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Decentralized Democracy

House Hansard - 157

44th Parl. 1st Sess.
February 9, 2023 10:00AM
Context: House Hansard - 157 - Feb/9/23
Ms. Rachel Bendayan
  • Feb/9/23 10:39:03 a.m.
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Mr. Speaker, I get the sense that the Bloc Québécois members did not like the question I asked their leader. I will continue my speech. Our charter also inspired many other countries around the world, who drafted their own similar constitutions. I am proud that, as a society, we decided to adopt this instrument 40 years ago. Section 33 of the charter, better known as the notwithstanding clause, made a political compromise possible among the disparate entities that made up Canada at the time of its adoption. Section 33 authorizes Parliament or the legislature of a province to derogate from certain sections of the charter, namely those protecting fundamental freedoms, legal rights and equality rights. Simply put, it is a tool that allows governments to short-circuit charter protections. What is clear is that legislation that invokes the notwithstanding clause is violating fundamental rights. Using the notwithstanding clause is allowed, of course, even though the intention was always for it to be used rarely and in exceptional cases. However, in my opinion, the pre-emptive use of the clause is very problematic. By pre-emptively invoking the notwithstanding clause, a government is basically saying that it knows it is violating Canadians' fundamental rights but that it is going to go ahead anyway, without giving the courts a chance to weigh in. Let us be clear. By pre-emptively invoking the notwithstanding clause, a government is saying that it knows it is violating Canadians’ fundamental rights and freedoms, that it knows it is doing so but that it is going ahead anyway, without giving the courts a chance to weigh in. The Prime Minister, our Minister of Justice and other members of cabinet have been clear that our government is concerned with the pre-emptive invocation of the notwithstanding clause, and our federal government is firmly committed to defending the rights and freedoms protected by our charter. This charter is an expression of some of the most fundamental values of Canadian society. It guarantees our rights and freedoms. I dare say that it represents what it is to be Canadian. These rights and freedoms are the very foundation of our country and of our democracy. However, even with these crucial rights, the charter recognizes that they are not absolute, and that is why section 1 exists. Section 1 of the charter provides a workable, pragmatic framework for balancing different rights and freedoms, and it is there because sometimes a government can justify limiting constitutional rights and freedoms. Through decades and decades of jurisprudence, Parliament and provincial legislatures have been engaged in this ongoing dialogue with our courts. The pre-emptive use of the notwithstanding clause ends that dialogue. It short-circuits the dialogue that is necessary to ensure that our charter is functioning as it should. Our constitutional tradition is one marked by dialogue, mainly between the legislator and the courts. The pre-emptive use of the notwithstanding clause limits that dialogue by limiting legal debate. When the notwithstanding clause is used pre-emptively, this dialogue and debate become mainly theoretical, because the courts are not given the opportunity to order remedies. It is also important to remember that a strong, independent judiciary is the cornerstone of a healthy democracy. The pre-emptive use of the notwithstanding clause limits the work of our courts, which cannot fully assume their role under our Constitution.
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