Debates of Feb. 9th, 2023

Opposition Motion—Use of the Notwithstanding Clause

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

Mr. Speaker, just because the member does not like what the hon. member is talking about, that does not mean he gets to rise on a point of order. It has to do with the Standing Orders and rules, and I know that you, Mr. Speaker, will rule appropriately.

[The Deputy Speaker, Conservative, Chris d'Entremont]

I appreciate the interventions. We do give a lot of latitude on bringing people back to the topic at hand, and I am sure the hon. member for Perth—Wellington will find his way there.

The hon. member for Perth—Wellington.

[John Nater, Conservative, Perth—Wellington, ON]

Mr. Speaker, notwithstanding the fact that the member of the Liberal Party does not like what I am talking about, the fact remains that we are here on an opposition day motion debating a constitutional issue when there are so many other issues that Canadians care about. If the member wants me to talk more about the Constitution and the history of our Constitution, and how we got to the point where we are, I am happy to do that, but I would need his unanimous consent to give me a full hour and a half so that I can debate it in the House in full and at extensive length.

However, I will go back to where we are as a country and why we are seeing constitutional divisions being stoked, and why we are seeing issues like this being brought forward in the House of Commons. It is not because Canadians are happy with the status quo; it is quite the contrary. Canadians are concerned about where their country is going when we see violent crime up 32%, and gang-related homicide up 92%. We are seeing highly connected Liberal lobbyists getting rich while everyday, normal Canadians are dealing with 40-year-high inflation and a tripling of the carbon tax. That is the problem we see here in Canada.

Let us talk about where Conservatives stand on the rights and freedoms of Canadians. The Conservative Party has always been a champion of the rights and freedoms of Canadians. We need to look no further than the late, great John Diefenbaker, who had that famous quotation: “Parliament is more than procedure—it is the custodian of the nation's freedom.” It falls to us as parliamentarians to stand and defend the rights and privileges of Canadians. Let us remind ourselves that when John Diefenbaker brought in the Canadian Bill of Rights, the Liberal Party members were reluctant supporters of it.

If we think back to the late Jack Pickersgill, he was indeed a fervent adversary of John Diefenbaker. Diefenbaker once said, “Parliament, without Pickersgill, would be like hell without the devil.” However, if we reflect on Pickersgill's comments at the time and read one of his quotations, the Liberal Party in fact had to be dragged kicking and screaming to support Diefenbaker's Bill of Rights. In fact, he said, “Human rights, I believed, are likely to be protected more effectively by an elected Parliament than by appointed judges. Despite the misgivings of a few members, we decided in the Liberal caucus we could not afford politically to oppose the principle of a Bill of Rights.”

Let us not let the Liberals have a monopoly on protecting the rights and privileges of Canadians. We on the Conservative benches have always stood for the rights and freedoms of Canadians.

In fact, our founding principles as a country have recognized the freedoms of Canadians. The freedoms of Canadians did not magically appear in 1982. We were not all of a sudden granted the rights, freedoms and privileges of Canadians magically on that spring day in 1982. We come from a long evolution of constitutional principles in our country, beginning with the Magna Carta and stretching to the current day.

When we are talking about the motion before us, when we are talking about the divisions that are being stoked, let us remember where we stand as parliamentarians. We stand in this place on behalf of all citizens, on behalf of all Canadians in this country as part of a unified country, recognizing that there are differences within our country.

Let us not forget that it was under the leadership of Prime Minister Stephen Harper that it was recognized, by a motion in this place, that the Québécois form a nation within a united Canada, recognizing that special history, that special, unique culture the Québécois bring to our country, and celebrating that culture, but nonetheless recognizing and reaffirming that it is within a united Canada, a united country. That is part of the history of our Conservative movement: recognizing that there are differences, but that those differences contribute to our country.

I would like to quote George-Étienne Cartier, one of this country's founders. Monsieur Cartier said:

Distinctions of this kind would always exist. [Diversity seems] to be the order of the physical world and of the moral world, as well as in the political world.

But with regard to the objection...that a great nation could not be formed because Lower Canada was in great part French and Catholic, and Upper Canada was British and Protestant, and [the maritime provinces] were mixed, it was [completely] futile.... In our [Confederation] we should have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success would increase the prosperity and glory of the new Confederacy.

That is what this House ought to represent. It ought to represent a diversity of opinion, a diversity of background and a diversity of thought, but together as a Parliament representing Canadians. We must now and always stand for the rights and freedoms of Canadians. We as Conservatives will always stand on the side of the hard-working Canadian families that are working hard each and every day to provide for their families.

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

Mr. Speaker, on that note, the member says the Conservatives will always stand for the freedom and rights of Canadians. Would that very same principle he spoke about apply also to the Province of Ontario when it did a pre-emptive use of the notwithstanding clause to limit labour negotiations? Does he believe that was an appropriate use of the notwithstanding clause by Ontario, in its pre-emptive way?

[John Nater, Conservative, Perth—Wellington, ON]

Mr. Speaker, another important feature the Conservative Party believes in is the separation of powers, where each province has the right to do as it sees fit within provincial jurisdiction. We have always respected, as the Conservative Party, the rights of the provinces in their sole jurisdictions, so if the member has concerns about a provincial issue, he ought to run in that provincial legislature and bring his concerns to that place.

We have rights and freedoms, and we have safeguards within each of those. The member will know full well that the case in question was withdrawn by the province in question. What is more, section 33 does provide a five-year sunset clause, wherein the people's elected representatives in each of the provinces have the right to pronounce or re-pronounce on a matter that falls under section 33 of the Constitution Act of 1982.

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Mr. Speaker, every time we have an opposition day, I am rather surprised to hear the Conservatives lecturing us about how there are other subjects that we should be talking about, like inflation. Meanwhile, I think they spent seven of their opposition days talking about inflation without proposing any solutions whatsoever. All they did was repeat the same sound bites all day long. They are in no position to be lecturing us.

The issue we are raising today is fundamental. I would like my colleague to understand that. He is talking about a great big united nation where everyone can affirm their differences. Well, actually, there is a tool in the contract that we had shoved down our throats to preserve Quebec's distinctiveness, and it is called the notwithstanding clause.

The government is trying to change the nature of the contract that Quebec never signed but that we are forced to live with. With all due respect, I do not want the Liberals coming to me and asking me to recognize that their contract is legitimate because I will have some choice words for them if they do. However, I will keep those words to myself since we are in a Parliament.

I am asking the Conservatives to support our motion. If they do not, then they are basically saying that it is okay for the government to spend thousands of dollars on legal fees for the next 10 years until these laws are recognized and operational, which will make things even messier than they are now, if that is even possible.

[John Nater, Conservative, Perth—Wellington, ON]

Mr. Speaker, I believe there is an issue that must be raised.

Let us be clear. We in the Conservative Party believe that there are important issues in our country. In our view, inflation is the most important challenge at this time for Canadians and for Quebeckers.

With respect to the Bloc Québécois motion, it is a question of facts. The Constitution is clear on the provinces. It states:

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.

The Bloc is asking us to vote on a question of fact. The facts are clear. It is in the Constitution. We believe what is written in the Constitution.

[Colin Carrie, Conservative, Oshawa, ON]

Mr. Speaker, I am very concerned when we see the Liberal Party of Canada aligning its ideology with the Bloc Québécois. They are very divisive. The Bloc, at least, is clear about it, but I would like to remind the House that there has never been a constitutional crisis under the Conservative Party when the Conservative Party has been in government. Now we see the Bloc and the Liberals working together so they do not have to talk about their miserable eight years and their poor record for the Canadian and Quebec people.

I would like my colleague to talk about this dangerous game that the Liberals and the Bloc are playing in regard to Canadian unity.

[John Nater, Conservative, Perth—Wellington, ON]

Mr. Speaker, I would agree with my colleague's comments. This is a dangerous game when the Liberal Party and the Bloc are stoking divisions within our country rather than bringing the country together on issues that matter to all Canadians.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I will be splitting my time with my hon. colleague from Esquimalt—Saanich—Sooke.

First, in the wake of yesterday's tragedy in a Laval day care, I would like to take a moment to express my thoughts for the children who were victims of a senseless and horrific act, as well as for their parents and families. My thoughts are also with the employees of the day care. I think we need to reflect collectively on the numerous mental health issues. Finally, I hope we will have more details in the next few days.

With that said, I want to start by saying something that may surprise many. I want to thank the Bloc Québécois for introducing their motion on this opposition day. This is not something I usually say, and some may find it a bit funny. However, I think this is a fundamental debate, in the first sense of the word, since we are talking about the fundamental rights and freedoms of the citizens we represent.

This allows us to have a debate about our vision of democracy, a legal, constitutional and political debate, almost a philosophical one. It is important to have this kind of debate in Parliament, and it is also a discussion and a debate for the whole civil society to have. It is a reflection on the actions of our legislatures which also have very tangible consequences in people's lives. We are not building castles in the air or having a disagreement about opposing views. This debate is about the use of a legitimate provision that exists, but that has consequences for people. We must not forget that and we must take it into consideration.

The notwithstanding clause is a compromise. We know about Quebec's exclusion during the night of the long knives. We are not going to dwell on that. It was appalling, especially for René Lévesque and all of Quebec. There were negotiations concerning the notwithstanding clause. There is no denying it, it is true. However, as is the case for any measure, its use can be good or not.

I think that in the past, it was put to good use in the case of Quebec's Charter of the French Language, which, following challenges, was able to benefit from the notwithstanding clause. This also resulted in public debate and review by some courts of the use of this provision. In this case, the notwithstanding clause was used for a common good that stood above others: defending the French language in Quebec in a minority situation in North America. I believe that what is known as Bill 101 has been broadly accepted in Quebec 40 or 50 years after it was passed, no matter who we talk to.

Does this mean that the notwithstanding clause can be used for anything and everything? There is no such thing as absolute. Just as freedom of speech is not absolute, the use of the notwithstanding clause should not be absolute. That is the NDP's view, as progressives.

Besides, it is not up to nine Supreme Court judges alone to decide what the criteria or conditions for its use should be. That is why I want to emphasize that this must be a public debate that occurs within our society as a whole. Determining when this provision should be used is part of a healthy and legitimate democratic discussion.

Let me remind the House that it was initially meant to be used exceptionally, almost as a last resort. Today, we see several legislative assemblies, not just the Quebec National Assembly, using it repeatedly, perhaps even abusively, systematically—my colleagues in the Bloc will not necessarily like that last word—but also preventively, which is extremely troubling.

We must ask ourselves whether legislators can, at any time and without ample justification, suspend most rights and freedoms, which are supposed to be protected. Should legislators not be required to give very good reasons to justify its use and to ensure that they can successfully face a court challenge?

Otherwise that would mean that a majority Parliament could do anything and everything, in terms of violating fundamental rights, at any time and without justification. That is something to think about. I know this drives my colleagues in the Bloc Québécois crazy, but French philosopher Albert Camus said, “Democracy is not the law of the majority but the protection of the minority.”

It is a conception of the fundamental rights that must be a bulwark against a wholesale, unrestricted use of a notwithstanding clause that suspends the rights of citizens. It is a bulwark that was used in the past as a legal and permanent protection and has played a role in favour of the right of association, women's right to abortion and the rights of same-sex couples.

We have two extremes. On the one hand, we have Parliament, which is an expression of democracy, and on the other hand, the rule of law and charters that protect citizens. There is a dialogue between the two. These charters are not just the Canadian Charter of Rights and Freedoms. There is also the Quebec Charter of Human Rights and Freedoms, which came before the Canadian Charter of Rights and Freedoms. Let us not forget that. Then there is civil society and the media.

We have to remember that the clause is to be used in exceptional circumstances. It was not intended to be used pre-emptively.

I want to quote some of the judges in Ford. Justice Jacques said that the exercise of the section 33 power must come within the basic principles that define our society. He said that its use deprives the citizen of constitutional legal recourse against encroachment on a right guaranteed by the Constitution, thereby limiting the citizen to only political recourse, meaning that if the people are unhappy, they just have to oust the government. This is a bit of a tautology, because it is the government itself, through its majority, that brought in the notwithstanding clause. This means that more than just political recourse is needed.

In the case of Quebec, it should also be noted that the Superior Court recently wrote that by definition, in a society concerned about respecting the fundamental rights it grants to its members, the notwithstanding clause should be used sparingly and with caution. It added that some may think that its use by the Quebec legislature in this case trivializes it, especially since the clause was used even before there were any legal arguments as to its constitutionality. Pre-emptive use shuts down all discussion and debate and hinders the court's ability to defend fundamental rights.

Justice Blanchard of the Superior Court went on to say that since this involves overriding fundamental rights and freedoms, basic respect for those rights and freedoms should be an argument in favour of a more targeted use of this power, which, after all, should remain exceptional.

It should remain exceptional when used to suspend people's rights and freedoms, but it should also be used exceptionally when it comes to attacking workers' rights.

We have seen Saskatchewan and, more recently, Ontario pre-emptively use the notwithstanding clause to suspend the rights of workers to use pressure tactics and freely negotiate their working conditions and employment contracts. In Ontario, we are talking about 55,000 poorly paid professionals in the education sector who have every right to demand better working conditions and wages. We saw a Conservative government come in and attack the labour movement, trying to break the rights of these workers with what we believe to be a misuse of the notwithstanding clause. I think this discussion is important because we see this slippery slope and how things are sliding. As a union activist, as a leftist, as a supporter of workers' rights, I think we have to ask ourselves whether the notwithstanding clause can be used to attack workers' fundamental rights, their working conditions and the fact that they are demanding a better life.

I think it has been the aim of the social movement for many years to promote the best possible working and living conditions, and to fight poverty and injustice. The improper use of the notwithstanding clause in this area undermines workers' fundamental right to freedom of association and collective bargaining. It is good to question the conditions for the invocation and implementation of this clause, because it is not just limited to Quebec issues; it is an attack on the labour movement, citizens and all workers. That is why we should be asking this fundamental question.

[Han Dong, Liberal, Don Valley North, ON]

Mr. Speaker, we are debating a very interesting topic this morning, and I just listened to the remarks from my NDP colleague.

I remember in 2018, the newly elected Ontario provincial government decided to hold the municipal election in the fall of the same year. I think it was maybe a couple of days before the writ dropped for the election when it decided to slash the council seats by half. At the time, the government was trying to use the notwithstanding clause.

That is kind of ironic to me, because an election is an opportunity to hear what the people want in their government, but it was using the notwithstanding clause to slash these council seats by half, despite the legal minds saying that it was an infringement on democracy and the rights of people. I would like to hear my NDP colleague's comments on this.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

That is indeed a good example, Mr. Speaker. I remember that somewhat unfortunate episode involving Toronto city council where the misuse of the notwithstanding clause undermined the rights of Torontonians to have adequate or proper representation by what they considered a suitable number of city councillors. Was that what the provincial representatives intended when, in 1982, they called for a notwithstanding clause to be able to occasionally be exempted from the application of the Charter of Rights and Freedoms? I do not believe this was their intent.

It is fine, in my opinion, to have this discussion today on the conditions for its use. Is there a real and urgent need? Is it for the greater good or is it being abused to erode fundamental rights?

Let us have this discussion. We should not be afraid to have it.

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

Mr. Speaker, my colleague finished his speech by saying that this issue is bigger than Quebec, and he is absolutely right. What he is failing to acknowledge or address is that this issue of the use of the notwithstanding clause quite often stems from the Prime Minister.

The use of the notwithstanding clause has spiked since 2017, and the common denominator is the very divisive Prime Minister, yet this member continues to prop the Prime Minister up. I am wondering if the member, at any point in time, will withdraw his support for this tired and corrupt Liberal government so we can address the issues affecting Canadians.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I think that the NDP caucus has been smart about using its bargaining power and the balance of power to force the Liberals to do things that they never wanted to do in the past, things that will benefit thousands of Quebeckers and Canadians. Take, for example, universal dental care, pharmacare, social and affordable housing, indigenous housing, and the anti-scab legislation that the Quebec and Canadian labour movement has been calling for.

As long as we can move forward and accomplish those parts of the agreement that we forced the Liberals to act on, things that they had always voted against in the past, we will continue to work hard in Canadians' best interests.

We can be sure of that.

[Louise Chabot, Bloc, Thérèse-De Blainville, QC]

Mr. Speaker, I still cannot believe what I just heard during my colleague's speech.

The NDP's Quebec lieutenant has a duty to defend the interests of Quebeckers. However, the interests of Quebeckers are also shaped by the fact that they are a minority. Quebec is making use of the only constitutional provision available to protect its right to live in French, to protect its right to social harmony and to its identity as a people, and to preserve the nation. These are laws passed by the National Assembly.

I find it hard to fathom how anyone could have a tepid stance on these issues and not fundamentally recognize the right of Quebec and the provinces to use the notwithstanding clause in order to protect what is dearest to them: preserving their laws and the right of elected officials to decide by and for themselves instead of leave this issue up to the courts.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I do not think my colleague really listened to my speech. I said right off the bat that I think using the notwithstanding clause to support the Charter of the French Language and Quebeckers' right to live in French is appropriate. I want to reiterate that.

I am kind of surprised to hear my Bloc Québécois colleague say that we cannot stand for a government of judges, because that is essentially the argument that Stephen Harper's Conservatives used and that the Republican Party often uses. Anyone who supports the rights of Quebeckers must also support their right to freedom of association and free collective bargaining. I find it passing strange that the former president of the Centrale des syndicats du Québec has no problem with the idea of using the notwithstanding clause to attack unions.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Speaker, I am pleased to rise today to talk about the broader topic, the Canadian Charter of Rights and Freedoms, and I will eventually, after a bit of a diversion, come back to the motion before us.

It is important to note that at the time of its adoption, the Canadian Charter of Rights was controversial. At the time of the patriation of the Constitution, we were not used to the idea of a written charter, something that comes from a civil law tradition, because our institutions had been founded on the British system, which revered the supremacy of Parliament. A compromise was reached when the Constitution was patriated, and the national Parliament and provincial parliaments agreed to limit themselves with a written Constitution and written Charter of Rights and Freedoms.

I would argue that, at the time, this was exercising parliamentary sovereignty and a voluntary restriction. We recognized that we had to agree on the basic rules by which we work together and that those should be difficult to change, so we have a written Constitution. We also recognized that even in a British system, a written Charter of Rights and Freedoms would help preserve the rights and freedoms of Canadians.

As an aside, my own enthusiasm for the charter at the time was tempered by what was often called the omission of sexual orientation from a section of the charter, as if it was somehow unknown or forgotten at the time. That is not the case, and I knew this well. I was very fresh out of university and working here at the House of Commons for Ed Broadbent at the time. When the Constitution Act was before the House in committee, New Democrat MP Svend Robinson moved to add sexual orientation to section 15 as a protected ground against discrimination.

This was at committee stage. There was a debate and vote on whether sexual orientation should be one of those protected rights. The proposal to add sexual orientation was defeated 22 to two, with only Svend Robinson and Lorne Nystrom of the NDP voting in favour. It took a series of court cases following the adoption of the charter to affirm that sexual orientation was a prohibited ground for discrimination analogous to the enumerated grounds listed in the Constitution.

Members will see in a moment where I am going with this. I am going to tie it to the notwithstanding clause.

Members of LGBTQ+ community continued to fight for recognition of equality rights. There was a series of court cases starting in 1992 with Haig and Birch v. Canadian Armed Forces, continuing in 1995 with Egan v. Canada and culminating in 1998 with the case of Vriend v. Alberta. All of these cases served to make sure it was understood that just because a right like citizenship or the prevention of discrimination against sexual orientation was not listed, it was a still a protected ground.

In 1998, the Supreme Court of Canada noted the omission of sexual orientation from the Alberta Human Rights Act. We should remember that this is the Supreme Court deciding on Alberta legislation. What the court found was that it violated the equal protection of the law guaranteed in the charter not to list sexual orientation. In other words, the Supreme Court of Canada at the time ordered Alberta legislation to respect the Constitution and the charter by protecting against discrimination on the basis of sexual orientation.

Immediately after, there were calls in Alberta for the use of the notwithstanding clause. It was immediate. Why did the Alberta government not proceed? It was because there was a public outcry against the use of the notwithstanding clause. It was very strong at that time because the Alberta government, just months before, had brought forward a bill to use the notwithstanding clause. In that case, there had been a decision against the government, which had proceeded with forced sterilization of those with intellectual disabilities. They had won a large settlement against the Alberta government, so the Alberta government brought in a bill that proposed to use the notwithstanding clause to limit compensation for those who had been forcibly sterilized.

There was a huge public outcry about the attempted use of the notwithstanding clause to prohibit payments that had justly been won in court for this discriminatory treatment. That precedent, just a few months before, led to the same kind of debate about the use of the notwithstanding clause to get around the Supreme Court decision that forced the Alberta Human Rights Act to include sexual orientation.

This is the way those who adopted the Constitution and charter thought the notwithstanding clause would work in response to court decisions or legislative decisions that were controversial. It was not pre-emptive but in response to developments within the legal system. Ultimately, who would decide whether the use was legitimate? It was the Supreme Court of Canada, because we have a country that operates on the rule of law.

We see a motion that says, in quite simplistic terms, that it is up to the provinces if they want to use the notwithstanding clause or not, and that is clearly not true legally. It is also not true in a political sense. It is not clearly just up to the provinces. It is up to Canadians to decide what is appropriate action and to judge their governments.

I will go back to Alberta. Two years after a series of court decisions recognized the right to same-sex marriage, Alberta added to its Marriage Act a notwithstanding clause to allow it to say that marriage is only between a man and a woman. In a reference case in the Supreme Court in 2004, the Supreme Court found that, on jurisdictional grounds, Alberta could not use the notwithstanding clause. In other words, it said that because marriage is within federal jurisdiction, Alberta cannot use the notwithstanding clause to get around it. It is exclusively a power of the federal government to make this decision.

Once again, we have an example where it is not up to a province to decide if it wants to use a notwithstanding clause. There were jurisdictional reasons for why the Supreme Court found it could not do so.

After this very long detour through issues that are very important to me personally and to a large number of Canadians, we come back to where we are with the motion before us, which says, “it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.” Clearly, the arguments I made today show that is not the case. It is not something that a government can decide to do.

We have the Constitution and we have the rule of law. However, most importantly, the three examples in Alberta illustrate how those who designed the charter and the Constitution thought it would operate. Public opinion plays an enormous role in deciding what governments can and cannot do when it comes to the use of the notwithstanding clause. That is why I think the pre-emptive use is problematic.

This is before we have had any public debate, before we have had any court decisions and before we have done anything on an issue, so for a province, and it is the provinces that have tried to do this, to insert a notwithstanding clause pre-empts all those things that should take place. It presumes outcomes. It indicates an attitude where rather than trying to find a solution to the problem in front of them, it becomes simpler to pre-empt the debate altogether and say we will not talk about this and will just go ahead and do whatever we want to do. Unfortunately, I think the Bloc motion reinforces the kind of idea that this would be appropriate in Canada in the democracy we have.

If we look at when the notwithstanding clause has actually been used, it has been most frequently used for expedience when collective bargaining fails. The 1986 use of the notwithstanding clause by the Conservative Devine government of Saskatchewan was to implement back-to-work legislation after it failed to reach an agreement with public employees.

Most recently, we had the 2022 use of the notwithstanding clause by the Ford government, which pre-emptively made it illegal for education workers to strike and imposed a contract on them. I would argue there is a right to collective bargaining, and pre-empting that right through the notwithstanding clause meant the government simply did not want to sit down and bargain fairly with the workers.

Between 1990 and 2018, there were only four uses of the notwithstanding clause, and many of us believed it was fading away. The fact that we are debating it today, as if it is an unlimited power of the provinces, is disturbing. As I have said, we already know it is limited. It is limited in time, as it can only be used for five years. It does not apply to certain sections of the Constitution. It is limited by Supreme Court decisions on the question of jurisdiction.

Hopefully, the use of the notwithstanding clause will always be limited by public opinion in this country and by the part of our political culture and our political values that say we are very proud of our Charter of Rights and Freedoms, and suspending any part of those rights and freedoms should not be taken lightly.

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

Mr. Speaker, I thank my colleague for his well-presented speech on the notwithstanding clause and in particular the impact it has had on LGBTQI rights.

I know that last year, in the U.S., we saw Roe v. Wade get overturned. It has been highly problematic, and not just in the U.S. Many Canadians are quite worried about the impact this will have on rights in Canada.

I wonder if the member could speak to the potential of the notwithstanding clause being used pre-emptively and in the wrong way with respect to abortion rights in Canada.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I thank the hon. member for his question because he raises the concern that I was getting at. If it becomes part of our political culture that we can use the notwithstanding clause willy-nilly and pre-emptively, there will be a temptation for certain political actors and political leaders to attempt to appeal to segments of the population by offering to use the notwithstanding clause to respond to their concerns about public policy. That is very dangerous, and I would not like to see us go down a road where we consider suspending rights to be a normal part of the Canadian political regime.

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

Madam Speaker, I thank my hon. colleague for his speech.

I am a little surprised to hear him and some other members, including the member for Rosemont—La Petite-Patrie, say that people on the left are always ready to defend all diversities, diverse expressions and minorities.

Wanting to limit Quebec's right to defend its differences is what we are talking about this morning. That is what the notwithstanding clause is all about. Quebec is a nation, which has been recognized in this place. It has a different language and a different way of life. The Bloc Québécois has to stand up for this distinctiveness day after day after day.

With this morning's motion, we are once again trying to say that this right is enshrined in law and we are tired of being attacked all the time. We are not the same, and we want to keep it that way. We want to safeguard our ability to defend Quebec's distinctiveness. That is all.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, the only thing I can say to that is there is an internal contradiction in the argument that was made when the member said that Quebec's recognition as a nation and Quebec's rights are enshrined. They are in this country, and they are recognized by virtually everyone in this chamber. I am not sure how the reference to the need for a notwithstanding clause has anything to do with the rights that are already recognized and enshrined when it comes to Quebec.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I appreciated the words of my hon. colleague and neighbour from Esquimalt—Saanich—Sooke and the reflections on the failure of the initial charter to protect sexual orientation.

Since the member has raised my old friend Svend Robinson in this discussion, I will mention two of my constituents. Svend Robinson is a constituent of Galiano Island in my riding, and I am enormously indebted to him for many stands he has taken over the years. Another constituent, Conservative Pat Carney, was actually the first member of Parliament to put forward legislation for equal marriage, which was one of many early efforts on her part.

I want to put this to the hon. member. He says, quite rightly, that we never, ever anticipated that the notwithstanding clause would be used as Premier Ford just proposed he would do to deny teachers' rights. We never expected that it would be used for back-to-work legislation applied indiscriminately.

What do we do to mobilize public opinion to protect the Charter of Rights and Freedoms from cavalier political efforts to just grab it as we—

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

I have to give the hon. member for Esquimalt—Saanich—Sooke an opportunity to answer.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, one thing this debate does today is allow us to bring public attention to the fact that this was never the way the notwithstanding clause was intended to operate, and to remind Canadians that we have to be vigilant to protect our rights and have to be vigilant in making sure that suspending rights does not become the normal course of action for certain governments in this country.

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

Madam Speaker, I will be sharing my time with the member for Trois-Rivières. I have only one river and he has three, but we will still share the time equally.

Today's motion states, and I quote, “That the House remind the government that it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.”

The notwithstanding clause refers to section 33 of the Canadian Charter of Rights and Freedoms. It gives elected representatives of the people in the Quebec National Assembly, the federal Parliament and the provincial and territorial legislative assemblies the ability to pass legislation that could contravene one or more provisions of the charter.

Section 33 reads, and I quote:

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.

Then it goes on to say that the effect of the act in question is independent of the provisions of the charter, that the act will have to be renewed every five years or it will expire and that all of this is legitimate.

Others will tell me that that is obvious. They may say that all that has already been settled, that it has been enshrined in our legislation since 1982, so for 41 years now, and that, ultimately, in principle, we are now speaking to no purpose. I wish this motion did not have to be moved in the House today, because I too believe the matter has been settled.

However, we have heard the Prime Minister suggesting for some time that the notwithstanding clause can only be used after the courts have overturned a law.

This Prime Minister is suggesting that we allow people to waste their time and money pursuing needless legal proceedings only to ultimately be told that, win or lose, they have lost. They will have to spend tens or even hundreds of thousands of dollars seeking a judgment from the Superior Court, the Court of Appeal and the Supreme Court. If they are lucky enough to win, the government will say too bad, because with the notwithstanding clause, even when they win, they lose. That seems totally illogical to me.

Our courts are currently overloaded. They are so backed up that it can often take years before a trial begins. Who would want to make the backlog even worse? I have no clue. We should ask the Prime Minister why he is saying that. It seems so absurd to me. However, I would say that it is a fascinating position in some ways.

First, the Supreme Court ruled in Ford in 1988 that the National Assembly of Quebec is perfectly free to include the notwithstanding clause in any law it passes, if it wants to. It can do so pre-emptively, without waiting for a court to overturn the legislation first. The court does not have authority to judge the substance of the legislation or the legitimacy of invoking the notwithstanding clause. The court's only role is to determine whether the notwithstanding clause adheres to the prescribed form. In other words, it must be explicit and indicate the section of the charter from which it intends the legislation in question to derogate.

As we all know, the government of René Lévesque enacted the Act respecting the Constitution Act, 1982, which introduced, again in a pre-emptive manner, notwithstanding clauses for all Quebec legislation. In short, the act is clear, it has been in force for 40 years, and it has faced few or no challenges.

The Supreme Court has upheld the interpretation, but for some reason, the Prime Minister does not seem to be aware of it. I cannot wait to see how our Liberal colleagues will vote on this motion, especially the Prime Minister.

In a 2016 research note, University of Sherbrooke law professor Guillaume Rousseau counted 41 laws passed by the Quebec National Assembly that included at least one mention of the notwithstanding clause.

At least 11 of those laws are still in force. Furthermore, nine of the total 41 included exemptions from both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms.

In total, there were 32 exemptions from the Quebec charter and 18 exemptions from the Canadian charter. These are all statistics.

It is interesting to see some of the examples, including the Act respecting La Financière agricole du Québec, which provides for financial assistance to be granted to young farmers aged 40 and under. We agree that this is discrimination based on age. It is terrible from the point of view of the charter, but it makes sense to Quebec society. Therefore it was decided that the act would apply despite the provisions of the charter. The notwithstanding clause was invoked without any shirt rending whatsoever.

The employment equity act directs the government to give preference to people from under-represented communities. Again, this violates both charters; it is a form of discrimination. However, since Quebec society thought it made sense, the act was passed despite the provisions of the charter, by invoking section 33, the notwithstanding clause.

I also want to talk about small claims court, which was set up to ease the court process in cases that are less financially significant, with claims of $15,000 or less. The idea was that it does not make sense in a case with a $10,000 claim, for example, for people to have to wait years in court and pay a lawyer $20,000 or $30,000 to maybe get a ruling for $15,000 or $10,000. In small claims court lawyers are not authorized to represent clients. People represent themselves. The court makes a decision after having heard all the parties and looked at all the evidence. This goes against the charter, which recognizes the right to a lawyer. As a society, we thought it made sense. It was adopted with the use of the notwithstanding clause.

The Court of Quebec's youth division protects children's anonymity. In Quebec, this was considered important. I believe that it is the same everywhere in Canada. However, anonymity goes against the charter because trials are public. Recently, we saw a case that proved otherwise, but I will not talk about it, because I only have 10 minutes, and it would take me 20 minutes to talk about it. I was saying that under the charter, trials must be public. The youth division was created using the section 33 notwithstanding clause.

These are all choices made by the Quebec National Assembly. It had the opportunity to do so because of one thing. Although the federal government decided to pass the Constitution Act, 1982, behind Quebec's back, without Quebec's sign-off, it still had the decency to allow Quebec to get out of it using the section 33 notwithstanding clause. That was the agreement reached in 1982 between the Prime Minister of Canada and the premiers of the nine other provinces, without Quebec.

I would like to point out that in 1982, our current Prime Minister's father was there. Although he was not always considered to be a decent person in some ways, he did have the decency to say that even though he was doing this behind Quebec's back, he would give it an escape hatch.

Why is the current Prime Minister now questioning decisions made by his father back then? Why is he trying to undermine the autonomy of the provinces and of Quebec? I think that is appalling.

I was listening to my colleagues talk about various pieces of legislation in Canada that they do not agree with. I might not agree with decisions made elsewhere either. The fact remains that democracy is all about the right to pass legislation, and that includes the right to be wrong. We must not forget that.

A democratic state does not pass laws that suit the citizens of other states. A democratic state passes laws that suit its citizens, who are the subjects of that democracy.

I want to respect the democracy that allows the Ontario government or any other government to pass laws that may not suit us Quebeckers. I respect that. It is up to their citizens to decide. They hold elections there as well.

In Quebec, we want to avail ourselves of our right to democracy. We want our government and our National Assembly to pass laws that fit with our values and reflect who we are, without having to impose standards that the federal government has decided to impose on everyone, once again behind Quebec's back, without our consent.