Evidence of meeting #1 for Subcommittee on Private Members' Business in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was section.
A recording is available from Parliament.
Liberal
Stéphane Dion Liberal Saint-Laurent—Cartierville, QC
Because of the criminal law? It's the criminal law that is affected in this bill.
Committee Researcher
In my view, the Canadian flag is a little like the National Capital Commission. The residual power comes to mind.
Liberal
Stéphane Dion Liberal Saint-Laurent—Cartierville, QC
In relation to the charter.
My point is that I want to understand the role of this committee. What is it? This gentleman has a problem. Is it our problem to solve it here or what?
Conservative
The Chair Conservative Harold Albrecht
Mr. Dion, it's important that we take time to allow the question to be finished before the answer is given.
Rephrase your question, please.
Conservative
Liberal
Stéphane Dion Liberal Saint-Laurent—Cartierville, QC
I understand you to say that the way it is written now may create problems with the charter. Is that what you're saying?
Liberal
Stéphane Dion Liberal Saint-Laurent—Cartierville, QC
You recommend that it be fixed. Where? This is the question.
Conservative
The Chair Conservative Harold Albrecht
I think the suggestion is that it's not clearly outside; it's potentially outside. But it could be fixed in committee. That's what our analyst indicated earlier.
Committee Researcher
As part of the legislative process, the subcommittee's role is to determine whether the bill is a votable item or not. A bill is designated a non-votable item if it does not meet one of the criteria, including being within federal jurisdiction and complying with the Canadian Charter of Rights and Freedoms. It must also determine whether it has already been voted on by the House of Commons or whether a similar matter is before the House. Those are the four criteria that should guide the committee in its review. The subcommittee is not supposed to be submitting or suggesting amendments to the bill. The only thing the subcommittee can do is decide whether or not a bill should be deemed a votable item.
Committee Researcher
That's correct.
The point I'm making here relates to whether or not the bill is clearly constitutional. That is the criterion the subcommittee is required to apply. I was saying a little earlier that it raises certain questions. However, there is no jurisprudence on which I can rely to say that, in such a case, this is what the committee should or should not do. I have identified several issues, but I also pointed out that the principle underlying the bill is not unconstitutional. I believe the issues or concerns that I raised could be reviewed as part of the legislative process. The committee's role is now to decide whether it's unconstitutional—yes or no.
NDP
Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC
I don't want to get into a discussion about what motivated this bill, but, as regards the second criterion, it is clear that there may be a problem there.
It seems to me that the proposed bill goes beyond the interpretation of section 7 of the charter. So the question is whether the committee should get involved in that. Are we supposed to prevent a bill from being debated in the House because there could be a problem of interpretation?
If I'm not mistaken, the problem with respect to section 7 is that the Supreme Court has provided interpretations of section 7. It seems the bill before us does not jibe with the criteria laid out by the Supreme Court as regards the proper interpretation of this section.
If that is the case, it is clear that this bill would benefit from amendments in committee or, if no amendments come forward, there is a good chance it would be defeated. If someone challenges it in court, I think there is a good chance a judge would strike down the legislation. Once again, the guidance provided by the Supreme Court with respect to section 7 is quite clear. This bill does not comply with the Supreme Court's interpretation.
So, that's the problem I have with this bill. I have nothing against the idea of others continuing our work. It's simply that it makes no sense to do that, based on Canadian constitutional case law.
Does the committee have the right to review the case law, other than the actual wording of the Charter? Can we go ahead and look at the jurisprudence?
I would like an answer to that question.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
In what respect is this in violation of section 7 of the charter, which is about “life, liberty, and security of the person”?
NDP
Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC
The problem with the bill that I see right now is that it doesn't seem to respect the idea of having the most restrained action possible on a person's rights; it seems to be looking at the larger sense of restraining somebody's actions. I'm thinking about condo associations, for instance. They would have to allow a very large interpretation, as opposed to a restrained interpretation, of violating somebody's rights. So I'm just thinking that this might not be the appropriate formulation for this law.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Presumably, if you don't mind me saying, individual A wants to display the flag, and individual B, who perhaps is the president of the condo association, wishes to prevent it. This prevents person B from stopping person A. You can't pass a condo bylaw, for example, preventing me from putting a flag in my window.
I'm just having trouble understanding how that could lead to a problem with anybody's life, liberty, or security of the person.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I'm sorry. I should be going through you, Mr. Chair.
I was addressing that to Mr. Toone because he obviously has a concern, but I'd be happy to hear any response that would hopefully satisfy my perplexity.
Conservative
The Chair Conservative Harold Albrecht
I would like the analyst to speak to the question that Mr. Toone has raised.
October 18th, 2011 / 11:20 a.m.
Committee Researcher
In terms of the committee's ability to review constitutional case law, yes, the committee can do that. Indeed, that is the analysis I did myself before making my presentation to the committee.
I was referring to a Supreme Court decision regarding laws whose effects are too broad. Without mentioning it, I was referring to the Heywood case that came before the Supreme Court, where a number of provisions of the Criminal Code were declared unconstitutional.
The test to be applied by the committee is that an item is “clearly unconstitutional”. So, there is no guide. I would like to be able to say that the subcommittee has already defined what is meant by “clearly unconstitutional”, but the subcommittee has never defined what is meant by “clearly unconstitutional”.
I'm trying to provide more information to the committee to guide you in carrying out your task. The fundamental principle behind the bill is not unconstitutional, in my opinion. Some of the problems I have identified with the bill could be corrected during the legislative process by passing amendments at committee stage or at report stage.
I have actually distributed a document in French and English to members of the subcommittee with the wording of a section of the Canada Elections Act. That section gives voters the right to display election advertising posters during the election period. It is drafted differently from the bill we are currently reviewing, in the sense that it is more restrictive. For example, with respect to condominiums, it mentions the areas that are the exclusive property of the person wanting to display the material. When we're talking about a flag or a poster at a residence, it's obvious that the premises are those owned or rented by the individual. So, the wording is more restrictive.
That is the type of amendment that could benefit Bill C-288.