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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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Mr. René Villemure

Feb/9/23 12:31:51 p.m.
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Madam Speaker, my colleague from Barrie—Innisfil, with whom I have the pleasure of working on the Standing Committee on Access to Information, Privacy and Ethics, is asking a fundamental question. The division created by the current Prime Minister is unprecedented and it reaches an unacceptable level. It is an insult. A few days ago, I was looking at a photo book on Quebec at home. Some of the people photographed are wearing a veil and others are not, but everyone lives in harmony. Harmony prevailed and there were no problems until someone started to create problems around these things. Frankly, I believe that the current Prime Minister is inciting division. He contributes to citizens distancing themselves from others.

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Ms. Leah Gazan (Winnipeg Centre, NDP)

Feb/9/23 12:32:31 p.m.
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Madam Speaker, I very much value the Charter of Rights and Freedoms, and I know that the intent behind this certainly is to protect Quebec identity and the identity of Quebeckers. I understand the importance of identity, but I also respect the identity of other nations within Quebec, such as indigenous nations, including the James Bay Cree, for example, where Quebec has signed bilateral agreements between Quebec and the federal government. I note that these are different relationships, as indigenous peoples have their relationships with the Crown. When we talk about nations, what does my colleague think of my interpretation of “nation”?

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Mr. René Villemure

Feb/9/23 12:33:29 p.m.
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Madam Speaker, I forget what year it was, but Bernard Landry had signed the peace of the braves with the Cree First Nation. The treaty recognized the rights of indigenous peoples by promoting their integration and co-operation with us, or rather the co-operation between all of us together. I totally agree with my colleague.

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

Feb/9/23 12:33:54 p.m.
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Madam Speaker, I am glad to speak this afternoon. I will be sharing my time with the member for Aurora—Oak Ridges—Richmond Hill. Let me acknowledge at the outset that we are gathered here on the traditional unceded lands of the Algonquin people. Before I go into the speech, I have some important reflections on the Canadian Charter of Rights and Freedoms. It is a document that has entrenched into Canadian law such fundamental rights and freedoms as I think people around the world aspire to achieve. Over the years, this has been a guiding document in my life. I think it has been a guiding document for many in this country. While it is not perfect, it has offered a very important path towards the recognition of international human rights and the universality of human rights. Of course, we can date this back to the Universal Declaration of Human Rights that was signed right at the end of World War II, as well as the former Canadian Bill of Rights and other international covenants and documents Canada is party to. On a personal level, my family came to Canada 40 years ago this year. We fled an armed conflict in Sri Lanka where the rights of minorities were suppressed, and suppressed at will, oftentimes with reinforcement by law. Around this House, this country and my riding, millions of Canadians can trace their history to difficulties because governments chose to suppress their rights because of who they are. In fact, in Canada we can see a number of occasions of this. The member for Esquimalt—Saanich—Sooke talked about the experience of the LGBTQI community, and of course the member for Winnipeg Centre has often spoken about the disparity between indigenous and non-indigenous Canadians. The Canadian Charter of Rights and Freedoms has set a benchmark for us to follow in many ways. While it is important that we were able to get this agreement in 1982 with the provinces with the inclusion of the notwithstanding clause, this clause was always meant to be used sparingly by governments. Our charter is also a source of inspiration for the many countries that have built some of their constitutional documents in a similar way. In short, as a Canadian, I am proud that 40 years ago we decided, as a society, to have such an instrument. Section 33 of the charter, which is commonly known as the notwithstanding clause, made it possible to reach a political compromise between the different entities making up Canada when the charter was adopted. This section authorizes Parliament or the legislature of a province to derogate from certain provisions of the charter, namely those protecting fundamental freedoms, legal guarantees and equality rights.

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The Assistant Deputy Speaker (Mrs. Alexandra Mendès)

Feb/9/23 12:37:56 p.m.
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I must interrupt the hon. member. The hon. member for Shefford on a point of order.

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Ms. Andréanne Larouche

Feb/9/23 12:38:01 p.m.
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Madam Speaker, I apologize for interrupting my hon. colleague’s speech, but the interpreter said that his earpiece is too close to the microphone and that there is a risk of feedback.

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The Assistant Deputy Speaker (Mrs. Alexandra Mendès)

Feb/9/23 12:38:11 p.m.
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I would remind the hon. member to keep the earpiece far away from the microphone on the desk.

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Mr. Gary Anandasangaree

Feb/9/23 12:38:31 p.m.
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Madam Speaker, throughout this historical overview, I hope to bring out two main points. The first point is who used the notwithstanding clause in a particular political and historical context. The use of the clause was exceptional until very recently, in the case of Ontario, where it was used pre-emptively. The political cost was simply too high to do otherwise. The second point is that the frequent practice of provincial legislatures was to invoke the notwithstanding clause in response to a court decision. In my opinion, the only potentially legitimate recourse to section 33 necessarily involves the courts. Our constitutional tradition is marked by dialogue. The pre-emptive recourse to the derogatory clause eliminating legal debate is contrary to our traditions and must be decried. The legislature of Quebec, for a time, included a standard notwithstanding provision in each of its new laws; this practice continued until the 1995 election. Afterwards, the notwithstanding clause was used only a few times by the provincial legislatures. The Saskatchewan legislature passed back-to-work legislation invoking the notwithstanding clause in the mid-1980s. The legislature did this in response to a decision by the Saskatchewan Court of Appeal that declared an earlier version of the law unconstitutional and did not include an overriding provision. The Supreme Court eventually cited the Saskatchewan legislature, ultimately concluding that the law did not infringe on the charter. Therefore, the recourse derogation clause was not necessary in this case. The third province to use the notwithstanding clause was Alberta. In 2000, the Alberta legislation passed the Marriage Amendment Act, 2000. With this act, the province's Marriage Act was amended to declare that a marriage could only be between persons of opposite sexes. Apart from the initial and particular example of Quebec immediately after the patriation of the Constitution in 1982, it can be seen that recourse to the notwithstanding clause was relatively exceptional. Prior to 2018, only three provinces had laws in effect invoking the notwithstanding clause, and they did so only a few times. Since 2018, we note a renewed interest in the use of this clause. The Ontario legislature almost invoked the notwithstanding clause in 2018 in response to the Ontario Superior Court decision that a law to reduce the size of the City of Toronto's council was unconstitutional. Legislation invoking the notwithstanding clause was not passed, however, because of the intervention of the Ontario Court of Appeal. Subsequently, the Ontario legislature passed, for the first time, legislation invoking the notwithstanding clause in the Protecting Elections and Defending Democracy Act, 2021. The notwithstanding provision was invoked here in response to the decision of the Ontario Superior Court, which declared certain provisions relating to third party election expenses unconstitutional. This new bill from the Legislative Assembly of Ontario therefore follows a worrying recent trend. As I mentioned, while the use of the derogation clause was exceptional then, this seems to be less and less the case now. One could add to these examples the failed attempt by the New Brunswick legislature in 2019. This provision should not be taken lightly. There was never any question when it was included in the charter that it should become a tool to be used routinely. Rather, it should only be used in the most pressing cases where no other option could be considered and there is a strong public policy consideration. What is the point of adopting a charter incorporating fundamental rights and values into our Constitution only to derogate from it at the slightest inconvenience? A healthy democracy should not be based on majority rule. It must respect and protect all Canadians by giving them the chance to question the decisions of the government in place. The charter is an instrument for challenging decisions made by governments by applying clear guidelines. It is not normal for a government to be able to make decisions without submitting to scrupulous evaluation by its population. However, this is what section 33 is for: to avoid any debate and exchange of ideas about a measure. This is a way for a government to hide behind the notwithstanding clause in order to avoid questioning itself. I do not think that allows us to live in a healthy democracy. In addition, the time of use of the notwithstanding clause should also be considered. Indeed, when used pre-emptively and preventatively, it has even more negative repercussions on our parliamentary system since governments can pass laws without worrying about the impact on the fundamental rights of their citizens. Its preventive use risks upsetting the fragile balance that exists between the protection of fundamental rights and the effective functioning of a parliamentary system. I would like to conclude by saying that I take a dim view of this frequent pre-emptive use of the derogation clause. This practice trivializes our most basic protections, and I am happy that we have the opportunity to discuss this important matter for all Canadians across this country.

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

Feb/9/23 12:44:39 p.m.
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Madam Speaker, I thank my colleague for his speech. He is a passionate man who, in my opinion, respects the rights and freedoms of individuals and peoples. I have two questions for him. First, am I to understand from his speech that he supports the Constitution Act, 1982, except for section 33? Second, does he believe that the same reasoning should apply to all peoples of the world; in other words, that all peoples, including in Sri Lanka, where he is from, should be free to decide on certain laws, but only on the condition that they abide by certain dictates of the United Kingdom, for example?

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Mr. Gary Anandasangaree

Feb/9/23 12:45:35 p.m.
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Madam Speaker, we have an international human rights instrument that defines fundamental rights and freedoms. The Canadian Charter of Rights and Freedoms is a reflection of that in many ways, and in some ways it has gone much further than international norms. I think it is important that we all abide by a basic set of values; sections 7 to 15 of the charter are critical components of the protection of rights for individuals. As a result, I think that any derogation of that should be thoughtful, should not be pre-emptive and should be able to withstand the test of the court. Therefore, it is important that, while section 33 is in the 1982 Constitution, it should not be used lightly.

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Mr. Charlie Angus (Timmins—James Bay, NDP)

Feb/9/23 12:46:35 p.m.
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Madam Speaker, I am really pleased we are having this discussion because whether we stand up for the Canadian Charter of Rights and Freedoms or not is something we have to confront. We either have constitutional rights for the protection of minorities or we do not. It is becoming very concerning when we see how laws are being crafted that target Muslim Canadian women, resulting in them being fired. We saw provincial governments using this tool to strip labour rights from low-paid workers, allowing these governments to evade review by the courts and stripping away minorities' rights to actually question whether a law is fair or valid. I would ask my colleague this: Is the federal government willing to stand up for the Canadian Charter of Rights and Freedoms, or is it going to continue to wring its hands and say that it is unfortunate any time a provincial government decides it is easier to just arbitrarily strip away rights out of the Constitution? Are we going to protect the Constitution and the charter, or are we just going to say that what is happening is really not nice?

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Mr. Gary Anandasangaree

Feb/9/23 12:47:46 p.m.
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Madam Speaker, I value the opportunity to respond to this. The Prime Minister has been absolutely clear that Canada is a country of the charter. We are the party of the charter. Our government is very much committed to ensuring that charter values are protected for all Canadians. I can assure the member opposite that the Minister of Justice, the Prime Minister and our whole government will defend charter rights every step of the way.

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Mr. Martin Champoux (Drummond, BQ)

Feb/9/23 12:48:23 p.m.
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Madam Speaker, it is my turn to congratulate my Liberal colleague on his speech. I asked my colleague from Trois-Rivières a question earlier, and I was expecting his answer. I will say that quite candidly. I would like to ask my colleague opposite the same question. Quebec is recognized as a nation in its own right with its own language, culture, values and model for living in harmony, which is different. This model often needs to be defended because it is misunderstood and not always respected. If this notwithstanding clause were not in the Constitution, which we did not sign, by the way, what would Quebec have left to protect its values and its vision for living in harmony? I would like to hear what my colleague has to say about that.

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Mr. Gary Anandasangaree

Feb/9/23 12:49:12 p.m.
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Madam Speaker, I think it is fair to say that my colleague opposite is strongly defending what he believes is the right thing to do in Quebec. When my family came to Canada, Quebec was the first place we stayed, so I understand Quebec society fairly well. It is in many ways a model society when it comes to the protection of minorities within the context of a country such as Canada, and of course, there is more to do. However, using the notwithstanding clause and doing it pre-emptively is not the way to protect Quebec society. I would suggest that Quebec has a lot to offer to the world, and as Canadians, we all have an obligation to make sure that Quebec—

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The Assistant Deputy Speaker (Mrs. Alexandra Mendès)

Feb/9/23 12:50:04 p.m.
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We have to resume debate. The hon. member for Aurora—Oak Ridges—Richmond Hill.

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

Feb/9/23 12:59:58 p.m.
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Madam Speaker, we in the Bloc always feel that when Quebec rises in the House to defend its uniqueness, it is seen as a little suspicious. However, my Liberal friends saw Prime Minister Trudeau some time ago visit certain countries, dress up and put on all kinds of costumes—

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The Assistant Deputy Speaker (Mrs. Alexandra Mendès)

Feb/9/23 1:00:20 p.m.
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I would remind the hon. member that the names of current members are not to be used. The hon. member for Longueuil—Saint-Hubert.

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