Mr. Speaker, I am pleased to share my time with the member for Bourassa.
I rise today to discuss the Bloc Québécois opposition day motion. First, I would like to congratulate and thank my colleagues in the House for offering many complementary perspectives on this issue. The use of section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause, is indeed an important issue that affects all Canadians, including Quebeckers.
As Ban Ki-moon, former secretary-general of the United Nations, used to say, protecting minority rights protects the dignity of all people. Quebeckers and other Canadians expect their governments to protect their rights and freedoms. With that in mind, I consider it perfectly legitimate, reasonable and responsible for the Attorney General of Canada to provide an opinion in the context of a judicial exercise of tremendous importance to the evolution of Canadian constitutional jurisprudence.
First, I think we should take a brief look back in time and revisit comments made by certain political leaders who were intimately involved in negotiations surrounding the Canadian charter. As we will see, many of them saw the notwithstanding clause as a tool of last resort, to be used only in exceptional circumstances.
I would also like to use my brief time to point out that the charter is structured so as to allow the government and Parliament to introduce important public policies, provided that achieving these objectives does not disproportionately restrict Canadians' rights and freedoms. This appropriate balance between individual rights and collective interests also strengthens our democracy, helps society thrive and supports the well-being of all Canadians.
When a legislature invokes section 33, the courts cannot strike down the law, even if the law places unjustifiable limitations on charter sections 2 and 7 to 15. This is an extraordinary power. Nevertheless, it is clear that the relatively recent uses of the notwithstanding clause appear to depart from some of the original views on section 33.
For example, Roy McMurtry, Ontario's attorney general at the time, saw the notwithstanding clause as an exceptional tool that might be necessary in the “event of a decision of the courts that is clearly contrary to the public interest”.
Furthermore, Allan Blakeney, the then premier of Saskatchewan, explained in an article published in 2010 that he believed that the notwithstanding clause might be necessary in the event that a court rendered a decision that would have a negative impact on rights not protected in the charter, particularly social and economic rights.
Many political leaders at the time saw the notwithstanding clause as an exceptional tool of last resort that should be invoked with caution. It was not designed to systematically thwart the very purpose of the charter, which is to respect fundamental rights and freedoms, much less to circumvent the courts before they have had a chance to rule on the constitutionality of the legislation in question.
Of course, section 33 of the charter preserves a form of parliamentary supremacy. At the same time, the notwithstanding clause should not be viewed in isolation. It should be assessed in light of the entire Constitution, of which it is an integral part.
In any event, it has now been 43 years since the charter was adopted. The concerns that some of those involved in repatriating the Constitution and introducing the charter may have had, rightly or wrongly, have largely dissipated with time. The courts have certainly interpreted the rights and freedoms guaranteed under sections 2 and 7 to 15 of the charter generously, as they do for the Quebec Charter of Human Rights and Freedoms.
However, they have also, under section 1 of the charter, maintained reasonable limits on those rights where a government has been able to demonstrate that the public interest justified them. This brings me to a brief discussion of the architecture of the charter.
The purpose of the charter is not to unduly obstruct government action. The government and Parliament have successfully advanced several major public policies that benefit Canadians in areas as diverse as health, the environment, immigration and public safety, while respecting the rights and freedoms guaranteed by the charter. In addition to section 1 of the charter, other provisions of the charter allow for restrictions on rights and freedoms as long as the state acts reasonably. Rights and freedoms are not absolute and must sometimes be weighed against social and economic imperatives.
Consider, for example, section 7 of the charter. It states that everyone has the “right to life, liberty and security of the person” and that the state can only infringe upon those rights in a manner consistent with the “principles of fundamental justice”. This means that the rights to life, liberty and security of the person are not absolute. Limits are permitted as long as they respect certain fundamental principles of a free and democratic society.
In particular, the government cannot act in an arbitrary, excessive or procedurally unfair manner. It would be excessive, for example, to imprison Canadians for minor offences. On the other hand, imprisonment for more serious crimes is entirely justified.
It is this proportionate balance between individual rights and public interest objectives that courts seek to achieve when applying section 7 of the charter. This section constrains government action, but not excessively so.
This demonstrates that the charter is not an absolute obstacle to government action, but rather a safeguard against government action that could be considered arbitrary and discriminatory. It exists to prevent abuse and excess by forcing the government and Parliament to ensure that the laws to which Canadians are subject will not infringe on their rights beyond what is truly necessary to achieve important public policy objectives. This approach to governing can only enrich our democracy, which is why successive federal governments have succeeded in governing without exempting their laws from the application of the charter. This is a record of which Canadians can be proud.