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Ms. Leah Taylor Roy (Aurora—Oak Ridges—Richmond Hill, Lib.)

Feb/9/23 12:50:11 p.m.
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Madam Speaker, it is with great pleasure that I rise today as the member of Parliament for Aurora—Oak Ridges—Richmond Hill to speak to this very important issue. The Canadian Charter and Rights and Freedoms is such a fundamental part of who we are and Canadian values. I wanted to start by reading a few quotes from the origins of the Bills of Rights, with John Diefenbaker, up until now. The Hon. John Diefenbaker said: I am Canadian, a free Canadian, free to speak without fear, free to worship God in my own way, free to stand for what I think right, free to oppose what I believe wrong, free to choose those who govern my country. This heritage of freedom I pledge to uphold for myself and all mankind. That was in 1960, as we know, when the Bill of Rights was first introduced. The right hon. Prime Minister Pierre Elliott Trudeau, back in 1981, prior to the Charter of Rights and Freedoms, said: We must now establish the basic principles, the basic values and beliefs which hold us together as Canadians so that beyond our regional loyalties there is a way of life and a system of values which make us proud of the country that has given us such freedom and such immeasurable joy. More recently, on the 40th anniversary of the Charter of Rights and Freedoms, April 17, 2022, our current Prime Minister eloquently stated: The Charter protects the rights and freedoms that define who we are as Canadians, allowing us to express our individuality and celebrate our differences. Built around our shared values of equality, justice, and freedom, it brings us closer as a country and as a people – and it makes Canada a place of choice for people from across the globe to raise a family. I know that so many of the constituents in my riding value these rights and freedoms and the fact that they are enshrined in our Constitution. It is with concern that I hear this opposition motion, and I am concerned that we are talking about the use of the pre-emptive resort and the increasing use by provinces, certain provinces, of the notwithstanding clause of the Canadian Charter of Rights and Freedoms in an attempt to short-circuit our courts from determining whether provincial legislation violates constitutionally enshrined fundamental rights and freedoms, as well as to avoid public debate on the issues. We have recently seen in Ontario the Keeping Students in Class Act, which is not very aptly named in my mind, but which would, if enacted by the legislature, effectively remove the right to collective bargaining, a right protected by section 2 of the charter, which guarantees freedom of association. That is the use of the notwithstanding clause. Many of the speakers today have talked about the increase in the use of this clause. When the Charter of Rights and Freedoms was entrenched as part of the Constitution Act of 1982, Canadians were proud to see fundamental rights and freedoms constitutionally guaranteed and protected, including freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of peaceful assembly; and freedom of association. It includes legal rights, including the right to life, liberty and security of the person; rights guaranteeing the quality before and under the law; and rights guaranteeing equal protection and equal benefit of that law. Of course, these rights are subject to such reasonable limits proscribed by law, as can be demonstrably justified in a free and democratic society. That is provided in section 1 of the charter. The advent of the charter 40 years ago was a milestone in the protection of fundamental rights in Canada, and I believe that it put Canada on the map for human rights protection. Part of it was the inspiration of the Bill of Rights, as I have already mentioned, pioneered by the Hon. John Diefenbaker. It was a quasi-constitutional statute, deserving of a large and liberal interpretation, but it was simply a federal statute nonetheless, and the courts were cautious in applying it, particularly in a context of parliamentary sovereignty, where a future parliament could undo the handiwork of an earlier parliament by enacting new legislation inconsistent with the earlier legislation. The tension between protecting fundamental rights and recognizing the continued sovereignty of Parliament was reflected in section 2 of the Canadian Bill of Rights, which provides: Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared In other words, the Bill of Rights stated that laws enacted by Parliament were to be interpreted and applied in a manner that would not abridge or infringe on the rights and freedoms recognized and affirmed by the Bill of Rights, unless Parliament expressly declared that the law should operate notwithstanding the Bill of Rights. The Canadian Charter of Rights and Freedoms goes much further in the protection of human rights and establishes a better balance between such protection and legislative action. By section 1, the charter constitutionally guarantees the rights set out in it, subject only to the reasonable limits clause. It ensures a respectful democratic dialogue can take place between Parliament and the provincial legislatures, on the one hand, and the courts of justice, on the other, within the scope and limits of guaranteed rights and freedoms. However, in the political compromise that led to the final form of the charter in November 1981, a notwithstanding clause that echoed section 2 of the Canadian Bill of Rights was grafted onto the charter in section 33. That clause provides: Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. Those are the provisions guaranteeing fundamental freedoms, legal rights and equality rights. Many commentators have noted, and I agree, that it was a heavy price to pay to achieve substantial consensus among the provinces to move ahead with the patriation of the Constitution and the entrenchment of our Charter of Rights. However, politics is the art of the possible, and this was what was possible and necessary to achieve the consensus. Section 52 of the Constitution Act, 1982, declares, “The Constitution of Canada is the supreme law of Canada”. Parliament and the provincial legislatures derive their powers and authority from the Constitution and from no other source, as the Supreme Court underscored in the secession reference in 1998. We have constitutional supremacy rather than parliamentary supremacy in Canada, as well as a political culture that values fundamental rights, democratic debate and the rulings of our courts as guardians of the Constitution. Parliament and the legislatures are sovereign within the spheres of authority allocated to them by the Constitution and within the limits of the charter's guarantees. Section 33 of the charter was conceived as a tool of last, not first, resort. It was rarely invoked for many years, but it has become much more common. However, it should only be contemplated in the most extraordinary circumstances. Our government has made it consistently clear that it has serious concerns with the pre-emptive use of the notwithstanding clause by provincial governments, and we are considering various options. We are firmly committed to defending the rights and freedoms protected by the Canadian Charter of Rights and Freedoms. In the dialogue between Parliament and the courts, the first word should not be the last. Although the use of the notwithstanding clause is legal, it has serious consequences because it has the effect of suspending legal protections guaranteed by the Canadian Charter of Rights and Freedoms, and these are basic values that I believe all Canadians share. We believe that a government that uses a remedy of this magnitude must set out the exceptional circumstances that justify the suspension of these legal protections. Our government is concerned when governments use it in a pre-emptive manner before the debate has begun or the courts have ruled. This is not, in our respectful view, in keeping with Canadian values of democracy and the rights of the individual.

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Context: House Hansard - 157 - Feb/9/23

Ms. Leah Taylor Roy

Feb/9/23 1:01:31 p.m.
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Madam Speaker, I do not believe we are suspicious of the intentions of the Bloc Québécois. I believe that the distinct culture and history of Quebec is something that has added greatly to our nation and it is something I value greatly. I believe that having laws that work for Quebec is very important, but I do believe that the fundamental rights and freedoms of Quebeckers and all Canadians should be respected, and that the notwithstanding clause should only be used in very exceptional circumstances. The concern we have expressed today is really about the increased use of that notwithstanding clause in a pre-emptive fashion.

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Context: House Hansard - 157 - Feb/9/23

Ms. Leah Taylor Roy

Feb/9/23 1:03:25 p.m.
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Madam Speaker, as my colleague knows, I feel very strongly that, in that particular case, it was not an appropriate use of the notwithstanding clause. Those are basic fundamental rights of Canadians. A premier should, in my mind, need to respect those fundamental rights. When one brings in a piece of legislation, especially one that prevents teachers and workers in our education system from collectively bargaining, I feel that is a perfect example of why this is of such concern to us. I hope the members of the Bloc Québécois share that concern, that need to protect the fundamental rights and freedoms of our workers and their right to collective bargaining.

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Context: House Hansard - 157 - Feb/9/23

Ms. Leah Taylor Roy

Feb/9/23 1:05:16 p.m.
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Madam Speaker, I do not pretend to know where to draw the line. I trust our court system for this. We have established case law. I believe, in cases like that, the wisdom of the court would see the beneficial effect of that. Why use the notwithstanding clause? Why not put this forward and see if there is a challenge? If there is, let our courts decide.

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