Debates of Feb. 9th, 2023

Opposition Motion—Use of the Notwithstanding Clause

[Claude DeBellefeuille, Bloc, Salaberry—Suroît, QC]

Madam Speaker, I do not know if he is the worst in that regard, but I think the facts speak for themselves.

I think that for some time now, the government, certain members and the Prime Minister have been working together on the difficult matters that divide Canadians and Quebeckers. I also think that people expect us to do our absolute best and to represent our fellow citizens in the best way possible. In that sense, the Prime Minister is not setting a good example.

[Mike Morrice, Green, Kitchener Centre, ON]

Madam Speaker, I rise on a point of order. Throughout the last series of questions and answers, it seems the feedback is still present. If you are hearing it also, I wonder if there might be a resolution of some kind.

[The Assistant Deputy Speaker, Carol Hughes]

I have raised again that we can still hear the feedback. I am not sure if it is from the earpieces that we use. We will have some of the pages go around to ensure the earpieces are shut off at the desks where members are not present.

If there is still a problem, members can let me know.

The hon. member for Manicouagan.

[Marilène Gill, Bloc, Manicouagan, QC]

Madam Speaker, as my colleague said earlier, the Bloc Québécois is asking the House today to recognize a fact by asking “[t]hat the House remind the government that it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.”

Acknowledging a fact seems like a no-brainer. That said, history, even very recent history, reminds us that we should take nothing for granted. Nothing is ever a given.

This is serious. Think, for example, of Morgentaler reading the bills from the member for Yorkton—Melville, of Pythagoras learning of the Flat Earth Society, of John Locke hearing the Prime Minister of Canada exclaim on January 23, 2023, that he is going to intervene in the Supreme Court case involving Bill 21, right down to tagging the use of the notwithstanding clause. No, nothing is ever a given and no right is a given.

The Bloc Québécois knows this and is watching out for Quebeckers, and even for the provinces and territories in this case. We want to reiterate that it is imperative that the House unanimously reaffirm that Quebec alone must decide when it should use the notwithstanding clause.

Does the Prime Minister really know Quebec? Does he even know the history of Quebec? I have my doubts, most of the time. To know Quebec is to love it, not fear it or coerce it.

Does the Prime Minister remember the people of Quebec who have slowly but surely distanced themselves from the church and its robes? Does he remember the long journey Quebeckers have taken to achieve the full separation of church and state? Does he remember the night of the long knives? Does he recall that Quebec never signed the Constitution of 1982? Does he realize that perhaps, for Quebec, the notwithstanding clause is like a tiny bit of sugar in a glass of poison hemlock? I truly and sincerely do not think so.

To know Quebec is to recognize how enamoured it is with equality and freedom. It is to recognize that Quebec's biggest source of faith is intelligence and reason. It is to know that Quebec believes in the sovereignty of the state and that if it is subordinate to anyone, it can only be to itself, to the Quebec people.

The gods, whoever they may be, do not belong in the affairs of the state. They may be in the bedroom, in the kitchen, in the car, in the street, or in the church, mosque or synagogue, in a book or in our thoughts. They are certainly not here in the House or in the robe of any Supreme Court justices, who do not make the laws.

Imagine for a moment what it means to a Quebecker like me, who knows and remembers her history, to theoretically be the subject of a monarch—a monarch who is the head of the Anglican Church, no less—and to sit in a Parliament where MPs ask the Christian god to legitimize their duties and their votes on a daily basis. As an elected representative, I answer to the people, not to gods.

Imagine, too, what it means to a Quebecker like me to hear the fear, arrogance, disdain and intolerance in the Prime Minister's articulation of the fundamentally dishonest and misleading stereotype of a xenophobic or even racist Quebec where freedom and equality are but mirages. As an elected representative, I answer to the people, not to myself.

The Prime Minister's outsized attack on Bill 21 is a violent attack on the people of Quebec, for what is violence if not one party imposing its will on another by force? Violence and democracy are two sides of the same coin.

Speaking of outsized, what is the elephant in the room here? What is this terrifying Bill 21 that gives the Prime Minister the green light to go ballistic on Quebec sovereignty, its national assembly and the will of the Quebec nation?

The law simply prohibits the wearing of religious symbols by state employees in a position of coercive authority, as well as teachers in the public school system, while grandfathering in those already in their positions on March 27, 2019, the day before the bill was introduced.

Bill 21 marks the separation of state and religious powers. It guarantees freedom and equality for all. Freedom of conscience remains. We must always keep in mind that we, as elected officials, are accountable to the people and I, as a Bloc Québécois MP, to my National Assembly.

I was listening this morning to the member for Outremont. In a nutshell, she said that using section 133, the notwithstanding clause, was not consistent with section 33. That was her concern. She is worried that the notwithstanding clause is a notwithstanding clause. I do not think the government intends to open up the Constitution, but what I am hearing is that there is a concern that Quebec is Quebec.

In closing I would say that the notwithstanding clause is a place for the Quebec nation in the Constitution of Canada, a document that René Lévesque never signed. It is a place to wrest a little freedom for Quebec. I think that is hyperbole. It is a little freedom for its identity, for its essence. Quebec is granted permission to exist using an exception.

By asking these judges to stifle the notwithstanding clause, the Prime Minister intends to stifle Quebec. Why is it that the only way the Prime Minister can be Canadian is to viciously attack Quebec? No nation has the right to dictate to another nation what it should be. Quebec has its values. Quebec is secular. The notwithstanding clause does not by any means allow Quebec enough room for its existence. No one can dictate to me the kind of person I should be. I am for state secularism. I am a Quebecker. I am a separatist, and my bags have been packed for a long time now.

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

Madam Speaker, my colleague took liberties in quoting me completely incorrectly. I would be happy to share my speech with her. She should not quote other members of the House if she does not have the correct information.

She keeps repeating that this Constitution was not signed by Quebec. That is a fact. That is true. Why are the Bloc Québécois and the member defending tooth and nail section 33 of a Constitution that, in her opinion, does not apply to Quebec?

[Marilène Gill, Bloc, Manicouagan, QC]

Madam Speaker, I would have preferred for my colleague from Outremont to tell me what she said this morning. In fact, I did not hear her. It would be difficult for me to—

[Rachel Bendayan, Liberal, Outremont, QC]

Because you were not there.

[Claude DeBellefeuille, Bloc, Salaberry—Suroît, QC]

You need to listen.

[Rachel Bendayan, Liberal, Outremont, QC]

I am listening.

[Marilène Gill, Bloc, Manicouagan, QC]

Madam Speaker, may I have the opportunity to reply?

[The Assistant Deputy Speaker, Carol Hughes]

I would like to remind the hon. parliamentary secretary that she had the chance to ask a question and that she should wait for an answer. This is not a conversation where she can continue to talk.

The hon. member for Manicouagan.

[Marilène Gill, Bloc, Manicouagan, QC]

Madam Speaker, I was saying that, if the member for Outremont was not saying the same thing again and again using different words or stating the obvious this morning, then I would be completely open to hearing what she had to say and even reading the Hansard to find out. I understand that she was voicing a concern since she also brought it up in her last question.

To answer the second part of her question, as long as Quebec is not independent, then I will, of course, fight tooth and nail and more for Quebec, for any freedom it has and for anything that will give it more freedom, including this notwithstanding clause.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Madam Speaker, before I ask my question, I would like to remind the House of something I heard earlier.

I heard the member for Salaberry—Suroît tell my NDP colleague from Edmonton Strathcona that perhaps she is serving in the wrong legislature. That is rather odd coming from a member of the Bloc Québécois, which is a separatist party serving in a federal Parliament.

We know that my colleague from Manicouagan is passionate about the separatist movement. That is her right and I respect that. I would like her to share her opinion on the fact that the Prime Minister is once again trying to sow division in Canada. I think that some separatists find that to be a stimulating topic.

Is it normal to have a Prime Minister who is once again trying to create a constitutional crisis with the notwithstanding clause? Is it acceptable?

In closing, I would like to say that the only party that can fix all this is the Conservative Party of Canada.

[Marilène Gill, Bloc, Manicouagan, QC]

Madam Speaker, I thank my colleague. I have to say that as a separatist, I do not need any extrinsic motivation. My intrinsic motivation is quite strong.

I would add that in any event, any nation with an appetite for freedom will use any means in its power. I represent people who voted for me as a representative of a fiercely separatist party. I represent my people and we have the right to sit here.

Secondly, I would say to my colleague, who wondered whether this was acceptable or if Canada was broken, that I do not need that kind of reason either. Canada can fix itself, but Quebec can live alone quite well, without Canada, whether broken or put back together.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Madam Speaker, I appreciate my colleague and good friend from the fisheries committee. Does she agree that the use of the notwithstanding clause to suspend rights should not be taken lightly and should only be used in exceptional circumstances?

[Marilène Gill, Bloc, Manicouagan, QC]

Madam Speaker, I imagine that the use of the notwithstanding clause would be entrusted to legislatures and my national assembly. I have to say that I have full confidence in the National Assembly of Quebec when it comes to the use of the notwithstanding clause.

That decision belongs to elected officials, who are also my representatives in my legislature, and I trust them to know how they use it or will use it.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Madam Speaker, I will be sharing my time with the hon. member for St. Catharines.

I am pleased to speak today to the motion moved by the member for Beloeil—Chambly. I would first like to say that I am a Quebecker and that I am one of the Quebeckers who oppose Bill 21 and the use of the notwithstanding clause to violate the rights of minorities. I take inspiration from René Lévesque, who took the same position and did not want a notwithstanding clause in his charter. He was against the use of a notwithstanding clause to violate minority rights, and I completely agree with him.

I would also like to point out that in the speeches given by Bloc Québécois members, there is a basic assumption that there is only one way to be a Quebecker and only one Quebec voice. That is not the case. I am a proud Quebecker and I do not share the opinions expressed by my Bloc Québécois colleagues that there is only one way to view the Quebec nation.

According to my colleague's motion, it is solely up to the provinces to decide on the use of the notwithstanding clause when it pertains to current issues. This is a matter of very great importance, not just for our government, but also for our society, our democracy and our country.

I want to make it clear from the outset that I am not questioning the fact that provinces have and should have the right to use the notwithstanding clause. What I am suggesting is that the notwithstanding clause was designed to be used only in exceptional circumstances, and only after the courts have had an opportunity to fully and rigorously consider a bill to determine whether it infringes on rights and freedoms.

The debate over the notwithstanding clause concerns all of us as Canadians. It is not specifically targeting Quebec or its government, nor does it target any other province in particular. It is a debate about the values of our free and democratic society. This involves fundamental freedoms, our democratic debates and the courts as guardians of our constitution.

Our government has always been very clear about its concerns over the pre-emptive use of the notwithstanding clause by the provinces. We have repeatedly stated that we are considering all of our options. We are firmly committed to defending the rights and freedoms protected by the charter. Many of us have strong positions on the use and role of the notwithstanding clause in our democracy. Our differences of opinion should not cause us to lose sight of the principles that underlie the debate.

Ultimately, that is why we disagree with the Bloc Québécois today. It is incumbent on all Canadians to participate in this discussion, including the federal government and members of the House. These are issues that deserve a national conversation. That is why our government has already said that we will intervene to challenge Bill 21 if and when it reaches the Supreme Court of Canada. Canadians expect the federal government to participate in any national dialogue about the use of the notwithstanding clause before our country's highest court.

The notwithstanding clause stems from political compromise. During constitutional negotiations, including the notwithstanding clause was, in part, what brought the Canadian Charter of Rights and Freedoms into being. It was a concession that paved the way for the adoption of this fundamental constitutional document, which has proven essential to maintaining our free and democratic society.

The inclusion of the notwithstanding clause in the charter was not intended to provide Parliament or a provincial legislature with a mechanism to routinely override certain provisions of the charter. Rather, the broad consensus at the time was that the notwithstanding clause was an extraordinary remedy. Moreover, the notwithstanding clause was to be used by Parliament or a provincial legislature only in the most exceptional cases, where there was no other option. It was never intended to become a primary remedy to allow a government to abdicate its duty to protect fundamental rights and freedoms.

Indeed, we must be aware that the pre-emptive use of the notwithstanding clause by a legislature is an admission that the legislation violates the fundamental rights and freedoms that the charter provides for all Canadians.

In fact, section 1 of the charter allows the courts and legislators to consider the balance between individual rights and the interests of society in the framework of each new legislative initiative.

This broad historic consensus on the highly exceptional nature of the notwithstanding clause has resulted in its relatively rare use in the years that followed the patriation of the Constitution.

Before 2018, only three provincial legislatures had used the notwithstanding clause. In fact, Parliament has never used the notwithstanding clause.

That is why it is deeply concerning to see the increased use of the notwithstanding clause in recent years by different provincial legislatures. More troubling still is the growing trend of invoking the clause pre-emptively.

Pre-emptive use of the notwithstanding clause prevents the courts from having an opportunity to review legislation to determine whether it is consistent with the charter. It skips to the end of the process without the opportunity for debate and due consideration. One could say it eviscerates the process and the balances that are built in to the charter itself.

Let us remember what is at stake here. Section 33 allows Parliament or the legislature of a province to override the protections of section 2 and sections 7 to 15 of the charter.

Let us review but a few. Section 2 is our fundamental freedoms, which include freedom of expression, conscience, belief, religion and association. Section 7 is the right to life, liberty and security of the person. Section 15 is the right to equal treatment before and under the law, and equal protection and benefit of the law without discrimination.

These rights are critical to our society. In fact, I would say they are the pillars of our country's human rights framework.

I previously said that section 33 was meant to be the last word for the exercise of parliamentary sovereignty. When a legislature chooses to invoke section 33, this prevents the court from invalidating legislation that unjustifiably limits charter-listed protections. Canadians are thus prevented from obtaining remedies from legislation that violates their fundamental rights. That is why it was designed to be used only in the most extraordinary and exceptional circumstances, as a last resort and not as a first move.

I taught civil law for years in Quebec, and the Quebec Civil Code is interpreted consistently. The same is true of the Canadian Charter of Rights and Freedoms, which protects our rights, from section 1, which strikes a balance, all the way through to its last section, section 33.

Our Constitution comprises a system of laws and fundamental principles that define the nature, functions and limits of the Canadian system of government, both at the federal and provincial levels. Our Constitution also establishes the three branches of government, namely the legislative, the executive and the judicial branches. As we know, each of them has a role to play in maintaining a fair balance and enabling Canadians to live in a healthy democracy.

Finally, it is also important to consider constitutional conventions, the rules that bind political actors and dictate how and when they should use the legislative or judicial powers, which are protected under the Constitution. The primary role of constitutional conventions is to ensure that these powers are exercised in accordance with the fundamental values that underpin the text of the provisions. In simpler terms, these powers must respect not only the provisions of the charter, but also the spirit of the charter.

This discussion must include the pre-emptive use of the notwithstanding clause. When a government decides to apply the notwithstanding clause to a bill before the courts have even had a chance to decide on its constitutionality, that in effect paralyzes the dialogue between the legislative and judicial powers. This dialogue, however, fosters a culture of human rights that is meant to be transparent, open and pragmatic and that allows all members of the public to share their views and participate in our democracy.

Before I wrap up and answer any questions, I would like to say this: I am a Quebecker, and it is clear that Quebec does not speak with just one voice and that Quebeckers express themselves in many ways.

[Luc Thériault, Bloc, Montcalm, QC]

Madam Speaker, first of all, I think the minister should not start a debate on that topic. It is a diversion. It is unnecessary. He is a Quebecker. The choice belongs to him. To be a Quebecker is a political choice and it is not the same as looking like a Quebecker. I suggest to him a book by Michael Mandel, a professor of constitutional law at York University in Toronto, The Charter of Rights and Freedoms and the Judicialization of Politics in Canada, written in the 1990s. If he has read the book, I do not think he understood it. The same applies to the member for Portneuf—Jacques-Cartier.

Now, I would like to say that I almost stood up earlier to raise a question of privilege, because the minister is misleading the House.

The Bloc motion calls for recognition of the Act respecting the Constitution Act, 1982, René Lévesque's law, which pre-emptively introduced the notwithstanding clause into all Quebec laws. This is what—

[The Assistant Deputy Speaker, Carol Hughes]

I apologize, but I have to leave time for answers to questions. The hon. minister.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Speaker, the hon. member has a point about—

[Luc Thériault, Bloc, Montcalm, QC]

—was able to ensure that—

[The Assistant Deputy Speaker, Carol Hughes]

Order. I just cut off the hon. member for Montcalm because we were running out of time. He must now listen to the answer, even if he does not agree.

The hon. minister.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Speaker, René Lévesque did not want a notwithstanding clause in his Quebec charter. He was in favour of individual rights in principle, but as Premier of Quebec—and to provoke then prime minister Trudeau—he put the notwithstanding clause in several Quebec bills over the course of at least a year. It was primarily a political strategy. He was against the notwithstanding clause. He did not want one in his own charter.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Madam Speaker, I think it is unfortunate that the Minister of Justice just referred to a tool being used to provoke Quebeckers and Canadians. I myself am proud to be a Quebecker and a Canadian. We just saw a dust-up between the Bloc Québécois and the Liberal Party. Can we deal with what actually matters? Can we deal with the fact that the Prime Minister has been in power for eight years?

We are in the middle of an economic crisis. People are having trouble paying their rent. They are having a hard time paying for housing, yet here we are arguing about a notwithstanding clause. The clause exists. Here is my question for my colleague.

How can he stop the provinces and territories from using a tool that is available? Does he trust the provinces' and territories' ability to manage?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Speaker, like my hon. colleague, I am proud to be a Quebecker and a Canadian. To understand the structure of the charter and the rights protected, we must first look at the sections that balance part I, and then at section 33 on the notwithstanding clause. They have to be considered in a way that is consistent.

If the notwithstanding clause is used at the outset, it removes all rights and precludes the balancing process set out in section 1. The notwithstanding clause is the last word, not the first word. In our system, as my hon. colleague knows, we have a dialogue between the courts and the legislatures, so a province can use the notwithstanding clause, but following a court decision or, I would say, a court of appeal decision.