Mr. Speaker, I welcome this opportunity to speak to motion M-239, introduced by the hon. member for Notre-Dame-de-Grâce, which requests withdrawal of section 33 of the Canadian Charter of Rights and Freedoms of 1982, the notwithstanding clause, also known in Quebec as the "clause nonobstant".
Need I recall that the legislation we are discussing, the 1982 Canadian Charter, was passed by the Imperial Parliament in Westminster, after a debate in this House where the majority of Quebecers-there were a few exceptions-supported the request made to the Imperial Parliament?
In fact, there was more opposition to the Constitution Act, 1982, in the Imperial Parliament in Westminster than in this House. Westminster ratified this legislation, despite two memoranda by the Government of Quebec which vigorously objected to the process and also despite a resolution supported by both parties then represented in the Quebec National Assembly, the Parti québécois and the Liberal Party of Quebec, with only six members voting against the resolution.
What we have now is legislation that may have its merits but is fundamentally flawed in terms of the process that was imposed on us to adopt it. The government amended Canada's Constitution and removed Quebec's right to legislate on language matters, a right guaranteed by section 92 of the Constitution Act, 1867, by what was always defined as a pact between the two founding peoples. What a fallacy, Mr. Speaker!
Section 23 of the Constitution Act, 1982, ratified in London and amended in a Parliament on the other side of the Atlantic, amended section 92 of the Constitution Act, 1867, by restricting the powers of the Quebec National Assembly with respect to language in Quebec, and in many respects it was this section that caused so much trouble. How ironic that we should have to go to London to amend the Canadian Constitution and to incorporate in the constitutional amending formula provisions that, if they had existed in 1982, would have made it impossible to amend section 23 with respect to the powers of Quebec.
They asked London to do the dirty work, so that would be the end of it. This is a strange interpretation of democracy. And with all due respect for the hon. member for Notre-Dame-de-Grâce, who referred to decisions by the courts in Quebec and especially to Mr. Duplessis, I think we should not forget that in this trilogy of judgments made in the fifties, in Saumur versus the City of Quebec, the Switsman case and the Roncareli case, the Supreme Court of Canada came down on the side of those who defended civil rights and quashed the laws passed by the Legislative Assembly and Legislature of Quebec which restricted individual rights and freedoms. The rights of the Jehovah's Witnesses were recognized by the Supreme Court of Canada. The padlock act, passed by the Legislative Assembly and Legislature of Quebec, was declared null and void.
But where was the hon. member for Notre-Dame-de-Grâce in 1970, when this House passed the War Measures Act which provided for arrests without a warrant and arbitrary detention of Canadian citizens? Government by decree, that is exactly what they did in 1970, and the hon. member for Notre-Dame-de-Grâce voted in favour of this odious piece of legislation, which was last used in World War I. Was he there to defend the rights of Quebecers, when 500 were jailed without a warrant and could be detained for up to six months without trial? In most cases they received no compensation, or very little. Some people lost their jobs, their families and the love and respect of their friends. Where was the hon. member for Notre-Dame-de-Grâce then? Perhaps he should tell us someday.
However, I understand some of the frustrations of the hon. member which are probably connected with Bill 178, passed by the Quebec National Assembly and proposed by the Liberal Premier of Quebec, Mr. Bourassa, which created two language categories in Quebec, one language which could be posted inside and another outside. There is nothing wrong with being able to post signs in one's own language. Bill 178 was highly questionable because it seemed to make English a language that had to be used furtively. And that should certainly not be the case.
Getting back to the crux of the matter, since these precautions were taken, section 33, the famous notwithstanding clause, allows us to interpret the Canadian Charter of Rights and Freedoms. It allows parliamentarians to interpret the Charter and, depending on the circumstances, to ask themselves this: Should we or can we distance ourselves from the Canadian Charter of Rights and Freedoms?
At the federal level, the decision to do so is made by the houses of the federal parliament, while at the provincial level, it is made by the members of the legislatures. The decision is only valid for five years. It is a serious matter which must be studied each time and the decision that is reached is valid for a period of five years, which enables the legislator to have the final word. However, when it comes to justifying the use of the notwithstanding clause to the Canadian and provincial electorates, the
burden will fall to federal and provincial members of Parliament. And there may indeed be circumstances where the application of the notwithstanding clause is justifiable. For example, it may be justified in the case of political party funding where the sky is virtually the limit when it comes to contributions.
Perhaps a notwithstanding clause will be referred to this Parliament, thereby making it possible to adjust today's reality to the deeply felt wishes of Canadian and Quebec society. Perhaps. There are cases. In any event, when there is a charter of rights or constitutional provision, such as the constitutional amendments to the constitution of the United States, there is no notwithstanding clause. The U.S. constitution does not contain one and the legislator is bound by his own constitutional provisions which must be upheld.
The offshoot of this, however, is that if the legislator cannot do the job, the courts will do it. The courts take on the task, from time to time, of defining that which, in their opinion, is acceptable at a given point in time, based on how a society evolves. Over the decades and even the centuries now, the Supreme Court of the United States has not been shy about interpreting differently various provisions of the amendments to the American Constitution that guarantee certain rights associated with certain fundamental freedoms.
I much prefer to have this discretionary power exercised by elected officials as in our country who must go before their constituents at least every five years, rather than by unelected judges who cannot be removed and are not accountable to anyone, since this is basically a political act. If we want to take politics out of Parliament and put it in the courts, the proposal of the hon. member for Notre-Dame-de-Grâce should be accepted. If political debates should go on in our stately courtrooms, let us adopt the motion presented by the hon. member for Notre-Dame-de-Grâce, but if we want political issues to be settled here in the House of Commons or in the Quebec National Assembly or in the provincial legislatures, please do not pass a motion like this one.
Passing Motion No. 239 would be compounding the wrong done to us Quebecers in 1982, which came on top of the insult we had to put up with in October 1970, let me remind the hon. member for Notre-Dame-de-Grâce in closing.