Gary Anandasangaree

[Business of Supply, February 9th, 2023]

Madam Speaker, throughout this historical overview, I hope to bring out two main points.

The first point is who used the notwithstanding clause in a particular political and historical context. The use of the clause was exceptional until very recently, in the case of Ontario, where it was used pre-emptively. The political cost was simply too high to do otherwise.

The second point is that the frequent practice of provincial legislatures was to invoke the notwithstanding clause in response to a court decision. In my opinion, the only potentially legitimate recourse to section 33 necessarily involves the courts. Our constitutional tradition is marked by dialogue. The pre-emptive recourse to the derogatory clause eliminating legal debate is contrary to our traditions and must be decried.

The legislature of Quebec, for a time, included a standard notwithstanding provision in each of its new laws; this practice continued until the 1995 election.

Afterwards, the notwithstanding clause was used only a few times by the provincial legislatures. The Saskatchewan legislature passed back-to-work legislation invoking the notwithstanding clause in the mid-1980s. The legislature did this in response to a decision by the Saskatchewan Court of Appeal that declared an earlier version of the law unconstitutional and did not include an overriding provision. The Supreme Court eventually cited the Saskatchewan legislature, ultimately concluding that the law did not infringe on the charter. Therefore, the recourse derogation clause was not necessary in this case.

The third province to use the notwithstanding clause was Alberta. In 2000, the Alberta legislation passed the Marriage Amendment Act, 2000. With this act, the province's Marriage Act was amended to declare that a marriage could only be between persons of opposite sexes.

Apart from the initial and particular example of Quebec immediately after the patriation of the Constitution in 1982, it can be seen that recourse to the notwithstanding clause was relatively exceptional. Prior to 2018, only three provinces had laws in effect invoking the notwithstanding clause, and they did so only a few times.

Since 2018, we note a renewed interest in the use of this clause. The Ontario legislature almost invoked the notwithstanding clause in 2018 in response to the Ontario Superior Court decision that a law to reduce the size of the City of Toronto's council was unconstitutional. Legislation invoking the notwithstanding clause was not passed, however, because of the intervention of the Ontario Court of Appeal.

Subsequently, the Ontario legislature passed, for the first time, legislation invoking the notwithstanding clause in the Protecting Elections and Defending Democracy Act, 2021. The notwithstanding provision was invoked here in response to the decision of the Ontario Superior Court, which declared certain provisions relating to third party election expenses unconstitutional.

This new bill from the Legislative Assembly of Ontario therefore follows a worrying recent trend. As I mentioned, while the use of the derogation clause was exceptional then, this seems to be less and less the case now. One could add to these examples the failed attempt by the New Brunswick legislature in 2019.

This provision should not be taken lightly. There was never any question when it was included in the charter that it should become a tool to be used routinely. Rather, it should only be used in the most pressing cases where no other option could be considered and there is a strong public policy consideration. What is the point of adopting a charter incorporating fundamental rights and values into our Constitution only to derogate from it at the slightest inconvenience?

A healthy democracy should not be based on majority rule. It must respect and protect all Canadians by giving them the chance to question the decisions of the government in place. The charter is an instrument for challenging decisions made by governments by applying clear guidelines. It is not normal for a government to be able to make decisions without submitting to scrupulous evaluation by its population. However, this is what section 33 is for: to avoid any debate and exchange of ideas about a measure. This is a way for a government to hide behind the notwithstanding clause in order to avoid questioning itself. I do not think that allows us to live in a healthy democracy.

In addition, the time of use of the notwithstanding clause should also be considered. Indeed, when used pre-emptively and preventatively, it has even more negative repercussions on our parliamentary system since governments can pass laws without worrying about the impact on the fundamental rights of their citizens. Its preventive use risks upsetting the fragile balance that exists between the protection of fundamental rights and the effective functioning of a parliamentary system.

I would like to conclude by saying that I take a dim view of this frequent pre-emptive use of the derogation clause. This practice trivializes our most basic protections, and I am happy that we have the opportunity to discuss this important matter for all Canadians across this country.

[Business of Supply, February 9th, 2023]

Madam Speaker, I am glad to speak this afternoon. I will be sharing my time with the member for Aurora—Oak Ridges—Richmond Hill.

Let me acknowledge at the outset that we are gathered here on the traditional unceded lands of the Algonquin people.

Before I go into the speech, I have some important reflections on the Canadian Charter of Rights and Freedoms. It is a document that has entrenched into Canadian law such fundamental rights and freedoms as I think people around the world aspire to achieve. Over the years, this has been a guiding document in my life. I think it has been a guiding document for many in this country. While it is not perfect, it has offered a very important path towards the recognition of international human rights and the universality of human rights. Of course, we can date this back to the Universal Declaration of Human Rights that was signed right at the end of World War II, as well as the former Canadian Bill of Rights and other international covenants and documents Canada is party to.

On a personal level, my family came to Canada 40 years ago this year. We fled an armed conflict in Sri Lanka where the rights of minorities were suppressed, and suppressed at will, oftentimes with reinforcement by law. Around this House, this country and my riding, millions of Canadians can trace their history to difficulties because governments chose to suppress their rights because of who they are.

In fact, in Canada we can see a number of occasions of this. The member for Esquimalt—Saanich—Sooke talked about the experience of the LGBTQI community, and of course the member for Winnipeg Centre has often spoken about the disparity between indigenous and non-indigenous Canadians.

The Canadian Charter of Rights and Freedoms has set a benchmark for us to follow in many ways. While it is important that we were able to get this agreement in 1982 with the provinces with the inclusion of the notwithstanding clause, this clause was always meant to be used sparingly by governments.

Our charter is also a source of inspiration for the many countries that have built some of their constitutional documents in a similar way. In short, as a Canadian, I am proud that 40 years ago we decided, as a society, to have such an instrument.

Section 33 of the charter, which is commonly known as the notwithstanding clause, made it possible to reach a political compromise between the different entities making up Canada when the charter was adopted. This section authorizes Parliament or the legislature of a province to derogate from certain provisions of the charter, namely those protecting fundamental freedoms, legal guarantees and equality rights.

[Business of Supply, February 9th, 2023]

Madam Speaker, the Minister of Justice clearly indicated that the government had concerns about the pre-emptive use of the notwithstanding clause. The provinces should be convinced that their laws comply with the charter. We have serious concerns about the clause being used in this way.

I would like to ask my colleague if he agrees with Doug Ford's use of the notwithstanding clause last fall.

[Business of Supply, February 9th, 2023]

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.

[Sri Lanka, February 6th, 2023]

Mr. Speaker, I rise to mark the 75th anniversary of the independence of Sri Lanka, a country that is both morally and economically bankrupt today.

Since independence, Sri Lanka has gone to the IMF for bailouts 17 times, which is more than once every five years. Its leaders stand accused of war crimes, crimes against humanity and genocide. On January 10, Canada imposed sanctions on two former presidents of the island: Mahinda Rajapaksa and Gotabaya Rajapaksa.

If Sri Lanka is to reach its true potential, it must deal with its demons. It must reduce its political and military spending, address accountability for atrocities committed, recognize the Tamils' right to self-determination and be a country governed by the rule of law. Continued failure by its leaders will further drive what many have called the “pearl of the Indian Ocean” into the ground and risk repeating the mistakes of the past.

[Justice, February 3rd, 2023]

Madam Speaker, let me be very clear on bail. The laws on bail are limited to those who do not pose a risk to public safety to be released on bail. If we look at the criminal justice system as a whole, we have a shared responsibility with the provincial and territorial governments. With respect to the federal government, we are responsible for the Criminal Code. The federal government is working with the provinces and territories to ensure that the administration of justice is strengthened. We will work with them in order to get to the right place on bail.

[Justice, February 3rd, 2023]

Madam Speaker, our hearts go out to those impacted by violence, and especially gun violence. As far as bail is concerned, there is no right to bail if someone poses a serious risk to public safety. There is, in fact, a reverse onus for bail imposed on the accused charged with certain firearms offences, including offences involving a firearm that are committed while subject to a weapons prohibition order. We will continue to work with the provinces and territories to ensure that bail is accessible, but at the same time it is limited to those who do not pose a risk to public safety.

[Justice, February 3rd, 2023]

Madam Speaker, Canadians deserve to be safe and to feel safe. We all have a role to play in protecting communities.

The laws on bail are very clear. If the accused poses a serious risk to public safety, they should be denied bail. At our direction, federal officials have been working for months with their provincial and territorial counterparts to develop ways to keep Canadians safe. We need lasting solutions that are tough when they need to be tough, but also that address underlying issues like mental health, addiction and homelessness.

[David C. Onley, February 3rd, 2023]

Madam Speaker, I rise to honour the late Hon. David C. Onley, the 28th lieutenant governor of Ontario, an iconic Canadian broadcaster, educator and disability rights advocate, and a long-time resident of Scarborough and Rouge Park. Onley contracted polio when he was just three, leaving him to use a motorized scooter throughout his life.

One of Onley's greatest wishes was for all people with disabilities to have the opportunity to fully participate in every aspect of society. He became Canada's first news anchor with a visible disability. In 2007, he became the lieutenant governor of Ontario and used his position to remove physical barriers to Ontario's 1.5 million people with disabilities. After leaving office, Onley continued to inspire and advocate for people with disabilities, namely as a senior lecturer at the University of Toronto's Scarborough campus, where he talked and inspired a new generation of advocates, including several of my current and former staff.

I give my deepest condolences to his wife, Ruth Ann, and his sons, Jonathan, Robert and Michael. May he rest in peace.

[Public Safety, February 2nd, 2023]

Madam Speaker, our Minister of Justice has been committed to this for many years, and for the record, the work started many months ago.

This past Monday, we passed a motion at our justice and human rights committed to study this issue. We are committed to working with our provincial and territorial counterparts. I can assure the House and Canadians that our minister is seized with the matter and will work diligently with everyone involved, including the opposition to constructively address the issues of bail reform.