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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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Mr. Kevin Lamoureux

Feb/9/23 12:18:40 p.m.
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Madam Speaker, I just want to be very clear. For example, the Province of Ontario, in a pre-emptive way, took actions that went against labour in a very significant fashion. It is the position of the Bloc that Ottawa should not even be stating any sort of opinion on the matter. It is not an issue of jurisdiction as much as it is standing up for the Charter of Rights and Freedoms and saying what is right, in many ways. To be very clear, the member is saying that Ottawa should have no place to provide comments.

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Mr. Rhéal Fortin

Feb/9/23 12:19:17 p.m.
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Madam Speaker, Ottawa has the right to provide comments. We all have the right to provide comments, because we live in a free country. Freedom of expression is important. I am not saying it does not have the right to comment. I am saying that this is a provincial matter. My colleague across the way has no authority to dictate to the Ontario government how it must act, any more than he has the authority to dictate to the Quebec government how it must act. That is up to the provincial legislatures and Parliament to decide. It is not up to the government. Once again, we must live with the law as written. Ontario's democracy does not need to be identical to Quebec's democracy or to that of the other provinces.

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Mr. René Villemure (Trois-Rivières, BQ)

Feb/9/23 12:20:02 p.m.
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Madam Speaker, when I began studying philosophy in 1992, the first problem we learned about was the notion of government of judges. Ten years after the charter was imposed on Quebec, we were talking about whether, ultimately, judges and unelected individuals should be making decisions, so this is not a new debate. Raise the subject of the notwithstanding clause in Parliament, and one can cut the silence with a knife. I know a French author who would have a lot to say about that. Let us start with a history lesson. Cicero explained that the verb derogare, which means “derogate”, is made up of the prefix de—to take away, as in “demystify”, “decommission” and “deodorize”—and rogare, which means “to ask”. The word “derogate”, strictly speaking, means “un-ask”. In other words, to get out of something. Oresme, another Latin-speaking philosopher who was also an astronomer, mathematician, economist, musicologist, physician, translator and theologian—rather like the members opposite—lived in the 1300s. He left us two legacies: the famous quote, “I know therefore that I know nothing” and the use of the word “derogatory”. One of the most difficult matters in all controversy is to distinguish disputes about words from disputes about facts. If we want to resolve the dispute about facts, let us first examine the words. I often say in the House that a word is a construct of sound and meaning and that sometimes that leads to confusion. Take for example, the word “secularism”. I know everyone will believe me when I say that, in the House, that word can have at least two meanings. When we use words like “secularism” or “derogation”, it is important that we be clear about what we are talking about. The word “derogation” refers to the repealing of an act or some of its provisions. We more commonly refer to the “notwithstanding clause”, which basically means the same thing. The Latin term non obstare means “to not stand in the way of”. The notwithstanding clause prevents the federal government from standing in the way of the provincial government, in this case the Government of Quebec. In every case, the notwithstanding clause constitutes a protection granted by the legislator, the original drafter, so as not to stand in the way of the future, society's progress or changes that occur over time. As soon as it was enshrined in the 1982 Constitution, which, as my colleagues will hear 32 times today, Quebec never signed, Trudeau senior himself thought that adding the provision in question was a good idea having foreseen the possibility of a government of judges. He even said the following, with a style that I will not even attempt to imitate, and I quote: I must be honest and say that I don’t fear the notwithstanding clause very much. It can be abused as anything can, but the history of the Canadian Bill of Rights Diefenbaker had adopted in 1960, it has a notwithstanding clause and it hasn’t caused any great scandal. So I don’t think the notwithstanding clause deters very significantly from the excellence of the Charter. It is a way that the legislatures, federal and provincial, have of ensuring that the last word is held by the elected representatives of the people rather than by the courts. From day one, the notwithstanding clause has given governments in the federation a window to express their choices, their preferences. It enshrined their right to do one thing rather than another without that choice affecting other members of the federation. I will now say the following to head off the question I am sure my colleague from Winnipeg North is going to ask. The notwithstanding clause allows the partners to compromise, strike a balance between individual rights and the collective rights of the different cultures in the federation. Let us take the high road without talking about the Chinese balloon. In terms of geography, Canada is a vast country. We all agree on that because it covers approximately 10 million square kilometres. If we were to move this immense territory to Europe, for example, which has an area of 9.9 million square kilometres, we would see that Europe has 56 sovereign entities. As members know, the area of Quebec is six times greater than that of France. In France's regions, in Burgundy or Alsace for example, the culture is different. The lifestyle and identity are different. Europe is made up of 56 entities. France is not Germany, Germany is not Finland and Finland is not Italy. In Canada, without the notwithstanding clause, everyone living in the 10 million square kilometre area would be treated the same way. It makes no sense. This does not recognize everyone's particular characteristics or at least those of certain areas. In my opinion, geographically speaking, Canada is a historical mistake. Following the European logic, some members would have come together and others would have separated. Quebec would be a sovereign state in the vast landscape of North America. The notwithstanding clause has somewhat made up for this mistake by providing a remedy when necessary. This provision makes up for the inherent imbalance or unfairness of a legislative text, which is a text frozen in time. It provides flexibility for members of a government, or of the federation, in cases not foreseen by the legislator. The opposite of inequity is equity, which is said to be a more perfect form of justice because it takes exceptions into account. Equity is like a line drawn according to everyone's concerns, while equality is a straight line. The notwithstanding clause creates equity, and it also ensures that we do not have a so-called government of judges. The elected are in control, rather than the appointed. Quebec is first and foremost about diversity and tolerance. It has a distinct history, culture and identity. A Polish philosopher I like very much, Maria Ossowska, argued that in relations between nations, one should be open-minded, courageous, intellectually honest and critical. One should speak responsibly—which is sometimes lacking in the House—and have a sense of humour. Above all, one should be decent and treat others as one would like to be treated. I conclude with this anonymous quote: “A treaty is an eternal commitment, but experience shows us that it is often convenient to renege on a commitment. The first time paves the way for the second, until there is nothing left of the word given.” That is kind of what we want.

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Hon. Steven MacKinnon (Gatineau, Lib.)

Feb/9/23 12:28:01 p.m.
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Madam Speaker, I have a very simple question for the member, When it comes to using the notwithstanding clause, where would he draw the line? What rights are fair game for violating and what rights would be off-limits?

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Mr. René Villemure

Feb/9/23 12:28:31 p.m.
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Madam Speaker, I thank my hon. colleague for the loaded question. This is not about violating rights, but rather shaping how certain provisions are applied, recognizing the importance of each. The anglophone community is not harmed by the notwithstanding clause in Quebec. Its status as a favoured minority will continue to apply, which has never been a problem for us.

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Mr. Martin Champoux (Drummond, BQ)

Feb/9/23 12:29:07 p.m.
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Madam Speaker, the only thing to do at this point is to throw my colleague from Trois-Rivières a softball. He gave an excellent speech, I have to say. Perhaps my colleagues are not too eager to rise and speak because his speech was so eloquent and powerful. I would like to ask him whether he thinks Quebec's specificity, distinct identity and way of living together in harmony could be preserved without the existence of the notwithstanding clause in the Canadian Constitution.

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Mr. René Villemure

Feb/9/23 12:29:42 p.m.
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Madam Speaker, I thank my colleague from Drummond for his question. We feel very strongly about the notwithstanding clause in the 1982 Constitution, even though Quebec has still not ratified it. This provision has ensured our survival, our identity, our culture and our distinctiveness all this time. Without this provision, we would drown.

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

Feb/9/23 12:30:08 p.m.
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Madam Speaker, I would like a bit more clarification from the member. My colleague asked a question about which legal rights he thought would be okay to undermine compared to others. Is there a list of which ones are really bad and which ones are not as bad?

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Mr. René Villemure

Feb/9/23 12:30:33 p.m.
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Madam Speaker, I thank my colleague from Winnipeg North; I would have been disappointed if he had not asked me a question. I always appreciate his questions, which have a way of sparking debate. The province of Quebec makes its own laws for the benefit of Quebeckers, which is totally permissible under the notwithstanding clause. We are not talking about prioritizing rights, we are talking about making decisions according to our own culture, identity and prerogative.

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Mr. John Brassard (Barrie—Innisfil, CPC)

Feb/9/23 12:31:03 p.m.
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Madam Speaker, I want to thank my colleague for his speech this afternoon. We work together on the Standing Committee on Access to Information, Privacy and Ethics. His contributions to that committee are always thoughtful, as are his contributions to the House today. Would the member agree with me that there has never been a Prime Minister in the history of our country like the current Prime Minister, who has used division to pit Canadians against Canadians and Quebeckers against Quebeckers, and who has used a constitutional crisis to deflect attention from his failures?

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