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Feb/9/23 11:44:41 a.m.
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That is indeed a good example, Mr. Speaker. I remember that somewhat unfortunate episode involving Toronto city council where the misuse of the notwithstanding clause undermined the rights of Torontonians to have adequate or proper representation by what they considered a suitable number of city councillors. Was that what the provincial representatives intended when, in 1982, they called for a notwithstanding clause to be able to occasionally be exempted from the application of the Charter of Rights and Freedoms? I do not believe this was their intent. It is fine, in my opinion, to have this discussion today on the conditions for its use. Is there a real and urgent need? Is it for the greater good or is it being abused to erode fundamental rights? Let us have this discussion. We should not be afraid to have it.

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Mr. Jeremy Patzer (Cypress Hills—Grasslands, CPC)

Feb/9/23 11:45:48 a.m.
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Mr. Speaker, my colleague finished his speech by saying that this issue is bigger than Quebec, and he is absolutely right. What he is failing to acknowledge or address is that this issue of the use of the notwithstanding clause quite often stems from the Prime Minister. The use of the notwithstanding clause has spiked since 2017, and the common denominator is the very divisive Prime Minister, yet this member continues to prop the Prime Minister up. I am wondering if the member, at any point in time, will withdraw his support for this tired and corrupt Liberal government so we can address the issues affecting Canadians.

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Mr. Alexandre Boulerice

Feb/9/23 11:46:24 a.m.
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Mr. Speaker, I think that the NDP caucus has been smart about using its bargaining power and the balance of power to force the Liberals to do things that they never wanted to do in the past, things that will benefit thousands of Quebeckers and Canadians. Take, for example, universal dental care, pharmacare, social and affordable housing, indigenous housing, and the anti-scab legislation that the Quebec and Canadian labour movement has been calling for. As long as we can move forward and accomplish those parts of the agreement that we forced the Liberals to act on, things that they had always voted against in the past, we will continue to work hard in Canadians' best interests. We can be sure of that.

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Ms. Louise Chabot (Thérèse-De Blainville, BQ)

Feb/9/23 11:47:15 a.m.
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Mr. Speaker, I still cannot believe what I just heard during my colleague's speech. The NDP's Quebec lieutenant has a duty to defend the interests of Quebeckers. However, the interests of Quebeckers are also shaped by the fact that they are a minority. Quebec is making use of the only constitutional provision available to protect its right to live in French, to protect its right to social harmony and to its identity as a people, and to preserve the nation. These are laws passed by the National Assembly. I find it hard to fathom how anyone could have a tepid stance on these issues and not fundamentally recognize the right of Quebec and the provinces to use the notwithstanding clause in order to protect what is dearest to them: preserving their laws and the right of elected officials to decide by and for themselves instead of leave this issue up to the courts.

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Mr. Alexandre Boulerice

Feb/9/23 11:48:31 a.m.
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Mr. Speaker, I do not think my colleague really listened to my speech. I said right off the bat that I think using the notwithstanding clause to support the Charter of the French Language and Quebeckers' right to live in French is appropriate. I want to reiterate that. I am kind of surprised to hear my Bloc Québécois colleague say that we cannot stand for a government of judges, because that is essentially the argument that Stephen Harper's Conservatives used and that the Republican Party often uses. Anyone who supports the rights of Quebeckers must also support their right to freedom of association and free collective bargaining. I find it passing strange that the former president of the Centrale des syndicats du Québec has no problem with the idea of using the notwithstanding clause to attack unions.

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Mr. Randall Garrison (Esquimalt—Saanich—Sooke, NDP)

Feb/9/23 11:49:26 a.m.
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Mr. Speaker, I am pleased to rise today to talk about the broader topic, the Canadian Charter of Rights and Freedoms, and I will eventually, after a bit of a diversion, come back to the motion before us. It is important to note that at the time of its adoption, the Canadian Charter of Rights was controversial. At the time of the patriation of the Constitution, we were not used to the idea of a written charter, something that comes from a civil law tradition, because our institutions had been founded on the British system, which revered the supremacy of Parliament. A compromise was reached when the Constitution was patriated, and the national Parliament and provincial parliaments agreed to limit themselves with a written Constitution and written Charter of Rights and Freedoms. I would argue that, at the time, this was exercising parliamentary sovereignty and a voluntary restriction. We recognized that we had to agree on the basic rules by which we work together and that those should be difficult to change, so we have a written Constitution. We also recognized that even in a British system, a written Charter of Rights and Freedoms would help preserve the rights and freedoms of Canadians. As an aside, my own enthusiasm for the charter at the time was tempered by what was often called the omission of sexual orientation from a section of the charter, as if it was somehow unknown or forgotten at the time. That is not the case, and I knew this well. I was very fresh out of university and working here at the House of Commons for Ed Broadbent at the time. When the Constitution Act was before the House in committee, New Democrat MP Svend Robinson moved to add sexual orientation to section 15 as a protected ground against discrimination. This was at committee stage. There was a debate and vote on whether sexual orientation should be one of those protected rights. The proposal to add sexual orientation was defeated 22 to two, with only Svend Robinson and Lorne Nystrom of the NDP voting in favour. It took a series of court cases following the adoption of the charter to affirm that sexual orientation was a prohibited ground for discrimination analogous to the enumerated grounds listed in the Constitution. Members will see in a moment where I am going with this. I am going to tie it to the notwithstanding clause. Members of LGBTQ+ community continued to fight for recognition of equality rights. There was a series of court cases starting in 1992 with Haig and Birch v. Canadian Armed Forces, continuing in 1995 with Egan v. Canada and culminating in 1998 with the case of Vriend v. Alberta. All of these cases served to make sure it was understood that just because a right like citizenship or the prevention of discrimination against sexual orientation was not listed, it was a still a protected ground. In 1998, the Supreme Court of Canada noted the omission of sexual orientation from the Alberta Human Rights Act. We should remember that this is the Supreme Court deciding on Alberta legislation. What the court found was that it violated the equal protection of the law guaranteed in the charter not to list sexual orientation. In other words, the Supreme Court of Canada at the time ordered Alberta legislation to respect the Constitution and the charter by protecting against discrimination on the basis of sexual orientation. Immediately after, there were calls in Alberta for the use of the notwithstanding clause. It was immediate. Why did the Alberta government not proceed? It was because there was a public outcry against the use of the notwithstanding clause. It was very strong at that time because the Alberta government, just months before, had brought forward a bill to use the notwithstanding clause. In that case, there had been a decision against the government, which had proceeded with forced sterilization of those with intellectual disabilities. They had won a large settlement against the Alberta government, so the Alberta government brought in a bill that proposed to use the notwithstanding clause to limit compensation for those who had been forcibly sterilized. There was a huge public outcry about the attempted use of the notwithstanding clause to prohibit payments that had justly been won in court for this discriminatory treatment. That precedent, just a few months before, led to the same kind of debate about the use of the notwithstanding clause to get around the Supreme Court decision that forced the Alberta Human Rights Act to include sexual orientation. This is the way those who adopted the Constitution and charter thought the notwithstanding clause would work in response to court decisions or legislative decisions that were controversial. It was not pre-emptive but in response to developments within the legal system. Ultimately, who would decide whether the use was legitimate? It was the Supreme Court of Canada, because we have a country that operates on the rule of law. We see a motion that says, in quite simplistic terms, that it is up to the provinces if they want to use the notwithstanding clause or not, and that is clearly not true legally. It is also not true in a political sense. It is not clearly just up to the provinces. It is up to Canadians to decide what is appropriate action and to judge their governments. I will go back to Alberta. Two years after a series of court decisions recognized the right to same-sex marriage, Alberta added to its Marriage Act a notwithstanding clause to allow it to say that marriage is only between a man and a woman. In a reference case in the Supreme Court in 2004, the Supreme Court found that, on jurisdictional grounds, Alberta could not use the notwithstanding clause. In other words, it said that because marriage is within federal jurisdiction, Alberta cannot use the notwithstanding clause to get around it. It is exclusively a power of the federal government to make this decision. Once again, we have an example where it is not up to a province to decide if it wants to use a notwithstanding clause. There were jurisdictional reasons for why the Supreme Court found it could not do so. After this very long detour through issues that are very important to me personally and to a large number of Canadians, we come back to where we are with the motion before us, which says, “it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.” Clearly, the arguments I made today show that is not the case. It is not something that a government can decide to do. We have the Constitution and we have the rule of law. However, most importantly, the three examples in Alberta illustrate how those who designed the charter and the Constitution thought it would operate. Public opinion plays an enormous role in deciding what governments can and cannot do when it comes to the use of the notwithstanding clause. That is why I think the pre-emptive use is problematic. This is before we have had any public debate, before we have had any court decisions and before we have done anything on an issue, so for a province, and it is the provinces that have tried to do this, to insert a notwithstanding clause pre-empts all those things that should take place. It presumes outcomes. It indicates an attitude where rather than trying to find a solution to the problem in front of them, it becomes simpler to pre-empt the debate altogether and say we will not talk about this and will just go ahead and do whatever we want to do. Unfortunately, I think the Bloc motion reinforces the kind of idea that this would be appropriate in Canada in the democracy we have. If we look at when the notwithstanding clause has actually been used, it has been most frequently used for expedience when collective bargaining fails. The 1986 use of the notwithstanding clause by the Conservative Devine government of Saskatchewan was to implement back-to-work legislation after it failed to reach an agreement with public employees. Most recently, we had the 2022 use of the notwithstanding clause by the Ford government, which pre-emptively made it illegal for education workers to strike and imposed a contract on them. I would argue there is a right to collective bargaining, and pre-empting that right through the notwithstanding clause meant the government simply did not want to sit down and bargain fairly with the workers. Between 1990 and 2018, there were only four uses of the notwithstanding clause, and many of us believed it was fading away. The fact that we are debating it today, as if it is an unlimited power of the provinces, is disturbing. As I have said, we already know it is limited. It is limited in time, as it can only be used for five years. It does not apply to certain sections of the Constitution. It is limited by Supreme Court decisions on the question of jurisdiction. Hopefully, the use of the notwithstanding clause will always be limited by public opinion in this country and by the part of our political culture and our political values that say we are very proud of our Charter of Rights and Freedoms, and suspending any part of those rights and freedoms should not be taken lightly.

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Mr. Gary Anandasangaree (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)

Feb/9/23 11:59:49 a.m.
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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.

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Mr. Randall Garrison

Feb/9/23 12:00:41 p.m.
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Madam Speaker, I thank the hon. member for his question because he raises the concern that I was getting at. If it becomes part of our political culture that we can use the notwithstanding clause willy-nilly and pre-emptively, there will be a temptation for certain political actors and political leaders to attempt to appeal to segments of the population by offering to use the notwithstanding clause to respond to their concerns about public policy. That is very dangerous, and I would not like to see us go down a road where we consider suspending rights to be a normal part of the Canadian political regime.

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Mr. Denis Trudel (Longueuil—Saint-Hubert, BQ)

Feb/9/23 12:01:30 p.m.
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Madam Speaker, I thank my hon. colleague for his speech. I am a little surprised to hear him and some other members, including the member for Rosemont—La Petite-Patrie, say that people on the left are always ready to defend all diversities, diverse expressions and minorities. Wanting to limit Quebec's right to defend its differences is what we are talking about this morning. That is what the notwithstanding clause is all about. Quebec is a nation, which has been recognized in this place. It has a different language and a different way of life. The Bloc Québécois has to stand up for this distinctiveness day after day after day. With this morning's motion, we are once again trying to say that this right is enshrined in law and we are tired of being attacked all the time. We are not the same, and we want to keep it that way. We want to safeguard our ability to defend Quebec's distinctiveness. That is all.

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Mr. Randall Garrison

Feb/9/23 12:02:30 p.m.
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Madam Speaker, the only thing I can say to that is there is an internal contradiction in the argument that was made when the member said that Quebec's recognition as a nation and Quebec's rights are enshrined. They are in this country, and they are recognized by virtually everyone in this chamber. I am not sure how the reference to the need for a notwithstanding clause has anything to do with the rights that are already recognized and enshrined when it comes to Quebec.

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Ms. Elizabeth May (Saanich—Gulf Islands, GP)

Feb/9/23 12:02:56 p.m.
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Madam Speaker, I appreciated the words of my hon. colleague and neighbour from Esquimalt—Saanich—Sooke and the reflections on the failure of the initial charter to protect sexual orientation. Since the member has raised my old friend Svend Robinson in this discussion, I will mention two of my constituents. Svend Robinson is a constituent of Galiano Island in my riding, and I am enormously indebted to him for many stands he has taken over the years. Another constituent, Conservative Pat Carney, was actually the first member of Parliament to put forward legislation for equal marriage, which was one of many early efforts on her part. I want to put this to the hon. member. He says, quite rightly, that we never, ever anticipated that the notwithstanding clause would be used as Premier Ford just proposed he would do to deny teachers' rights. We never expected that it would be used for back-to-work legislation applied indiscriminately. What do we do to mobilize public opinion to protect the Charter of Rights and Freedoms from cavalier political efforts to just grab it as we—

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The Assistant Deputy Speaker (Mrs. Alexandra Mendès)

Feb/9/23 12:04:04 p.m.
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I have to give the hon. member for Esquimalt—Saanich—Sooke an opportunity to answer.

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Mr. Randall Garrison

Feb/9/23 12:04:10 p.m.
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Madam Speaker, one thing this debate does today is allow us to bring public attention to the fact that this was never the way the notwithstanding clause was intended to operate, and to remind Canadians that we have to be vigilant to protect our rights and have to be vigilant in making sure that suspending rights does not become the normal course of action for certain governments in this country.

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Mr. Rhéal Fortin (Rivière-du-Nord, BQ)

Feb/9/23 12:04:46 p.m.
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Madam Speaker, I will be sharing my time with the member for Trois-Rivières. I have only one river and he has three, but we will still share the time equally. Today's motion states, and I quote, “That the House remind the government that it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.” The notwithstanding clause refers to section 33 of the Canadian Charter of Rights and Freedoms. It gives elected representatives of the people in the Quebec National Assembly, the federal Parliament and the provincial and territorial legislative assemblies the ability to pass legislation that could contravene one or more provisions of the charter. Section 33 reads, and I quote: 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. Then it goes on to say that the effect of the act in question is independent of the provisions of the charter, that the act will have to be renewed every five years or it will expire and that all of this is legitimate. Others will tell me that that is obvious. They may say that all that has already been settled, that it has been enshrined in our legislation since 1982, so for 41 years now, and that, ultimately, in principle, we are now speaking to no purpose. I wish this motion did not have to be moved in the House today, because I too believe the matter has been settled. However, we have heard the Prime Minister suggesting for some time that the notwithstanding clause can only be used after the courts have overturned a law. This Prime Minister is suggesting that we allow people to waste their time and money pursuing needless legal proceedings only to ultimately be told that, win or lose, they have lost. They will have to spend tens or even hundreds of thousands of dollars seeking a judgment from the Superior Court, the Court of Appeal and the Supreme Court. If they are lucky enough to win, the government will say too bad, because with the notwithstanding clause, even when they win, they lose. That seems totally illogical to me. Our courts are currently overloaded. They are so backed up that it can often take years before a trial begins. Who would want to make the backlog even worse? I have no clue. We should ask the Prime Minister why he is saying that. It seems so absurd to me. However, I would say that it is a fascinating position in some ways. First, the Supreme Court ruled in Ford in 1988 that the National Assembly of Quebec is perfectly free to include the notwithstanding clause in any law it passes, if it wants to. It can do so pre-emptively, without waiting for a court to overturn the legislation first. The court does not have authority to judge the substance of the legislation or the legitimacy of invoking the notwithstanding clause. The court's only role is to determine whether the notwithstanding clause adheres to the prescribed form. In other words, it must be explicit and indicate the section of the charter from which it intends the legislation in question to derogate. As we all know, the government of René Lévesque enacted the Act respecting the Constitution Act, 1982, which introduced, again in a pre-emptive manner, notwithstanding clauses for all Quebec legislation. In short, the act is clear, it has been in force for 40 years, and it has faced few or no challenges. The Supreme Court has upheld the interpretation, but for some reason, the Prime Minister does not seem to be aware of it. I cannot wait to see how our Liberal colleagues will vote on this motion, especially the Prime Minister. In a 2016 research note, University of Sherbrooke law professor Guillaume Rousseau counted 41 laws passed by the Quebec National Assembly that included at least one mention of the notwithstanding clause. At least 11 of those laws are still in force. Furthermore, nine of the total 41 included exemptions from both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. In total, there were 32 exemptions from the Quebec charter and 18 exemptions from the Canadian charter. These are all statistics. It is interesting to see some of the examples, including the Act respecting La Financière agricole du Québec, which provides for financial assistance to be granted to young farmers aged 40 and under. We agree that this is discrimination based on age. It is terrible from the point of view of the charter, but it makes sense to Quebec society. Therefore it was decided that the act would apply despite the provisions of the charter. The notwithstanding clause was invoked without any shirt rending whatsoever. The employment equity act directs the government to give preference to people from under-represented communities. Again, this violates both charters; it is a form of discrimination. However, since Quebec society thought it made sense, the act was passed despite the provisions of the charter, by invoking section 33, the notwithstanding clause. I also want to talk about small claims court, which was set up to ease the court process in cases that are less financially significant, with claims of $15,000 or less. The idea was that it does not make sense in a case with a $10,000 claim, for example, for people to have to wait years in court and pay a lawyer $20,000 or $30,000 to maybe get a ruling for $15,000 or $10,000. In small claims court lawyers are not authorized to represent clients. People represent themselves. The court makes a decision after having heard all the parties and looked at all the evidence. This goes against the charter, which recognizes the right to a lawyer. As a society, we thought it made sense. It was adopted with the use of the notwithstanding clause. The Court of Quebec's youth division protects children's anonymity. In Quebec, this was considered important. I believe that it is the same everywhere in Canada. However, anonymity goes against the charter because trials are public. Recently, we saw a case that proved otherwise, but I will not talk about it, because I only have 10 minutes, and it would take me 20 minutes to talk about it. I was saying that under the charter, trials must be public. The youth division was created using the section 33 notwithstanding clause. These are all choices made by the Quebec National Assembly. It had the opportunity to do so because of one thing. Although the federal government decided to pass the Constitution Act, 1982, behind Quebec's back, without Quebec's sign-off, it still had the decency to allow Quebec to get out of it using the section 33 notwithstanding clause. That was the agreement reached in 1982 between the Prime Minister of Canada and the premiers of the nine other provinces, without Quebec. I would like to point out that in 1982, our current Prime Minister's father was there. Although he was not always considered to be a decent person in some ways, he did have the decency to say that even though he was doing this behind Quebec's back, he would give it an escape hatch. Why is the current Prime Minister now questioning decisions made by his father back then? Why is he trying to undermine the autonomy of the provinces and of Quebec? I think that is appalling. I was listening to my colleagues talk about various pieces of legislation in Canada that they do not agree with. I might not agree with decisions made elsewhere either. The fact remains that democracy is all about the right to pass legislation, and that includes the right to be wrong. We must not forget that. A democratic state does not pass laws that suit the citizens of other states. A democratic state passes laws that suit its citizens, who are the subjects of that democracy. I want to respect the democracy that allows the Ontario government or any other government to pass laws that may not suit us Quebeckers. I respect that. It is up to their citizens to decide. They hold elections there as well. In Quebec, we want to avail ourselves of our right to democracy. We want our government and our National Assembly to pass laws that fit with our values and reflect who we are, without having to impose standards that the federal government has decided to impose on everyone, once again behind Quebec's back, without our consent.

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Mr. Gary Anandasangaree (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)

Feb/9/23 12:14:52 p.m.
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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.

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Mr. Rhéal Fortin

Feb/9/23 12:15:26 p.m.
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Madam Speaker, I thank my colleague, whom I respect, for his question. I will repeat what I said when finishing my speech because he is addressing an important matter. I briefly spoke about this at the end of my speech. This is what democracy is all about: I do not have to agree with Doug Ford and he does not have to agree with François Legault. We are talking about two different states that make different decisions based on what is best for their voters. If they make a mistake, which they are allowed to do, their voters will punish them for it at the next election.

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Mr. Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons, Lib.)

Feb/9/23 12:16:08 p.m.
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Madam Speaker, is the member then suggesting that if a provincial jurisdiction decides to use the notwithstanding clause for whatever it deems it wants to do, then Ottawa has absolutely no role to play, even if the citizens of the nation feel compelled that there should be some national leadership on an issue?

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Mr. Rhéal Fortin

Feb/9/23 12:16:37 p.m.
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Madam Speaker, the answer is short and sweet: yes. The Supreme Court said it, and I will say it again: yes. Decisions by the provinces do not concern the federal government, as long as those decisions are legal. The courts will overturn legislation or not based on a broad range of criteria, a series of conditions that legislation must respect. However, their compliance or non-compliance with the Charter of Rights and Freedoms falls under section 33, not under the federal government, which is not the arbiter of the values, interests and decisions made by the legislative assemblies.

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Mrs. Julie Vignola (Beauport—Limoilou, BQ)

Feb/9/23 12:17:13 p.m.
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Madam Speaker, my question is this. If the federal government wants to bring the notwithstanding clause before the Supreme Court of Canada in order to amend it or limit its scope, is it not opening the door to renegotiating the Constitution?

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Mr. Rhéal Fortin

Feb/9/23 12:17:37 p.m.
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Madam Speaker, I thank my colleague for her question, which is pertinent, as always. She is right. This touches a bit on what my colleague across the way was asking a few moments ago. Should the federal government stand idly by? If the federal government is not satisfied with its own legislation, it can amend it or propose to amend it. The Constitution Act, 1982, can be amended. We realize that it would be a complicated process, but it can be amended. If the government is unhappy with the way it is currently written, it can propose constitutional talks. Let us see what the provinces have to say. We will see whether or not there would be changes and, if so, what those changes would be. One thing is certain: This legislation was meant to lock us in, despite the fact that we did not agree to it. Do not push an interpretation that defies logic, because that goes against what the Supreme Court of Canada said, against what Trudeau senior said at the time, and against common sense.

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