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Feb/9/23 3:52:48 p.m.
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Madam Speaker, I thank my colleague. I have to say that as a separatist, I do not need any extrinsic motivation. My intrinsic motivation is quite strong. I would add that in any event, any nation with an appetite for freedom will use any means in its power. I represent people who voted for me as a representative of a fiercely separatist party. I represent my people and we have the right to sit here. Secondly, I would say to my colleague, who wondered whether this was acceptable or if Canada was broken, that I do not need that kind of reason either. Canada can fix itself, but Quebec can live alone quite well, without Canada, whether broken or put back together.

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Mr. Gord Johns (Courtenay—Alberni, NDP)

Feb/9/23 3:53:44 p.m.
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Madam Speaker, I appreciate my colleague and good friend from the fisheries committee. Does she agree that the use of the notwithstanding clause to suspend rights should not be taken lightly and should only be used in exceptional circumstances?

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Mrs. Marilène Gill

Feb/9/23 3:54:04 p.m.
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Madam Speaker, I imagine that the use of the notwithstanding clause would be entrusted to legislatures and my national assembly. I have to say that I have full confidence in the National Assembly of Quebec when it comes to the use of the notwithstanding clause. That decision belongs to elected officials, who are also my representatives in my legislature, and I trust them to know how they use it or will use it.

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Hon. David Lametti (Minister of Justice and Attorney General of Canada, Lib.)

Feb/9/23 3:54:36 p.m.
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Madam Speaker, I will be sharing my time with the hon. member for St. Catharines. I am pleased to speak today to the motion moved by the member for Beloeil—Chambly. I would first like to say that I am a Quebecker and that I am one of the Quebeckers who oppose Bill 21 and the use of the notwithstanding clause to violate the rights of minorities. I take inspiration from René Lévesque, who took the same position and did not want a notwithstanding clause in his charter. He was against the use of a notwithstanding clause to violate minority rights, and I completely agree with him. I would also like to point out that in the speeches given by Bloc Québécois members, there is a basic assumption that there is only one way to be a Quebecker and only one Quebec voice. That is not the case. I am a proud Quebecker and I do not share the opinions expressed by my Bloc Québécois colleagues that there is only one way to view the Quebec nation. According to my colleague's motion, it is solely up to the provinces to decide on the use of the notwithstanding clause when it pertains to current issues. This is a matter of very great importance, not just for our government, but also for our society, our democracy and our country. I want to make it clear from the outset that I am not questioning the fact that provinces have and should have the right to use the notwithstanding clause. What I am suggesting is that the notwithstanding clause was designed to be used only in exceptional circumstances, and only after the courts have had an opportunity to fully and rigorously consider a bill to determine whether it infringes on rights and freedoms. The debate over the notwithstanding clause concerns all of us as Canadians. It is not specifically targeting Quebec or its government, nor does it target any other province in particular. It is a debate about the values of our free and democratic society. This involves fundamental freedoms, our democratic debates and the courts as guardians of our constitution. Our government has always been very clear about its concerns over the pre-emptive use of the notwithstanding clause by the provinces. We have repeatedly stated that we are considering all of our options. We are firmly committed to defending the rights and freedoms protected by the charter. Many of us have strong positions on the use and role of the notwithstanding clause in our democracy. Our differences of opinion should not cause us to lose sight of the principles that underlie the debate. Ultimately, that is why we disagree with the Bloc Québécois today. It is incumbent on all Canadians to participate in this discussion, including the federal government and members of the House. These are issues that deserve a national conversation. That is why our government has already said that we will intervene to challenge Bill 21 if and when it reaches the Supreme Court of Canada. Canadians expect the federal government to participate in any national dialogue about the use of the notwithstanding clause before our country's highest court. The notwithstanding clause stems from political compromise. During constitutional negotiations, including the notwithstanding clause was, in part, what brought the Canadian Charter of Rights and Freedoms into being. It was a concession that paved the way for the adoption of this fundamental constitutional document, which has proven essential to maintaining our free and democratic society. The inclusion of the notwithstanding clause in the charter was not intended to provide Parliament or a provincial legislature with a mechanism to routinely override certain provisions of the charter. Rather, the broad consensus at the time was that the notwithstanding clause was an extraordinary remedy. Moreover, the notwithstanding clause was to be used by Parliament or a provincial legislature only in the most exceptional cases, where there was no other option. It was never intended to become a primary remedy to allow a government to abdicate its duty to protect fundamental rights and freedoms. Indeed, we must be aware that the pre-emptive use of the notwithstanding clause by a legislature is an admission that the legislation violates the fundamental rights and freedoms that the charter provides for all Canadians. In fact, section 1 of the charter allows the courts and legislators to consider the balance between individual rights and the interests of society in the framework of each new legislative initiative. This broad historic consensus on the highly exceptional nature of the notwithstanding clause has resulted in its relatively rare use in the years that followed the patriation of the Constitution. Before 2018, only three provincial legislatures had used the notwithstanding clause. In fact, Parliament has never used the notwithstanding clause. That is why it is deeply concerning to see the increased use of the notwithstanding clause in recent years by different provincial legislatures. More troubling still is the growing trend of invoking the clause pre-emptively. Pre-emptive use of the notwithstanding clause prevents the courts from having an opportunity to review legislation to determine whether it is consistent with the charter. It skips to the end of the process without the opportunity for debate and due consideration. One could say it eviscerates the process and the balances that are built in to the charter itself. Let us remember what is at stake here. Section 33 allows Parliament or the legislature of a province to override the protections of section 2 and sections 7 to 15 of the charter. Let us review but a few. Section 2 is our fundamental freedoms, which include freedom of expression, conscience, belief, religion and association. Section 7 is the right to life, liberty and security of the person. Section 15 is the right to equal treatment before and under the law, and equal protection and benefit of the law without discrimination. These rights are critical to our society. In fact, I would say they are the pillars of our country's human rights framework. I previously said that section 33 was meant to be the last word for the exercise of parliamentary sovereignty. When a legislature chooses to invoke section 33, this prevents the court from invalidating legislation that unjustifiably limits charter-listed protections. Canadians are thus prevented from obtaining remedies from legislation that violates their fundamental rights. That is why it was designed to be used only in the most extraordinary and exceptional circumstances, as a last resort and not as a first move. I taught civil law for years in Quebec, and the Quebec Civil Code is interpreted consistently. The same is true of the Canadian Charter of Rights and Freedoms, which protects our rights, from section 1, which strikes a balance, all the way through to its last section, section 33. Our Constitution comprises a system of laws and fundamental principles that define the nature, functions and limits of the Canadian system of government, both at the federal and provincial levels. Our Constitution also establishes the three branches of government, namely the legislative, the executive and the judicial branches. As we know, each of them has a role to play in maintaining a fair balance and enabling Canadians to live in a healthy democracy. Finally, it is also important to consider constitutional conventions, the rules that bind political actors and dictate how and when they should use the legislative or judicial powers, which are protected under the Constitution. The primary role of constitutional conventions is to ensure that these powers are exercised in accordance with the fundamental values that underpin the text of the provisions. In simpler terms, these powers must respect not only the provisions of the charter, but also the spirit of the charter. This discussion must include the pre-emptive use of the notwithstanding clause. When a government decides to apply the notwithstanding clause to a bill before the courts have even had a chance to decide on its constitutionality, that in effect paralyzes the dialogue between the legislative and judicial powers. This dialogue, however, fosters a culture of human rights that is meant to be transparent, open and pragmatic and that allows all members of the public to share their views and participate in our democracy. Before I wrap up and answer any questions, I would like to say this: I am a Quebecker, and it is clear that Quebec does not speak with just one voice and that Quebeckers express themselves in many ways.

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Mr. Luc Thériault (Montcalm, BQ)

Feb/9/23 4:04:40 p.m.
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Madam Speaker, first of all, I think the minister should not start a debate on that topic. It is a diversion. It is unnecessary. He is a Quebecker. The choice belongs to him. To be a Quebecker is a political choice and it is not the same as looking like a Quebecker. I suggest to him a book by Michael Mandel, a professor of constitutional law at York University in Toronto, The Charter of Rights and Freedoms and the Judicialization of Politics in Canada, written in the 1990s. If he has read the book, I do not think he understood it. The same applies to the member for Portneuf—Jacques-Cartier. Now, I would like to say that I almost stood up earlier to raise a question of privilege, because the minister is misleading the House. The Bloc motion calls for recognition of the Act respecting the Constitution Act, 1982, René Lévesque's law, which pre-emptively introduced the notwithstanding clause into all Quebec laws. This is what—

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The Assistant Deputy Speaker (Mrs. Carol Hughes)

Feb/9/23 4:05:48 p.m.
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I apologize, but I have to leave time for answers to questions. The hon. minister.

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Hon. David Lametti

Feb/9/23 4:05:53 p.m.
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Madam Speaker, the hon. member has a point about— Mr. Luc Thériault: —was able to ensure that—

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The Assistant Deputy Speaker (Mrs. Carol Hughes)

Feb/9/23 4:05:59 p.m.
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Order. I just cut off the hon. member for Montcalm because we were running out of time. He must now listen to the answer, even if he does not agree. The hon. minister.

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Hon. David Lametti

Feb/9/23 4:06:12 p.m.
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Madam Speaker, René Lévesque did not want a notwithstanding clause in his Quebec charter. He was in favour of individual rights in principle, but as Premier of Quebec—and to provoke then prime minister Trudeau—he put the notwithstanding clause in several Quebec bills over the course of at least a year. It was primarily a political strategy. He was against the notwithstanding clause. He did not want one in his own charter.

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Mr. Joël Godin (Portneuf—Jacques-Cartier, CPC)

Feb/9/23 4:06:51 p.m.
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Madam Speaker, I think it is unfortunate that the Minister of Justice just referred to a tool being used to provoke Quebeckers and Canadians. I myself am proud to be a Quebecker and a Canadian. We just saw a dust-up between the Bloc Québécois and the Liberal Party. Can we deal with what actually matters? Can we deal with the fact that the Prime Minister has been in power for eight years? We are in the middle of an economic crisis. People are having trouble paying their rent. They are having a hard time paying for housing, yet here we are arguing about a notwithstanding clause. The clause exists. Here is my question for my colleague. How can he stop the provinces and territories from using a tool that is available? Does he trust the provinces' and territories' ability to manage?

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Hon. David Lametti

Feb/9/23 4:07:47 p.m.
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Madam Speaker, like my hon. colleague, I am proud to be a Quebecker and a Canadian. To understand the structure of the charter and the rights protected, we must first look at the sections that balance part I, and then at section 33 on the notwithstanding clause. They have to be considered in a way that is consistent. If the notwithstanding clause is used at the outset, it removes all rights and precludes the balancing process set out in section 1. The notwithstanding clause is the last word, not the first word. In our system, as my hon. colleague knows, we have a dialogue between the courts and the legislatures, so a province can use the notwithstanding clause, but following a court decision or, I would say, a court of appeal decision.

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Ms. Heather McPherson (Edmonton Strathcona, NDP)

Feb/9/23 4:08:52 p.m.
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Madam Speaker, like the minister, I am very worried about the increasing use of the notwithstanding clause, and my focus will be on human rights. In 2000, in Alberta, Ralph Klein tried to use the notwithstanding clause to take away the rights of the SOGI community to same-sex marriage. He was not successful because the Supreme Court was able to speak to that. I wonder if the minister could talk a bit about some of the risks posed to individual human rights if people like Danielle Smith were given this tool to use more frequently.

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Hon. David Lametti

Feb/9/23 4:09:33 p.m.
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Madam Speaker, if one uses the notwithstanding clause at the beginning, one acts as if there is no charter. That was not the intention of the framers in 1981. It was there as a safety valve, as the last word, when Allan Blakeney and other western premiers advocated in its favour. It has a terrible impact. The judge in the first instance decision in the Bill 21 case, the Hak case, in Quebec noted that the pre-emptive use of the charter cut off both judicial scrutiny and political debate. That is a tragedy for our democracy because it puts minorities at risk.

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The Assistant Deputy Speaker (Mrs. Carol Hughes)

Feb/9/23 4:10:25 p.m.
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Before continuing, I want to mention that I am doing my best to ensure that members have the opportunity to ask questions and receive answers within the allotted time. As we only have five minutes for questions and comments, I am trying to allow for at least three questions in this amount of time: two questions and two answers of one minute each, and one question and one answer of 30 seconds each. I know that this is not ideal for everyone, but that is the time that has been allocated. I hope this will give members some insight into how the Chair must proceed. It is not the Chair's intention to cut off members but rather to allot time to each member to ensure there is a good debate. It is up to the Chair to ensure that the House operates smoothly, including during debates. Is the hon. member for Montcalm rising on a point of order?

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Mr. Luc Thériault

Feb/9/23 4:11:31 p.m.
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Madam Speaker, yes, I have a point of order. Since you mentioned it, I would urge you to ensure fairness and respect the rotation. Earlier, you twice recognized, twice in a row, an NDP member when it was our turn to speak. You also recognized the NDP when it was the Conservatives' turn to speak. I urge you to respect the rotation as soon as people stand up to indicate that they want to speak.

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The Assistant Deputy Speaker (Mrs. Carol Hughes)

Feb/9/23 4:12:06 p.m.
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This is becoming a debate, but what the member forgets is that they were not the same speakers. When one party speaks, the questions go to the other parties, unless there is plenty of time, in which case another question can be allowed. As I said, certainly the choice of person remains at the discretion of the Chair, but the Chair tries to be as fair as possible in the questions and comments. I may have invited two people from the NDP to speak, just as I invited two people from the Conservative Party and two people from the Liberal Party, because the member giving the speech was from the Bloc Québécois. The honourable member for Portneuf—Jacques-Cartier on a point of order.

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Mr. Joël Godin

Feb/9/23 4:13:02 p.m.
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Madam Speaker, I would like to endorse what you just said and add that I let my Bloc Québécois colleague go ahead because it was the Conservatives' turn to speak. You handled the sitting masterfully, so thank you.

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The Assistant Deputy Speaker (Mrs. Carol Hughes)

Feb/9/23 4:13:15 p.m.
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I would like to add one last detail before we resume debate. This is an opposition day for the Bloc, which means the Bloc gets the first question in response to a government speech. Resuming debate. The hon. Parliamentary Secretary to the Minister of Canadian Heritage.

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Mr. Chris Bittle (Parliamentary Secretary to the Minister of Canadian Heritage, Lib.)

Feb/9/23 4:13:44 p.m.
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Madam Speaker, it is an important topic that we are discussing today. What I have seen over the last few years has really worried me as an Ontario member of Parliament and as a lawyer, watching the Ford government in Ontario and its pre-emptive use of the notwithstanding clause. The interesting thing, though, is that at the same time we hear members of the Conservative Party say they are concerned about our government's actions on certain legislation. They say these actions impact freedom of expression, and if we are talking about measures that had to be taken during the pandemic, other rights within the charter. As the Parliamentary Secretary to the Minister of Canadian Heritage, I listened to this alternate debate that did not exist in any type of reality saying that the government was engaged in censorship, which is patently false. However, the Conservatives worry about free speech and freedom of expression under section 2 of the charter. I stand with them. This is a fundamental right and freedom that Canadians have under the charter. However, the silence was deafening when, in 2018, just a couple of months after the Ford government got elected, it pre-emptively invoked the notwithstanding clause. That was the first time it did so. The Ontario government did not wait or go through to the Supreme Court. The court did not hear it. What legislation did it do this on? It did it on an elections bill. The Ford government did it to prevent the court from finding that there was a violation of freedom of expression. It was interesting to me at the time that from the so-called champions of freedom of speech and freedom of expression on the other side, the silence was deafening. We did not hear anything. The Conservatives were not willing to criticize a fellow Conservative government. I can understand that they are political allies and friends with Queen's Park. However, on preventing a court from finding a violation of free speech in an elections act a few months before the election, there was silence. Where were those champions of the charter? It eventually went to the courts, and the Ford government did pull back from that the first time. The second time, it did the same thing. The provincial government picked on vulnerable education workers. It picked on the rights of workers as guaranteed by the charter. Again, from the Conservatives, there was absolute silence. Where were the champions of freedom of expression at that point? We had a member rise today to ask a question comparing the rights of the LGBT community to the rights of individuals under COVID. It was shocking to me that this would even come into the Conservative lexicon to compare those two rights together. Again I ask, where are the champions for actual rights that are being violated? During the occupation of this city, we heard Conservatives time and time again. Especially after the invocation of the Emergencies Act, they said this was a violation of the charter, even though the Emergencies Act does not violate the charter. It did not remove any rights, but member after member claimed it did. Once again, a few months after the fact, the Ontario government moved against workers and against custodians and educational support workers, who are the lowest-paid workers in our education system. Where was the Conservative Party, which claims to stand up for working people? There was deafening silence as the notwithstanding clause was again invoked pre-emptively by the Province of Ontario. I do not know if, when they get up to talk about freedom expression, the Conservatives appreciate the irony that they sit on the sidelines when the notwithstanding clause is used in Ontario. It is disappointing. It is good that Ontarians stood up and the Ford government was forced to back down from that, because again, these were the most vulnerable workers in the education sector. I would hope that all members in this place would stand up for our rights. These things are fundamentally important. We all stand here and condemn violations of other countries. I would hope to think that every member here supports that the rights of Canadians are guaranteed. I think we should express concern when those rights come under threat. Yes, the notwithstanding clause exists in the Charter of Rights and Freedoms, but to use it pre-emptively is to take away any debate, any discussion, any opportunity for the courts to step in and protect people's rights. There is an acknowledgement within the charter that our rights are not absolute. The classic example that we are taught in law school on freedom of expression or freedom of speech is that we cannot yell “fire” in a crowded theatre. We would say that is understandable because it could lead to danger or harm; people could get killed. It is a criminal offence. The charter speaks to that in section 1 in terms of reasonable limits. It “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The courts evaluate that through the Oakes test, and many a forest has been plowed down to make paper for all of the decisions on the Oakes test. As a society, as a court, we have moved back and forth on what those reasonable limits are; we are still debating what these limits are in a free and democratic society. Any government that steps up to invoke the notwithstanding clause is looking at section 1 and saying that our legislation is not reasonably and demonstrably justified in a free and democratic society and that we need to put aside section 1 of the charter and the rest of it. This is surprising to me, as a lawyer and someone who likes to study history, as we look back and see these rights that have been hard fought and won. As I mentioned, the member was trying to compare the rights of the LGBT community to those people, I assume, who had to wear a mask during a plane ride or those of us who could not leave the country because there was a global pandemic. This is disgusting, but that is what happened. Those rights were hard fought over decades. We saw the Prime Minister stand and give an apology, and we could see the victims of government abuse targeted the LGBT community in this place. It took 40-plus years to acknowledge the trauma that a government inflicted upon them. It was moving and touching, but those rights were hard fought over decades to come back and ensure that those rights are now enshrined in the charter. Even though it does not say “members of the LGBT community”, we know, and the court has found those rights in section 15. This is an important debate, and I hope all members of this house stand for the rights of this country and for the rights that can be reasonably and demonstrably justified in a free and democratic society.

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Mr. Tako Van Popta (Langley—Aldergrove, CPC)

Feb/9/23 4:23:42 p.m.
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Madam Speaker, as I was listening to the speech from the parliamentary secretary, I do not know if I am amused or confused. At a time when Canadians are hurting so much because of inflation, the cost-of-living crisis and interest rates going up, when people in my community are worried about how they are going to put food on the table and how they are going to make their mortgage payments now that they are doubling, why are we having this phony constitutional crisis between the Liberals and the Bloc Québécois? I do not believe that this is foremost. What does the parliamentary secretary have to say about focusing on the things that really matter to Canadians?

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