House of Commons Hansard #114 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was right.

Topics

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:35 a.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I have a lot of respect for my Bloc Québécois colleague. Perhaps he will propose an amendment to our motion concerning Quebec and its areas of jurisdiction, including its ability to protect the French language. I obviously have a lot of respect for that position.

However, it has to be said that during the time the charter has existed, many Supreme Court decisions have been very good for linguistic communities across the country. Take the R. v. Beaulac decision, for example. It was similar in that it clearly stated that language rights guaranteed by the Canadian Charter of Rights and Freedoms need to be protected.

I am a francophile, married to a francophone from New Brunswick, so I believe it is very important to have the charter in order to protect language rights across the country, including in Quebec. In my opinion, Canada includes Quebec. That means that the charter applies in Quebec to protect language rights in Quebec and the rest of the country.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:35 a.m.

Halton Ontario

Conservative

Lisa Raitt ConservativeMinister of Labour

Mr. Speaker, I listened with great interest to the comments from the hon. member. However, at the very end he seemed to go into an area that I found kind of surprising, and I just wanted to bring something to his attention.

In his remarks he indicated that he thought the government should be doing something to prevent other people from saying certain things, that we should limit one's freedom of speech.

I just want to bring this to the attention of the member and ask the following question: Given that section 2(b) of the charter itself says everyone has freedom of thought, belief, opinion and expression, which is only limited by section 1 of the charter that talks about whether there is a reasonable limit prescribed by law that can demonstrably justified, what justification could he possibly give for having a government tell an individual citizen not to say certain things?

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:35 a.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, if it was not clear I will say it again. I certainly said in my speech that we defend to the death the right of an individual, an elected official or otherwise, to say what he or she wants to say, absolutely.

What we are decrying is the policy of the government. What we are saying, and this is why we are having the debate, is that the government allows its spokespersons, elected and non-elected, to say the charter is not being used properly, or it is not a good instrument. There are all kinds of quotes from elected, recently elected and unelected Conservative spokespeople, who have gone uncriticized by the government, as to the instability of the charter.

We need to remember that it is the government. The government, by being silent on the policy aspect, is saying to Canadians by inference that it does not really believe in the charter. That is the message. That is what I want to hear. I want to hear somebody from the other side get up and say, “We completely, unreservedly support the Charter of Rights and Freedoms. We completely and unreservedly support our judges and their discretion to enforce the Charter of Rights”. I hope it is the Minister of Labour who says it, because she is a good east coast Canadian by roots and she understands fairness, so I look forward to that comment.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:40 a.m.

NDP

Olivia Chow NDP Trinity—Spadina, ON

Mr. Speaker, the charter says very clearly in subsections 2(c) and (d) that people of Canada have the freedom of peaceful assembly and freedom of association. Section 8 says, “Everyone has the right to be secure against unreasonable search or seizure”. Section 9 says, “Everyone has the right not to be arbitrarily detained or imprisoned”. Section 10 says, “Everyone has the right, on arrest or detention, to be informed properly of the reasons therefor”, et cetera.

I can actually cite many other sections, sections 11, 12, 14 and 15. All of these rights were violated during the G20 in Toronto, where protesters were supposed to be at the designated demonstration site at Queen's Park.

On Saturday, June 28, there was dispersal and arrest. Then there were massive arrests on the Esplanade on the night of Saturday, June 26, and there were police actions outside the Eastern Avenue detention centre on the morning of Sunday, June 27. In the evening of Sunday, June 27, there were mass arrests and kettling of people on Queen and Spadina, and lastly, the conditions of detention at the Eastern Avenue detention centre were terrible.

My question to the member is, given all the mass violation of people's rights given to them through the charter, does the member support calling for a full public inquiry by the government?

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:40 a.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, it is a very interesting question and a very interesting topic. I certainly think, and this is where the member and I will agree, that the courts of this land can deal with cases such as this. The case she makes is compelling for a royal commission, a royal inquiry for sure. That is a governmental decision. That is not what I am here to argue about.

I am here to argue that she and I, the member for Trinity—Spadina and myself, can at least agree that the charter is a good thing, that it should be used properly, that it should continue to flourish and that judges have the discretion to properly implement it. That is what she and I can agree on.

What she and I probably do not agree on is perhaps whether today it had to be us bringing this motion to bring the government to heel when comments like this were made by the government. This is from the Prime Minister:

I agree that serious flaws exist in the Charter of Rights and Freedoms, and that there is no meaningful review or accountability mechanisms for supreme court justices.

That is not a vote of confidence in the charter. Why is it that we are standing here finally bringing the government to account on its inability to stand up and say, “We believe in the charter. We believe in our judges”?

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:40 a.m.

Liberal

Alan Tonks Liberal York South—Weston, ON

Mr. Speaker, the member for Moncton—Riverview—Dieppe has given an excellent overview of the charter. He has made it relevant to the circumstances, the living tree, and part of that living tree in terms of human rights and universal human rights has international implications.

In its protection in a broader sense of those who are not even Canadians, does the charter have relevance, and is that a guide in terms of today's global society? Is it a guide with respect to issues applying fundamental human rights to those who would seek to come to this country, and is it a guide that the government can use in order to apply an equitable application to immigrants who aspire to come to Canada? Is the charter relevant to those kinds of global decisions?

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:45 a.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

It is an excellent question, and the charter has been exported through persons and through practices. I drew upon the example, and I would like to expand, of General John de Chastelain in Northern Ireland, a country that had been racked by violence and a lack, frankly, of a written constitution. That man along with Justice Bill Hoyt, another Canadian jurist, really laid down the tracks of a model for a constitution and a bill of rights, which brought together two divided communities.

Therefore we can export this charter. We have exported this charter. The charter is welcomed across the country and across the world to new Canadians.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:45 a.m.

Charlesbourg—Haute-Saint-Charles Québec

Conservative

Daniel Petit ConservativeParliamentary Secretary to the Minister of Justice

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.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

10:55 a.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I appreciate the parliamentary secretary's comments.

Does he support the following comments, which were made in English?

Yes...I agree that serious flaws exist in the Charter of Rights and Freedoms, and that there is no meaningful review or accountability mechanisms for Supreme Court justices.

Secondly, he said:

We're concerned and we think Parliament, not the court, should be making these decisions.

Thirdly, he said:

I consider the notwithstanding clause a valid part of the Constitution.... It's there to ensure that the courts themselves operate within the Charter and don't become a law unto themselves.

Does the member agree with those comments? Would it surprise him to know that those comments were made by the Prime Minister? Will the Prime Minister come in the House and say the very eloquent things that the parliamentary secretary was told to say today in support of the charter?

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11 a.m.

Conservative

Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC

Mr. Speaker, the fact that we can express ourselves is one of the freedoms we have under the charter. Freedom of expression ensures that no matter who we are, we have the right to express ourselves. Our opinion, whether it is for or against something or causes harm or not, is interpreted by the courts. However, I would point out that the hon. member, who works with us in the Standing Committee on Justice and Human Rights, has indeed shown through this motion that the charter is there simply to allow an expression of opinion and of freedom, and that is very important. Having the right to freely express oneself and express an opinion is what it means to live in a democratic country. That is what democracy is all about.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11 a.m.

Bloc

Guy André Bloc Berthier—Maskinongé, QC

Mr. Speaker, I listened to the hon. member's speech on the Canadian Charter of Rights and Freedoms. When we look at the Conservative Party in action over the past few years, it is not the charter that bothers that party so much, but the issue of rights and freedoms. For example, when the Conservative Party attacks francophone minorities and abolishes the court challenges program, it is attacking rights and freedoms. When the Conservative Party attacks homosexuals regarding the possibility of same-sex marriage, it is attacking right and freedoms. When the Conservative Party attacks women's right to abortion, it is once again attacking rights and freedoms.

I would like our colleague to explain why the Conservative Party's positions are often inconsistent with our rights and freedoms. How can he defend the charter so fiercely?

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11 a.m.

Conservative

Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC

Mr. Speaker, the questions asked by the hon. member from the Bloc Québécois raise some good points. I would like to point out to him that he has the right to ask his questions because he has the right to free speech. Members of the public make many different requests by virtue of this right. A balance must then be found between governance and the public's requests. We are elected officials and we choose whether or not to support certain requests made by the general public. This is the right to freedom of speech.

We are not taking away any rights; all the rights remain. The only thing that is different is that certain rights have been codified at some time and made law, while others have not. It is through parliamentary balance, here in the House, that all parliamentarians can choose whether to pass a bill or not, depending on a vote by a majority. In each case, we respect the public's right to freedom of speech. That is the right given to us by the Constitution.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11 a.m.

Liberal

Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL

Mr. Speaker, I am pleased to see that the hon. member from the government is standing to debate. We do not often get to see members of the government debate on certain issues, whether it be an opposition day or whether it be government legislation, or even private members' bills. So I congratulate him for doing so. To say it is gutsy perhaps is a bit of an understatement.

Nonetheless, there was a comment the other day. This is from December 6, 2010, on CBC's Power & Politics. When asked about Mr. Fantino's outlandish comments, the current Minister of Public Safety and former attorney general admitted that the charter protects individuals who are falsely accused. Here is the quote, “The charter application is an application that applies generally to those who are falsely accused”.

I would see this as being somewhat of a narrow-minded opinion of what this is. Maybe he meant more than that and maybe I am overreacting to a comment. Maybe I am just taking one part of a comment and not the whole comment in and of itself. Maybe he meant more than that. Maybe he did not mean that.

Perhaps the member would have more information about what he actually meant when he said that.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:05 a.m.

Conservative

Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC

Mr. Speaker, that is a very interesting question. The charter is so open-ended that it covers everyone. For example, a law-abiding citizen can turn to the courts if his provincial or federal government has taken away any of his rights.

There is also the other side. Anyone in jail or accused of any criminal offence also has the right to invoke the charter. For example, someone could say that he was searched without reason, that he was deprived of the right to a fair and reasonable trial, or that the court was not impartial. All these rules are in the charter, and according to these rules, everyone—myself, my colleagues, the people we represent—has the right to go before the courts. The most important aspect is the rule of law. A democracy that operates without law is not a democracy.

In Canada, democracy has been in place for a long time. At some point we codified our customs pertaining to laws and the rule of law. As society evolved, or as particular circumstances arose, other rights were added. The Constitution protects freedom of expression and our rights, but it is the rule of law that is most important.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:05 a.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, the member for Charlesbourg—Haute-Saint-Charles surely knows that all Quebec governments, whether federalist or sovereignist, have refused to sign the Constitution and, consequently, the charter. Does he understand their position? Does he agree with this position? Does he believe that we should sign the charter provisions?

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:05 a.m.

Conservative

Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC

Mr. Speaker, that is a very good question and one that has been troubling Quebec for about 28 years.

One of the parties, Quebec, did not in fact sign the Constitution. Nevertheless, for 28 years, in all the courts, lawyers representing either the government or private parties have been continually invoking the Constitution. Although the Constitution may not have been signed, these lawyers arguments' are indirectly linked to it. The Constitution is referred to on a daily basis before the provincial, superior and appeal courts, including the Supreme Court. Every day, the Constitution is invoked and, even though Quebec did not sign it, it is part of our daily life. No one has been harmed by the fact that Quebec has not signed the Constitution because we avail ourselves of it continually. We are making progress in this regard.

The Constitution contains what we refer to as the notwithstanding clause. Quebec, like any other province, has the right to use it and, naturally, has done so in the past. Although this is a thorn in our side, I would like to point out to the Bloc member that it was the Conservatives who signed the Meech Lake accord and it was the Liberals, under the direction of former Prime Minister Trudeau, who terminated it. Had this problem not occurred, Quebec would have already signed the Constitution with dignity. It is because of the Liberals that Quebec did not sign the agreement.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:05 a.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

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.”

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:30 a.m.

Conservative

The Deputy Speaker Conservative Andrew Scheer

It is my duty to inform hon. members that an amendment to an opposition motion may be moved only with the consent of the sponsor of the motion. I therefore ask the member for Moncton—Riverview—Dieppe whether he consents to this amendment being moved.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:30 a.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I do not agree with the amendment.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:30 a.m.

Conservative

Andrew Scheer Conservative Regina—Qu'Appelle, SK

There is no consent; therefore, pursuant to Standing Order 85, the amendment cannot be moved at this time.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:30 a.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I appreciated the speech made by the hon. member. I have a lot of respect for him and for his speech. His speech provided an interesting history of the Constitution. I very much appreciated it as well as his position on the creation of the Canadian Charter of Rights and Freedoms.

I do not agree with the point he made, but most of his speech was about history.

I would like to know whether the member agrees with the statements made by the current Prime Minister when he was a member of this House. He said:

I agree that serious flaws exist in the Charter of Rights and Freedoms

Secondly, he said:

we think Parliament, not the court, should be making [laws].

Thirdly, he said:

I consider the notwithstanding clause a valid part of the Constitution . . . It's there to ensure that the courts themselves operate within the Charter and don't become a law unto themselves.

These three statements clearly show that the current Prime Minister does not support the charter and its ideas. Notwithstanding the speech made by the parliamentary secretary, who agreed with and fully supported the charter, his leader does not support the charter.

I would like to hear what the member has to say about that.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:30 a.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, the Prime Minister would have to have spoken about the flaws he perceived in the charter when he was a member for us to be able to judge. Personally, I continue to believe that it is good for a democratic society to have a constitution, supreme to all other laws, to protect rights and freedoms. Again, I want to say that I believe that section 1 is a model for other charters.

I am very pleased that there is a Canadian Charter of Rights and Freedoms in case the Conservative Party wins a majority, because we obviously do not have the same concept of fundamental rights.

It is important to understand that in Quebec we are well protected and better protected than the rest of Canada in terms of rights and freedoms. Our main criticism of the charter relates to the provisions that were specifically written and included in the Canadian Charter of Rights and Freedoms to overturn and restrict Quebec's language laws.

The speaker who questioned me is probably more sensitive than others. However, for many people who grew up speaking English, in this world that is becoming anglophone overall, it is very difficult to understand the reaction of people who speak a minority language and believe that, collectively, they must protect that language. These people are not limiting the fundamental rights of the people in that society.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:35 a.m.

Bloc

Guy André Bloc Berthier—Maskinongé, QC

Mr. Speaker, I would like to congratulate our colleague on his excellent speech, in which he recounted the story of the unilateral patriation of the Constitution and the enactment of the Canadian Charter of Rights and Freedoms.

We proposed an amendment to the House. We deplore the negative repercussions that the charter provisions have had on Quebec's areas of jurisdiction, particularly its power to protect the French language. Basically, we asked the Liberals to try to correct the mistakes of the past. We saw the Liberal Party's immediate reaction, which was to reject our amendment.

I would like my colleague to tell us how he interprets the Liberal Party's rejection of the Bloc's proposed amendment on this opposition day.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:35 a.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, it is obvious that I bitterly regret it. Their refusal means that it will not be submitted to a vote. In my opinion, they are very worried at seeing how many members would acknowledge not so much the shortcomings, but the excesses of the charter with respect to language laws.

It is odd, because on other opposition days, it was at least possible to submit these questions to the entire Parliament, and therefore to have the opinion of each member on these matters. I believe it is because they fear this opinion.

In Quebec, we have had the unanimous support of all representatives in the National Assembly since the charter was adopted.

Opposition Motion--Charter of Rights and FreedomsBusiness of SupplyGovernment Orders

11:35 a.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, I must admit that I rise today with mixed feelings about this motion. It has been 28 years since the charter came into effect, and 25 years since section 15, the balance of the Charter of Rights and Freedoms, came into effect.

It seems almost to the point of being ridiculous that we are standing in the House, if we follow the tenor of this motion by the Liberal Party, defending the charter from this attack by the Conservative right-wing ideologues. I have two comments in that regard. One is that it is not necessary. When we hear those extreme, almost fanatical views, the vast majority of Canadians dismiss them as being ridiculous, including some that we have heard from the newly elected member for Vaughan, although I will come back to that in my main speech because I think to some degree the response to his comments is significantly overblown.

The other point is that each political party in the House has the absolute right to choose the topic and issue it wants addressed on an opposition day. My friend from Moncton—Riverview—Dieppe, in sponsoring this motion, is well within his right to have done so. However, there are a number of other, what I have to call, more important issues, because the charter does not need to be defended.

The vast majority of Canadians, and by that I mean into the 90th percentile of all Canadians, support the charter. Quite frankly, with the way it has been applied, in the vast majority of cases they support it. They see it as a fundamental guarantee, which is what it was intended to be, of their human rights and civil liberties in this country, as well as linguistic rights and a number of other rights. I therefore believe there is no need for this debate in the country but there is a need for other issues to be addressed. So I am critical of the Liberal Party for the choice it made today.

Having said all of that, it is the obligation of the NDP, as one of the parties in this House, to engage in the debate since it has been put on the floor of the House. If we are going to do that, it is a way of speaking out to Canadians generally, but more significantly to the small percentage who still have doubts about the need for the charter.

When we analyze the opposition to the charter, it is not so much about its existence. It may be very close to 100% of all Canadians who accept that it is absolutely necessary to have a charter of rights and freedoms, as we do, but they are oftentimes opposed to the interpretation of the charter in individual cases, and I think that is true of the new member for Vaughan.

I am quite confident in saying that if we ever did a referendum on the charter, subject to the concerns we have already heard from the Bloc, from that perspective, and setting that aside for a minute, if Canadians, including in the province of Quebec, were asked whether they want these guarantees in the form of a charter of rights and freedoms as part of our Constitution, which would be fundamental law and not a bill that can be changed, in overwhelming numbers they would want to maintain it.

The problem is the interpretation. Going all the way back to the Magna Carta, and coming out of the English parliamentary system, the concept of democracy that we were forming through the last 1,000 years, we wanted it to be a rule of law as opposed to the whims of the royalty at the time or even of elected officials subsequently. We wanted that guarantee. When we look at it, we say yes, we have done these things and we have had these bills, going back in the English system for a long time, as well as in Canada.

Because of the right under the common law for judges to enforce certain fundamental rights, we had that. Where we were found lacking was in other fundamental rights that were regularly breached or not protected. We see this at times when the country is in crisis. We saw it with the author of the charter, Mr. Trudeau, breaching fundamental rights, probably as grotesquely as any prime minister has, by invoking the War Measures Act, used primarily against arguments.