Mr. Speaker, I would like to begin by thanking the hon. member for Moncton—Riverview—Dieppe for having given the House of Commons the opportunity to address the crucial role that the Canadian Charter of Rights and Freedoms plays in terms of good governance in our beautiful country.
As we are all aware, the charter is part of Canada’s Constitution. The charter is the highest legal expression of a number of fundamental national values that have been crafted with pride throughout our history. The most fundamental of these values is the rule of law, in the name of which a good many sacrifices have been made.
Specifically, the charter guarantees the right to liberty and security of the person; freedom of conscience and religion; freedom of expression, including freedom of the press; freedom of association and assembly; the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein; the right, for persons who have been charged, to due process of law and to fair treatment; and the right to equality. Each of these guarantees is crucial in a democratic state founded on the rule of law and is inextricably linked to Canada’s social and political development.
These guarantees were far from being new legal concepts when the charter was adopted in 1982. In fact, they were the result of other great moments in the history of our Parliament and of our provincial legislative assemblies. In 1960, the Progressive Conservative government of Prime Minister Diefenbaker adopted the Canadian Bill of Rights, the federal government’s first-ever comprehensive Canadian human rights instrument. The bill contains many rights and freedoms guaranteed by the charter, including freedom of expression, of religion and of assembly, legal guarantees for persons accused of an offence, as well as equality rights. The 1960 bill also contains the right to the enjoyment of one's property and rights of a general nature to impartial hearings, which is very important. These rights go beyond the guarantees set out by the charter, so they are still relevant today.
Legislators had already passed a large number of equality rights, in addition to the bill, prior to the adoption of the charter. At the federal level, the Canadian Human Rights Act guaranteed Canadians would not be subject to discrimination in the area of employment or in the provision of goods and services, on the grounds of race, national or ethnic origin, colour, religion, age, gender or disability. Every territory and province enacted similar guarantees. Given their crucial importance for Canadian society and for the expression of key Canadian values, the courts determined that the Canadian Bill of Rights and human rights codes, such as the Canadian Human Rights Act, were quasi-constitutional instruments.
Furthermore, Canada played an active role in concluding international human rights conventions that support Canadian values and reflect the concerns regarding individual dignity, justice and democratic governance that underpin the charter. From the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 to the International Covenant on Civil and Political Rights, which Canada ratified in 1976, to the Convention on the Rights of Persons with Disabilities ratified by the Government of Canada in March 2010, Canada has always promoted and defended all charter rights and freedoms. Thus, it should come as no surprise that they made their way into the Constitution of Canada.
It is important to note, however, that the rights and freedoms guaranteed by the charter are not absolute. The first section of the charter guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
This compromise is essential to the charter. It guarantees Parliament and the other legislatures in Canada vast sovereignty so that they can continue responsibly defending the collective interests of Canadians, even though they may infringe on individual rights. I will come back to this important point before the end of my presentation here today.
Generally speaking, the role of the Constitution, including the charter, is both to establish how the legislative and executive branches shall exercise their powers and to impose limits in order to ensure good governance of Canada in accordance with the rule of law. That is important. It means that when they are passing legislation, legislators and the various legislatures in this country must ensure that all provisions of the legislation respect the rights and freedoms guaranteed by the charter. It also means that when interpreting and enforcing legislation, the federal and provincial governments have an obligation to respect all rights and freedoms guaranteed by the charter.
When people feel they have been wronged by the government, or by the application of its laws, the charter includes methods for ensuring its own application in order to make certain that the various legislatures and governments always adhere to the rule of law. The best-known way of doing this is for Canadians to seek a remedy before the courts if they think government action or legislation has violated their rights and liberties. Most importantly, the Constitution Act, 1982, recognizes the ability of the courts to strike down laws or actions that do not comply with the charter.
Despite its deep roots in Canada’s political and social traditions, the charter has clearly brought about some major changes in the 28 years since it became law. It has prompted debates, discussions and controversies over its interpretation and effects and over the advantages and disadvantages of the changes it has wrought. These debates crop up around kitchen tables, in courts of law all over the country, in the universities, within government and in the legislatures. The discussions had already commenced while the charter was being drafted and continue to this day. These kinds of debates are healthy in a democratic society and I am delighted to be able to continue them in this most august of forums. A critical theme for discussion is the way in which the charter has clearly redefined and brought about a new balance in the relations between the legislative, executive and judicial branches of Canada’s democratic system.
Over its short history, therefore, the charter has made a major contribution to the ongoing discussion in Canada about the core values that shape us as a nation. The least controversial of these values is probably the commitment to the rule of law, as enshrined in the preamble to the charter.
The Minister of Justice plays a role in advancing the rule of law within the federal government: he or she is responsible under the Department of Justice Act for ensuring that “the administration of public affairs is in accordance with law”. The minister is the official legal counsel to the Government of Canada and the legal member of the Queen’s Privy Council of Canada. The minister is also the Attorney General of Canada, and in these two roles, the minister generally advises all departments and ministers on the legal obligations of the federal government, including the legal methods of administering public affairs in the public interest.
In addition to the responsibility for ensuring that public affairs are administered in accordance with law, including with the charter, the Attorney General of Canada is responsible for all legal actions brought by the Crown or brought against it. This includes defending the laws of Parliament and the actions of the Government of Canada against challenges brought before the courts under the charter. As we all know, the charter is often invoked in attempts to question the constitutionality of federal legislation and challenge the actions taken by the Government of Canada under such legislation.
As a general rule, the Attorney General of Canada mounts a vigorous defence. As I said earlier, the charter guarantees rights and freedoms that are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. A vigorous defence of our laws in charter challenge cases makes at least two things possible.
First, it makes it possible to ensure that the meaning of the rights and freedoms guaranteed by the charter is not tainted nor is it extended beyond what Parliament intended, and that those rights and freedoms are consistent with the role assigned to them in Canada’s democratic system. Second, it make it possible to ensure that the maximum reach of those reasonable limits is preserved and clearly defined. In turn, that reach makes it possible to ensure, now and in future, that Parliament, which acts on behalf of Canadians and in full compliance with the values expressed in the charter, has the broadest possible latitude in the responsible exercise of its powers.
I am certain that the other members of the House will agree that a vigorous defence by the government is in no way disrespectful of the charter. The important aspect of the charter, which other nations have copied in drafting their own constitutions, is the balance it expressly establishes between the guarantee of rights and freedoms for everyone and the recognition of the supremacy of the public interest over those rights and freedoms in certain circumstances. When the government mounts a vigorous defence in charter challenge cases, it constantly champions the predominance of the public interest in appropriate and justifiable cases.
Even in cases where the government is not successful, it often gains useful information and experience from the process that enable it to pursue the same objectives on behalf of Canadians but use a modified strategy that still abides by the charter.
Before concluding, I would like to point out that the opposition motion introduces the notion that it is somehow inappropriate or even sacrilegious to express one’s opinion on the charter.
While it undeniably encompasses and reflects the fundamental values of Canadian democracy and society, the effect on our constituents and our democracy would be negative if we could not express our opinions.
The charter is—and I do say is—the supreme law of the land, and the Government of Canada is obviously committed to respecting the rule of law. That commitment is entirely to the credit of Parliament and, through Parliament, of the citizens of Canada.