alternatively, perhaps Canadian leaders of goodwill could commit to limit its use, as I believe the framers of the charter intended.
Mr. Chair, I don't have all the answers. I don't pretend to. That is why I believe this committee is the appropriate place to show leadership and to try to come up with answers using the best expertise available to us.
In conclusion, thank you for your indulgence. I would ask that each of you consider this motion for what it is: an opportunity to begin an open-minded discussion with constitutional experts and others who may wish to join us, so that we might learn from them and evaluate options that could be employed to protect all Canadians' charter rights from the routine and systematic use of the notwithstanding clause.
I look forward to a vote today on this critically important issue.
Parry Sound—Muskoka, CPC
Thank you, Chair. Thank you for your remarks, Mr. Rankin.
I don't have any prepared remarks, but I do have some thoughts about this motion. I take as the basis for the request your very well-expressed belief that this issue is important to study. I may or may not agree with a little context that you've woven into the discussion, but I think the basis of the motion is to have a study about the use of section 33.
There are many disadvantages to being older. One of the advantages, however, is that I remember 1982. I was a sentient human being at the time, just starting law school in 1983. The debate, of course, was captivating the country. It was a genuine debate. I remember many voices that wanted to ensure that Parliament and/or legislatures had an option to voice public opinion or to defend rights that they felt needed defending.
One of the most articulate members of this was an NDP premier, Premier Blakeney, who wanted the notwithstanding clause, as I recall, to ensure that workers' rights would have the benefit of protection of a legislature. I remember, from the other side of the coin, Sterling Lyon, who is no longer with us, who did express, on behalf of the people of Manitoba, the belief that there were times when the legislature still had to be supreme in those cases.
Those voices were there, as well as some of the other voices that we've heard in recent weeks, about their interpretation of why the notwithstanding clause was present in the final draft of the Canadian Constitution and the charter.
There's also, of course, the evidence of legislatures using the notwithstanding clause. Of course the Government of Quebec, as part of their protest on the charter, regularly invoked the notwithstanding clause for many bills over a period of years, I recall—I stand to be corrected on that—to express their disagreement with how the Constitution was repatriated. I am advised by a Saskatchewan parliamentarian that the notwithstanding clause was deployed by the legislature of Saskatchewan just three weeks ago. There wasn't much of a hullabaloo about that. There's been a little more hullabaloo about another provincial legislature.
All of which is to say, Mr. Chair, that I think it is appropriate for us to have such a study and to hear from experts from the academic world, as well as some who perhaps were witnesses at the time of the patriation of the Constitution. It might be of good use to have this committee record those views in an environment that I hope would be devoid of political grandstanding, so that we could get to the root of the issues and have that discussion in a respectful way and generate some light rather than just heat.
I'm inclined to support the motion. As I say, I don't want to be on the record agreeing with everything that Mr. Rankin has said in his introduction, but when I look at the essence of the motion, I can sign on to it.
Liberal
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, Chair.
In the past three years sitting on this committee, I've really looked up to Mr. Rankin and the wealth of knowledge he has bestowed upon us. I genuinely believe in all the issues you've raised. I think it is a very legitimate concern for us to have, but I'm not sure if this committee is the right place for that debate to occur.
We have been very much looking at concrete ways to impact our laws, concrete recommendations that we can provide to the government. We've had some really great reports and studies over the past three years. I'm not sure if we can fit this into our agenda in the next year.
We have 10 months in which we have really heavy, substantial legislation to get through. We have that human trafficking study report to finalize. We have a number of things on our agenda already. I really want to work on this issue. We know in the future we'd be happy to work with Mr. Rankin and our government to see how we can look at this issue in a substantial way, but I don't think this committee is the right place for it.
NDP
Murray Rankin NDP Victoria, BC
First of all, I really appreciate your support for this idea, and I hope my reference to the specifics that led Canadians to be so concerned doesn't detract from my commitment to make this a non-partisan issue. You have my word on that. I think it's too important for that.
Your reference to workers' rights is important. As you know, the Supreme Court has confirmed that collective bargaining is a constitutional right. That happened since Saskatchewan talked about it, and the fact that Saskatchewan has used it recently is no surprise. It's one of those legislatures that has used it in the past. Since this was the first time in Ontario it was being used, given that Ontario is the largest province and the biggest media market, it's no wonder we all took notice.
Ms. Khalid, I appreciate your generous words. I really mean it. I can only reiterate that there is nothing more important than this, in my humble opinion. If not here, where? I thought of the Council of the Federation, but the federal government isn't part of that. I thought of universities. We've already had colloquiums galore: just look at YouTube. It's a big deal out there in Canada, and I can't think of a better place.
I just suggested, as you know, five meetings. For goodness' sake, we're going until nine o'clock tonight. We're going until nine o'clock other nights. We've gone until nine o'clock frequently. I think Canadians have a right to expect us to take up our responsibilities and do this, for the simple reason that all we're asking for is a study, and I'm prepared to defer it until much later in the timetable. I seriously cannot think of anywhere else this can be done, where we can have witnesses come, perhaps as Mr. Clement suggested, those who were there and the current Attorneys General, to have one of the dialogues Canadians are so famous for, just to have a turnout, roll up our sleeves and see if we can find ways to agree that its appropriate use is "thus and so" and not "this and that".
That's all I want. It would really be a shame if—given that we have 10 months or so left—we can't find a few nights or days to talk about this. I think Canadians would be very disappointed if we did not.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Thanks, Mr. Chair, and thank you, Mr. Rankin, for putting this motion forward.
I think it's fair to say that in our human trafficking study, we got to know each other better, and I think we were both talking about how we can do more for the federation and make sure that it stays strong.
I had the opportunity when I was in Victoria for ParlAmericas to meet with a dear friend, a professor, almost a second father, J. Peter Meekison, who was a deputy minister to Premier Lougheed during the time of the repatriation of the Constitution. He is the man responsible for creating the Victoria amending formula in the Constitution. We talked about the notwithstanding clause, how it was intended to be used, and why it was part of the negotiation around the repatriation of the Constitution.
I appreciate the sentiment of your motion and what you'd like us to see. At the same time, as a government member, I see our work pushing legislation, listening to witnesses, and making sure that we get done what needs to get done on behalf of the government for the next 10 months. I think Mr. Clement is right. There wasn't much ballyhoo about Saskatchewan using the notwithstanding clause. It hasn't been applied here in Ontario, because of the stay of the decision. I appreciate your mentioning the study on HIV overcriminalization, because that's a study I've put on the Order Paper, and I'm going to be agreeing with Ms. Khalid that we need to keep moving. We're going to have more legislation come to this committee, and that is how I'll be voting.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
I strongly associate my sentiments with the words expressed by Mr. Clement, and I have to say, Mr. Rankin, that we did have an opportunity to discuss the motion. At the outset, I was a little bit skeptical, but I think you've made it clear in your comments to me and to the committee that the intent of the motion is to have a dispassionate study whereby we can bring in constitutional experts, people who were around in 1982, and have a good study of an issue of significant importance to all Canadians.
I have to say that I am quite disappointed with the sentiments expressed by Ms. Khalid and Mr. Boissonnault as the basis for opposing this, I think, timely motion.
In fact, over the last three years that I've had an opportunity to serve on this committee, I can't think of a single instance when we were not able to reach a consensus on any of the many issues we studied. Indeed, the only time that we were unable to reach consensus was on a motion I brought forward a number of months ago related to the crisis that we face caused by the Minister of Justice's failure to fill judicial vacancies. That was the one time when the government voted against studying an issue, and it was obviously because they don't want to talk about this minister's failure when it comes to filling judicial vacancies in a timely manner.
Mr. Rankin has not imposed a hard and fast date. The motion is simply to give the green light, and hopefully, as a committee that has generally worked collaboratively on this matter, we can find time to see whether we can schedule it in. Hopefully, there will be time between now and June to do it.
Arif Virani Parkdale—High Park, Lib.
Perhaps I could just respond to that briefly, Mr. Chair, since this issue has been raised by Mr. Cooper.
I think the record should reflect that this minister has appointed 212 people to the bench, 100 people in each of the last two years. That's more than any minister of justice in Canadian history, including every minister of justice who served in the previous government.
It takes time to implement a balanced, merit-based process that includes things like lived experience, gender, race, persons with disabilities, and indigenous representation on the bench. Those clearly weren't priorities for the previous government. We know why those are priorities for our government. We will not apologize or listen to that response. It is criticism that is completely unmerited and unfounded.
September 24th, 2018 / 3:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you.
Coming back to the notwithstanding clause, I just wanted to intervene for a second, if I may, colleagues.
Being a member of a community that was impacted by the notwithstanding clause in 1989 as a teenager, seeing how it impacted the members of my community, and seeing how it made many people feel very uncomfortable that their language was banished from public view after a Supreme Court decision and after a promise in an election that bilingual signs would be permitted, I certainly understand the consternation of people when this clause is used. I certainly speak for myself and, I think, for most Liberal members of this committee when we say that we don't support the use of the notwithstanding clause. We certainly share your concerns, Mr. Rankin, about the indiscriminate use of the notwithstanding clause. That is a given.
I do believe that the urgency of the issue is somewhat abated by the decision of the Ontario Court of Appeal to stay the Toronto decision. I think that there probably needs to be some cooling-off period to make sure that when we talk about this issue dispassionately, we understand that it won't be related to one government in one part of the country on one specific decision.
Based on all that I've heard, we currently have a study on Bill C-75 that we're doing, and we're shortly going to get the divorce legislation, Bill C-78. We also have to conclude our study on human trafficking, and we have the study from Mr. Boissonneault on the decriminalization of HIV.
Because I think government members are willing to discuss this with you and see how we can work with you on this, my thought is that perhaps we don't need to vote today; we can bring this back at a later date. Should you wish to vote today, there's no problem. We can still try to find solutions in the future and bring this issue back if there isn't agreement. We always try to find agreement. I don't think today there is one, but maybe at some point in the future there will be.
Go ahead, Mr. Rankin.
NDP
Murray Rankin NDP Victoria, BC
Thank you.
I think it's precisely thanks to you, Chair, that we've had—as Mr. Cooper pointed out—very harmonious relations on this committee. We very rarely have had the kind of dissension that occurs on so many of the other committees. I salute you for that.
I made clear in my remarks, I hope, that I wasn't suggesting that there was a sense of urgency now. I was simply saying that we should do it at some point on our timetable. To not agree to do this, I think, is quite surprising. I committed to recognition through Mr. Boissonneault's important motion that it would be something that I would treat with the respect it deserves and put on the timetable as quickly as we can. I point out, though, that we're not just dealing with legislation on this committee. I can remember a study on legal aid as just one of many examples that, frankly, had nothing to do with legislation.
I do want to vote today, Mr. Chairman. I think we need to let Canadians know where we stand on this issue. If there's a better place, I'm open to it. I do not accept that we don't have time. I simply find that a specious argument, with respect. I just want to get on the record whether we're prepared to do this work. Many people have come to me and asked, “If not you, who?” I believe they need an answer, so I would respectfully ask for that vote to occur.
