Mr. Speaker, on April 17, 1982, after years of lengthy debate and strenuous negotiation, our country adopted a charter that would bring transcendent change to Canadian life.
The Charter of Rights and Freedoms enjoys a very high level of support in Canada today. Canadians do not only agree with their charter, they cherish the protections it offers, and for good reasons: they are morally sound, they are necessary and they are a reflection of who we are as a people.
The citizens of every country in the world hold their own constitution in high esteem. They are documents, traditions or customs embedded in history and tradition. Even every good Conservative Republican wraps himself or herself in the American constitution. It allowed William F. Buckley to express himself and for Sarah Palin to defend things like gun control or not.
Only in Canada do we hear politicians criticizing the constitutional documents that have founded a country and made it flourish.
Thirty years ago, we had an uneasy relationship with our constitutional past because Canada was in the process of superseding colonial links and affirming its own identity. It was time, more than ever, to part with some of our past links and bring the Constitution to our own country. We wanted to demonstrate to ourselves and to others that we had grown up and that we were a strong country. We wanted to assert our convictions, our principles, everything that distinguishes us as Canadians, and we wanted to declare those principles to the world.
We Canadians appreciate the charter because of its protections and the rights that it provides but Canadians also cherish the charter because it is a reflection of who we are as a people. The Canadian Charter of Rights and Freedoms embodies the character of the Canadian people. The charter inspires us and appeals to the best of us as Canadians.
Unfortunately, the government tends to discredit the Canadian Charter of Rights and Freedoms, but this charter is so Canadian that one has to wonder whether the government is not too fond of Canada. The principles of democracy, equality, freedom and protection of minorities are not very important to the Conservatives. They perhaps want to find ways to avoid complying with this charter. During a trip to northern Canada, the Prime Minister said that he calls the shots, but I think it is time to remind him that he is not the king. The Canadian Charter of Rights and Freedoms had been around for 20 years before this government, and it will still be around 20 years after this government is gone.
In this country, there are rules that apply to everyone, even to those who disagree and even to the government.
When Pierre Elliott Trudeau spoke on the need to celebrate the renewal and repatriation of our Constitution in 1982, we were not witnessing the mere act of another government enacting another law; we were witnessing the birth of a document that was the product of broad political discussion across the country. The product is a reflection of ourselves as a country that we can be proud of. As Pierre Elliott Trudeau said:
I speak of a country where every person is free to fulfill himself or herself to the utmost, unhindered by the arbitrary actions of governments.
The Canadian ideal which we have tried to live, with varying degrees of success and failure for a hundred years, is really an act of defiance against the history of mankind. Had this country been founded upon a less noble vision, or had our forefathers surrendered to the difficulties of building this nation, Canada would have been torn apart long ago.
However, the Conservative Prime Minister has had a very hard time accepting a higher power for himself and sometimes seems to think he is king and not elected by the people of Canada and subject to our law, our Constitution, our founding principles. The Conservatives do not want to live in a world that was the vision of someone like Thomas Jefferson or Nelson Mandela. They want to live in a world without a charter to restrict their power and impose their every will on the public.
The world the government on the other side wants to live in is the world of Robert Bork, which is a world, to quote the late Senator Edward Kennedy:
...in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are at the heart of our democracy.
Senator Kennedy concluded with a comment for President Reagan that applies to this government today as well in that it should not be able to impose its “reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice”.
Let us remember the past, for in remembering the past we might prevent repeating it. In the early 1900s, women were not people in Canada. It took a decision by a court of law to declare that women are people in Canada and that they should have the right to vote. We only need to go back 50 years to the decision in Roncarelli v. Duplessis. We can be glad that Canadian courts had the power to overrule a premier who was using his powers on an arbitrary basis for a personal agenda against the rights of an individual.
Governments are sometimes wrong. Government has to follow a set of rules set out in a constitution and when it does not abide by those rules, modern democracies have given courts the law, the role to decide when the government crosses those lines of unconstitutional behaviour, that they should choose to protect the constitution as well as the citizens from abuse by the government. Every democracy is based on a desire to be, as any founding father or mother would say, a country of laws, not of men.
In our Constitution, we chose to include principles that represent the basis of the Canadian identity. The Canadian Charter of Rights and Freedoms protects the right to equality for all Canadians, the right to freedom, the linguistic duality of this country and the civil rights that protect us against mistreatment by police forces. These protections have enabled us to build schools for minorities across the country, provided services to persons with a disability who needed them, prevented Canadians from being unjustly detained and protected minorities against discrimination. These are the principles that Canadians decided to impose on this government.
Because it is the people's government, they choose the rules that the government should live by. This government, however, has a hard time understanding that the people choose the laws.
This government does not see a problem with the arbitrary detention procedures in Bill C-49, for example. The detaining of an individual by an agent of the government or at the minister's will for 12 months is against the charter. The Supreme Court said so only three years ago. The government does not understand that, but the Canadian people do. They said so in their charter.
The government never saw a reason to protect Omar Khadr from the abuse he suffered abroad, but the Canadian people did because it is in their charter.
The government has cut the budget of groups that have advocated for minority rights, but the Canadian people understand that is wrong. It is in their charter.
This is a government with many members who feel that criminals reap the greatest benefit from the charter. This has to be balanced with the myriad court decisions that say, on the contrary, the Canadian people have a charter.
The immense powers of government over an individual have to be balanced with principles. Where these principles can sometimes impede the effectiveness of police forces, the charter has the override provision in section 1 to provide a reasonable limit to rights and freedoms, but we will not hear the Conservatives talk about the section 1 override provisions of the charter. We will not hear it because they do not want people to know. But the people know that they have a charter. They know that there are protections. It is in the charter.
Tom Flanagan, a well-known Conservative, wrote that courts of law in Canada are often an innovating force ahead of public opinion. Even the Prime Minister has expressed concern that a recent decision of the Supreme Court enforcing the protection of minorities should have been, rather, taken by Parliament.
That is also the view, to bring it full circle, of Robert Bork today. When he was bounced from his nomination from the Supreme Court of the United States, he decided to get some print in Canada. In 2002, he said that courts throughout the world, including Canada, are enacting an agenda.
Robert Bork and the Prime Minister of Canada: very similar.
On the contrary, modern democracies have mechanisms to protect minorities from being abused by the majority. In Canada, this mechanism is the charter, and there is nothing more democratic than a court of law that forces a government to respect a charter of rights and freedoms that was the result of a democratic process.
The Canadian Charter of Rights and Freedoms is a constitutional document that can only be amended by consent of Parliament and of every province. It could never have been the intention to set inflexible rules and principles in stone, fixed in time, that could only be changed by constitutional amendment. Instead, Canadians created a document that would be adaptable and therefore remain relevant to the needs of a rapidly changing society.
The late Supreme Court Justice Antonio Lamer wrote in 1985, when the charter was new and being decided upon that it was a living tree planted by the Canadian people. Supreme Court Justice Dickson wrote the same thing in the case of R. v. Big M Drug Mart Ltd., worrying that “the living tree”, which is the charter, “will wither if planted in sterilized soil”.
The comments by the Conservative government do not represent the Canada that we know. The comments by Tom Flanagan do not represent the Canada that we know. They defy the values that Canadians chose to define as their own in the Charter of Rights and Freedoms.
As two modern examples of how the charter lives, General Roméo Dallaire and General John de Chastelain were exporting democracy and the values of the charter to the world. Long before this debate here today, General de Chastelain in Ireland and General Dallaire in Rwanda, these military giants, walked among divided combatants, dressed as men of war but sounding like men of the charter. It is to Canada's credit that they did so. They exemplified charter values and gained respect around the world.
Today we are here to remind the government that it does not get to choose the world we live in. This is Canada, and Canadians have created a Charter of Rights and Freedoms that reflects their ideals. This charter binds every government to come with respect to these ideas, whether governments like it or not. The protections in this charter are cherished by Canadians for good reason. They are certainly morally sound, as I said at the beginning. They are a reflection of who we are as a people, and they are necessary.
Exercising the protection of a right for one person does not take away the right of another person. That is a very important comment to make. It seems that every distinction made by the government is that in the application of the charter for the protection of a right, someone else loses something. It is a fundamental principle that the protection of one right that is enshrined for one person does not take away the pile of rights that all of us have.
Every court decision grapples with the issue of the individual right and the collective right. This is never mentioned by the Conservative justice team or the Conservative government, ever, or any of their columnists who write daily on these issues. It is never mentioned that there is a collective right. The collective right is enforced by the fact that government does not invade the secure, the privileged and those in positions of power and comfort who do not need the charter to enforce their rights. That is the protection of the collective right. Within the charter is section 1, which provides for the collective right, the right of override. The protection of the single individual right might be overridden by the collective right for the protection of society.
The second point that is important to remember is that, in common sense terms, we could look at the Charter of Rights and Freedoms as insurance. Insurance is a great comfort to those who do not need to use it. It is illogical to say that we like to have insurance because we use it so often. We want to have insurance and never have to use it. Who wants to have a car accident? Who wants to have a fire? Who wants to lose his or her life or be dismembered and use insurance policies for protection?
Why is that not unlike having the charter as protection for everyone in this House and everyone outside this House who is a Canadian? We can have the Charter of Rights and Freedoms which protects us, but we hope we never have to use it. We hope that we are not one of those litigants who has to go to court to ensure that a right is being protected. Who wants to go to court and use the charter?
The Conservatives, on the other hand, should know that we are a far less litigious society than our neighbours to the south. They should know that the charter is being used by people who have to use it, people who have to apply for the protection of their rights. Of course, the great stopgap in this free and democratic society is that our courts have the discretion to determine whether in fact a right has been abridged.
The concept is very simple. The Charter of Rights and Freedoms is for everyone, not just for the people trying to use the charter to gain benefits that are secured for them. We hope, as individuals, that we never have to use these provisions in the charter, but they are there for our protection.
The other thing that I would like to say about the comments made by various individuals in the public is that it is an attack on Canada when they attack our constitutional documents, and it should not be permitted by a political party, let alone a party that is ruling.
It is one thing to have a political point of view that does not believe that the Constitution, as contemplated, protects these rights. That is one thing. But when they say that the whole baby with the bathwater syndrome should be thrown out because the Conservatives do not like how it is applied, the inference to be drawn is that they do not trust judges. That inference has been veiled in the last few years but was not very covered up in the first few years of the government's regime.
The government does not trust judicial discretion. It does not trust the good common sense of Canadian people who wanted this charter and will see to its enforcement. The government does not trust judges to take a common sense approach on the Canadian Charter of Rights and Freedoms, which Canadians believe in, to interpret rights appropriately.
The Conservative government should be ashamed that it lets elected officials, some of whom serve in this House, and unelected officials, who have undue influence on the Prime Minister's cabal, to make statements that denigrate our Constitution, denigrate the opposition, denigrate the points of view of members of Parliament and denigrate columnists. That is what we believe in. We will defend its right to say whatever it wants to say, but the government should not attack the very root of our community, the very basis of our civilization, which is the Constitution of Canada and the Charter of Rights and Freedoms as it exists today. Shame on the Conservative government.
We call on the government to ask for formal retractions from its spokespersons, because this is egregious. It is an awful day in Canadian history when the governing party says that the hall in which we govern, the land that we govern, partially, is governed by a document that it does not believe in. How close is that to anarchy? It is too close.
We in the opposition call on the government to look into the recesses of its soul and say it is wrong, say that it is sorry and admit that it believes in Canada, that it believes in the Constitution, that it believes in the Charter of Rights and Freedoms.
