Mr. Speaker, I will be sharing my time with the member for Les Pays-d'en-Haut.
I rise today in response to a motion calling on the government to fully withdraw from legal challenges on Bill 21. The motion would have the House agree that the Government of Canada, the government of all Canadians from coast to coast to coast, should not participate in one of the most important constitutional appeals to the Supreme Court in recent memory.
This case directly concerns Quebec legislation, of course, but the legal issues that it raises and that the Attorney General of Canada has addressed are of prime interest and deal with the role and importance of the Canadian Charter of Rights and Freedoms in our modern governance system. The Supreme Court must determine what it means for the federal Parliament or a provincial Parliament to use section 33 of the charter.
Section 33 of the charter, known as the notwithstanding clause, has never been used at the federal level. Today, I would like to talk more about some of the less understood ways in which the government promotes good governance and the improvement of policies and laws under the charter. I do so to highlight well-thought-out practices that could be at risk if the use of section 33 were allowed to become more common and less taboo.
The point I want to make today is that the charter imposes a necessary discipline on government policy and law-making. This discipline would be lost if the use of section 33 became normalized. I will explain.
Let me explain. The charter is part of the Constitution and the Constitution is the supreme law of the land. That means that every law and every move the government makes must be charter-compliant. As a country founded on principles that include the rule of law, governments must be committed to ensuring that the measures they take and the laws they pass comply with the charter.
Prior to 1982, there is no doubt that governments recognized the fundamental value of a free and democratic Canada, a value that ultimately needed to be enshrined in the rights and freedoms guaranteed by the charter. After 1982, upholding these values became a constitutional imperative.
To be clear, respecting rights and freedoms does not mean never limiting them. Charter rights and freedoms are not absolute. Section 1 of the charter specifically sets out limits, which is very important, and guarantees rights and freedoms, subject to “reasonable limits” prescribed by the rule of law that can be demonstrably justified in a free and democratic society.
What are these reasonable limits that can be imposed on the rights and freedoms of Canadians? In essence, the standard boils down to a deceptively simple set of questions.
Is the government's objective sufficiently important to justify limiting a right? Is the limit a rational way to achieve that objective? In trying to achieve that objective, does the law use the option that causes the least harm to the right being limited? Finally, if the answer to each of these questions is yes, is the overall harm to the exercise or enjoyment of the right worth it when weighed against the benefits of the rights-limiting measure?
If so, then in Canada we consider such a limit to be reasonable, and, assuming that a government is well armed with supporting evidence, logic and reason, demonstrably justifiable as well.
When potential impacts on charter rights and freedoms are identified in the policy development process, governments need to carefully evaluate whether any limits on rights and freedoms are reasonable and can be demonstrably justified in Canada's free and democratic society.
As I just mentioned, this requires asking a series of questions that relate to the reasonableness of what is being considered.
Let us look at the first question: Is the government's objective in introducing legislation important enough to warrant limiting a right or freedom?
This can prevent governments from introducing trivial or merely symbolic legislation that would limit rights and freedoms.
The second question is whether the proposed means of achieving the government's objective is rational or, in other words, whether it is the right tool for the job. This prevents relying, for example, on “common sense” that may be unfounded or simply uninformed. Saying that public safety will be enhanced by doing a particular thing does not make it so, especially if the weight of evidence shows that such is not the case. If we are honest with ourselves, evidence-based solutions to certain problems are counterintuitive, and governing with respect for charter rights and freedoms helps us to recognize this and propose better and more effective approaches.
The third question is whether there is another effective means of achieving the important objectives, while lessening the harm to rights or freedoms. Meeting this standard requires assessing the various options available to advance an objective and choosing the most reasonable one that does the least amount of harm to Canada's fundamental values and to the Canadians whose rights and freedoms will be restricted.
The final question is whether the benefits of the legislation proposed to achieve an important objective outweigh the harms to the exercise or enjoyment of the right or freedom. That is the ultimate cost-benefit analysis, and it must be objective. This aspect of the section 1 standard prevents enacting legislation that has marginal benefits and real impacts on the rights and freedoms of Canadians. It does not tolerate legislation that disregards the rights and freedoms of individuals who may be unpopular, such as people charged with or punished for a crime, or laws that disregard the negative impacts on members of a minority group who have limited political power and little or fleeting public sympathy.
I think we can all agree that the questions the charter requires us to ask when considering new legislation are good, appropriate questions. We must ask these questions and evaluate their answers throughout the policy development process, from the initial departmental discussion about ways to solve a problem, to cabinet consideration of the options, to the drafting of a bill and, ultimately, to the most important stage, debate and passage of a bill by Parliament. Feeble answers to any of the questions should sound the alarm and lead to more in-depth study and consideration of alternatives.
When we get good answers to the questions that the charter forces us all to ask ourselves, we can adopt more thoughtful policies and better laws for Canadians. If we do not get good answers, and if the arguments and evidence in support of poorly crafted legislation are weak, the government should be held accountable for its choices.
This is what should worry us if section 33 becomes commonplace in Canada. Instead of thoughtful, reasoned, logical, evidence-based laws that limit rights and freedoms and are subject to robust checks and balances in the form of judicial oversight in the courts, section 33 eliminates this disciplined approach to law-making. The use of section 33 may amount to a crude assertion of power over the rights and freedoms of individuals in Canada that stands in direct opposition to the way federal governance has functioned for over 40 years.
Although Canada is one of the best countries in the world to live in, we are far from perfect. We have made serious mistakes in the past. Prejudice and blind spots are an inherent part of being human, and they also exist in the institutions we create and operate. Here are a few examples of what we have done in the past: We imposed a head tax on Chinese immigrants, forced generations of indigenous children into residential schools and, in 1939, turned away Jewish refugees fleeing Germany aboard the MS Saint Louis. There may be some people who still believe that all of those decisions were right, but in general, as a nation, we have come to regret them and apologize for them. The discipline that the charter imposes on the government during the decision-making and legislative process helps prevent such tragedies from happening again in Canada.