Debates of Feb. 9th, 2023

Opposition Motion—Use of the Notwithstanding Clause

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, the Minister of Justice clearly indicated that the government had concerns about the pre-emptive use of the notwithstanding clause. The provinces should be convinced that their laws comply with the charter. We have serious concerns about the clause being used in this way.

I would like to ask my colleague if he agrees with Doug Ford's use of the notwithstanding clause last fall.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Madam Speaker, I thank my colleague, whom I respect, for his question. I will repeat what I said when finishing my speech because he is addressing an important matter. I briefly spoke about this at the end of my speech.

This is what democracy is all about: I do not have to agree with Doug Ford and he does not have to agree with François Legault. We are talking about two different states that make different decisions based on what is best for their voters. If they make a mistake, which they are allowed to do, their voters will punish them for it at the next election.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, is the member then suggesting that if a provincial jurisdiction decides to use the notwithstanding clause for whatever it deems it wants to do, then Ottawa has absolutely no role to play, even if the citizens of the nation feel compelled that there should be some national leadership on an issue?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Madam Speaker, the answer is short and sweet: yes. The Supreme Court said it, and I will say it again: yes. Decisions by the provinces do not concern the federal government, as long as those decisions are legal. The courts will overturn legislation or not based on a broad range of criteria, a series of conditions that legislation must respect.

However, their compliance or non-compliance with the Charter of Rights and Freedoms falls under section 33, not under the federal government, which is not the arbiter of the values, interests and decisions made by the legislative assemblies.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Madam Speaker, my question is this. If the federal government wants to bring the notwithstanding clause before the Supreme Court of Canada in order to amend it or limit its scope, is it not opening the door to renegotiating the Constitution?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Madam Speaker, I thank my colleague for her question, which is pertinent, as always.

She is right. This touches a bit on what my colleague across the way was asking a few moments ago. Should the federal government stand idly by? If the federal government is not satisfied with its own legislation, it can amend it or propose to amend it.

The Constitution Act, 1982, can be amended. We realize that it would be a complicated process, but it can be amended. If the government is unhappy with the way it is currently written, it can propose constitutional talks. Let us see what the provinces have to say. We will see whether or not there would be changes and, if so, what those changes would be.

One thing is certain: This legislation was meant to lock us in, despite the fact that we did not agree to it. Do not push an interpretation that defies logic, because that goes against what the Supreme Court of Canada said, against what Trudeau senior said at the time, and against common sense.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, I just want to be very clear. For example, the Province of Ontario, in a pre-emptive way, took actions that went against labour in a very significant fashion. It is the position of the Bloc that Ottawa should not even be stating any sort of opinion on the matter.

It is not an issue of jurisdiction as much as it is standing up for the Charter of Rights and Freedoms and saying what is right, in many ways.

To be very clear, the member is saying that Ottawa should have no place to provide comments.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Madam Speaker, Ottawa has the right to provide comments. We all have the right to provide comments, because we live in a free country. Freedom of expression is important.

I am not saying it does not have the right to comment. I am saying that this is a provincial matter. My colleague across the way has no authority to dictate to the Ontario government how it must act, any more than he has the authority to dictate to the Quebec government how it must act. That is up to the provincial legislatures and Parliament to decide. It is not up to the government.

Once again, we must live with the law as written. Ontario's democracy does not need to be identical to Quebec's democracy or to that of the other provinces.

[René Villemure, Bloc, Trois-Rivières, QC]

Madam Speaker, when I began studying philosophy in 1992, the first problem we learned about was the notion of government of judges. Ten years after the charter was imposed on Quebec, we were talking about whether, ultimately, judges and unelected individuals should be making decisions, so this is not a new debate.

Raise the subject of the notwithstanding clause in Parliament, and one can cut the silence with a knife. I know a French author who would have a lot to say about that.

Let us start with a history lesson.

Cicero explained that the verb derogare, which means “derogate”, is made up of the prefix de—to take away, as in “demystify”, “decommission” and “deodorize”—and rogare, which means “to ask”. The word “derogate”, strictly speaking, means “un-ask”. In other words, to get out of something.

Oresme, another Latin-speaking philosopher who was also an astronomer, mathematician, economist, musicologist, physician, translator and theologian—rather like the members opposite—lived in the 1300s. He left us two legacies: the famous quote, “I know therefore that I know nothing” and the use of the word “derogatory”.

One of the most difficult matters in all controversy is to distinguish disputes about words from disputes about facts. If we want to resolve the dispute about facts, let us first examine the words.

I often say in the House that a word is a construct of sound and meaning and that sometimes that leads to confusion. Take for example, the word “secularism”. I know everyone will believe me when I say that, in the House, that word can have at least two meanings. When we use words like “secularism” or “derogation”, it is important that we be clear about what we are talking about.

The word “derogation” refers to the repealing of an act or some of its provisions. We more commonly refer to the “notwithstanding clause”, which basically means the same thing. The Latin term non obstare means “to not stand in the way of”. The notwithstanding clause prevents the federal government from standing in the way of the provincial government, in this case the Government of Quebec. In every case, the notwithstanding clause constitutes a protection granted by the legislator, the original drafter, so as not to stand in the way of the future, society's progress or changes that occur over time.

As soon as it was enshrined in the 1982 Constitution, which, as my colleagues will hear 32 times today, Quebec never signed, Trudeau senior himself thought that adding the provision in question was a good idea having foreseen the possibility of a government of judges. He even said the following, with a style that I will not even attempt to imitate, and I quote:

I must be honest and say that I don’t fear the notwithstanding clause very much. It can be abused as anything can, but the history of the Canadian Bill of Rights Diefenbaker had adopted in 1960, it has a notwithstanding clause and it hasn’t caused any great scandal. So I don’t think the notwithstanding clause deters very significantly from the excellence of the Charter. It is a way that the legislatures, federal and provincial, have of ensuring that the last word is held by the elected representatives of the people rather than by the courts.

From day one, the notwithstanding clause has given governments in the federation a window to express their choices, their preferences. It enshrined their right to do one thing rather than another without that choice affecting other members of the federation.

I will now say the following to head off the question I am sure my colleague from Winnipeg North is going to ask.

The notwithstanding clause allows the partners to compromise, strike a balance between individual rights and the collective rights of the different cultures in the federation.

Let us take the high road without talking about the Chinese balloon.

In terms of geography, Canada is a vast country. We all agree on that because it covers approximately 10 million square kilometres. If we were to move this immense territory to Europe, for example, which has an area of 9.9 million square kilometres, we would see that Europe has 56 sovereign entities. As members know, the area of Quebec is six times greater than that of France. In France's regions, in Burgundy or Alsace for example, the culture is different. The lifestyle and identity are different. Europe is made up of 56 entities. France is not Germany, Germany is not Finland and Finland is not Italy.

In Canada, without the notwithstanding clause, everyone living in the 10 million square kilometre area would be treated the same way. It makes no sense. This does not recognize everyone's particular characteristics or at least those of certain areas.

In my opinion, geographically speaking, Canada is a historical mistake. Following the European logic, some members would have come together and others would have separated. Quebec would be a sovereign state in the vast landscape of North America. The notwithstanding clause has somewhat made up for this mistake by providing a remedy when necessary. This provision makes up for the inherent imbalance or unfairness of a legislative text, which is a text frozen in time. It provides flexibility for members of a government, or of the federation, in cases not foreseen by the legislator.

The opposite of inequity is equity, which is said to be a more perfect form of justice because it takes exceptions into account. Equity is like a line drawn according to everyone's concerns, while equality is a straight line. The notwithstanding clause creates equity, and it also ensures that we do not have a so-called government of judges. The elected are in control, rather than the appointed.

Quebec is first and foremost about diversity and tolerance. It has a distinct history, culture and identity.

A Polish philosopher I like very much, Maria Ossowska, argued that in relations between nations, one should be open-minded, courageous, intellectually honest and critical. One should speak responsibly—which is sometimes lacking in the House—and have a sense of humour. Above all, one should be decent and treat others as one would like to be treated.

I conclude with this anonymous quote: “A treaty is an eternal commitment, but experience shows us that it is often convenient to renege on a commitment. The first time paves the way for the second, until there is nothing left of the word given.”

That is kind of what we want.

[Steven MacKinnon, Liberal, Gatineau, QC]

Madam Speaker, I have a very simple question for the member,

When it comes to using the notwithstanding clause, where would he draw the line? What rights are fair game for violating and what rights would be off-limits?

[René Villemure, Bloc, Trois-Rivières, QC]

Madam Speaker, I thank my hon. colleague for the loaded question.

This is not about violating rights, but rather shaping how certain provisions are applied, recognizing the importance of each. The anglophone community is not harmed by the notwithstanding clause in Quebec. Its status as a favoured minority will continue to apply, which has never been a problem for us.

[Martin Champoux, Bloc, Drummond, QC]

Madam Speaker, the only thing to do at this point is to throw my colleague from Trois-Rivières a softball.

He gave an excellent speech, I have to say. Perhaps my colleagues are not too eager to rise and speak because his speech was so eloquent and powerful.

I would like to ask him whether he thinks Quebec's specificity, distinct identity and way of living together in harmony could be preserved without the existence of the notwithstanding clause in the Canadian Constitution.

[René Villemure, Bloc, Trois-Rivières, QC]

Madam Speaker, I thank my colleague from Drummond for his question.

We feel very strongly about the notwithstanding clause in the 1982 Constitution, even though Quebec has still not ratified it. This provision has ensured our survival, our identity, our culture and our distinctiveness all this time. Without this provision, we would drown.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I would like a bit more clarification from the member. My colleague asked a question about which legal rights he thought would be okay to undermine compared to others. Is there a list of which ones are really bad and which ones are not as bad?

[René Villemure, Bloc, Trois-Rivières, QC]

Madam Speaker, I thank my colleague from Winnipeg North; I would have been disappointed if he had not asked me a question. I always appreciate his questions, which have a way of sparking debate.

The province of Quebec makes its own laws for the benefit of Quebeckers, which is totally permissible under the notwithstanding clause. We are not talking about prioritizing rights, we are talking about making decisions according to our own culture, identity and prerogative.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Madam Speaker, I want to thank my colleague for his speech this afternoon. We work together on the Standing Committee on Access to Information, Privacy and Ethics. His contributions to that committee are always thoughtful, as are his contributions to the House today.

Would the member agree with me that there has never been a Prime Minister in the history of our country like the current Prime Minister, who has used division to pit Canadians against Canadians and Quebeckers against Quebeckers, and who has used a constitutional crisis to deflect attention from his failures?

[René Villemure, Bloc, Trois-Rivières, QC]

Madam Speaker, my colleague from Barrie—Innisfil, with whom I have the pleasure of working on the Standing Committee on Access to Information, Privacy and Ethics, is asking a fundamental question.

The division created by the current Prime Minister is unprecedented and it reaches an unacceptable level. It is an insult.

A few days ago, I was looking at a photo book on Quebec at home. Some of the people photographed are wearing a veil and others are not, but everyone lives in harmony. Harmony prevailed and there were no problems until someone started to create problems around these things.

Frankly, I believe that the current Prime Minister is inciting division. He contributes to citizens distancing themselves from others.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Madam Speaker, I very much value the Charter of Rights and Freedoms, and I know that the intent behind this certainly is to protect Quebec identity and the identity of Quebeckers. I understand the importance of identity, but I also respect the identity of other nations within Quebec, such as indigenous nations, including the James Bay Cree, for example, where Quebec has signed bilateral agreements between Quebec and the federal government. I note that these are different relationships, as indigenous peoples have their relationships with the Crown.

When we talk about nations, what does my colleague think of my interpretation of “nation”?

[René Villemure, Bloc, Trois-Rivières, QC]

Madam Speaker, I forget what year it was, but Bernard Landry had signed the peace of the braves with the Cree First Nation. The treaty recognized the rights of indigenous peoples by promoting their integration and co-operation with us, or rather the co-operation between all of us together. I totally agree with my colleague.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I am glad to speak this afternoon. I will be sharing my time with the member for Aurora—Oak Ridges—Richmond Hill.

Let me acknowledge at the outset that we are gathered here on the traditional unceded lands of the Algonquin people.

Before I go into the speech, I have some important reflections on the Canadian Charter of Rights and Freedoms. It is a document that has entrenched into Canadian law such fundamental rights and freedoms as I think people around the world aspire to achieve. Over the years, this has been a guiding document in my life. I think it has been a guiding document for many in this country. While it is not perfect, it has offered a very important path towards the recognition of international human rights and the universality of human rights. Of course, we can date this back to the Universal Declaration of Human Rights that was signed right at the end of World War II, as well as the former Canadian Bill of Rights and other international covenants and documents Canada is party to.

On a personal level, my family came to Canada 40 years ago this year. We fled an armed conflict in Sri Lanka where the rights of minorities were suppressed, and suppressed at will, oftentimes with reinforcement by law. Around this House, this country and my riding, millions of Canadians can trace their history to difficulties because governments chose to suppress their rights because of who they are.

In fact, in Canada we can see a number of occasions of this. The member for Esquimalt—Saanich—Sooke talked about the experience of the LGBTQI community, and of course the member for Winnipeg Centre has often spoken about the disparity between indigenous and non-indigenous Canadians.

The Canadian Charter of Rights and Freedoms has set a benchmark for us to follow in many ways. While it is important that we were able to get this agreement in 1982 with the provinces with the inclusion of the notwithstanding clause, this clause was always meant to be used sparingly by governments.

Our charter is also a source of inspiration for the many countries that have built some of their constitutional documents in a similar way. In short, as a Canadian, I am proud that 40 years ago we decided, as a society, to have such an instrument.

Section 33 of the charter, which is commonly known as the notwithstanding clause, made it possible to reach a political compromise between the different entities making up Canada when the charter was adopted. This section authorizes Parliament or the legislature of a province to derogate from certain provisions of the charter, namely those protecting fundamental freedoms, legal guarantees and equality rights.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

I must interrupt the hon. member.

The hon. member for Shefford on a point of order.

[Andréanne Larouche, Bloc, Shefford, QC]

Madam Speaker, I apologize for interrupting my hon. colleague’s speech, but the interpreter said that his earpiece is too close to the microphone and that there is a risk of feedback.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

I would remind the hon. member to keep the earpiece far away from the microphone on the desk.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Speaker, throughout this historical overview, I hope to bring out two main points.

The first point is who used the notwithstanding clause in a particular political and historical context. The use of the clause was exceptional until very recently, in the case of Ontario, where it was used pre-emptively. The political cost was simply too high to do otherwise.

The second point is that the frequent practice of provincial legislatures was to invoke the notwithstanding clause in response to a court decision. In my opinion, the only potentially legitimate recourse to section 33 necessarily involves the courts. Our constitutional tradition is marked by dialogue. The pre-emptive recourse to the derogatory clause eliminating legal debate is contrary to our traditions and must be decried.

The legislature of Quebec, for a time, included a standard notwithstanding provision in each of its new laws; this practice continued until the 1995 election.

Afterwards, the notwithstanding clause was used only a few times by the provincial legislatures. The Saskatchewan legislature passed back-to-work legislation invoking the notwithstanding clause in the mid-1980s. The legislature did this in response to a decision by the Saskatchewan Court of Appeal that declared an earlier version of the law unconstitutional and did not include an overriding provision. The Supreme Court eventually cited the Saskatchewan legislature, ultimately concluding that the law did not infringe on the charter. Therefore, the recourse derogation clause was not necessary in this case.

The third province to use the notwithstanding clause was Alberta. In 2000, the Alberta legislation passed the Marriage Amendment Act, 2000. With this act, the province's Marriage Act was amended to declare that a marriage could only be between persons of opposite sexes.

Apart from the initial and particular example of Quebec immediately after the patriation of the Constitution in 1982, it can be seen that recourse to the notwithstanding clause was relatively exceptional. Prior to 2018, only three provinces had laws in effect invoking the notwithstanding clause, and they did so only a few times.

Since 2018, we note a renewed interest in the use of this clause. The Ontario legislature almost invoked the notwithstanding clause in 2018 in response to the Ontario Superior Court decision that a law to reduce the size of the City of Toronto's council was unconstitutional. Legislation invoking the notwithstanding clause was not passed, however, because of the intervention of the Ontario Court of Appeal.

Subsequently, the Ontario legislature passed, for the first time, legislation invoking the notwithstanding clause in the Protecting Elections and Defending Democracy Act, 2021. The notwithstanding provision was invoked here in response to the decision of the Ontario Superior Court, which declared certain provisions relating to third party election expenses unconstitutional.

This new bill from the Legislative Assembly of Ontario therefore follows a worrying recent trend. As I mentioned, while the use of the derogation clause was exceptional then, this seems to be less and less the case now. One could add to these examples the failed attempt by the New Brunswick legislature in 2019.

This provision should not be taken lightly. There was never any question when it was included in the charter that it should become a tool to be used routinely. Rather, it should only be used in the most pressing cases where no other option could be considered and there is a strong public policy consideration. What is the point of adopting a charter incorporating fundamental rights and values into our Constitution only to derogate from it at the slightest inconvenience?

A healthy democracy should not be based on majority rule. It must respect and protect all Canadians by giving them the chance to question the decisions of the government in place. The charter is an instrument for challenging decisions made by governments by applying clear guidelines. It is not normal for a government to be able to make decisions without submitting to scrupulous evaluation by its population. However, this is what section 33 is for: to avoid any debate and exchange of ideas about a measure. This is a way for a government to hide behind the notwithstanding clause in order to avoid questioning itself. I do not think that allows us to live in a healthy democracy.

In addition, the time of use of the notwithstanding clause should also be considered. Indeed, when used pre-emptively and preventatively, it has even more negative repercussions on our parliamentary system since governments can pass laws without worrying about the impact on the fundamental rights of their citizens. Its preventive use risks upsetting the fragile balance that exists between the protection of fundamental rights and the effective functioning of a parliamentary system.

I would like to conclude by saying that I take a dim view of this frequent pre-emptive use of the derogation clause. This practice trivializes our most basic protections, and I am happy that we have the opportunity to discuss this important matter for all Canadians across this country.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Madam Speaker, I thank my colleague for his speech. He is a passionate man who, in my opinion, respects the rights and freedoms of individuals and peoples. I have two questions for him.

First, am I to understand from his speech that he supports the Constitution Act, 1982, except for section 33?

Second, does he believe that the same reasoning should apply to all peoples of the world; in other words, that all peoples, including in Sri Lanka, where he is from, should be free to decide on certain laws, but only on the condition that they abide by certain dictates of the United Kingdom, for example?