44th Parl. 1st Sess.

February 9, 2023 10:00AM

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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House Hansard - 157