Joe Comartin

[Criminal Code, December 10th, 2010]

Mr. Speaker, it is difficult to say this, but there does not seem to be any other explanation. We have known for over five years, because it precedes the Supreme Court of Canada decision, and it was quite obvious what was going to happen when Shoker got to the Supreme Court of Canada from the Court of Appeal. So there was a lot of time for the government to do this.

However, there are no obvious victims. We cannot point to an obvious victim, because what is really being said is that if this law had been in effect, this person would not have been a victim. We cannot go and find that person because there is just no way of doing that. The Conservative Party needs those photo ops for the Minister of Justice or the Minister of Public Safety to trot out, and it just did not have them. So this one gets pushed down to the bottom, even though if we were to ask the police officer on the street or the corrections officer, they would have wanted this right near the top to be dealt with very rapidly.

This is the second time this bill has been before the House. We had the election and it was knocked off the order paper. We had prorogation twice and it was knocked off the order paper. However, other bills have gone ahead. We have had 50 or 60 crime bills in the five years. We did not need them, but this one was always pushed down, because again, the Conservatives did not have that photo op.

I want to be very clear on this. When the Conservative government had to make a decision over which bills they were going to proceed with, they did it on an individual basis. Of those 50 or 60 bills that we have had, including quite frankly some of the private members' bills from the Conservatives, we could have brought almost all of those into two or three omnibus bills. That would have used up a lot less time in this House and more effectively dealt with a number of issues that do exist within the Criminal Code and the criminal justice system. We could have used omnibus bills to do that.

This next bill that we have right after this debate, Bill S-6, is a classic example of that. There are at least three other bills that have either gone through or are coming that should have all been combined around this one issue, and we can just repeat that over and over again.

That would not have allowed the government have those photo ops. It has to have an individual bill on every section of the Criminal Code, at the rate the government is going. If we do not have that, then too bad, it is no longer a priority for the government and is just dropped.

[Criminal Code, December 10th, 2010]

Mr. Speaker, my colleague's question does highlight a valid concern, although I have to say, one that I do not think is applicable here.

I just want to confirm what we have seen so many times with this government, of doing the photo ops on crime bills and then dumping the responsibility and the cost onto the provinces, with no cost-sharing arrangements at all. We are seeing that repeatedly, especially with regard to the rates of incarceration and how many billions of dollars that will cost the provincial levels of government.

However, in this particular case, as I said earlier in my speech, we had been doing this; the samples were being taken up until 2004 or 2005. So the system was in place across the country. The laboratories to which the samples were sent were already on contract. Most of them are private. They are not government agencies. So that system was already there. It has been languishing, but it is still being used for other purposes, because we take samples in any number of other ways. But that forensic skill is certainly in the country. We have been spending less money on it at the provincial level because we have not been able to take the samples, because we have not been able to use them. So there will be an increase in cost, but it is costs that the provinces were running, up to about five years ago.

I will make one final point, though. It is, I believe, a benefit to people who are accused that we have national standards. I am assuming and I certainly would expect that those regulations would set those national standards. I have to assume as well that they may not have always been met in the past, so we will now have national standards, which will make it much easier for our prosecutors, when they take those samples into court, to convince a judge that they are valid, that they have been done properly because they have met the national standards, and the conviction will pretty well always flow from it.

[Criminal Code, December 10th, 2010]

Mr. Speaker, the Shoker bill is a response to a decision by the Supreme Court of Canada that came down in February 2006. The government is finally getting around to dealing with this almost five years after the ruling.

The ruling, even in 2006, was not a surprise because it started at the trial level, went to the Court of Appeal and then the Supreme Court of Canada. In each case, as I recall, the rulings were the same all the way up to the Supreme Court of Canada.

It was interesting to listen to the parliamentary secretary in response to a question from the opposition side saying that the government needed three years to consult before it could even draft the bill. I have a hard time with that. The reality is that it has decided that this bill and correcting the problem are not very important because it does not do the usual thing that its crime bills do. There are no easy victims that it can trot out for photo ops and push its ideological agenda with regard to crime.

On the other hand, for our police forces in particular, and our prosecutors and judges who deal with the criminal justice system, this is a very important problem for them. The solution is quite clear. I am not suggesting that the government could have turned this around overnight but almost five years after the fact is way too long.

In terms of the constant false accusations that we hear from the Minister of Justice about opposition parties delaying crime bills, this bill is before the House only because I asked the Parliamentary Secretary to the Minister of Justice a couple of weeks ago why we were bothering with this bill going through its normal process.

It is a technical bill and, even though the bill is fairly lengthy, it is quite simple. We are responding to the Supreme Court of Canada decision. It was only before the House earlier this week and today for debate on the agreement of all parties that we will limit debate and send it through all stages today once I finish my speech.

What it really says is that the government has a priority around crime but only where it benefits it from a partisan political standpoint, and this bill does not do that. I want to go back to just how important this bill is for the police officer on the street. I will put it in context.

I cannot remember how long this goes back, but for a long time people have signed recognizances when they are initially charged and they are sometimes released with financial bail but usually just on conditions and most often those conditions are for the individual to abstain from the consumption of alcohol or, at the very least, drugs and other illicit substances of that nature. There are many cases of where people have been convicted within the criminal justice system and put on probation or, as part of their parole when they come out of incarceration, the same conditions, which are no consumption of alcohol or drugs.

What has been a practice for about 20 to 30 years that I am aware of is that if police officers, in their normal course of duty, came across individuals who were subject to a recognizance, probation order or parole order, including these conditions, and became suspicious that they were breaching those conditions, they would demand a sample, usually urine but sometimes blood, and if the analysis of the substance was that there was alcohol or drugs present, they would lay a charge against the individuals for breach of recognizance, probation or parole and the courts would then deal with it, with the analysis being the principal piece of evidence against the individual.

Around 2004, the Shoker case came before the courts on a charge of breach of probation. The defence counsel raised, for the first time in Canada, that there was no authority anywhere in our criminal laws that allowed the police to demand the sample. Even though accused people, convicted people in most cases, had probably breached their terms of probation or parole, there was no way police officers could demand what in effect was the proof they needed.

As I said earlier, it was found that this was the case, that there was no authority for the police to do this. It went through the Court of Appeal and on up to the Supreme Court of Canada, all confirming there was no authority and unless the federal government set in place provisions within the Criminal Code and a system as to how those samples would be dealt with, the practice had to cease, and that has happened.

The result of that is we have substantial frustration within our police forces. If police officers have a very solid suspicion that a person has breached these conditions, the consumption of alcohol or drugs, they are prohibited to act on that. Unless police officers actually catch the person in the process of consuming alcohol or drugs, which is rare for them to do, there are no effective means of proving the person has broke his or her parole conditions. When police officers catch people who they are suspicious of doing this, they have to turn a blind eye and let the person go.

I want to emphasize the significance of what this has meant in one area. In trying to combat the street gangs, a few years ago Police Chief Blair in Toronto, the chief in Halifax more recently and I believe in Calgary as well will charge an individual who the police are suspicious of is part of a street gang, oftentimes a violent street gang. In most cases that person will get out on bail, but he or she will be under these conditions.

Police forces have been targeting specific areas of their cities. They have been going to the houses of those people every day to check on them, particularly if they are on a curfew. If they have breached their conditions under that recognizance, then they will charge them, and in most cases those people will then be incarcerated until their trial.

It has been a very effective tool. There are areas in the city of Toronto with I am fairly familiar. There are two areas in particular where the crime rate among the youth gangs dropped by 30%, 40% and 50% because of this tool. We have no way of proving this, but we can argue that if Shoker did not apply and if we had Bill C-30 in place, it would be even more effective. In cases where police officers are suspicious of drug or alcohol consumption prohibited by the signing of a recognizance order, they have no way to charge them because they cannot prove it.

We were speculating in the earlier debate on this that the number of cases where the police have been unable to charge people clearly has to be in the thousands over the last five or six years. Again, it is not an issue that the government felt was important enough to deal with, but it has certainly been a very important one for our front-line police officers.

I will go back to the decision by the Supreme Court. It was made very clear that there had to be a clear regime of how the samples would be demanded, how they would be treated and how they would ultimately would be disposed of. I acknowledge that the government has done this, which is a bit surprising given some of the other things it does with crime bills.

The government made it quite clear, and I suppose it was because the Supreme Court would have ruled this ultimately, that any of the samples could only be used for the purposes of proving the breach. The samples could not be used in any other criminal charges.

The importance of that is to be very clear to the Canadian public generally that we understand, the courts understand and the criminal justice system understands that asking for a bodily fluid sample is an invasion of that person's general rights to privacy. Therefore, we had to be very careful, and the Supreme Court made this clear in its decision, in upholding the lower court ruling. That was the major reason for doing it. It said that this was a major incursion into an individual's rights of privacy.

I want to make it clear that this is no reflection on the average police officer. However, some police officers, who were either overly zealous or abusive of their authority, would make unreasonable demands. Therefore, it wants to be very clear that if these demands are made, they are made for a very limited purpose in compliance with that court order or recognizance or parole condition and only for that purpose, thereby reducing the potential for those demands to be made unreasonably or abusively.

That section is in Bill C-30 and it is one that is in keeping with both the wording and the spirit of the Supreme Court of Canada's decision in R. v. Shoker.

As well, I want to be quite clear on the fact that the bill deals with the three separate areas where it is used. I made reference to the recognizance. The majority of cases where the police will attempt to enforce this are probably the recognizance cases. Again, when individuals are charged but not yet convicted or found innocent, if they do not want to be incarcerated pending their trials, they are required sign this recognizance, which in effect is a court order at that point.

There are very standard clauses in the recognizance right across the country. The abstinence from alcohol and drugs is a very common one. Not associating with certain people is also a very common one. Being subject to a curfew between certain hours, not being out on the street, having to be in their residence and having to maintain a regular residence, is very standard. Those are the most common ones that I can think of just off hand. The one on alcohol and drugs is really important.

It is hard to perhaps make the case without talking about the methodology and the mechanism that was used in New York to reduce the amount of crime. Generally the chief of police, but also Mayor Giuliani, really insisted on this. We can look to other communities in the U.S., and in some cases now Canada because of the current administration, where they use legislative responses to high crime rates.

Any number of studies in the United States and some here have shown that a legislative response generally is much less effective in dropping the crime rates than it is using these kinds of tactics. I mentioned the ones that Chief Blair used in Toronto and the ones that chief in Halifax uses currently. I believe other chiefs have done it as well.

New York City went after the little crimes. We talk about them cleaning up the graffiti. One of the areas that it went after was breaches of conditions, and the alcohol and drug one was the major one. Again, much was done in Toronto, this was widespread across the city. If people were caught consuming alcohol or drugs when they were prohibited to under the recognizance, they ended up back in jail.

The effect was the serious crime rate for crimes such as drug trafficking and serious violent crimes, not the graffiti, not consumption of illicit drugs, dropped dramatically because the person was incarcerated and was physically removed. It also it gave the message to that crime element in New York City that it would not longer be tolerated. If people did something like this, they would be caught.

It comes back to everything I learned in law school, in my law practice and in all the work that I have done here as a member of Parliament. It completely reaffirms, every time, that we could have a safe society, as safe as we can make it, by saying to that criminal element, those people who are so anti-social that they will commit crimes, and by convincing them that if they commit that crime, they will be caught. If we have a society where the vast majority of crimes are identified and prosecuted successfully, we very much drive crime rates down and we protect our citizens, which is our fundamental responsibility as parliamentarians.

The fact that we have been unable to do this for the last four or five years has resulted in more crimes being committed that otherwise would not have been. We would have had these people either getting the message clearly that they would not get away with this, or they might be incarcerated and not available to commit crimes. That is why this is so important.

The other point I want to make is with regard to those individuals who have been convicted, whether they are on provincial probation orders from the courts or they are under a parole order from our corrections authorities at the federal level. The availability of this right to demand samples and to use them is a key ingredient for those people, such as the social workers and corrections officers, who supervise people who are out on probation or subject to a parole order.

It is one of the key ways they have of being able to say to people that they are engaged in lives very actively, that they want to ensure they do not commit a crime again. This is the message that goes to people who have been incarcerated but who are now out. The message is they are very closely monitoring their conduct. If they are subject to an order that requires them to abstain from alcohol or drugs and they identify or become suspicious that they have breached that, then they will insist the samples be given. If they are correct in their suspicions, those people will be charged.

It is the ability of the corrections officers to use that tool in their monitoring and supervision that makes their jobs a lot easier. That is not the only consideration, but the major consideration is it makes their jobs much more effective. The enforcement of the probation orders and the enforcement of the parole conditions are much easier if they know they have the ability to turn to the police and say that they are suspicious, that they believe the person whom they have been supervising has breached his or her conditions and that they want to use the provisions of Bill C-30 and take the sample. If the person has breached the condition, then the individual will be charged. This technique makes their jobs much more effective.

Again it begs this question. How many people out on probation, who were not caught quickly enough, who have deviated from the path they were supposed to following, get into more serious crimes? We do not know. I have had comments from other members who have worked in this area in the past and it has to be in the thousands. Therefore, a lot of crimes may have been prevented had this been in effect.

The bill will go through the House today. It will get to the Senate. Hopefully it will not play any of its delaying tactics and we will have this before the courts for use in the next few weeks.

[Points of Order, December 10th, 2010]

Mr. Speaker, I rise on a point of order to respond to a point of order that was raised by the Parliamentary Secretary to the Leader of the Government in the House of Commons. I must admit that when I heard the objection he was making to a question that was put on the order paper, I was a bit surprised given your ruling about four years ago when he and I had an exchange on the same point. What I see are very similar issues and he appears to be making the same errors in terms of his analysis of this particular question by the member for Honoré-Mercier. It is about Standing Order 39(1) and 39(2) and just for the record. Standing Order 39(1) reads:

Questions may be placed on the Order Paper seeking information from Ministers of the Crown relating to public affairs; and from other Members, relating to any bill....

I will not go on with the rest of it, as it is really the second part that is important. It authorizes the Clerk of the House to be able to determine whether the question is a proper one. The test for that is that the question must be coherent and concise.

The question was submitted and I will give a quick history because this is not in the record right now. We had the pattern up until, I believe, 1999 where there were very little limits on the number of questions members could put on the order paper. I have heard some commentary suggesting it could be as much thousands of questions on the order paper. There was no limit on the number of questions that individual members could put on either.

In 1999, we changed the Standing Orders and limited to four the number of questions that any member of Parliament could have on the order paper at any given time and, at that time, introduced Standing Orders 39(1) and 39(2) where we are dealing with this issue of what test is used.

Obviously, Mr. Speaker, the way around the limit of four, which I think you have recognized in previous rulings, is to put a whole bunch of sub-questions in.

Mr. Speaker, in terms of the rulings, and specifically the one you made in 2006 involving a question that was on the order paper to the defence department by Dawn Black, a former member of Parliament from New Westminster--Coquitlam, you made a specific ruling and I want to draw your attention to that because it has not been mentioned by the other people who argued this in previous days. You made several rulings that have guided us since then, which is why I am surprised that it is here, but I want to draw your attention to it again.

You made reference to the history and then you talked about a pattern that we had seen by members of the opposition, Conservative members or Reform Alliance, I am not sure which party they were, where very lengthy questions were being put in. Within this one ruling, Mr. Speaker, you made it very clear that length was not the test, that it was conciseness. In this case, you made a ruling on October 18, 2006, and I will read two points with regard to the issue of length. The first point is on the fourth page of the decision:

The issue was not the length of the question but rather the fact that it contained unrelated sub-questions.

Therefore, you made the point that it was back to conciseness. With regard to how conciseness is looked at, you made this point:

It is no longer interpreted to mean short or brief but rather comprehensible. Undoubtedly, this practice has evolved as a means of getting around the limit of four questions per member.

Mr. Speaker, I want to read part your decision in Question No. 9 because you set out the means by which you proceeded to divide the question. I must say that what you did at that point was logical. You broke it down into three sub-questions. With regard to the paragraph that deals with that, you said:

The first question concerns the government's objectives, strategy, vision, results and capabilities with respect to the Afghanistan mission and includes 33 sub-questions. The second deals specifically with Canadian Forces casualties in Afghanistan. It contains five subsections. Seven sub-questions related to financial matters are grouped together in a third question.

You broke it down that way and it seemed to be a logical and appropriate result. I think the House, generally, was quite satisfied and has tended to guide itself by that ruling over the last four years.

However, now we come to the question that the member for Honoré-Mercier has put forward. I have looked at it, using your same criteria, and I must admit that it is quite a lengthy question, as the parliamentary secretary pointed out repeatedly. However, although it is very lengthy, it really asks the government if it has done the analyses. There are five analyses and then two other sections. I could see it being broken down into two questions but no more than that.

The point I want to make in this regard, and I feel like I may be acting on behalf of the member for Honoré-Mercier, is that what he has really done is to be helpful to the government in terms of it being able to respond. He is saying that here are the analyses that he wants to know about, whether they are legal and the effect it has on privacy. He has listed those at the start of each subsection and then explains the kind of detail he wants, if the government has it.

It is easy for the government to say that it has very clear points that the member wants to know, which, I believe, makes it easier for the government to respond, as opposed to the member just putting the individual headings of the analyses that he wants and then the government is left to try to guess how much detail he wants. He has set that detail out. Therefore, his question is concise and comprehensive.

Mr. Speaker, if you are going to break it down at all, I think it should not be into more than two questions: one is very clear analyses, and there are five of those, and there are two other areas.

The parliamentary secretary kept arguing that if the intent here is to delay the matter. If the effect of these questions are to cause some delay to the government, it is not a criteria that you, Mr. Speaker, would take into account, at least you have never ruled that way in the past. So that is a specious argument as far I can see.

[Business of Supply, December 9th, 2010]

Madam Speaker, I will deal with it from two vantage points.

First, it worries me that we have a notwithstanding clause that allows governments to take away a number of those rights, even though they have to renew that bill every five years. That is scary.

Specifically with regard to what happened in Toronto, it seems to me that the provincial government had a very clear opinion that what it was doing was within the charter. I do not know how those opinions could be brought forward when we look at the provisions in the charter and at the history of the right of freedom of expression, the right to picket, and the right to demonstrate in our country. A number of those rights were actually recognized before the charter even came into effect. It is really hard to imagine that a lawyer gave it an opinion that this process was charter-proof.

[Business of Supply, December 9th, 2010]

Mr. Speaker, in response to that question, I would say no. We have governments that hide behind the charter, and the Liberals are a good example of that, especially when it comes to their policy on same-sex marriage. That is one example.

When we look at what happened here, the debate was quite broad, but it was forced. It was not necessary. My friend from the Bloc gave other examples. Among others, we had a debate on euthanasia because of a bill introduced by his party. I was against the bill, but we had the debate. I have been clear about this. Parliamentarians must not hide behind the charter. It is our responsibility. It is not the responsibility of the courts. It is the responsibility of parliamentarians in the House.

[Business of Supply, December 9th, 2010]

Mr. Speaker, I do not think we can go back to a simple bill guaranteeing rights in our country. It did not work. Anybody who practised law during that period of time knows this.

The reality is the charter, and we hear this phraseology all the time, is a living document. We expect much as we had before the charter, where judges could interpret what the fundamental rights were. They just were not doing it well enough. We now have that. We expect that new rights may very well be recognized as time goes on.

However, the charter and the interpretation of the charter in our country has been reasonably useful in doing that. The process is there. It has worked reasonably well in recognizing additional rights.

[Business of Supply, December 9th, 2010]

Mr. Speaker, I rarely take direction from a Liberal with regard to my passion or fiery speeches. I am not going to take instructions from those members.

If we sit the Prime Minister down and ask him where the fundamental flaw in the charter is, he does not have an answer for that. What he is really saying is he does not like some of the interpretations, even though he used the courts repeatedly for some of his own agenda and programs that he wanted to pursue prior to being a member and being thePrime Minister.

Getting rid of the court challenges program, the ability of groups to challenge the government, was clearly a mistake, one that we opposed at the time. It should be reinstituted the same as we need the law commission to be reinstituted and funded properly so it can do the work. A lot of the work it did helped in supporting and buttressing our fundamental rights and civil liberties. Both those programs should be reinstated and funded properly. I have no objection to that.

The reality is we will continue to have challenges under the charter, in spite of cutting these funds. I accept the fact that it will not be as effective. Maybe at some point in the future, the government will see that.

[Business of Supply, December 9th, 2010]

I hear support for that from the Conservative side, which does not surprise me because it probably would have done the same thing. A least the current government probably would have done the same thing.

However, any analysis of the invocation of the War Measures Act says that it was wrong and unnecessary, which is quite clear, but that it targeted specific communities, whether it was the sovereigntists in Quebec, a number of the labour movements or other political activists on the left in Quebec, with absolutely no basis for them to be attacked by their government.

The charter says that we do not accept that and that we will put in place both the rules and the ability to enforce those rules.

If we were to go back and study the debate that went on for at least 10 years up to 1982 when we finally repatriated the Constitution and brought the charter into effect, the debate was between the supremacy of Parliament and the right of individuals within society to be protected from their government at times when they were being discriminated against. The War Measures Act is a good example, but there are any number of other ones, such as the treatment of the Japanese Canadians during the Second World War and the Manitoba school question in the early 1900s in terms of linguistic rights. We can look at what was going on in the fifties in Quebec with Premier Duplessis attacking the Jehovah's Witnesses simply because they wanted to practise their faith.

We can go through any number of examples where provincial and federal governments in Canada, prior to the charter governments, breached fundamental rights, fundamental civil liberties. That has not happened much since the charter came into effect but there have been attempts.

The other thing the charter has done is it has made it possible that individuals or groups who are being discriminated against or being abused by their government, whether at the provincial or federal level, have some place they can turn to for relief. It is the essence of democracy. I do not think anyone disagrees that the right of the majority rules as long as it respects the rights of the minority. We cannot have a democracy unless we have both those elements.

However, we also cannot have a democracy if people who are in the minority and who believe they are being discriminated against do not have some place to turn, a shield to protect them and a process to utilize that shield. The charter gave us that . We can go back to the bill of rights that Prime Minister Diefenbaker brought in. It was a simple bill of this House. It was not a fundamental law and it was not part of the Constitution. A couple of times in my practice I attempted to use it and, as always, there were very few exceptions, I always remember the Drybones case because it was one of the few exceptions where the court applied the principles in Mr. Diefenbaker's bill of rights and gave the first nations person some relief from what was clearly an abusive policy under the Criminal Code at the time.

I think that was the only case that occurred under the bill of rights where some relief was granted. Any other time it was invoked or an attempt was made to use it, which I think came into effect in 1962 or 1963, the answer was always no, that was a bill and that this law, which is using the minority, supercedes it. That was the situation we were faced with until 1982 and then in 1985 when the balance of the charter came into effect.

Since that time, if individuals believe they are being abused by either the provincial or federal government and they have convinced the court, whether it is under section 2 or sections 7 to 15 of the charter, they receive a fair hearing in the vast majority of cases and, if they are able to forcefully put forth the facts, they are granted relief in the vast majority of cases. As charter decisions evolved, the type of relief received also evolved.

It is a meaningful, useful document. It is that shield which, in the vast majority of cases now, protects minority groups in this country. Women's groups have used it extensively to establish their rights. We argue that men and women are equal in this country but the reality is that it has taken a good number of cases, several of them all the way to the Supreme Court of Canada, to enforce those rights. The gay, lesbian, transgender community has used it.

In the case of same sex marriages, couples had to take their case to the Supreme Court because the Liberal government of the day tried to hide behind the charter by sending it off to the Supreme Court, even though clear messages had been sent by a number of courts at that time. To its credit, the Supreme Court ruled in some respect favourably but also sent it back here.

Unfortunately, and I hear it from the Conservatives but it was true with the Liberals, the charter does not only empower the courts, it also imposes a responsibility on this legislature. We, as legislators, have a responsibility under the charter to ensure, as we are drafting laws at this level of government, as do provincial governments, that the bills we pass are charter-proof.

The attorney general has a responsibility under the present system to ensure that every bill that goes through this House is analyzed from the perspective of the charter. We need to be more transparent and more accountable in that regard. We get opinions on any number of bills from the justice department that are questionable and that we do not assume our full responsibility as legislators that has been imposed on us by the terms of the charter.

Where are we at this point? There is overwhelming support in the country for this. It has worked extremely well. Members from the Commonwealth who use the Westminster system of Parliament, the concept of the supremacy of Parliament, and other countries that have similar bills of rights or charters of rights, tell us that they have looked much more to Canada as a model, not just in the drafting of their documents but, more important, because it is an ongoing process, they have looked to Canada and our courts for interpretation of our Charter of Rights and Freedoms, as we did when we helped draft the Universal Declaration of Human Rights, that are true for the whole world.

No matter what kind of political background or economic system a country has, those fundamental rights should apply to everyone: the right to practice one's faith, the right to freedom of speech, et cetera. We can go down the list but we know what they are.

The rest of the world, at least within the Commonwealth, in particular those who work under the Westminster system, look to Canada and our courts for the interpretation. I have been critical at times but our courts have taken a middle road. They have not been overly activist by any stretch of the imagination but, at the same time, they have consistently upheld the charter and those fundamental rights for all Canadians.

I will use an example of where I have been critical of the courts. Under the right of association, I believe that interpretation should be extended to the right for people to strike, to withdraw their labour. It seems to me that flows logically from that right of association. If people have the right of association, then they also have the right to not associate, especially with regard to labour. Courts have not been willing to accept that in this country.

I could point to other things the courts have done that I would be critical of. For example, some of the rights that have been extended to corporations that give them similar rights to individuals has maybe gone too far. It has certainly gone way too far in the United States. Hopefully, we will not follow that model.

I raised my concerns and objections that I have to some of the interpretations. A fundamental mistake that the Conservatives and right wing ideologists make is that they say that this is a really bad decision and that the charter has fundamental flaws in it. Those two things are not logically sequential. People can say that they disagree with a decision, as the about to be member from Vaughan did when he said that the Hells Angels had benefited from the Canadian Charter of Rights and Freedoms.

I think that is factually wrong but, more important, it is wrong because what he was really saying was that he did not like the courts' interpretation of the Canadian Charter of Rights and Freedoms. He was not attacking the charter, if he had thought about it, but I think he sometimes had a problem doing that in terms of understanding what he was really saying. What he was really saying was that he did not like that interpretation of the charter mostly around due process in the case of the Hell's Angels.

Some people have expressed opposition to the charter. Again, I will exclude my colleague from the Bloc in this regard because the Bloc does have a fundamental opposition to the charter, one I do not agree with. It is with regard to protecting French language rights in the province of Quebec.

However, when we hear people say that we must do something about the charter because it is fundamentally flawed, as we have heard the Prime Minister say, they are not really talking about that. They are really saying that they do not like the interpretations by our courts. It goes back to, as we know with the government in particular, the lack of trust in the judiciary. The government sees the judiciary as being way too activist in this country.

However, if we stand back at the international level and look at our courts, all the way from the trial level up to the Supreme Court, they have not been overly activists at all. My criticism would be that they have not been activist enough, particularly with some of the anti-terrorism provisions that we made. It took the courts until about 2006 or 2007, the federal court in particular, to begin to say that what was happening was fundamentally breaking fundamental rights. We have now begun to see them take on that responsibility that they are supposed to be doing under the charter.

I wish we would not have had this debate today because it was not necessary and there are any number of other issues. However, I want to say for the Canadian people who are listening and for the rest of my colleagues in this chamber, that there is no issue about whether the charter should be in existence in this country. It is absolutely necessary and it has an almost overwhelming 100% support from constituents right across the country.

[Business of Supply, December 9th, 2010]

Mr. Speaker, I must admit that I rise today with mixed feelings about this motion. It has been 28 years since the charter came into effect, and 25 years since section 15, the balance of the Charter of Rights and Freedoms, came into effect.

It seems almost to the point of being ridiculous that we are standing in the House, if we follow the tenor of this motion by the Liberal Party, defending the charter from this attack by the Conservative right-wing ideologues. I have two comments in that regard. One is that it is not necessary. When we hear those extreme, almost fanatical views, the vast majority of Canadians dismiss them as being ridiculous, including some that we have heard from the newly elected member for Vaughan, although I will come back to that in my main speech because I think to some degree the response to his comments is significantly overblown.

The other point is that each political party in the House has the absolute right to choose the topic and issue it wants addressed on an opposition day. My friend from Moncton—Riverview—Dieppe, in sponsoring this motion, is well within his right to have done so. However, there are a number of other, what I have to call, more important issues, because the charter does not need to be defended.

The vast majority of Canadians, and by that I mean into the 90th percentile of all Canadians, support the charter. Quite frankly, with the way it has been applied, in the vast majority of cases they support it. They see it as a fundamental guarantee, which is what it was intended to be, of their human rights and civil liberties in this country, as well as linguistic rights and a number of other rights. I therefore believe there is no need for this debate in the country but there is a need for other issues to be addressed. So I am critical of the Liberal Party for the choice it made today.

Having said all of that, it is the obligation of the NDP, as one of the parties in this House, to engage in the debate since it has been put on the floor of the House. If we are going to do that, it is a way of speaking out to Canadians generally, but more significantly to the small percentage who still have doubts about the need for the charter.

When we analyze the opposition to the charter, it is not so much about its existence. It may be very close to 100% of all Canadians who accept that it is absolutely necessary to have a charter of rights and freedoms, as we do, but they are oftentimes opposed to the interpretation of the charter in individual cases, and I think that is true of the new member for Vaughan.

I am quite confident in saying that if we ever did a referendum on the charter, subject to the concerns we have already heard from the Bloc, from that perspective, and setting that aside for a minute, if Canadians, including in the province of Quebec, were asked whether they want these guarantees in the form of a charter of rights and freedoms as part of our Constitution, which would be fundamental law and not a bill that can be changed, in overwhelming numbers they would want to maintain it.

The problem is the interpretation. Going all the way back to the Magna Carta, and coming out of the English parliamentary system, the concept of democracy that we were forming through the last 1,000 years, we wanted it to be a rule of law as opposed to the whims of the royalty at the time or even of elected officials subsequently. We wanted that guarantee. When we look at it, we say yes, we have done these things and we have had these bills, going back in the English system for a long time, as well as in Canada.

Because of the right under the common law for judges to enforce certain fundamental rights, we had that. Where we were found lacking was in other fundamental rights that were regularly breached or not protected. We see this at times when the country is in crisis. We saw it with the author of the charter, Mr. Trudeau, breaching fundamental rights, probably as grotesquely as any prime minister has, by invoking the War Measures Act, used primarily against arguments.