Debates of Feb. 9th, 2023

Opposition Motion—Use of the Notwithstanding Clause

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

Madam Speaker, we have an international human rights instrument that defines fundamental rights and freedoms. The Canadian Charter of Rights and Freedoms is a reflection of that in many ways, and in some ways it has gone much further than international norms.

I think it is important that we all abide by a basic set of values; sections 7 to 15 of the charter are critical components of the protection of rights for individuals. As a result, I think that any derogation of that should be thoughtful, should not be pre-emptive and should be able to withstand the test of the court. Therefore, it is important that, while section 33 is in the 1982 Constitution, it should not be used lightly.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Madam Speaker, I am really pleased we are having this discussion because whether we stand up for the Canadian Charter of Rights and Freedoms or not is something we have to confront. We either have constitutional rights for the protection of minorities or we do not. It is becoming very concerning when we see how laws are being crafted that target Muslim Canadian women, resulting in them being fired. We saw provincial governments using this tool to strip labour rights from low-paid workers, allowing these governments to evade review by the courts and stripping away minorities' rights to actually question whether a law is fair or valid.

I would ask my colleague this: Is the federal government willing to stand up for the Canadian Charter of Rights and Freedoms, or is it going to continue to wring its hands and say that it is unfortunate any time a provincial government decides it is easier to just arbitrarily strip away rights out of the Constitution? Are we going to protect the Constitution and the charter, or are we just going to say that what is happening is really not nice?

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

Madam Speaker, I value the opportunity to respond to this.

The Prime Minister has been absolutely clear that Canada is a country of the charter. We are the party of the charter. Our government is very much committed to ensuring that charter values are protected for all Canadians. I can assure the member opposite that the Minister of Justice, the Prime Minister and our whole government will defend charter rights every step of the way.

[Martin Champoux, Bloc, Drummond, QC]

Madam Speaker, it is my turn to congratulate my Liberal colleague on his speech.

I asked my colleague from Trois-Rivières a question earlier, and I was expecting his answer. I will say that quite candidly.

I would like to ask my colleague opposite the same question. Quebec is recognized as a nation in its own right with its own language, culture, values and model for living in harmony, which is different. This model often needs to be defended because it is misunderstood and not always respected.

If this notwithstanding clause were not in the Constitution, which we did not sign, by the way, what would Quebec have left to protect its values and its vision for living in harmony?

I would like to hear what my colleague has to say about that.

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

Madam Speaker, I think it is fair to say that my colleague opposite is strongly defending what he believes is the right thing to do in Quebec. When my family came to Canada, Quebec was the first place we stayed, so I understand Quebec society fairly well.

It is in many ways a model society when it comes to the protection of minorities within the context of a country such as Canada, and of course, there is more to do. However, using the notwithstanding clause and doing it pre-emptively is not the way to protect Quebec society. I would suggest that Quebec has a lot to offer to the world, and as Canadians, we all have an obligation to make sure that Quebec—

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

We have to resume debate.

The hon. member for Aurora—Oak Ridges—Richmond Hill.

[Leah Taylor Roy, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, it is with great pleasure that I rise today as the member of Parliament for Aurora—Oak Ridges—Richmond Hill to speak to this very important issue. The Canadian Charter and Rights and Freedoms is such a fundamental part of who we are and Canadian values.

I wanted to start by reading a few quotes from the origins of the Bills of Rights, with John Diefenbaker, up until now. The Hon. John Diefenbaker said:

I am Canadian, a free Canadian, free to speak without fear, free to worship God in my own way, free to stand for what I think right, free to oppose what I believe wrong, free to choose those who govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.

That was in 1960, as we know, when the Bill of Rights was first introduced.

The right hon. Prime Minister Pierre Elliott Trudeau, back in 1981, prior to the Charter of Rights and Freedoms, said:

We must now establish the basic principles, the basic values and beliefs which hold us together as Canadians so that beyond our regional loyalties there is a way of life and a system of values which make us proud of the country that has given us such freedom and such immeasurable joy.

More recently, on the 40th anniversary of the Charter of Rights and Freedoms, April 17, 2022, our current Prime Minister eloquently stated:

The Charter protects the rights and freedoms that define who we are as Canadians, allowing us to express our individuality and celebrate our differences. Built around our shared values of equality, justice, and freedom, it brings us closer as a country and as a people – and it makes Canada a place of choice for people from across the globe to raise a family.

I know that so many of the constituents in my riding value these rights and freedoms and the fact that they are enshrined in our Constitution.

It is with concern that I hear this opposition motion, and I am concerned that we are talking about the use of the pre-emptive resort and the increasing use by provinces, certain provinces, of the notwithstanding clause of the Canadian Charter of Rights and Freedoms in an attempt to short-circuit our courts from determining whether provincial legislation violates constitutionally enshrined fundamental rights and freedoms, as well as to avoid public debate on the issues.

We have recently seen in Ontario the Keeping Students in Class Act, which is not very aptly named in my mind, but which would, if enacted by the legislature, effectively remove the right to collective bargaining, a right protected by section 2 of the charter, which guarantees freedom of association. That is the use of the notwithstanding clause.

Many of the speakers today have talked about the increase in the use of this clause. When the Charter of Rights and Freedoms was entrenched as part of the Constitution Act of 1982, Canadians were proud to see fundamental rights and freedoms constitutionally guaranteed and protected, including freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of peaceful assembly; and freedom of association.

It includes legal rights, including the right to life, liberty and security of the person; rights guaranteeing the quality before and under the law; and rights guaranteeing equal protection and equal benefit of that law. Of course, these rights are subject to such reasonable limits proscribed by law, as can be demonstrably justified in a free and democratic society. That is provided in section 1 of the charter.

The advent of the charter 40 years ago was a milestone in the protection of fundamental rights in Canada, and I believe that it put Canada on the map for human rights protection. Part of it was the inspiration of the Bill of Rights, as I have already mentioned, pioneered by the Hon. John Diefenbaker.

It was a quasi-constitutional statute, deserving of a large and liberal interpretation, but it was simply a federal statute nonetheless, and the courts were cautious in applying it, particularly in a context of parliamentary sovereignty, where a future parliament could undo the handiwork of an earlier parliament by enacting new legislation inconsistent with the earlier legislation.

The tension between protecting fundamental rights and recognizing the continued sovereignty of Parliament was reflected in section 2 of the Canadian Bill of Rights, which provides:

Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared

In other words, the Bill of Rights stated that laws enacted by Parliament were to be interpreted and applied in a manner that would not abridge or infringe on the rights and freedoms recognized and affirmed by the Bill of Rights, unless Parliament expressly declared that the law should operate notwithstanding the Bill of Rights.

The Canadian Charter of Rights and Freedoms goes much further in the protection of human rights and establishes a better balance between such protection and legislative action. By section 1, the charter constitutionally guarantees the rights set out in it, subject only to the reasonable limits clause. It ensures a respectful democratic dialogue can take place between Parliament and the provincial legislatures, on the one hand, and the courts of justice, on the other, within the scope and limits of guaranteed rights and freedoms.

However, in the political compromise that led to the final form of the charter in November 1981, a notwithstanding clause that echoed section 2 of the Canadian Bill of Rights was grafted onto the charter in section 33. That clause provides:

Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Those are the provisions guaranteeing fundamental freedoms, legal rights and equality rights.

Many commentators have noted, and I agree, that it was a heavy price to pay to achieve substantial consensus among the provinces to move ahead with the patriation of the Constitution and the entrenchment of our Charter of Rights. However, politics is the art of the possible, and this was what was possible and necessary to achieve the consensus.

Section 52 of the Constitution Act, 1982, declares, “The Constitution of Canada is the supreme law of Canada”. Parliament and the provincial legislatures derive their powers and authority from the Constitution and from no other source, as the Supreme Court underscored in the secession reference in 1998. We have constitutional supremacy rather than parliamentary supremacy in Canada, as well as a political culture that values fundamental rights, democratic debate and the rulings of our courts as guardians of the Constitution. Parliament and the legislatures are sovereign within the spheres of authority allocated to them by the Constitution and within the limits of the charter's guarantees.

Section 33 of the charter was conceived as a tool of last, not first, resort. It was rarely invoked for many years, but it has become much more common. However, it should only be contemplated in the most extraordinary circumstances.

Our government has made it consistently clear that it has serious concerns with the pre-emptive use of the notwithstanding clause by provincial governments, and we are considering various options. We are firmly committed to defending the rights and freedoms protected by the Canadian Charter of Rights and Freedoms. In the dialogue between Parliament and the courts, the first word should not be the last.

Although the use of the notwithstanding clause is legal, it has serious consequences because it has the effect of suspending legal protections guaranteed by the Canadian Charter of Rights and Freedoms, and these are basic values that I believe all Canadians share.

We believe that a government that uses a remedy of this magnitude must set out the exceptional circumstances that justify the suspension of these legal protections. Our government is concerned when governments use it in a pre-emptive manner before the debate has begun or the courts have ruled. This is not, in our respectful view, in keeping with Canadian values of democracy and the rights of the individual.

[Denis Trudel, Bloc, Longueuil—Saint-Hubert, QC]

Madam Speaker, we in the Bloc always feel that when Quebec rises in the House to defend its uniqueness, it is seen as a little suspicious. However, my Liberal friends saw Prime Minister Trudeau some time ago visit certain countries, dress up and put on all kinds of costumes—

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

I would remind the hon. member that the names of current members are not to be used.

The hon. member for Longueuil—Saint-Hubert.

[Denis Trudel, Bloc, Longueuil—Saint-Hubert, QC]

Madam Speaker, so we saw the Prime Minister putting on costumes from all kinds of nations, which is fine and which we totally respect. However, when it comes to supporting the fact that Quebec is a specific minority, with specific values, history and way of life, it is always treated with suspicion in the House.

Today, the notwithstanding clause that we are defending is precisely the ability to defend this specificity within the federation. What I am clearly hearing is that Quebec should not keep this right.

I see that the only solution is for Quebec to become a country. When we become independent, we will be able to take complete responsibility for everything we are, including our language, our culture and all our values. That is the best I can hope for for the Quebec nation as a whole.

[Leah Taylor Roy, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, I do not believe we are suspicious of the intentions of the Bloc Québécois. I believe that the distinct culture and history of Quebec is something that has added greatly to our nation and it is something I value greatly. I believe that having laws that work for Quebec is very important, but I do believe that the fundamental rights and freedoms of Quebeckers and all Canadians should be respected, and that the notwithstanding clause should only be used in very exceptional circumstances.

The concern we have expressed today is really about the increased use of that notwithstanding clause in a pre-emptive fashion.

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

Madam Speaker, I want to pick up on my colleague's very last point where she talked about the pre-emptive nature. The example I have been providing is that of the province of Ontario with regard to labour issues that impacted literally thousands of labour people, people working in our teaching profession. Using a pre-emptive attitude toward the notwithstanding clause, I and many members of our caucus felt, was just wrong.

I wonder if she could expand upon her thoughts in regard to whether they are using the notwithstanding clause in that pre-emptive fashion.

[Leah Taylor Roy, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, as my colleague knows, I feel very strongly that, in that particular case, it was not an appropriate use of the notwithstanding clause. Those are basic fundamental rights of Canadians. A premier should, in my mind, need to respect those fundamental rights. When one brings in a piece of legislation, especially one that prevents teachers and workers in our education system from collectively bargaining, I feel that is a perfect example of why this is of such concern to us.

I hope the members of the Bloc Québécois share that concern, that need to protect the fundamental rights and freedoms of our workers and their right to collective bargaining.

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

Madam Speaker, I listened carefully to my colleague's speech. Time and time again, she talked about the importance and beauty of freedom and equality.

Indeed, I agree with that. Just because we use the notwithstanding clause does not mean that we undermine freedom. I will give an example. The law that created the Court of Quebec's youth division states that it is not open to the public. It discriminates between youth and adults, but that is precisely how we protect the youth.

Does the use of the notwithstanding clause in that case undermine the freedom, equity and beauty which can be observed in Quebec and the rest of Canada? Where does my colleague draw the line? For what subjects should a line be drawn?

[Leah Taylor Roy, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, I do not pretend to know where to draw the line. I trust our court system for this. We have established case law. I believe, in cases like that, the wisdom of the court would see the beneficial effect of that.

Why use the notwithstanding clause? Why not put this forward and see if there is a challenge? If there is, let our courts decide.

[Martin Champoux, Bloc, Drummond, QC]

Madam Speaker, let me begin by saying that I am not the star of this part of the show. I am merely opening for my colleague from Berthier—Maskinongé, and I am honoured to do so.

I love Quebec. I had the good fortune and great privilege to travel the continent in my previous job, and I have visited places around the world for pleasure. Everywhere we go, when we say we are from Quebec, people are curious. What is the deal with Quebec, anyway? Why will it not just melt into the English sea of North America? What is up with that place, where people do not eat the same foods or wear the same clothes as people in the rest of Canada? Just look at the member for Longueuil—Saint-Hubert. He toned it down today, but he usually dresses to impress.

What is going on with this province, where the vast majority of artists would rather work in their own language than tap into the riches of the anglophone market at their doorstep? The entire nation steps up to demand that Quebec's artists get the space they deserve on our radio stations, on TV, in our theatres and on streaming platforms.

Bill C‑11 was briefly discussed earlier. My colleague from Charlesbourg—Haute‑Saint‑Charles talked about it in his speech this morning. Bill C‑11 really highlighted the difference between Quebec and the rest of Canada. Whereas the cultural industry and community in Quebec mobilized to defend the distinct nature, specifically, of French language and culture, the rest of Canada had other concerns and opposed the bill for different reasons, reasons relevant to the rest of Canada. That is fine, but it proves once again that there are major differences.

I will continue to talk about those differences. What about this nation where women marry without taking their spouse's name? That is, when they do get married because fewer people in Quebec marry than in the rest of Canada. It is not because we are not beautiful or not in love. It is simply that we do not think the same way. It is a nation where parents, increasingly, give their children their mother's last name. That is quite new.

Abroad, people ask us what everyone thinks about the fact that Quebec rejects the exploitation of fossil fuels in favour of renewable energy and that it prefers electric cars to pickup trucks that are too large for our needs.

How does one manage a nation that wants to protect its language and culture, its fundamental values and its societal model at all costs? That is often the crux of the issue. We have differences of opinion on what integration should look like, on what society should look like. Quebec is open, but it also requires openness from those who want to integrate. We are not talking about openness to the point of forgetting oneself and melting into a homogeneous lump. No, that is not what we want at all. What we want is an openness to the fundamental values that form the bedrock of Quebec's society: equality between men and women, the separation of church and state, and French as the official language and as the common language.

Some members of the House may not know this, but Quebec has a declaration that immigrants who want to settle there must agree to abide by. It reads as follows:

Québec is a pluralist society that welcomes immigrants who come from the four corners of the earth with their know-how, skills, language, culture and religion.

Québec provides services to immigrants to help them integrate and participate fully and completely in Québec society in order to meet the challenges of a modern society such as economic prosperity, the survival of the French fact and openness to the world. In return, immigrants must adapt to their living environment.

All Quebecers, whether they are native-born or immigrants, have rights and responsibilities and can freely choose their lifestyle, opinions and religion; however, everyone must obey all laws no matter what their beliefs.

The Québec state and its institutions are secular; political and religious powers are separate.

All Quebecers enjoy rights and freedoms recognized by the Charter of Human Rights and Freedoms and other laws and have the responsibility of abiding by the values set forth in them.

It then goes on to talk about common values. I named three of them earlier.

The principal values set forth in this Charter, which are the foundation of Québec society, are as follows:

Québec is a free and democratic society.

Political and religious powers are separate in Québec.

Québec is a pluralist society.

Québec society is based on the rule of law.

Women and men have the same rights.

The exercise of human rights and freedoms must respect the rights and freedoms of others and the general well-being.

Québec society is also governed by the Charter of the French language, which makes French the official language of Québec. Accordingly, French is the normal and usual language of work, instruction, communications, trade and business.

These are important reminders that should be made as often as possible in the House, because we have noticed that people tend to forget. It is not us who forget them. We remember them all too well.

It is no secret that the reason behind the resurgence of the current debate on the notwithstanding clause has a lot to do with Quebec's recent use of section 33 in the case of a bill that deals with the French language and state secularism. Public debate often comes back to the path Quebec has taken over the past 75 to 80 years. In fact, it was in the 1960s that the differences really started to be more strongly felt.

The affirmation of Quebeckers, the affirmation of their values, is the desire to have their values and their vision of society recognized without embarrassment, without shame. We broke free from something. It was a long process, but we broke free. We wanted a secular society with religion on the sidelines, because the Catholic Church held sway over Quebec society for far too many decades. We wanted a society where the Church did not meddle in everything.

I am a child of that generation. I studied in a religious school in the 1960s. I was an altar boy. We went to church every Sunday, sometimes more often, depending on my mother's mood, so I completely understand why Quebec society evolved the way it did, an evolution that led to the removal of religion from the affairs of the state. I am not talking about people rejecting religion. People have the right to practise their religion. In Quebec, everyone thinks that everyone has the right to believe in what they want, but these beliefs and religious convictions are practised in private. It is not something that is practised in any public services offered by the government.

When we understand and clearly explain this evolution, we also understand Quebeckers' vigorous protection of the separation of church and state. The problem is that as the years go by, those who have witnessed this evolution are being heard less and less. Therefore, it is even more pertinent today not to fall into the trap of wedge politics. This seems to be the Prime Minister's approach. I will cite an example from yesterday, when we heard him say that the Bloc Québécois does not give a damn about francophones outside Quebec. How shockingly insulting.

I will come back to Bill C‑11, the former Bill C‑10, a bill that the Bloc Québécois worked on with francophone associations across Canada, Acadians from New Brunswick and francophones outside Quebec across the country, to present with one voice the importance of promoting all of Canada's francophone culture in our broadcasting system. Hearing that yesterday was an unacceptable insult.

Let us not fall into the trap of allowing ourselves to be divided. Avoiding that is the only way to build a society in which we can collaborate despite our differences. We certainly have differences. Regardless of the kind of society we develop over time, whether it is within a somewhat functional Canada or within an independent Quebec that will be a good partner and a good neighbour, we will have to learn to keep the lines of communication open, to talk to one another, understand one another and respect one another if we want to work in a productive and intelligent way. Failing that, it will be a constant battle.

To hell with populist rhetoric, and to hell with misinformation. As I said, the notwithstanding clause, although not there to be used all the time, is an important tool for preserving Quebec's vision for a secular society and for preserving and protecting Quebec and its core values, values that may offend some people who might not understand Quebec's reality.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Madam Speaker, the problem with the notwithstanding clause in recent years has been the pre-emptive use of it. I specifically think of the most recent example in Ontario where Doug Ford, the Premier of Ontario, used the notwithstanding clause to pre-emptively limit the ability for teachers to strike.

Bloc members will come into the House and quite often talk about how they encourage and are great supporters of the labour movement and of unions specifically. Would the member from the Bloc support the use of the notwithstanding clause by the Quebec government if it were doing what Doug Ford had done, which was to limit the rights of teachers to collectively bargain? I hope the member can answer that rather than—

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

The hon. member for Drummond.

[Martin Champoux, Bloc, Drummond, QC]

Madam Speaker, I will not comment on that specific matter.

The fundamental issue is that it is up to the legislatures and to the Quebec National Assembly to determine the use of the notwithstanding clause. Later, if it needs to be contested, it can and will be. The right to invoke the notwithstanding clause also implies that we sometimes make mistakes, which is why the courts can get involved.

As for the pre-emptive use of the notwithstanding clause, the 1988 Ford decision by the Supreme Court said that it could not be opposed. Honestly, the pre-emptive use is quite a bit cheaper for society than the obligation to defend or to challenge it using lawyers and thousands or millions of dollars to arrive at the same result.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Madam Speaker, I listened carefully to my colleague and I agree with him on the vast majority of his speech. As Quebeckers, we all want what is best for Quebec, for our culture and for our way of being. On that note, I support him 100%.

On the other hand, one thing is certain: If my colleagues want sovereignty, they should get elected to the Quebec National Assembly, because that is where it is going to happen, not here in Ottawa.

My question is about Bill C‑11. The bill contains provisions to protect French, as well as francophone and Quebec culture, of course. What worries me is the effect of the bill on the control of information on platforms and the possibility that the federal government and the Canadian Radio-television and Telecommunications Commission will decide, as some countries do, to change the algorithms to prevent foreign content on our platforms.

As a Quebecker, does my colleague not see this as a significant danger?

[Rachel Bendayan, Liberal, Outremont, QC]

Madam Speaker, I rise on a point of order.

The member's question is completely unrelated to the debate at hand.

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

I have to give the member some leeway, especially since reference was made earlier to Bill C‑11.

The hon. member for Drummond.

[Martin Champoux, Bloc, Drummond, QC]

Madam Speaker, that is excellent. I was just about to say the same thing. I think that the question is a valid one, because I referred to Bill C-11 in my speech when talking about the differences in views between the rest of Canada and Quebec.

In answer to the question from my colleague from Charlesbourg—Haute-Saint-Charles, I would say that there have indeed been concerns about the possible manipulation of algorithms or their control over the web giants for rather nefarious purposes. However, that is not what Bill C-11 seeks to do.

One way or another, the Canadian Radio-television and Telecommunications Commission needs to be able to see that the objectives are being met. The CRTC is not being given the power to control social media algorithms, which is something that I do not agree with. However, I do agree that the CRTC should take all possible and necessary steps to ensure that the objectives of the Broadcasting Act are being met. That is the distinction, and perhaps we have different views on the way it is written. However, my colleague’s question is a legitimate one.

[Rachel Bendayan, Liberal, Parliamentary Secretary to the Minister of Tourism and Associate Minister of Finance]

Madam Speaker, further to my Conservative colleague’s question and given that this is the second question that the Liberal government can ask, I wonder if the Bloc knows why the Conservatives do not want to get involved in this debate. I note that the Conservatives have not yet taken a position on the Bloc motion before us today.

Perhaps my colleague can enlighten us.

[Martin Champoux, Bloc, Drummond, QC]

Madam Speaker, the short answer is no.

The long answer is that I assume that the Conservatives have read the Bloc Québécois’s motion, that they think that it is simply common sense, and that they are waiting until the end of the day to come out in support of it.