Mr. Speaker, there are many good things about the charter, but there are some bad things as well, and a motion on the charter must consider both. When I speak of the bad, I am obviously referring to the provisions that were carefully drafted to counter the language legislation that Quebec deemed necessary to protect the French language.
I am prepared to acknowledge that the charter has played a crucial role in the protection of justice, freedom, equality and fairness for all Canadians. It certainly sets the standard by which all Canadian laws are currently judged. Therefore, it is extremely important. However, to make it acceptable, there has to be recognition of why Quebec still refuses to sign it. For this reason, the Bloc Québécois will not support this Liberal motion as currently drafted.
The Bloc Québécois believes that we must not confuse the defence of rights and the defence of the Canadian Charter of Rights and Freedoms. The Bloc Québécois is a staunch supporter of rights and freedoms, in Quebec and Canada as well as throughout the world. However, we wish to remind members that this charter was designed in part to limit Quebec's powers of self-determination. The Bloc Québécois is also of the opinion that the Conservative government has not done a good job of defending rights and freedoms in Canada and elsewhere in the world.
The Bloc Québécois has always denounced the charter when it has been used as a tool to limit provincial powers, especially those of Quebec, over language issues, among others. We should remember the context in which the charter came to be, especially the night of the long knives. However, it is clear that the Conservatives do not like to defend rights and freedoms, and there are many examples of that. The Bloc Québécois has always defended human rights and has always risen to defend them against the Conservatives' attacks.
Let us take a look at how the charter came to be. Two people who were there gave an eloquent account of its genesis on the 25th anniversary of the charter. First, Louis Bernard, former secretary general of Quebec's Conseil exécutif, the most senior public servant in Quebec and a participant in the constitutional talks of 1981-82, wrote the following in the Friday, February 16, 2007, edition of Le Devoir.
The Constitution Act, 1982, gave birth to the Canadian charter and plunged Canada into a constitutional crisis that it is not about to climb out of. There were attempts to repair the damage with the Meech Lake accords, but they did not work, since some provinces reneged, once again, on their initial commitment. Any kind of constitutional progress became impossible.
We need only reread some provisions of the Constitution Act, 1982, to see how things reached an impasse. Section 49 states, “A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years [before the end of 1997] after this Part comes into force to review the provisions of this Part.” This refers to the procedure to amend the Constitution.
Obviously, this conference was never held. In 1997, the Parti Québécois regained power in Quebec and its premier was Lucien Bouchard, who had founded the Bloc Québécois after the failure of the Meech Lake accords. And, of course, there is no talk of holding such a conference anytime in the near future!
It is also important to read section 55: “A French version of the portions of the Constitution of Canada referred to in the schedule shall be prepared by the Minister of Justice of Canada as expeditiously as possible....” These portions form the bulk of the Constitution. No one ever intended to follow through on this section and nothing was done to ensure that the Constitution of Canada had an official French version. This leads us to believe that it is not important....
Therefore, we cannot do anything about either the charter or the rest of the Constitution. If the Canadian Charter of Rights and Freedoms ever evolves, it will not be by legislative amendment, but only by judicial interpretation, which I believe [this is Mr. Bernard talking] shows the charter's limitations.
What merits?
The Canadian Charter of Rights and Freedoms was adopted in 1982 as part of the federal government's national unity strategy to put individual rights ahead of collective rights. The government hoped that, in time, the former would be substituted for the latter. The adoption of the charter was motivated by political reasons that, particularly given the illegitimate and amoral manner of its adoption, irrevocably tarnished its image in the minds of many Quebeckers.
Nevertheless, some might say, regardless of the circumstances of its coming into being, the Canadian charter exists and is bearing fruit. Does it not have some merits? It would have more merits if it had, for the first time, protected rights that were previously unprotected. But it did not. Quebec, like all of the other provinces, adopted its own Charter of Human Rights and Freedoms in 1975, which takes precedence over all other Quebec laws. The Canadian charter had nothing to add, other than the controversial clause about access to English schools. There are even some important rights, such as sexual orientation, that are explicitly protected under the Quebec charter but not under the Canadian charter.
Of course, the Canadian charter applied to criminal law and marriage, which are not covered under the Quebec charter, and that is where its effects are most deeply felt.
I would like to emphasize that while the Canadian charter is extremely rigid, the Quebec charter is much more flexible, not to mention more detailed, more didactic and, most importantly, more complete because it includes provisions on economic and social rights. Since 1975, the Quebec charter provisions on protected rights have been amended a dozen times, including a major overhaul in 1982. In other words, the charter is evolving with Quebec society. It is frequently discussed at the National Assembly and is part of public debate.
We can foresee that in time, at least in Quebec, the Quebec charter will become much more relevant than the Canadian charter, except in criminal matters, obviously. The Quebec charter is the one that will be used and applied, not only by the Human Rights Commission and Tribunal, but also by ordinary courts. That is what happened in the recent Supreme Court of Canada ruling in the Chaoulli health insurance case.
...In short, 25 years later, the results of the Canadian Charter of Rights and Freedoms are mixed, to say the least. [As I said, this is Mr. Bernard speaking, which is why he said 25 years.] Although its proponents hoped that it would unite all Canadians around a fundamental text that would be an object of national pride, it was a sorry failure that had the opposite effect due to the circumstances of its coming into being. Although some hoped that it would strengthen Canadian identity, instead it imposed an American approach, with the separation of power and the precedence of judges over elected representatives, which is contrary to our traditions and our system of government.
In summary, it does not seem to me that there is much to celebrate. On the contrary, there is much we must not forget.
Also in 2007, Gil Rémillard, the intergovernmental affairs minister in the Bourassa government at the time of the Meech Lake accord, wrote an article in Le Devoir as part of a series on the Canadian Charter of Rights and Freedoms. The article was titled “The Story of the Notwithstanding Clause” and I quote:
On the evening of September 29, 1981, Pierre Elliott Trudeau gave a press conference via satellite. He was in Seoul, South Korea, en route to Australia for a meeting of Commonwealth countries. His disappointment was obvious. A few hours earlier, he had learned that in a majority decision, the Supreme Court of Canada had recognized the legality of his plan to repatriate the Constitution, adding, however, that it would be illegitimate for Ottawa to proceed without “the consent of a substantial number of provinces”. [He is quoting the Supreme Court.] Thus, the court skilfully cut short any impulse by Ottawa to repatriate the Constitution unilaterally. And the British Prime Minister at the time, Margaret Thatcher, diplomatically told the Canadian government in the days that followed that Westminster would be uncomfortable with the idea of repatriating the Canadian Constitution by passing a law deemed illegitimate by the Supreme Court of Canada if only two provinces, Ontario and New Brunswick, supported the plan.
Then Governor General Edward Shreyer, as Canadian head of state, was also concerned. A year later, he admitted that he had seriously considered dissolving Parliament and calling an election if Mr. Trudeau had continued with his plan to repatriate the Constitution unilaterally. Trudeau had no other choice but to find the necessary compromises so that a “substantial number of provinces”—as required by the Supreme Court—would support what would be the highlight of his political career.
Backed into a corner, Pierre Elliott Trudeau decided to try one last time to reach an agreement with the provinces. On October 13, 1981, officials started informal discussions. It became clear that the provinces might be somewhat open if Ottawa were to compromise, particularly on the amending formula and the charter. At the invitation of Prime Minister Trudeau, the premiers agreed to a last-chance conference in Ottawa on November 2.
On November 4, after two days of talks, things were still at an impasse in Ottawa. The “eight provinces united against repatriation”, led by William Bennett, premier of British Columbia, did not give up.
Prime Minister Trudeau felt trapped. To the surprise of the delegates, he again brought up the idea of a national referendum. Since the politicians cannot agree, let the people decide, he said.
René Lévesque, who had raised this possibility in his opening address at the conference, supported the idea. However, the premiers of the eight dissenting provinces saw this as a betrayal on the part of the Quebec premier. They saw Trudeau and Lévesque talking behind their backs during the coffee break and thought that the two francophone leaders had agreed to push this idea of a referendum, which the premiers absolutely did not want.
They reacted so strongly that Trudeau thought about ending the conference. But Premier Lougheed from Alberta and Premier Davis from Ontario persuaded him to try one last round of negotiations. They knew that the referendum issue was what drove Quebec and the seven other provinces away from the rest of the group. The last-chance round of negotiations therefore began informally in the late afternoon on November 4, but Quebec was not really involved, probably as a result of René Lévesque's support for the idea of a referendum.
The Premier of Ontario, William Davis, called Pierre Elliott Trudeau in the early evening, first to ask him to give up on the idea of a referendum, which he had suggested that morning, and second, to tell him that discussions with the dissenting provinces were going well. He added, however, that the prime minister would have to agree to a “notwithstanding” clause in the charter. Trudeau refused to budge. [This is what became known as the “night of the long knives”.] But at around one o'clock in the morning, Davis woke Trudeau to present the compromise proposed by the seven provinces that had taken part in the last-chance discussions. Davis told him very clearly that if he did not agree to a notwithstanding clause, Trudeau could no longer count on his support. In the end, Trudeau agreed, on the condition that it would apply for a maximum of five years, renewable, and that it would apply only to sections 2 and 7 to 15 [of the charter].
Meanwhile, the Premier of Alberta, Peter Lougheed, got in touch with Sterling Lyon, the Premier of Manitoba, who had returned home to run his election campaign. Lyon became the champion of the notwithstanding clause, according to him, in order to protect the sovereignty of parliaments. However, no one bothered to tell René Lévesque, and at breakfast, the Quebec premier knew nothing of the compromise that had been reached during the night.
The truth is that the Canadian Charter of Rights and Freedoms cannot be separated from the Canadian Constitution of 1981, although the Liberals do not want to talk about that. Neither the Bloc Québécois nor any Quebec government in the past 30 years has subscribed to that Constitution, which was rammed down our throats and designed to diminish Quebec's constitutional powers. Asking Quebec to support the Canadian Charter of Rights and Freedoms means asking us to endorse this blight on Canada's history and this betrayal of Quebec.
Quebec has its own charter. It has now been 35 years since Quebec developed its own Charter of Human Rights and Freedoms, which is consistent with its values and which the Conservatives would likely not respect any more than the Canadian charter. It is the principles of the Quebec charter that the Bloc Québécois defend in Ottawa, with the support of all the members of the National Assembly.
The Canadian and Quebec charters are similar in many ways; however, they are fundamentally different in their purpose and status. The Canadian Charter of Rights and Freedoms, included in the April 1982 repatriation of the Constitution, has constitutional status. It is therefore part of the supreme law of Canada. All other laws must be consistent with the rules of the Charter in order to be valid. The Canadian charter has a specific scope of application. It governs the actions of all the parliaments and governments of Canada. It guarantees a certain number of fundamental rights, such as the right to life, liberty and security, the right to vote, and others, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This is the first provision of the charter, which I consider to be a model for other charters. However, our objections are with other provisions.
The Quebec charter was adopted in 1975 and came into force in 1976. It is a regular law of the National Assembly and can therefore be amended through the regular legislative process. Like all other laws, it has to be consistent with the Canadian charter. However, a specific majority—I believe it is two thirds—is required for amending the Quebec charter. Because it concerns fundamental principles, the courts have given it quasi-constitutional status, which means it can be invoked to attack a law or a decision by the Government of Quebec. What sets it apart the most from the Canadian charter is that it applies not only to the relationship between individuals and the state, but also to private relationships.
The Quebec charter also has a broader scope. It guarantees the protection of 15 or so rights that are not protected under the Canadian charter. Under the Quebec charter, every human being whose life is in peril has a right to assistance under section 2; every person has a right to respect for his private life under section 5; every person has a right to non-disclosure of confidential information under section 9; every person has a right to free public education under section 40; and every person has a right to financial assistance in certain conditions under section 45. These are the principles defended by the Quebec charter and by the Bloc Québécois in Ottawa.
With the Canadian charter, the Liberals under Pierre Elliott Trudeau had found a way to attack a fundamental tool for Quebec, namely the Charter of the French Language.
Other speakers following me will illustrate the many reservations the Conservatives have about the charter and the many acts and statements the Bloc Québécois has always condemned. We take issue with the government's position on the Maher Arar case, the Omar Khadr case and gay rights. We also take issue with some of the provisions in the Anti-terrorism Act.
We certainly agree with the last part of the motion moved by the Liberals calling on the government, but to have our support, I move, seconded by the hon. member for Joliette, the following amendment:
That the motion be amended by replacing the words “for all Canadians” with the following: “in Canada and deplore the negative impact the provisions of the charter have had on Quebec's jurisdictions, especially Quebec's ability to protect the French language.”
