Mr. Speaker, the motion which I have presented asks that the government initiate an amendment to the Constitution Act of 1982 to delete section 33, the notwithstanding clause.
What are we talking about? In 1982 the Parliament of Canada and all the parliaments of the provinces passed the Constitution Act of 1982 which included for the first time in our history an entrenched Charter of Rights and Freedoms. These were such rights as the fundamental freedoms; the freedom of conscience and religion, the freedom of thought, the freedom of belief, opinion and expression, freedom of the press, freedom of peaceful assembly, freedom of association, our democratic rights-that is, the right to take part in elections, the right to run for office, mobility rights, legal rights, very important equality rights. That section said that all Canadians were equal irrespective of their sex, their age, their colour, their religion, their race, their national origin.
In 1982 we entrenched those rights, which meant that those rights could not be taken away by ordinary legislation. Furthermore, those rights prevailed over all other legislation since they were in the Constitution.
If a conflict arose between any other law in Canada and what was in the Charter of Rights and Freedoms, then the Charter of Rights and Freedoms prevailed. The only way those rights could be taken away is by an amendment to the Constitution, which is a very complex thing, as we all know as a result of the Charlottetown accord experience.
We took steps to give Canadians these entrenched rights and then at the same time we put in the very same act article 33, the notwithstanding clause, which allowed Parliament and all the legislatures of Canada to take away those very rights by the use of what is called a notwithstanding clause. This means that if a government introduced a bill which said: "Notwithstanding the charter of rights, we legislate as follows", then it would legislate away the right of freedom of the press or freedom of religion or freedom of equality, and so on.
When Prime Minister Trudeau first introduced the Charter of Rights and Freedoms in 1981, the notwithstanding clause was not in it. At that point the Constitution of 1982 was clear, pure, simple and direct without any shenanigans or skulduggery whatsoever.
However, in the negotiations with the provinces, between early 1981 and passage in late 1981, pressure was brought to bear and the notwithstanding clause was accepted.
I always opposed the notwithstanding clause. As a matter of fact I voted for the Constitution Act of 1981 when it was first presented on the first round by Mr. Trudeau as a member of his party and supported it strongly. However, at the end of the process, when we voted again at the end of the year, I was obliged to oppose the package, not because I did not support many things in it but I could not accept the notwithstanding clause and there were a few other clauses that were added that I could not accept.
Why am I so opposed to the notwithstanding clause? I just referred to these rights. These are not marginal rights that we are talking about. These are not supplementary rights. We are talking about basic, universal rights, rights that are recognized around the world. We are talking about rights that are recognized in the Universal Declaration of Human Rights of the United Nations. We are not talking about rights to own property or to build a house on a certain street. We are talking about things like freedom of religion, freedom of conscience, equality between races, equality between people of different religious backgrounds and so on. We are talking about things that are very basic.
As far as I am concerned, rights are rights and they should not be subject to legislative suspension for any reason, not these kinds of rights. They cannot be legislated away.
Some people would argue that no rights are unlimited. That is correct. For example, let us take freedom of speech. The principle of freedom of speech is, without a doubt, unchallengeable, but we cannot abuse it. We have accepted for a long time the crimes of liable and slander which are an abuse of the freedom of speech. We have now in our criminal law provisions against hate literature by which one cannot attack another ethnic or religious group in a demeaning way. It can add up to hate literature. That is an abuse of the freedom of speech.
The Constitution Act of 1982 and the Charter of Rights and Freedoms provide for that in section 1. The notwithstanding clause is not necessary. Section 1 of the charter states: "that the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society".
We have had our liable and slander laws for many years, but if they were to be challenged as contrary to the Charter of Rights and Freedoms, the spokespersons for the government could argue that these were exceptions that were reasonable in a free and democratic society. In other words, one should not be able to tell lies that will hurt the reputation of other people.
The difference with article 1 of the charter is that it is the court which decides whether the law being challenged is an exception to the charter or not and it is not a politically elected Parliament or legislature that decides. To me that is very important.
What does it really mean when we have a notwithstanding clause in our Constitution and in our Charter of Rights and Freedoms? It means that our minorities really have no protection vis-à-vis the majority. It means that the minorities are subject to the rule of the majority. The notwithstanding clause becomes a contradiction to the very reason for the charter in the first place.
Those of us who argued in favour of the charter, including Prime Minister Trudeau, said that we must have a charter entrenched in our Constitution to protect minorities of different kinds against the rule of majorities in cases where fear often is demonstrated, where all of a sudden in certain situations people want to trample over the rights of the minorities. He said that we could not leave that to ordinary legislation, that we must recognize basic principles and put them beyond the rule of the majority. However if a notwithstanding clause is included that is contradicting what is being done in the first place. You are giving with one hand and then taking away with the other.
To me that is hypocrisy. You really do not have a Charter of Rights and Freedoms if a legislature can pass a law using the notwithstanding clause, using the words "notwithstanding the rights and freedoms we are legislating as follows". You really do not have protection and that is what was supposed to be done in the Charter of Rights and Freedoms. However you are giving with one hand and taking away with the other. It becomes a farce. It can even become mob rule. That is, the mob, the majority when they want to act, they act regardless of the basic rights of the minorities in society.
I had the privilege of being educated at law school by Frank R. Scott, one of the great Canadian professors of law and one of the great civil rights lawyers in our entire history. He was able to challenge two laws Quebec Premier Duplessis passed in the post-war period.
One was a law to ban the Jehovah Witnesses. Frank Scott with others was able to have that law overturned. We did not have the Charter of Rights and Freedoms in those days. However because he was a very imaginative lawyer he was able to do it by referring to other parts of the Constitution.
Then Premier Duplessis passed a law called the padlock act. It allowed him to put locks on the doors of anybody suspected of being a Communist. I have no sympathy for Communists. The point is if it can be done for the Communists, it can be done for the Reform Party, the Liberal Party, the Conservative Party or any other party if you do not like them and you are allowed to pass a law banning a political party. Again, Frank Scott was able to win without the charter.
However I put this to the House. If there had been a charter with the notwithstanding clause and Frank Scott had won in the Supreme Court of Canada, Mr. Duplessis would simply go back to his legislature and say: "Notwithstanding the Supreme Court of Canada, notwithstanding the Charter of Rights and Freedoms, we are once again going to ban the Jehovah Witnesses. We are once again going to ban a political party".
When it was introduced and agreed to by my own party and our own government, it was said we were agreeing to it to get the package through. It was said that it would never be used and if it was going to be used, it would be rare.
It has been used several times. It has been used in Saskatchewan; it has been used in Quebec to override the Supreme Court of Canada and to override other rulings of the court with respect to the charter.
I ask Quebecers in particular to consider that if the legislature of Quebec can do it for language in that province, then another province can do it for language as well. If it can be done for language, it can be done for religion. If it can be done for religion, it can be done for equality between the races.
Once you agree to do it, then one day you cannot say to the guy in the next province or to this Parliament that it should not be done for that when you have done it yourself. You cannot pick and choose on this kind of thing.
Imagine what the situation would have been if the United States had a notwithstanding clause. I know it took a long time but it was finally in 1954 in the famous Brown case that the discrimination laws against blacks in the United States were finally struck down. They were laws that were enforced in several of the southern states that said that blacks must sit in the back of the bus, that said that blacks had to sit in a certain part of a cinema, that said that blacks could not go into certain parks, that they could not live in certain districts, that they could not go to certain schools.
It was the constitution of the United States. It took a long while in American history but finally they won in 1954 by gathering together the funds necessary to challenge those laws. They won in the Supreme Court of the United States in that very famous case, the Brown case.
Can members imagine if they had a notwithstanding clause in the American constitution and Mississippi, Alabama, Georgia or any of those states could simply say that despite the Supreme Court of the United States, too bad, they are going to legislate exactly what they had in the first place. The constitution of the United States would not mean anything. That would be ridiculous. It is ridiculous in most countries. The notwithstanding clause was accepted as a political compromise and it was unfortunate and wrong.
During the discussions on the Charlottetown accord there was discussion as to whether the committee of which I was a member, the Beaudoin-Dobbie committee-it was Castonguay at one point-should make recommendations against the notwithstanding clause.
We debated it at great length and finally we left it aside, much to my dismay, on the grounds that while the notwithstanding clause is not correct in principle there was no chance we could get the provinces to agree, therefore we should not waste our time pursuing something that we could not get agreement on. I say that was unfortunate.
There are other people who will argue that the last word must always be with the political people, the elected people. I can remember an NDP premier of Saskatchewan, Allan Blakeney, whom I respect for other things. He took that point of view.
Legislatures and Parliaments in this country are not unlimited. The Constitution Act of 1867 puts limits on us in many respects. There are limits on catholic schools and protestant schools. There are limits on what one can legislate in the provinces and what one can legislate at the federal level.
There are limits with respect to what one can do regarding the monarchy in the country. One cannot legislate in any respect whatever one wants. There have always been limitations. What the charter did was extend those limitations and say that certain rights belong to people and political bodies cannot take them away.
The argument that political bodies should be completely free to do whatever they want or what they think right at any time is not right in principle and it is not acceptable even from a legal point of view.
I want to remind the House that in 1986 at a large national convention after we lost in a devastating way the election of 1984, the Liberal Party passed a resolution by well over 80 per cent of the delegates attending in 1986 in Ottawa, saying exactly what I have in my motion today, that we should take steps to get rid of the notwithstanding clause.
As a matter of fact, the then leader of our party, the Right Hon. John Turner, presented the same motion that I am presenting today. It was in his name until he retired. I have taken up the motion although I have always supported the same point of view.
I am saying that if we are going to have a Charter of Rights and Freedoms on such basic rights as I have described-I would not say the same thing about marginal rights which are important or other types of rights-and that we have in this charter, they should never be subject to suspension.
If one agrees to suspension in one case, then one leaves oneself open a little while down the road to the suspension of other rights whether they be religious rights or language rights or rights to express one's opinions, freely to write what one wants, to form a trade union, or to form a political party.
I ask this House to take this motion seriously. This is not a piece of legislation in itself. It is a motion that will express the view of this Parliament.
During the discussion right up to the Charlottetown accord some people said that we could not get rid of the notwithstanding clause altogether but that maybe we could get agreement on its limitation, maybe we could take it off the equality rights section, perhaps we could take it off the fundamental freedoms section but leave it on the political rights, in other words restrict its ambit of application.
That was one solution proposed. Others said that maybe we could reduce the number of years for which the notwithstanding legislation is valid. As members know, right now when you pass a bill under the notwithstanding clause it is only good for five years and you must do it all over again. They said let us reduce that to three years, two years or whatever.
Then others said maybe we should introduce a two-thirds requirement for its use. If you are going to suspend basic rights in the Constitution with the notwithstanding clause you should at least have to have two-thirds, three-quarters, not the ordinary 51 per cent majority.
If it was impossible to get rid of the clause altogether I would certainly accept those kind of compromises. I think they would go some distance in reducing the concern that the many minorities in this country have.
Let me say this is a country of minorities. You look at the House we have today, we come from many parts of the world, we come from many linguistic backgrounds, many racial backgrounds, many religious backgrounds. It is not as it was in 1867 when we were basically catholics, protestants, we were all white
and we were either had French or British background. Today we are of many many backgrounds. We are all minorities.
I think we would do ourselves well to declare ourselves on this. It is not to pass a law but it would show where this new Parliament stands on basic rights and freedoms and we would be saying loud and clear that these rights are our rights forever and a day and they cannot be suspended by any simple majority of a Parliament of Canada or a legislature of a province.
