Mr. Speaker, on April 17, 1982, after years of lengthy debate and strenuous negotiation, our country adopted a charter that would bring transcendent change to Canadian life.
The Charter of Rights and Freedoms enjoys a very high level of support in Canada today. Canadians do not only agree with their charter, they cherish the protections it offers, and for good reasons: they are morally sound, they are necessary and they are a reflection of who we are as a people.
The citizens of every country in the world hold their own constitution in high esteem. They are documents, traditions or customs embedded in history and tradition. Even every good Conservative Republican wraps himself or herself in the American constitution. It allowed William F. Buckley to express himself and for Sarah Palin to defend things like gun control or not.
Only in Canada do we hear politicians criticizing the constitutional documents that have founded a country and made it flourish.
Thirty years ago, we had an uneasy relationship with our constitutional past because Canada was in the process of superseding colonial links and affirming its own identity. It was time, more than ever, to part with some of our past links and bring the Constitution to our own country. We wanted to demonstrate to ourselves and to others that we had grown up and that we were a strong country. We wanted to assert our convictions, our principles, everything that distinguishes us as Canadians, and we wanted to declare those principles to the world.
We Canadians appreciate the charter because of its protections and the rights that it provides but Canadians also cherish the charter because it is a reflection of who we are as a people. The Canadian Charter of Rights and Freedoms embodies the character of the Canadian people. The charter inspires us and appeals to the best of us as Canadians.
Unfortunately, the government tends to discredit the Canadian Charter of Rights and Freedoms, but this charter is so Canadian that one has to wonder whether the government is not too fond of Canada. The principles of democracy, equality, freedom and protection of minorities are not very important to the Conservatives. They perhaps want to find ways to avoid complying with this charter. During a trip to northern Canada, the said that he calls the shots, but I think it is time to remind him that he is not the king. The Canadian Charter of Rights and Freedoms had been around for 20 years before this government, and it will still be around 20 years after this government is gone.
In this country, there are rules that apply to everyone, even to those who disagree and even to the government.
When Pierre Elliott Trudeau spoke on the need to celebrate the renewal and repatriation of our Constitution in 1982, we were not witnessing the mere act of another government enacting another law; we were witnessing the birth of a document that was the product of broad political discussion across the country. The product is a reflection of ourselves as a country that we can be proud of. As Pierre Elliott Trudeau said:
|| I speak of a country where every person is free to fulfill himself or herself to the utmost, unhindered by the arbitrary actions of governments.
|| The Canadian ideal which we have tried to live, with varying degrees of success and failure for a hundred years, is really an act of defiance against the history of mankind. Had this country been founded upon a less noble vision, or had our forefathers surrendered to the difficulties of building this nation, Canada would have been torn apart long ago.
However, the Conservative has had a very hard time accepting a higher power for himself and sometimes seems to think he is king and not elected by the people of Canada and subject to our law, our Constitution, our founding principles. The Conservatives do not want to live in a world that was the vision of someone like Thomas Jefferson or Nelson Mandela. They want to live in a world without a charter to restrict their power and impose their every will on the public.
The world the government on the other side wants to live in is the world of Robert Bork, which is a world, to quote the late Senator Edward Kennedy:
||...in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are at the heart of our democracy.
Senator Kennedy concluded with a comment for President Reagan that applies to this government today as well in that it should not be able to impose its “reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice”.
Let us remember the past, for in remembering the past we might prevent repeating it. In the early 1900s, women were not people in Canada. It took a decision by a court of law to declare that women are people in Canada and that they should have the right to vote. We only need to go back 50 years to the decision in Roncarelli v. Duplessis. We can be glad that Canadian courts had the power to overrule a premier who was using his powers on an arbitrary basis for a personal agenda against the rights of an individual.
Governments are sometimes wrong. Government has to follow a set of rules set out in a constitution and when it does not abide by those rules, modern democracies have given courts the law, the role to decide when the government crosses those lines of unconstitutional behaviour, that they should choose to protect the constitution as well as the citizens from abuse by the government. Every democracy is based on a desire to be, as any founding father or mother would say, a country of laws, not of men.
In our Constitution, we chose to include principles that represent the basis of the Canadian identity. The Canadian Charter of Rights and Freedoms protects the right to equality for all Canadians, the right to freedom, the linguistic duality of this country and the civil rights that protect us against mistreatment by police forces. These protections have enabled us to build schools for minorities across the country, provided services to persons with a disability who needed them, prevented Canadians from being unjustly detained and protected minorities against discrimination. These are the principles that Canadians decided to impose on this government.
Because it is the people's government, they choose the rules that the government should live by. This government, however, has a hard time understanding that the people choose the laws.
This government does not see a problem with the arbitrary detention procedures in Bill , for example. The detaining of an individual by an agent of the government or at the minister's will for 12 months is against the charter. The Supreme Court said so only three years ago. The government does not understand that, but the Canadian people do. They said so in their charter.
The government never saw a reason to protect Omar Khadr from the abuse he suffered abroad, but the Canadian people did because it is in their charter.
The government has cut the budget of groups that have advocated for minority rights, but the Canadian people understand that is wrong. It is in their charter.
This is a government with many members who feel that criminals reap the greatest benefit from the charter. This has to be balanced with the myriad court decisions that say, on the contrary, the Canadian people have a charter.
The immense powers of government over an individual have to be balanced with principles. Where these principles can sometimes impede the effectiveness of police forces, the charter has the override provision in section 1 to provide a reasonable limit to rights and freedoms, but we will not hear the Conservatives talk about the section 1 override provisions of the charter. We will not hear it because they do not want people to know. But the people know that they have a charter. They know that there are protections. It is in the charter.
Tom Flanagan, a well-known Conservative, wrote that courts of law in Canada are often an innovating force ahead of public opinion. Even the has expressed concern that a recent decision of the Supreme Court enforcing the protection of minorities should have been, rather, taken by Parliament.
That is also the view, to bring it full circle, of Robert Bork today. When he was bounced from his nomination from the Supreme Court of the United States, he decided to get some print in Canada. In 2002, he said that courts throughout the world, including Canada, are enacting an agenda.
Robert Bork and the : very similar.
On the contrary, modern democracies have mechanisms to protect minorities from being abused by the majority. In Canada, this mechanism is the charter, and there is nothing more democratic than a court of law that forces a government to respect a charter of rights and freedoms that was the result of a democratic process.
The Canadian Charter of Rights and Freedoms is a constitutional document that can only be amended by consent of Parliament and of every province. It could never have been the intention to set inflexible rules and principles in stone, fixed in time, that could only be changed by constitutional amendment. Instead, Canadians created a document that would be adaptable and therefore remain relevant to the needs of a rapidly changing society.
The late Supreme Court Justice Antonio Lamer wrote in 1985, when the charter was new and being decided upon that it was a living tree planted by the Canadian people. Supreme Court Justice Dickson wrote the same thing in the case of R. v. Big M Drug Mart Ltd., worrying that “the living tree”, which is the charter, “will wither if planted in sterilized soil”.
The comments by the Conservative government do not represent the Canada that we know. The comments by Tom Flanagan do not represent the Canada that we know. They defy the values that Canadians chose to define as their own in the Charter of Rights and Freedoms.
As two modern examples of how the charter lives, General Roméo Dallaire and General John de Chastelain were exporting democracy and the values of the charter to the world. Long before this debate here today, General de Chastelain in Ireland and General Dallaire in Rwanda, these military giants, walked among divided combatants, dressed as men of war but sounding like men of the charter. It is to Canada's credit that they did so. They exemplified charter values and gained respect around the world.
Today we are here to remind the government that it does not get to choose the world we live in. This is Canada, and Canadians have created a Charter of Rights and Freedoms that reflects their ideals. This charter binds every government to come with respect to these ideas, whether governments like it or not. The protections in this charter are cherished by Canadians for good reason. They are certainly morally sound, as I said at the beginning. They are a reflection of who we are as a people, and they are necessary.
Exercising the protection of a right for one person does not take away the right of another person. That is a very important comment to make. It seems that every distinction made by the government is that in the application of the charter for the protection of a right, someone else loses something. It is a fundamental principle that the protection of one right that is enshrined for one person does not take away the pile of rights that all of us have.
Every court decision grapples with the issue of the individual right and the collective right. This is never mentioned by the Conservative justice team or the Conservative government, ever, or any of their columnists who write daily on these issues. It is never mentioned that there is a collective right. The collective right is enforced by the fact that government does not invade the secure, the privileged and those in positions of power and comfort who do not need the charter to enforce their rights. That is the protection of the collective right. Within the charter is section 1, which provides for the collective right, the right of override. The protection of the single individual right might be overridden by the collective right for the protection of society.
The second point that is important to remember is that, in common sense terms, we could look at the Charter of Rights and Freedoms as insurance. Insurance is a great comfort to those who do not need to use it. It is illogical to say that we like to have insurance because we use it so often. We want to have insurance and never have to use it. Who wants to have a car accident? Who wants to have a fire? Who wants to lose his or her life or be dismembered and use insurance policies for protection?
Why is that not unlike having the charter as protection for everyone in this House and everyone outside this House who is a Canadian? We can have the Charter of Rights and Freedoms which protects us, but we hope we never have to use it. We hope that we are not one of those litigants who has to go to court to ensure that a right is being protected. Who wants to go to court and use the charter?
The Conservatives, on the other hand, should know that we are a far less litigious society than our neighbours to the south. They should know that the charter is being used by people who have to use it, people who have to apply for the protection of their rights. Of course, the great stopgap in this free and democratic society is that our courts have the discretion to determine whether in fact a right has been abridged.
The concept is very simple. The Charter of Rights and Freedoms is for everyone, not just for the people trying to use the charter to gain benefits that are secured for them. We hope, as individuals, that we never have to use these provisions in the charter, but they are there for our protection.
The other thing that I would like to say about the comments made by various individuals in the public is that it is an attack on Canada when they attack our constitutional documents, and it should not be permitted by a political party, let alone a party that is ruling.
It is one thing to have a political point of view that does not believe that the Constitution, as contemplated, protects these rights. That is one thing. But when they say that the whole baby with the bathwater syndrome should be thrown out because the Conservatives do not like how it is applied, the inference to be drawn is that they do not trust judges. That inference has been veiled in the last few years but was not very covered up in the first few years of the government's regime.
The government does not trust judicial discretion. It does not trust the good common sense of Canadian people who wanted this charter and will see to its enforcement. The government does not trust judges to take a common sense approach on the Canadian Charter of Rights and Freedoms, which Canadians believe in, to interpret rights appropriately.
The Conservative government should be ashamed that it lets elected officials, some of whom serve in this House, and unelected officials, who have undue influence on the cabal, to make statements that denigrate our Constitution, denigrate the opposition, denigrate the points of view of members of Parliament and denigrate columnists. That is what we believe in. We will defend its right to say whatever it wants to say, but the government should not attack the very root of our community, the very basis of our civilization, which is the Constitution of Canada and the Charter of Rights and Freedoms as it exists today. Shame on the Conservative government.
We call on the government to ask for formal retractions from its spokespersons, because this is egregious. It is an awful day in Canadian history when the governing party says that the hall in which we govern, the land that we govern, partially, is governed by a document that it does not believe in. How close is that to anarchy? It is too close.
We in the opposition call on the government to look into the recesses of its soul and say it is wrong, say that it is sorry and admit that it believes in Canada, that it believes in the Constitution, that it believes in the Charter of Rights and Freedoms.
Mr. Speaker, I would like to begin by thanking the hon. member for for having given the House of Commons the opportunity to address the crucial role that the Canadian Charter of Rights and Freedoms plays in terms of good governance in our beautiful country.
As we are all aware, the charter is part of Canada’s Constitution. The charter is the highest legal expression of a number of fundamental national values that have been crafted with pride throughout our history. The most fundamental of these values is the rule of law, in the name of which a good many sacrifices have been made.
Specifically, the charter guarantees the right to liberty and security of the person; freedom of conscience and religion; freedom of expression, including freedom of the press; freedom of association and assembly; the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein; the right, for persons who have been charged, to due process of law and to fair treatment; and the right to equality. Each of these guarantees is crucial in a democratic state founded on the rule of law and is inextricably linked to Canada’s social and political development.
These guarantees were far from being new legal concepts when the charter was adopted in 1982. In fact, they were the result of other great moments in the history of our Parliament and of our provincial legislative assemblies. In 1960, the Progressive Conservative government of Prime Minister Diefenbaker adopted the Canadian Bill of Rights, the federal government’s first-ever comprehensive Canadian human rights instrument. The bill contains many rights and freedoms guaranteed by the charter, including freedom of expression, of religion and of assembly, legal guarantees for persons accused of an offence, as well as equality rights. The 1960 bill also contains the right to the enjoyment of one's property and rights of a general nature to impartial hearings, which is very important. These rights go beyond the guarantees set out by the charter, so they are still relevant today.
Legislators had already passed a large number of equality rights, in addition to the bill, prior to the adoption of the charter. At the federal level, the Canadian Human Rights Act guaranteed Canadians would not be subject to discrimination in the area of employment or in the provision of goods and services, on the grounds of race, national or ethnic origin, colour, religion, age, gender or disability. Every territory and province enacted similar guarantees. Given their crucial importance for Canadian society and for the expression of key Canadian values, the courts determined that the Canadian Bill of Rights and human rights codes, such as the Canadian Human Rights Act, were quasi-constitutional instruments.
Furthermore, Canada played an active role in concluding international human rights conventions that support Canadian values and reflect the concerns regarding individual dignity, justice and democratic governance that underpin the charter. From the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 to the International Covenant on Civil and Political Rights, which Canada ratified in 1976, to the Convention on the Rights of Persons with Disabilities ratified by the Government of Canada in March 2010, Canada has always promoted and defended all charter rights and freedoms. Thus, it should come as no surprise that they made their way into the Constitution of Canada.
It is important to note, however, that the rights and freedoms guaranteed by the charter are not absolute. The first section of the charter 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.
This compromise is essential to the charter. It guarantees Parliament and the other legislatures in Canada vast sovereignty so that they can continue responsibly defending the collective interests of Canadians, even though they may infringe on individual rights. I will come back to this important point before the end of my presentation here today.
Generally speaking, the role of the Constitution, including the charter, is both to establish how the legislative and executive branches shall exercise their powers and to impose limits in order to ensure good governance of Canada in accordance with the rule of law. That is important. It means that when they are passing legislation, legislators and the various legislatures in this country must ensure that all provisions of the legislation respect the rights and freedoms guaranteed by the charter. It also means that when interpreting and enforcing legislation, the federal and provincial governments have an obligation to respect all rights and freedoms guaranteed by the charter.
When people feel they have been wronged by the government, or by the application of its laws, the charter includes methods for ensuring its own application in order to make certain that the various legislatures and governments always adhere to the rule of law. The best-known way of doing this is for Canadians to seek a remedy before the courts if they think government action or legislation has violated their rights and liberties. Most importantly, the Constitution Act, 1982, recognizes the ability of the courts to strike down laws or actions that do not comply with the charter.
Despite its deep roots in Canada’s political and social traditions, the charter has clearly brought about some major changes in the 28 years since it became law. It has prompted debates, discussions and controversies over its interpretation and effects and over the advantages and disadvantages of the changes it has wrought. These debates crop up around kitchen tables, in courts of law all over the country, in the universities, within government and in the legislatures. The discussions had already commenced while the charter was being drafted and continue to this day. These kinds of debates are healthy in a democratic society and I am delighted to be able to continue them in this most august of forums. A critical theme for discussion is the way in which the charter has clearly redefined and brought about a new balance in the relations between the legislative, executive and judicial branches of Canada’s democratic system.
Over its short history, therefore, the charter has made a major contribution to the ongoing discussion in Canada about the core values that shape us as a nation. The least controversial of these values is probably the commitment to the rule of law, as enshrined in the preamble to the charter.
The Minister of Justice plays a role in advancing the rule of law within the federal government: he or she is responsible under the Department of Justice Act for ensuring that “the administration of public affairs is in accordance with law”. The minister is the official legal counsel to the Government of Canada and the legal member of the Queen’s Privy Council of Canada. The minister is also the Attorney General of Canada, and in these two roles, the minister generally advises all departments and ministers on the legal obligations of the federal government, including the legal methods of administering public affairs in the public interest.
In addition to the responsibility for ensuring that public affairs are administered in accordance with law, including with the charter, the Attorney General of Canada is responsible for all legal actions brought by the Crown or brought against it. This includes defending the laws of Parliament and the actions of the Government of Canada against challenges brought before the courts under the charter. As we all know, the charter is often invoked in attempts to question the constitutionality of federal legislation and challenge the actions taken by the Government of Canada under such legislation.
As a general rule, the Attorney General of Canada mounts a vigorous defence. As I said earlier, the charter guarantees rights and freedoms that are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. A vigorous defence of our laws in charter challenge cases makes at least two things possible.
First, it makes it possible to ensure that the meaning of the rights and freedoms guaranteed by the charter is not tainted nor is it extended beyond what Parliament intended, and that those rights and freedoms are consistent with the role assigned to them in Canada’s democratic system. Second, it make it possible to ensure that the maximum reach of those reasonable limits is preserved and clearly defined. In turn, that reach makes it possible to ensure, now and in future, that Parliament, which acts on behalf of Canadians and in full compliance with the values expressed in the charter, has the broadest possible latitude in the responsible exercise of its powers.
I am certain that the other members of the House will agree that a vigorous defence by the government is in no way disrespectful of the charter. The important aspect of the charter, which other nations have copied in drafting their own constitutions, is the balance it expressly establishes between the guarantee of rights and freedoms for everyone and the recognition of the supremacy of the public interest over those rights and freedoms in certain circumstances. When the government mounts a vigorous defence in charter challenge cases, it constantly champions the predominance of the public interest in appropriate and justifiable cases.
Even in cases where the government is not successful, it often gains useful information and experience from the process that enable it to pursue the same objectives on behalf of Canadians but use a modified strategy that still abides by the charter.
Before concluding, I would like to point out that the opposition motion introduces the notion that it is somehow inappropriate or even sacrilegious to express one’s opinion on the charter.
While it undeniably encompasses and reflects the fundamental values of Canadian democracy and society, the effect on our constituents and our democracy would be negative if we could not express our opinions.
The charter is—and I do say is—the supreme law of the land, and the Government of Canada is obviously committed to respecting the rule of law. That commitment is entirely to the credit of Parliament and, through Parliament, of the citizens of Canada.
Mr. Speaker, there are many good things about the charter, but there are some bad things as well, and a motion on the charter must consider both. When I speak of the bad, I am obviously referring to the provisions that were carefully drafted to counter the language legislation that Quebec deemed necessary to protect the French language.
I am prepared to acknowledge that the charter has played a crucial role in the protection of justice, freedom, equality and fairness for all Canadians. It certainly sets the standard by which all Canadian laws are currently judged. Therefore, it is extremely important. However, to make it acceptable, there has to be recognition of why Quebec still refuses to sign it. For this reason, the Bloc Québécois will not support this Liberal motion as currently drafted.
The Bloc Québécois believes that we must not confuse the defence of rights and the defence of the Canadian Charter of Rights and Freedoms. The Bloc Québécois is a staunch supporter of rights and freedoms, in Quebec and Canada as well as throughout the world. However, we wish to remind members that this charter was designed in part to limit Quebec's powers of self-determination. The Bloc Québécois is also of the opinion that the Conservative government has not done a good job of defending rights and freedoms in Canada and elsewhere in the world.
The Bloc Québécois has always denounced the charter when it has been used as a tool to limit provincial powers, especially those of Quebec, over language issues, among others. We should remember the context in which the charter came to be, especially the night of the long knives. However, it is clear that the Conservatives do not like to defend rights and freedoms, and there are many examples of that. The Bloc Québécois has always defended human rights and has always risen to defend them against the Conservatives' attacks.
Let us take a look at how the charter came to be. Two people who were there gave an eloquent account of its genesis on the 25th anniversary of the charter. First, Louis Bernard, former secretary general of Quebec's Conseil exécutif, the most senior public servant in Quebec and a participant in the constitutional talks of 1981-82, wrote the following in the Friday, February 16, 2007, edition of Le Devoir.
|| The Constitution Act, 1982, gave birth to the Canadian charter and plunged Canada into a constitutional crisis that it is not about to climb out of. There were attempts to repair the damage with the Meech Lake accords, but they did not work, since some provinces reneged, once again, on their initial commitment. Any kind of constitutional progress became impossible.
|| We need only reread some provisions of the Constitution Act, 1982, to see how things reached an impasse. Section 49 states, “A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years [before the end of 1997] after this Part comes into force to review the provisions of this Part.” This refers to the procedure to amend the Constitution.
|| Obviously, this conference was never held. In 1997, the Parti Québécois regained power in Quebec and its premier was Lucien Bouchard, who had founded the Bloc Québécois after the failure of the Meech Lake accords. And, of course, there is no talk of holding such a conference anytime in the near future!
|| It is also important to read section 55: “A French version of the portions of the Constitution of Canada referred to in the schedule shall be prepared by the Minister of Justice of Canada as expeditiously as possible....” These portions form the bulk of the Constitution. No one ever intended to follow through on this section and nothing was done to ensure that the Constitution of Canada had an official French version. This leads us to believe that it is not important....
|| Therefore, we cannot do anything about either the charter or the rest of the Constitution. If the Canadian Charter of Rights and Freedoms ever evolves, it will not be by legislative amendment, but only by judicial interpretation, which I believe [this is Mr. Bernard talking] shows the charter's limitations.
|| The Canadian Charter of Rights and Freedoms was adopted in 1982 as part of the federal government's national unity strategy to put individual rights ahead of collective rights. The government hoped that, in time, the former would be substituted for the latter. The adoption of the charter was motivated by political reasons that, particularly given the illegitimate and amoral manner of its adoption, irrevocably tarnished its image in the minds of many Quebeckers.
|| Nevertheless, some might say, regardless of the circumstances of its coming into being, the Canadian charter exists and is bearing fruit. Does it not have some merits? It would have more merits if it had, for the first time, protected rights that were previously unprotected. But it did not. Quebec, like all of the other provinces, adopted its own Charter of Human Rights and Freedoms in 1975, which takes precedence over all other Quebec laws. The Canadian charter had nothing to add, other than the controversial clause about access to English schools. There are even some important rights, such as sexual orientation, that are explicitly protected under the Quebec charter but not under the Canadian charter.
|| Of course, the Canadian charter applied to criminal law and marriage, which are not covered under the Quebec charter, and that is where its effects are most deeply felt.
|| I would like to emphasize that while the Canadian charter is extremely rigid, the Quebec charter is much more flexible, not to mention more detailed, more didactic and, most importantly, more complete because it includes provisions on economic and social rights. Since 1975, the Quebec charter provisions on protected rights have been amended a dozen times, including a major overhaul in 1982. In other words, the charter is evolving with Quebec society. It is frequently discussed at the National Assembly and is part of public debate.
|| We can foresee that in time, at least in Quebec, the Quebec charter will become much more relevant than the Canadian charter, except in criminal matters, obviously. The Quebec charter is the one that will be used and applied, not only by the Human Rights Commission and Tribunal, but also by ordinary courts. That is what happened in the recent Supreme Court of Canada ruling in the Chaoulli health insurance case.
||...In short, 25 years later, the results of the Canadian Charter of Rights and Freedoms are mixed, to say the least. [As I said, this is Mr. Bernard speaking, which is why he said 25 years.] Although its proponents hoped that it would unite all Canadians around a fundamental text that would be an object of national pride, it was a sorry failure that had the opposite effect due to the circumstances of its coming into being. Although some hoped that it would strengthen Canadian identity, instead it imposed an American approach, with the separation of power and the precedence of judges over elected representatives, which is contrary to our traditions and our system of government.
|| In summary, it does not seem to me that there is much to celebrate. On the contrary, there is much we must not forget.
Also in 2007, Gil Rémillard, the intergovernmental affairs minister in the Bourassa government at the time of the Meech Lake accord, wrote an article in Le Devoir as part of a series on the Canadian Charter of Rights and Freedoms. The article was titled “The Story of the Notwithstanding Clause” and I quote:
|| On the evening of September 29, 1981, Pierre Elliott Trudeau gave a press conference via satellite. He was in Seoul, South Korea, en route to Australia for a meeting of Commonwealth countries. His disappointment was obvious. A few hours earlier, he had learned that in a majority decision, the Supreme Court of Canada had recognized the legality of his plan to repatriate the Constitution, adding, however, that it would be illegitimate for Ottawa to proceed without “the consent of a substantial number of provinces”. [He is quoting the Supreme Court.] Thus, the court skilfully cut short any impulse by Ottawa to repatriate the Constitution unilaterally. And the British Prime Minister at the time, Margaret Thatcher, diplomatically told the Canadian government in the days that followed that Westminster would be uncomfortable with the idea of repatriating the Canadian Constitution by passing a law deemed illegitimate by the Supreme Court of Canada if only two provinces, Ontario and New Brunswick, supported the plan.
|| Then Governor General Edward Shreyer, as Canadian head of state, was also concerned. A year later, he admitted that he had seriously considered dissolving Parliament and calling an election if Mr. Trudeau had continued with his plan to repatriate the Constitution unilaterally. Trudeau had no other choice but to find the necessary compromises so that a “substantial number of provinces”—as required by the Supreme Court—would support what would be the highlight of his political career.
|| Backed into a corner, Pierre Elliott Trudeau decided to try one last time to reach an agreement with the provinces. On October 13, 1981, officials started informal discussions. It became clear that the provinces might be somewhat open if Ottawa were to compromise, particularly on the amending formula and the charter. At the invitation of Prime Minister Trudeau, the premiers agreed to a last-chance conference in Ottawa on November 2.
|| On November 4, after two days of talks, things were still at an impasse in Ottawa. The “eight provinces united against repatriation”, led by William Bennett, premier of British Columbia, did not give up.
|| Prime Minister Trudeau felt trapped. To the surprise of the delegates, he again brought up the idea of a national referendum. Since the politicians cannot agree, let the people decide, he said.
|| René Lévesque, who had raised this possibility in his opening address at the conference, supported the idea. However, the premiers of the eight dissenting provinces saw this as a betrayal on the part of the Quebec premier. They saw Trudeau and Lévesque talking behind their backs during the coffee break and thought that the two francophone leaders had agreed to push this idea of a referendum, which the premiers absolutely did not want.
|| They reacted so strongly that Trudeau thought about ending the conference. But Premier Lougheed from Alberta and Premier Davis from Ontario persuaded him to try one last round of negotiations. They knew that the referendum issue was what drove Quebec and the seven other provinces away from the rest of the group. The last-chance round of negotiations therefore began informally in the late afternoon on November 4, but Quebec was not really involved, probably as a result of René Lévesque's support for the idea of a referendum.
|| The Premier of Ontario, William Davis, called Pierre Elliott Trudeau in the early evening, first to ask him to give up on the idea of a referendum, which he had suggested that morning, and second, to tell him that discussions with the dissenting provinces were going well. He added, however, that the prime minister would have to agree to a “notwithstanding” clause in the charter. Trudeau refused to budge. [This is what became known as the “night of the long knives”.] But at around one o'clock in the morning, Davis woke Trudeau to present the compromise proposed by the seven provinces that had taken part in the last-chance discussions. Davis told him very clearly that if he did not agree to a notwithstanding clause, Trudeau could no longer count on his support. In the end, Trudeau agreed, on the condition that it would apply for a maximum of five years, renewable, and that it would apply only to sections 2 and 7 to 15 [of the charter].
|| Meanwhile, the Premier of Alberta, Peter Lougheed, got in touch with Sterling Lyon, the Premier of Manitoba, who had returned home to run his election campaign. Lyon became the champion of the notwithstanding clause, according to him, in order to protect the sovereignty of parliaments. However, no one bothered to tell René Lévesque, and at breakfast, the Quebec premier knew nothing of the compromise that had been reached during the night.
The truth is that the Canadian Charter of Rights and Freedoms cannot be separated from the Canadian Constitution of 1981, although the Liberals do not want to talk about that. Neither the Bloc Québécois nor any Quebec government in the past 30 years has subscribed to that Constitution, which was rammed down our throats and designed to diminish Quebec's constitutional powers. Asking Quebec to support the Canadian Charter of Rights and Freedoms means asking us to endorse this blight on Canada's history and this betrayal of Quebec.
Quebec has its own charter. It has now been 35 years since Quebec developed its own Charter of Human Rights and Freedoms, which is consistent with its values and which the Conservatives would likely not respect any more than the Canadian charter. It is the principles of the Quebec charter that the Bloc Québécois defend in Ottawa, with the support of all the members of the National Assembly.
The Canadian and Quebec charters are similar in many ways; however, they are fundamentally different in their purpose and status. The Canadian Charter of Rights and Freedoms, included in the April 1982 repatriation of the Constitution, has constitutional status. It is therefore part of the supreme law of Canada. All other laws must be consistent with the rules of the Charter in order to be valid. The Canadian charter has a specific scope of application. It governs the actions of all the parliaments and governments of Canada. It guarantees a certain number of fundamental rights, such as the right to life, liberty and security, the right to vote, and others, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This is the first provision of the charter, which I consider to be a model for other charters. However, our objections are with other provisions.
The Quebec charter was adopted in 1975 and came into force in 1976. It is a regular law of the National Assembly and can therefore be amended through the regular legislative process. Like all other laws, it has to be consistent with the Canadian charter. However, a specific majority—I believe it is two thirds—is required for amending the Quebec charter. Because it concerns fundamental principles, the courts have given it quasi-constitutional status, which means it can be invoked to attack a law or a decision by the Government of Quebec. What sets it apart the most from the Canadian charter is that it applies not only to the relationship between individuals and the state, but also to private relationships.
The Quebec charter also has a broader scope. It guarantees the protection of 15 or so rights that are not protected under the Canadian charter. Under the Quebec charter, every human being whose life is in peril has a right to assistance under section 2; every person has a right to respect for his private life under section 5; every person has a right to non-disclosure of confidential information under section 9; every person has a right to free public education under section 40; and every person has a right to financial assistance in certain conditions under section 45. These are the principles defended by the Quebec charter and by the Bloc Québécois in Ottawa.
With the Canadian charter, the Liberals under Pierre Elliott Trudeau had found a way to attack a fundamental tool for Quebec, namely the Charter of the French Language.
Other speakers following me will illustrate the many reservations the Conservatives have about the charter and the many acts and statements the Bloc Québécois has always condemned. We take issue with the government's position on the Maher Arar case, the Omar Khadr case and gay rights. We also take issue with some of the provisions in the Anti-terrorism Act.
We certainly agree with the last part of the motion moved by the Liberals calling on the government, but to have our support, I move, seconded by the hon. member for , the following amendment:
That the motion be amended by replacing the words “for all Canadians” with the following: “in Canada and deplore the negative impact the provisions of the charter have had on Quebec's jurisdictions, especially Quebec's ability to protect the French language.”
Mr. Speaker, I must admit that I rise today with mixed feelings about this motion. It has been 28 years since the charter came into effect, and 25 years since section 15, the balance of the Charter of Rights and Freedoms, came into effect.
It seems almost to the point of being ridiculous that we are standing in the House, if we follow the tenor of this motion by the Liberal Party, defending the charter from this attack by the Conservative right-wing ideologues. I have two comments in that regard. One is that it is not necessary. When we hear those extreme, almost fanatical views, the vast majority of Canadians dismiss them as being ridiculous, including some that we have heard from the newly elected member for Vaughan, although I will come back to that in my main speech because I think to some degree the response to his comments is significantly overblown.
The other point is that each political party in the House has the absolute right to choose the topic and issue it wants addressed on an opposition day. My friend from Moncton—Riverview—Dieppe, in sponsoring this motion, is well within his right to have done so. However, there are a number of other, what I have to call, more important issues, because the charter does not need to be defended.
The vast majority of Canadians, and by that I mean into the 90th percentile of all Canadians, support the charter. Quite frankly, with the way it has been applied, in the vast majority of cases they support it. They see it as a fundamental guarantee, which is what it was intended to be, of their human rights and civil liberties in this country, as well as linguistic rights and a number of other rights. I therefore believe there is no need for this debate in the country but there is a need for other issues to be addressed. So I am critical of the Liberal Party for the choice it made today.
Having said all of that, it is the obligation of the NDP, as one of the parties in this House, to engage in the debate since it has been put on the floor of the House. If we are going to do that, it is a way of speaking out to Canadians generally, but more significantly to the small percentage who still have doubts about the need for the charter.
When we analyze the opposition to the charter, it is not so much about its existence. It may be very close to 100% of all Canadians who accept that it is absolutely necessary to have a charter of rights and freedoms, as we do, but they are oftentimes opposed to the interpretation of the charter in individual cases, and I think that is true of the new member for Vaughan.
I am quite confident in saying that if we ever did a referendum on the charter, subject to the concerns we have already heard from the Bloc, from that perspective, and setting that aside for a minute, if Canadians, including in the province of Quebec, were asked whether they want these guarantees in the form of a charter of rights and freedoms as part of our Constitution, which would be fundamental law and not a bill that can be changed, in overwhelming numbers they would want to maintain it.
The problem is the interpretation. Going all the way back to the Magna Carta, and coming out of the English parliamentary system, the concept of democracy that we were forming through the last 1,000 years, we wanted it to be a rule of law as opposed to the whims of the royalty at the time or even of elected officials subsequently. We wanted that guarantee. When we look at it, we say yes, we have done these things and we have had these bills, going back in the English system for a long time, as well as in Canada.
Because of the right under the common law for judges to enforce certain fundamental rights, we had that. Where we were found lacking was in other fundamental rights that were regularly breached or not protected. We see this at times when the country is in crisis. We saw it with the author of the charter, Mr. Trudeau, breaching fundamental rights, probably as grotesquely as any prime minister has, by invoking the War Measures Act, used primarily against arguments.
The only good thing he ever did.
Mr. Joe Comartin: I hear support for that from the Conservative side, which does not surprise me because it probably would have done the same thing. A least the current government probably would have done the same thing.
However, any analysis of the invocation of the War Measures Act says that it was wrong and unnecessary, which is quite clear, but that it targeted specific communities, whether it was the sovereigntists in Quebec, a number of the labour movements or other political activists on the left in Quebec, with absolutely no basis for them to be attacked by their government.
The charter says that we do not accept that and that we will put in place both the rules and the ability to enforce those rules.
If we were to go back and study the debate that went on for at least 10 years up to 1982 when we finally repatriated the Constitution and brought the charter into effect, the debate was between the supremacy of Parliament and the right of individuals within society to be protected from their government at times when they were being discriminated against. The War Measures Act is a good example, but there are any number of other ones, such as the treatment of the Japanese Canadians during the Second World War and the Manitoba school question in the early 1900s in terms of linguistic rights. We can look at what was going on in the fifties in Quebec with Premier Duplessis attacking the Jehovah's Witnesses simply because they wanted to practise their faith.
We can go through any number of examples where provincial and federal governments in Canada, prior to the charter governments, breached fundamental rights, fundamental civil liberties. That has not happened much since the charter came into effect but there have been attempts.
The other thing the charter has done is it has made it possible that individuals or groups who are being discriminated against or being abused by their government, whether at the provincial or federal level, have some place they can turn to for relief. It is the essence of democracy. I do not think anyone disagrees that the right of the majority rules as long as it respects the rights of the minority. We cannot have a democracy unless we have both those elements.
However, we also cannot have a democracy if people who are in the minority and who believe they are being discriminated against do not have some place to turn, a shield to protect them and a process to utilize that shield. The charter gave us that . We can go back to the bill of rights that Prime Minister Diefenbaker brought in. It was a simple bill of this House. It was not a fundamental law and it was not part of the Constitution. A couple of times in my practice I attempted to use it and, as always, there were very few exceptions, I always remember the Drybones case because it was one of the few exceptions where the court applied the principles in Mr. Diefenbaker's bill of rights and gave the first nations person some relief from what was clearly an abusive policy under the Criminal Code at the time.
I think that was the only case that occurred under the bill of rights where some relief was granted. Any other time it was invoked or an attempt was made to use it, which I think came into effect in 1962 or 1963, the answer was always no, that was a bill and that this law, which is using the minority, supercedes it. That was the situation we were faced with until 1982 and then in 1985 when the balance of the charter came into effect.
Since that time, if individuals believe they are being abused by either the provincial or federal government and they have convinced the court, whether it is under section 2 or sections 7 to 15 of the charter, they receive a fair hearing in the vast majority of cases and, if they are able to forcefully put forth the facts, they are granted relief in the vast majority of cases. As charter decisions evolved, the type of relief received also evolved.
It is a meaningful, useful document. It is that shield which, in the vast majority of cases now, protects minority groups in this country. Women's groups have used it extensively to establish their rights. We argue that men and women are equal in this country but the reality is that it has taken a good number of cases, several of them all the way to the Supreme Court of Canada, to enforce those rights. The gay, lesbian, transgender community has used it.
In the case of same sex marriages, couples had to take their case to the Supreme Court because the Liberal government of the day tried to hide behind the charter by sending it off to the Supreme Court, even though clear messages had been sent by a number of courts at that time. To its credit, the Supreme Court ruled in some respect favourably but also sent it back here.
Unfortunately, and I hear it from the Conservatives but it was true with the Liberals, the charter does not only empower the courts, it also imposes a responsibility on this legislature. We, as legislators, have a responsibility under the charter to ensure, as we are drafting laws at this level of government, as do provincial governments, that the bills we pass are charter-proof.
The attorney general has a responsibility under the present system to ensure that every bill that goes through this House is analyzed from the perspective of the charter. We need to be more transparent and more accountable in that regard. We get opinions on any number of bills from the justice department that are questionable and that we do not assume our full responsibility as legislators that has been imposed on us by the terms of the charter.
Where are we at this point? There is overwhelming support in the country for this. It has worked extremely well. Members from the Commonwealth who use the Westminster system of Parliament, the concept of the supremacy of Parliament, and other countries that have similar bills of rights or charters of rights, tell us that they have looked much more to Canada as a model, not just in the drafting of their documents but, more important, because it is an ongoing process, they have looked to Canada and our courts for interpretation of our Charter of Rights and Freedoms, as we did when we helped draft the Universal Declaration of Human Rights, that are true for the whole world.
No matter what kind of political background or economic system a country has, those fundamental rights should apply to everyone: the right to practice one's faith, the right to freedom of speech, et cetera. We can go down the list but we know what they are.
The rest of the world, at least within the Commonwealth, in particular those who work under the Westminster system, look to Canada and our courts for the interpretation. I have been critical at times but our courts have taken a middle road. They have not been overly activist by any stretch of the imagination but, at the same time, they have consistently upheld the charter and those fundamental rights for all Canadians.
I will use an example of where I have been critical of the courts. Under the right of association, I believe that interpretation should be extended to the right for people to strike, to withdraw their labour. It seems to me that flows logically from that right of association. If people have the right of association, then they also have the right to not associate, especially with regard to labour. Courts have not been willing to accept that in this country.
I could point to other things the courts have done that I would be critical of. For example, some of the rights that have been extended to corporations that give them similar rights to individuals has maybe gone too far. It has certainly gone way too far in the United States. Hopefully, we will not follow that model.
I raised my concerns and objections that I have to some of the interpretations. A fundamental mistake that the Conservatives and right wing ideologists make is that they say that this is a really bad decision and that the charter has fundamental flaws in it. Those two things are not logically sequential. People can say that they disagree with a decision, as the about to be member from Vaughan did when he said that the Hells Angels had benefited from the Canadian Charter of Rights and Freedoms.
I think that is factually wrong but, more important, it is wrong because what he was really saying was that he did not like the courts' interpretation of the Canadian Charter of Rights and Freedoms. He was not attacking the charter, if he had thought about it, but I think he sometimes had a problem doing that in terms of understanding what he was really saying. What he was really saying was that he did not like that interpretation of the charter mostly around due process in the case of the Hell's Angels.
Some people have expressed opposition to the charter. Again, I will exclude my colleague from the Bloc in this regard because the Bloc does have a fundamental opposition to the charter, one I do not agree with. It is with regard to protecting French language rights in the province of Quebec.
However, when we hear people say that we must do something about the charter because it is fundamentally flawed, as we have heard the say, they are not really talking about that. They are really saying that they do not like the interpretations by our courts. It goes back to, as we know with the government in particular, the lack of trust in the judiciary. The government sees the judiciary as being way too activist in this country.
However, if we stand back at the international level and look at our courts, all the way from the trial level up to the Supreme Court, they have not been overly activists at all. My criticism would be that they have not been activist enough, particularly with some of the anti-terrorism provisions that we made. It took the courts until about 2006 or 2007, the federal court in particular, to begin to say that what was happening was fundamentally breaking fundamental rights. We have now begun to see them take on that responsibility that they are supposed to be doing under the charter.
I wish we would not have had this debate today because it was not necessary and there are any number of other issues. However, I want to say for the Canadian people who are listening and for the rest of my colleagues in this chamber, that there is no issue about whether the charter should be in existence in this country. It is absolutely necessary and it has an almost overwhelming 100% support from constituents right across the country.
Madam Speaker, I appreciate the opportunity to participate in the debate for many reasons, but for one reason in particular. The last time I participated in a debate in the House on the subject of the charter was at the time of its adoption. I think I am right in saying I am the only member currently in the House who had an opportunity to not only participate in that debate, which I did on the question of the resolutions and motions before the House at that time. I also had an opportunity to see the charter adopted as part of our Constitution in 1982. Therefore, it is an interesting time for me to be able to respond to some of the comments made by my colleagues.
Some statements have been made over the last while about the charter and the importance of it and about the important opportunity for us, as Canadians, to reflect on our constitution, on our basic values, on our rights, on our freedoms and on our responsibilities as well. We would not be having this debate if it were not the case that both the and the newly elected member for Vaughan and others have made comments that attempt to cast a shadow on the charter, that challenge the validity of the charter, that put our laws and our understanding of our rights and freedoms into some kind of a political quagmire where they do not belong.
I particularly enjoyed listening to my colleague from . He is sitting in the same seat from which I delivered my speech in 1981, if that gives him any comfort. I appreciated his comments today and the very balanced way in which he made a presentation. The only disagreement I have with him is on the question of whether we need this debate. I think Canada does need this debate and this discussion because there has been far too much talk with far too little response about the charter from the members of the Conservative Party. Over the last 15 to 20 years, they have launched a very significant broadside against the charter and against the interpretations of the charter that have gone forward.
Some will say that they are not actually challenging the charter, that they are only challenging the courts. However, for the government of the day to start attacking the courts on a systematic basis is almost as unhealthy as saying that it will not attack the courts, but rather it will simply attack the constitution. It is important for us to understand what this new ideology taking shape and form on the opposite side means and the threat it poses to our sense of balance and to our sense of the importance of the entrenchment of rights and freedoms.
The debate that took place in the late 1970s and early 1980s was not something which happened out of the blue. There was a very long discussion in the country, not only about the patriation of the Constitution, about which we can continue to discuss, but also about the question of whether we in fact needed a charter, why we needed one and what the Canadian experience was that lead us to think we needed a stronger entrenchment.
Many of those arguments have been set out by my colleague from , and I do not feel a compelling need to repeat them, except to make two points.
First, the Charter of Rights and Freedoms was not imposed on the House by the prime minister of the day. It was adopted by the House. It was adopted by members of many different parties. It was debated, discussed, reviewed and analysed by every conceivable legal group in the country that looked at what the document meant.
Second, it was not simply an imposition of a set of rights that had never existed before. Rather it was a codification of those rights. It took rights which already existed which, in many cases, had already been applied by the courts. We then said that those rights were so fundamental that they should be entrenched and should have priority over all other legislation.
We all know what happened with the notwithstanding clause and the compromise that was eventually reached, but I want to note that it is of great interest to me, apart from the Province of Quebec, which has its own political issues with respect to the charter, the extent to which other provinces and provincial governments and the federal government have not in fact invoked the notwithstanding clause because of the value that we see in the charter.
So what did the Charter of Rights and Freedoms do? It did not just come out of nowhere. It was the product of the Canadian experience of situations in the past in which we, as a country, did not always recognize the importance of fundamental rights. The House recognizes that there are some very sad examples of people being jailed because of their country of origin and their culture.
My colleague from is well aware of what happened to Italians interned in prison camps when war broke out in 1939-40. He knows that the decision violated the fundamental principles of our Constitution. We now know it too.
We all know what happened to the Japanese. Madam Speaker, consider your riding in British Columbia. We all know what happened to the Japanese who were interned in prison camps over there for years for no reason. Their property was seized by the Canadian government and they were denied recognition of what happened. Eventually, Parliament itself was compelled to respond and, after decades of experiences, recognize that injustice.
We have other examples. We have the notorious Alberta press case of the 1930s where the Supreme Court of Canada said that actually a province cannot require newspapers to print stories that are simply favourable to the government in response to criticisms that may have been in a newspaper. The government of the day, which was a Social Credit government in Alberta, tried to impose rules and regulations on the newspapers of Alberta with respect to what they could do. Our Supreme Court said “No, you cannot do that”.
Our Supreme Court over the years in the 1940s and the 1950s began making decisions that said very clearly there are rights and freedoms, there are due processes, there are things that have to be observed. However, we came to the conclusion that it was not strong enough.
That is why we passed the charter, which gave protection to basic freedoms, gave protection to due process, rights of search and seizure as referred to by my colleague, the member for when he did his recitation and his question to the member for . We saw the examples. We cannot simply go into somebody's house. We cannot simply knock on the door and pick someone up without having any cause. There are things that have to be done.
However, these are not invented by the courts, nor in fact were they invented by the charter. There is a problem I have with the comments made by the elected member for Vaughan, who is not yet the member for Vaughan, Julian Fantino, and I know Mr. Fantino very well. I have known him for over 25 years. When he says, for example, “Who has reaped the greatest benefits from the Charter of Rights and Freedoms? I would argue that if it isn't common criminals, then it must be the Hells Angels”. He made those comments in his book, Duty: The Life of a Cop.
I would say to Mr. Fantino, what exactly is it in the charter that he objects to? Is it that there has to be due process? Is it that there have to be rights, that the police have to follow processes in order to carry on their work? Is it the application of law, the due process of law, to what it is that has to be done? What exactly is it in the charter that people object to? What is it in the wording of the charter that people say, this is wrong? The police should not have to follow the law. The police should not have to do this or that. I find that hard to understand. That is why this question now becomes so important.
If we take our rights seriously we entrench them in the Constitution, which is what we did. We then say that once a right is entrenched the only body in our system that can actually interpret that are the courts. We have given this job to the courts. We have said it is part and parcel of the courts' responsibility to deal with this.
Therefore, the suggestion that somehow the courts are acting inappropriately or that the courts are doing something that Parliament did not ask them to do is nonsensical.
We are not alone in this regard. Most other countries are moving to an entrenched bill of rights, to an entrenched charter, a charter that looks at basic freedoms, due process, equality rights, the rights of minorities and multicultural groups, and in the Canadian context aboriginal rights. I want to touch briefly on each of these in my comments.
With respect to equality rights, the courts have done a remarkable job of pointing out that majorities are not always as sensitive to minorities as they should be. Minorities want sincerity, clarity and equality from their fellow citizens. Unfortunately, they have sometimes had to go to court to assert their right to equality. As Canadians, we have to recognize that our majorities have not always responded appropriately. Equality rights are still important to us.
Even today when we come to equality rights, I think of the enormous progress we have made as a country as a result of this dialogue and as a result of the fact that we now have the courts playing a more active role.
I look at the legislation that has just been brought to this House by the Conservative Party, Bill , in which the law states, boldly and bluntly, that there are two kinds of refugees. There is no longer one class of refugees. There are now two classes of refugees. The second class consists of those people who come over somehow in a boat or come over in a group. They are now to be rounded up and thrown into a detention centre for as long as a year, without much of a heretofore, without a review, without anything at all. They are to be abandoned without rights, without recourse, and to be treated completely differently from a separate class of refugees, whom the government has now designated in a different way.
We do not think that it is only up to the courts to deal with the Charter of Rights and Freedoms. We think it is up to Parliament to deal with it, and that is why I am very proud that our party has said that we will not support Bill , because we believe that it is fundamentally wrong in the way in which it treats people, and in particular because it does not pass any test with regard to this question of rights and freedoms as set out in the charter.
I would also say that were it not for the charter, were it not for the interpretation of that charter by the courts, the first nations people, the aboriginal people, the Inuit and Métis people of the country, would be far worse off than they are today. We tried, in Charlottetown, to move the political understanding forward that would allow us to recognize rights that had not previously been sufficiently recognized, but I have to say that that political effort was not successful.
What we also know is that the courts have in fact played the role that we would want them to play in any society, in saying to the majority, actually, you have to pay some attention to the treaties that you have signed. You have to recognize that once you say in your charter and your Constitution that you are going to recognize treaty rights and that you are going to recognize existing rights, then the courts have a responsibility to determine what those existing rights are. They have taken that responsibility and taken that role, and they have taken it seriously and well.
I am very happy to express my support for this important motion from the member for . Canadians believe it is important to strengthen one of the basic tenets of our political life. We have a Constitution and a Canadian Charter of Rights and Freedoms. I do not think that this should be a partisan issue. Unfortunately, some people still say they do not accept the entire Constitution, the notion of a Charter of Rights and Freedoms or the courts' responsibility to protect citizens' rights. Protecting citizens' rights also means that the courts must sometimes make difficult decisions, but at the same time, that is one of the reasons we need these protections.
Of course, there are going to be difficult cases. Of course, there are going to be requirements sometimes whereby our institutions of justice and, indeed, even our institutions of law enforcement, have to conduct themselves in a certain way in order to get to a certain result, but these are the protections that we require.
These are not protections for any one group of people. These are protections for all Canadian citizens and they are necessary and fundamental to our sense of what the phrase “the rule of law” means. The rule of law means respect for the law as that law is interpreted by Parliament, the courts and the legislatures, and that is the debate and discussion that we need to have.
What we do not need is the continued fraying of the overall commitment to the importance of rights and freedoms. That is something that strikes at the heart of our national life and the very heart of our situation.
For example, when I hear the say he agrees that there are serious flaws in the Charter of Rights and Freedoms and that there is no review or accountability mechanisms for Supreme Court justices, what exactly is he saying? It is a fundamental principle of our democracy that the courts are independent. There is no review or accountability of the courts because that is what takes place in a dictatorship.
Political review or political accountability of the courts is something that happens in countries that have no respect for the rule of law. The independence of the judiciary is a foundation of the British Constitution. It is a foundation of the common law Constitution. It is a foundation of what we need to believe in and return to our belief in as a country.
Therefore, when people in the position of prime minister say there are serious flaws in the charter, what are they? They should tell us what they are. Is it due process the does not like? Is it the freedom of the press he does not like? Is it the freedom of speech he does not like? Is it recognizing the treaty rights of aboriginals? What is it?
When he talks about a review or accountability mechanism for the courts, what exactly is he talking about? Is he talking about judges who have to kowtow to the wishes of the government because he is not happy with what they do or say? This is what strikes at the heart of our Constitution. This is what strikes at the heart of our freedoms. It is time for this kind of loose rhetoric and talk to come to an end and it is time for all of us to recommit ourselves to the Canadian Constitution, to the Canadian Charter of Rights and Freedoms and to what that means for all of us.
Madam Speaker, I would like to begin by thanking the hon. member for for moving the motion on the Canadian Charter of Rights and Freedoms and the responsibilities of the in relation to the charter.
I did find it somewhat unfortunate that the member went on to impose a vitriolic attack on our federal government. It really was inappropriate because we are talking about the Charter of Rights and Freedoms, a document that is so vital to the future of our country, defending the rights and freedoms of Canadians. It was unfortunate that he chose to make a general attack on government policy.
That said, it is important to highlight that the charter is one part of the framework at the federal level for the protection of human rights in Canada. In addition to the charter, Canada also has the Canadian Bill of Rights and the Canadian Human Rights Act as important human rights instruments. I would like to spend some time articulating how important those documents and instruments were.
In 1960 the Conservative government of John Diefenbaker passed the Canadian Bill of Rights, the first federal legislative enactment to specifically set out basic human rights for Canadians. The Bill of Rights set out a wide compendium of guaranteed rights and freedoms.
The Bill of Rights provided in section 1 that there existed, and continue to exist, without discrimination on the grounds of race, national origin, colour, religion or sex, the following rights and freedoms, and members should keep in mind that this goes back to 1960: the right to life, liberty, security of the person and the enjoyment of property and the right not to be deprived of them except by the due process of law; the right to equality before the law and equal protection of the law; freedom of religion; freedom of speech; freedom of assembly and association; and freedom of the press.
In section 2 of the Bill of Rights, there were further rights articulated: the right to be protected against arbitrary detention and cruel and unusual treatment or punishment; the right to be presumed innocent, which all of us take for granted today; the right to be informed promptly of the reasons for arrest, to retain counsel without delay and the right to habeas corpus; and the right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations.
Section 2 also provided that only if an act of Parliament specifically stated that the act would operate notwithstanding the Bill of Rights could these rights be abrogated, abridged or infringed.
Again, this goes back to 1960 under a Conservative government that first took seriously the enshrinement of a code of rights for Canadians.
The Bill of Rights is not a constitutional document. It is an act of the federal Parliament.
However, even with the adoption of the Charter of Rights and Freedoms in 1982, the Bill of Rights continues to have importance and significance. For example, the guarantee of a right to a hearing found in the Bill of Rights is actually broader than the equivalent right in the charter.
As well, there are some rights protected by the Bill of Rights which are not protected by the charter, for example, the protection of property rights. I know there are many Canadians who have asked for property rights to be enshrined in the Constitution. Section 1(a) of the Bill of Rights provides for the right of the individual to the enjoyment of property, and the right not to be deprived thereof except by due process of law.
The Bill of Rights was the earliest federal statute for the protection of human rights in Canada. It has long been regarded as the pioneer effort in safeguarding the civil liberties of Canadians. The Bill of Rights has continued relevance and importance in Canada's human rights framework.
The Canadian Human Rights Act is another part of the federal framework for the protection of human rights in Canada.
The Canadian Human Rights Act was enacted in 1977. The purpose of the act is to ensure equality of opportunity and freedom from discrimination in federal jurisdictions. The idea behind the Canadian Human Rights Act is that people should not be placed at a disadvantage simply because of their age, sex, race or any other ground covered under that act. The statute applies to the federal government, federal crown corporations and also federally regulated industries such as banks, airlines and railways.
The Canadian Human Rights Act prohibits discrimination in the areas of employment and the provision of goods and services on a large number of grounds, including race, national or ethnic origin, religion, sex, sexual orientation and disability.
While there is a certain extent of overlap between the Canadian Human Rights Act and the Charter of Rights and Freedoms, there are also important differences, and the Canadian Human Rights Act plays an important and distinct role in the human rights framework at the federal level.
Let me turn to the Canadian Charter of Rights and Freedoms. That charter is an important part of Canada's constitutional fabric.
In 1982 the parliament of the United Kingdom enacted the Constitution Act, 1982. Part I of that enactment was the Canadian Charter of Rights and Freedoms. I note that in 1982, one month after the Charter of Rights and Freedoms became the law of Canada, I graduated from law school. Members can understand that in the previous three years we as law students spent a lot of time discussing the advisability of a charter, what a charter would entail and what protections it should provide to Canadians. I remember those days very well.
The charter has continued to be the salient human rights document in Canada.
Canada, along with many other countries in the world, had become a party to a number of international human rights treaties in the 1970s, for example, the United Nations International Covenant on Civil and Political Rights. With the coming into force of the charter of rights in Canada in 1982, Canada was able to give domestic legal effect to the international human rights treaty obligations that Canada had undertaken. In addition, the charter was inspired by various international human rights treaties.
The Canadian Charter of Rights and Freedoms was proclaimed in force on April 17, 1982, 115 years after Canada first became a nation. The charter added to and expanded on the scope of protection offered by the Canadian Bill of Rights. The charter sets out the fundamental rights and freedoms of individuals and groups in Canada, and it is an integral part of Canada's Constitution.
The values and principles enshrined in the charter are essential to the promotion of a free and democratic society. These values include respect for the inherent dignity of the person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in the social and political institutions that enhance the participation of individuals and groups in society. Essentially, the charter is an expression of the basic Canadian values that all of us hold dear.
The framers of the charter made it very clear, when the charter was enacted and brought into force, that the intention was not to create new rights; rather, it was simply to codify rights and fundamental concepts that have existed in Canadian law since 1867 and before that as part of the British common law tradition.
Concepts such as presumption of innocence, the requirement of proof beyond a reasonable doubt and the independence of the judiciary are all things that we have taken for granted for many years. The charter codifies these. These concepts have parallels in legal systems of other free and democratic societies, such as in the bill of rights of the United States of America.
The charter is an important component of the government's many legal obligations and a significant consideration in the conduct of its public affairs.
I would like to provide more elaboration on how the charter functions and the protections it affords to Canadians.
Section 32 of the charter provides that it applies to federal, provincial and territorial legislatures and governments. Thus the charter protects individuals from violations of their human rights and fundamental freedoms by government.
Essentially what is happening is that the charter regulates the conduct of governments across Canada vis-à-vis its citizens. This is something that is held up as a role model around the world, and many other countries have now emulated our Charter of Rights and Freedoms. Indeed under section 32, the charter has been interpreted to apply to the full range of governmental activities, including administrative practices of officials and the acts of the executive branch of government as well as to enactments of Parliament or the legislatures in the provinces and territories.
Section 52 of the Constitution Act, 1982 came into force at the same time as the charter. This provision sets out a particular remedy that is available to Canadian courts. It provides that the Constitution is the supreme law of Canada and that every law that is inconsistent with it is, to the extent of that inconsistency, of no force and effect. In other words, if a court finds that a law violates charter-protected rights, it can rule that the law has no force. As well, section 24 of the charter enables courts, if they find that an individual's charter rights have been violated, to either exclude evidence from a trial or to grant the individual other remedies that are “appropriate and just in the circumstances”.
With regard to the specific rights and freedoms protected by the charter, the charter includes protection of the following: fundamental freedoms, democratic rights, the right to live and seek employment anywhere in Canada, legal rights, equality rights, the official languages of Canada, on which there is a whole section, minority language education rights, Canada's multicultural heritage and, finally, aboriginal peoples' rights.
It is important to note that the rights and freedoms in the charter are not absolute. They can be limited in order to protect other rights or important national values. Section 1 of the charter says that the charter rights can be limited by other laws, as long as those limits can be shown to be reasonable in a free and democratic society. Our Supreme Court of Canada has actually stated that a limit on charter rights is acceptable if the limit deals with a pressing and substantial social problem and the government's response to the problem is reasonable and demonstrably justified. Therefore a law that limits a charter right is nevertheless valid if it conforms with section 1.
The charter guarantees certain fundamental freedoms for everyone in Canada. These fundamental freedoms, which are set out in section 2 of the charter, consist of basic rights that Canadians have taken for granted for most of our country's existence. Since 1982, the charter has given these freedoms constitutional protection. They cannot be abrogated by the federal legislative branch. These fundamental freedoms include freedom of conscience and religion, freedom of thought, belief, opinion and expression, freedom of peaceful assembly and freedom of association.
Given that the media are an important means of communicating thoughts and ideas, the charter also protects the right of the press and other media to speak out. When we look around the world at other countries where there is no freedom of the press and we see the oppression that often takes place and the violation of human rights because the media cannot speak out, we know how valuable that protected right in our charter is.
All of these fundamental freedoms allow Canadians to create and express their ideas, gather to discuss them and communicate them widely to other people. These activities are basic forms of individual liberty and are important to the success of a democratic society such as Canada's.
While very important, as noted, these freedoms can be subject to certain limitations. For example, laws against child pornography and propaganda have been determined to be reasonable limits on freedom of expression.
Another category of rights set out in the charter is the democratic rights provided for in sections 3 to 5 of the charter. These rights include the right of every Canadian citizen to vote and to be qualified to run for office in our national Parliament and in the provincial legislatures.
It also requires that the legislatures have a term of no longer than five years, unless two-thirds of the members extend the term during a time of real or apprehended war, invasion or insurrection, and the requirement that Parliament and the legislatures sit once each year. In other words, our constitution and the charter limit the term of this Parliament to five years. That is the maximum length this Parliament can sit before we have an election.
In other words, the democratic rights sections of the charter contain rules that guarantee Canadians a democratic government and embody the basic democratic principle that a government must explain its actions to the people.
The mobility rights of Canadians are also dealt with in section 6 of the charter. Subsection 6(1) states that every citizen has the right to enter and leave Canada. Extradition laws place some limits on these rights. Subsection 6(2) provides that citizens and permanent residents have the right to move and take up residence in any province for the purpose of gaining or making a living. Subsection 6(3) makes it clear that provinces may decide to give social benefits, such as welfare, only to persons who have lived in the province for a certain period of time. I think most Canadians would find that to be a reasonable limit. They may also pass employment laws that require workers to have the necessary qualifications to practise their profession or trade.
In addition, subsection 6(4) allows a province that has an employment rate below the national average to create programs that favour its own residents.
Moving on to sections 7 to 14 of the charter, those sections set out the legal rights that apply to people in Canada. The legal rights protect us in our dealings with the justice system. They ensure that individuals who are involved in legal proceedings are treated fairly, especially those charged with criminal offences.
Section 7, for example, guarantees the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice. The right to protection against unreasonable search or seizure is protected by section 8 of the charter. The purpose of this section is to protect a reasonable expectation of privacy, something Canadians hold very dear.
Section 9 of the charter provides for the right not to be arbitrarily detained or imprisoned. Certain rights are applicable when an individual is arrested or detained: the right to be informed promptly of the reason, the right to retain and instruct counsel without delay and the right to habeas corpus.
When a person is charged with an offence, section 11 of the charter guarantees the following rights: to be informed of the offence, to be tried within a reasonable time, not to be compelled to be a witness, to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal, and to the benefit of trial by jury where the offence is punishable by more than five years. The right not to be subjected to cruel and unusual treatment or punishment is protected under section 12. The right not to have incriminating evidence from a previous proceeding used in evidence against the person, except in prosecutions for perjury, is guaranteed under section 13.
Section 14 affords the right to an interpreter when the person does not understand or speak the language of the proceeding or if that person is deaf.
Moving on to section 15, that section protects equality rights. It is a section that makes it very clear that every individual in Canada, regardless of race, religion, national or ethnic origin, colour, age, sex or physical or mental disability, is considered equal. This means that governments may not discriminate on any of these grounds in its laws or programs. The courts have held that section 15 also protects equality on the basis of other characteristics. As we can see, the charter is an amazing document and we need to guard it.
Madam Speaker, I will be splitting my time with the hon. member for .
The debate we are on today is part of a supply day procedure, and I am responding to the member for when he said we should be debating other things.
I just want to note that at the end of this debate we will actually be doing an appropriation involving some $4,359,000,000 and change. So this is a debate about the motion itself, but it is followed by the supply day procedures, of which this is part.
I am happy to have a chance to talk about the charter. We do not often get an opportunity to do that. The hon. member who just spoke, the chair of the justice committee, did provide a very useful overview of the charter provisions.
Looking back over the last 28 years, I would have to say the charter has been a pretty fundamental piece of being a Canadian, but I am not so sure it is the most fundamental piece. I rather think our geography and our history are what makes us most Canadian.
The charter is a part of that history. However, it is not actually just history, of course; it is a living document. It shapes us around this place most days.
I was out on the lawn, on the common, as a citizen in 1982 when the patriation of the Constitution and the signing of the charter took place, including Her Majesty. It was a memorable moment, but in looking back, I found that the biggest piece of that day was really the patriation, bringing the Constitution to Canada from the United Kingdom.
The charter was a piece of that. I do not think I understood how big the charter was. The reason that the charter was big is that it kept on living. Every year, the charter lived; the patriation is history. That was 28 years ago.
As the chair of the justice committee just said, many of the rights contained in the charter were already provided for in Canadian law. That law reaches back a long way. We can get a copy of the Magna Carta from 1215; a copy of the 1689 Bill of Rights, which is here in the library; and the 1960 Canadian Bill of Rights, which the member described. Those are all documents involving rights, and even those documents live today.
I would just reflect on four perspectives that I think were there in the minds of those who debated and enacted the charter in 1982 and in the year or two leading up to it. There are more than four, but I just want to reflect on these four.
One is the fundamental rights of the person. We wanted to get that right.
Second, there were limitations on the state in terms of its ability to resort to arbitrary measures.
Third, there was the place of our first nations in our Constitution, in our Canada.
The fourth was the inclusion of the provinces in all of the processes, the legislative process and in our great national enterprise.
The first two are the ones that I want to come back to, those being the rights of the person as well as limitations on the ability of the state to resort to arbitrary measures.
Most people think of the Canadian Charter of Rights and Freedoms as being a menu or list of rights. I think, although I do not know this, that in the mind of the prime minister at the time there was a large concern about the role of the state in modern society.
I believe he could see that the modern state, without constraints, had many powers, legislative, coercive and taxation, and there was no end to it, over its citizens. I think he and others saw the need for a charter that would constrain the government of the day, in whatever day, in what it did so that it could not use arbitrary and harsh measures.
Why did he feel that way? Why did he sense that? We note that in our constitution, under the federal powers, section 91 of the Constitution Act, 1867, one of the powers is peace, order and good government. In order to have peace and good order, historically the state has been relied upon to impose that order, to impose the peace, even if it had to go to war. That federal jurisdiction, that constitutional obligation of the state, to provide peace and order could be seen to fly in contrast with the positions of citizens from time to time, certainly in terms of how it would go about imposing that order.
Around the years 1968, 1969 and 1970, we had the FLQ crisis where the government felt it had to impose the provisions of the War Measures Act on citizens. At the time, looking back, I think it felt those were the only powers the state had to adequately respond to the request of the province of Quebec.
As time went on and in the light of the charter, the War Measures Act was removed and other legislation was adopted to fill in some of the gaps. I think the legislators then saw that the provisions of the War Measures Act were way over the top and there was nothing they could see, if there was a majority government in place, to constrain the use of the War Measures Act.
At the same time, I recall a series of incidents in Poland, where the communist government was repressing a protest that became violent. There were labour unions and civil rights people. I remember people comparing what was happening in Poland to what was happening here.
One could not help but sense that while both countries were trying to impose or provide order, and they were both using the mechanisms of state governance using police or military to do it, and while we were two very different countries, we seemed to be using almost the same mechanisms. I think there was a sense generated then that we needed a constitutional change to provide guidance and limits on the use of state power.
This motion was drafted by the opposition to focus on comments that had been made by not so much members opposite, but by prominent Conservatives. I have tried to figure out why complaints about the charter come from individuals who support the Conservative Party.
It has been pointed that this is a country of lawful and reasonable dissent. It is quite okay for people to disagree with our laws or even our constitution if they do so peacefully. I cannot quite figure out why it happens, and it has happened in print and verbally. I do not think these are not miscues. Some of these individuals really believe there is some problem with the charter.
Notwithstanding all of the whining and carping that has come from some of these individuals in relation to the Canadian Charter of Rights and Freedoms, I cannot recall a single instance where any one of them has indicated which part of the charter they do not like or which provisions should be changed. In the debate in this place, I find that almost all the members, in the end, support all the provisions of the charter. However, there is sometimes a reaction to a court decision, et cetera.
In any event, as a citizen, as a legislator and as a lawyer, the charter has affected me, my family and my work in this place and it will continue to do that well into the future for the benefit of all Canadians.
Madam Speaker, I stand here proudly to speak to this motion in support of the pivotal role that the Charter of Rights and Freedoms has played in the forging of this modern nation we call Canada, a nation that was, as recently as 2000, repeatedly acclaimed by the global community as the best country in the world in which to live.
I stand here unabashedly and proudly to affirm that the Liberal Party is the party of the charter, which fully brought to Canada its ability to be a sovereign nation, where we could have full control of our ability to amend the fundamental laws of our land without seeking permission from the parliament of Great Britain.
As Mr. Trudeau said in his speech on the proclamation of the charter:
|| After fifty years of discussion we have finally decided to retrieve what is properly ours. It is with happy hearts, and with gratitude for the patience displayed by Great Britain, that we are preparing to acquire today our complete national sovereignty. It is my deepest hope that Canada will match its new legal maturity with that degree of political maturity which will allow us all to make a total commitment to the Canadian ideal.
The charter was born from that. It set out for us to develop a Canadian ideal.
The charter is about change. It is about ideals. It is also about a vision of a global nation growing, maturing, learning to accommodate to differences, whether regional or demographic and, by this very act, learning to negotiate, to find resolution to different opinions, cultures and beliefs and eventually learning mutual respect. It has made Canadians a people who have learned to be negotiators, who have learned to accommodate, who have learned to live together and understand each other. Mr. Trudeau also spoke to that goal. He said:
|| I speak of a Canada where men and women of aboriginal ancestry, of French and British heritage, of the diverse cultures of the world, demonstrate the will to share this land in peace, in justice, and with mutual respect. I speak of a Canada which is proud of, and strengthened by its essential bilingual destiny, a Canada whose people believe in sharing and in mutual support, and not in building regional barriers. I speak of a country where every person is free to fulfill himself or herself to the utmost, unhindered by the arbitrary actions of governments.
This is key, arbitrary action of governments, governments that live within different ideologies, governments that change their ideals readily.
The whole concept of the charter was that it would be a living thing. It would be the road map for Canada's passage and navigation through turbulent and rapidly changing times.
Every politician in every society has to adjust to change. As Otto von Bismarck said “Leaders of states travel in a stream of time which they can neither create or direct but upon which they can steer with more or less skill and experience”. The charter is that navigational guide. It is the tool that allows the state to adjust, to adapt, while keeping its eyes firmly on the shore, firmly on the ideals, goals, values and objectives of the state. Over 82% of Canadians support that vision, those ideals and those goals, values and objectives that are embodied in our charter.
“The Charter was grounded in the supreme importance which was attached to the dignity and the rights of individuals”, as Tom Axworthy and Pierre Trudeau explained in the preface to their book Towards A Just Society. This has to be the mission statement of any society, where people are equal and share fundamental values based on freedom.
We must remember that the charter sought to create those ideals that Canadians are proud of, which are peace, order and good government. The concept of peace, order and good government is spelled out in section 15 of the charter where we speak to minority rights, where the authors of the charter believed that if people were second-class citizens, and if small groups in society were not going to be equal, then, by the very nature of the human spirit, they will strive for that equality, insurrection will occur and people will rise up against the state in order to find that equal access and that access to justice.
The charter understood this and said that in a nation of a diversity of peoples, of regions and provinces, we need to ensure there is that balance, that there is an ability for everyone across the land to have full access to justice and to the equal rights as other people.
What bothers me is that we sat here yesterday in this House recognizing a group of people that are transgendered, which is, as we well know, in the DSM of psychiatry an actual medical condition. The government, however, stood and voted against allowing those people the right to have access, not only to medical care but to justice. This is a group that is defined in our society by poverty, by high suicide rates, by illness, by discrimination, by hate and by violence, which is unheard of among other groups in our society.
To understand the charter is to understand why we needed to have voted for that, so those people can play a full role in this nation and do so knowing that they are equal to all and actually respected by society.
If we are going to pick and chose who will be the preferred ones and who will not be the preferred ones, we will never have a peaceful society. We see the history of the world. The history of the world tell us, even now, that the source of war in every nation is civil strife: people who are struggling to be given equality, to have access to justice and to freedom, very fundamental human rights. All human beings have the right to realize their potential, to participate fully in society and to truly belong in their nation and in their society. The idea of belonging allows people to be free, to build a nation, to join society, to participate and to make society a better place because they would not need to worry about their place in society. They want to live in a society where everyone has opportunity and where everyone has compassion.
One of the vital pieces of the charter has not only taught us compassion, but it has also taught us a huge number of things. The charter also talks to us about the rights of the provinces. It has defined a country in which, while provinces have linguistic rights and all other rights, we must remember that the federal government, through its charter, is the glue that allows us to ensure that every Canadian, no matter where they live, will have access to equality, freedom and justice that we believe are the rights of every individual in our society.
Our society is a peaceful society. Throughout our society, we have looked at how countries have emulated us. South Africa built its constitution based on our Charter of Rights and Freedoms. Australia borrowed much of our Charter of Rights and Freedoms. Those were diverse societies. South Africa had a society that was torn apart by strife and by inequality between people based on colour and race and it did not want that to continue. The great Nelson Mandela knew full well that if he looked at our charter and emulated the essence of our charter, he could begin to create a peaceful society. He could do away with all the tragedy of apartheid and no longer seek retribution. A new society could be built based on equality and equal rights, a society where all groups, no matter how small, can have the ability to succeed and to build.
What we see today, by that very act of not only borrowing the Canadian charter but by building on it and strengthening it, is a South Africa that is forging ahead and doing away with the hate, the anger and the violence that typified much of its growth over the last 100 years. It is becoming a society in which people are indeed equal and in which people are able to build a new nation full of hope, dreams and vision.
The charter is all about the aspirations of all peoples in this society to create a place that would become the global nation. Today, as we see barriers being broken down across the world, we can show how it is done. We can show that this country can be a leader. We can show that people can--
Madam Speaker, today's debate proves the importance of having the Bloc in the House of Commons. It is clear that the Liberals and the NDP are going to get behind this motion primarily for partisan reasons, in other words, to highlight the fact that the Conservative government does not like rights and freedoms, something we totally agree on. However, we cannot adhere to this Canadian consensus on the Canadian Charter of Rights and Freedoms because the process leading to its adoption was deeply flawed. I will come back to that.
What is more, the charter addresses individual rights to the detriment of collective rights and interprets the few collective rights included in the charter in the same way, coast to coast to coast, as our colleagues from Canada say. The indiscriminate interpretation of collective and individual rights has resulted in the butchering of the Charter of the French Language, which is the fundamental legislation in Quebec for the protection and promotion of our common public language, French.
Despite how much sense this motion might make to Canadians, it does not make sense to Quebeckers and we cannot support it. I will read it:
|| That the House recognize the vital role played by the Charter of Rights and Freedoms in ensuring justice, liberty, equality and fairness for all Canadians and call on the Government to reject the views expressed by several members of the Conservative Party of Canada that belittle and criticize the Charter’s impact on Canadian society.
This motion moved by the Liberal Party has two parts. The first part is a sort of eulogy or appeal for the charter, which would be extraordinary. This charter is not all bad, but to Quebec, it has had and always will have many negative aspects. The second part might tempt us into supporting the motion. It points out the fact that the Conservatives do not like what the Canadian Charter of Rights and Freedoms defends, namely ensuring justice, liberty, equality and fairness for all Canadians, newcomers and Quebeckers.
We will therefore not support this motion. The defence of rights must not be confused with the unconditional defence of the Canadian Charter of Rights and Freedoms: they are two different things. I will come back to this. My colleague from gave a brilliant presentation this morning. The Quebec charter does not have constitutional status like the Canadian charter, but it does have quasi-constitutional status since it goes one step further and recognizes collective rights that are not recognized by the Canadian charter. This is one thing that makes the Quebec charter unique.
I am not going to focus on the differences between the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms, as did my colleague from this morning. Instead, I am going to review the positions that the Bloc Québécois took on some issues and defended by standing up to the Conservative government, positions that defended the fundamental rights that any democratic society should have. We are of the opinion, like the Liberal Party, that the Conservatives do not adequately defend rights and freedoms.
I would first like to remind the members of the circumstances under which the Canadian Charter of Rights and Freedoms came into being. The charter was imposed as part of a constitutional debate on the repatriation of the Constitution. My colleague from spoke about it earlier. At the time, Pierre Elliott Trudeau was the head of the Liberal Party and the government. He wanted to repatriate the Constitution, which, at that time, was a British law, the British North America Act. Everyone agreed that, in order to do so, the consent of all provinces, particularly Quebec, was required. We know what happened next: the other Canadian provinces ganged up on Quebec.
The Constitution was unilaterally repatriated, without the approval of the Quebec government or the National Assembly. I remind members that the 1982 Constitution has still not been signed by Quebec. That is an extremely long period of time between 1982 and today, and during that time, Quebec has alternated between federalist and sovereignist governments. But none of these governments, not even the government of Jean Charest, the former leader of the Progressive Conservative Party, dared sign that Constitution, which includes the Canadian Charter of Rights and Freedoms.
The charter was forced on us and we did not want it. We wanted it in terms of the rights and freedoms, but we did not want it to be forced on us like that. As a nation, we were not able to make any concrete contributions. Of course, some of the values in the Canadian Charter of Rights and Freedoms are values shared by the Quebec nation and society, but they were forced on us through a Constitution that was unilaterally repatriated.
Louis Bernard, who was secretary general of the executive council of Quebec at the time and who participated in the talks when Quebec was led by René Lévesque, wrote, on February 6, 2007:
|| The Constitution Act, 1982, gave birth to the Canadian charter and plunged Canada into a constitutional crisis that it is not about to climb out of. There were attempts to repair the damage with the Meech Lake accords, but they did not work, since some provinces reneged, once again, on their initial commitment. Any kind of constitutional progress became impossible.
In the same piece published in Le Devoir he said:
|| Therefore, we cannot do anything about either the charter or the rest of the Constitution. If the Canadian Charter of Rights and Freedoms ever evolves, it will not be by legislative amendment, but only by judicial interpretation, which I believe shows the charter's limitations.
It could be said that the point made by Louis Bernard is shared by the Conservative Party. When we see the Conservative Party trying to make changes to the Senate through the back door because it is not able to do so through the front, that is, constitutionally, it is obvious that the Canadian Constitution effectively paralyzes the development of Canadian society and the Canadian nation. Obviously, if it paralyzes the Canadian nation, it also paralyzes the Quebec nation.
Later on in that same article he said:
|| Adopting the Canadian Charter of Rights and Freedoms in 1982 was part of the strategy of the federal government of the day, a strategy that consisted of solving the problem of national unity by focusing on individual rights rather than collective rights, and by hoping that, with time, the former would substitute for the latter. Adopting the charter was motivated by political factors that irreparably tainted its image in the minds of many Quebeckers, especially because of the illegitimate and immoral way in which it was adopted.
This paragraph is an excellent summary of the Bloc Québécois's attitude towards the Liberal Party motion. The very birth of the charter is problematic and so is its content. Clearly, Louis Bernard agrees with our conclusion that there is an imbalance between individual rights and collective rights, and that certain rights are not being explicitly recognized and in fact are not recognized at all.
As I mentioned, my hon. colleague from very clearly explained the difference between the two charters this morning, so I will not repeat that. The important thing to remember is that the Canadian Charter of Rights and Freedoms is what made it possible to butcher Bill 101. There is a debate right now in Quebec regarding Bill 103, which would correct a Supreme Court of Canada decision concerning so-called bridging schools, which allow wealthy people to send their children to unsubsidized, unregulated, English private schools temporarily, only to later transfer them to the subsidized, regulated, English public system.
This is a serious breach of the Charter of the French Language, all made possible by the Canadian Charter of Rights and Freedoms.
My hon. colleague from is definitely in a better position to talk about that. We know of at least 15 or so instances of interference with Bill 101 since it was adopted, always based on the Canadian charter.
When the Charter of the French Language was adopted, Pierre Elliott Trudeau's reaction was reported by Lise Bissonnette in Le Devoir on April 6, 1977, a few days after Bill 101 was adopted.
|| He believes that [the charter] “takes Quebec back centuries” if not to “the dark ages”, and he...slammed the “narrow and backward” way in which the government of Mr. Lévesque has protected a culture, and generally found that the Parti Québécois was finally showing its “true colours”, as a party that wants to establish an “ethnic society”...that even goes against freedom of speech and expression.
That was Pierre Elliott Trudeau's view of the adoption of the charter by the National Assembly, as proposed by the Parti Québécois party led by René Lévesque. That is how he felt about this charter for which, I would remind you, just like Bill 101, there is support among all political parties in Quebec, and which, for many, is surely one of the jewels in the body of fundamental laws of Quebec society.
At the time, no one in Quebec, especially among the sovereignists, was deceived by the justification put forward by Pierre Elliott Trudeau for the Canadian Constitution and the Canadian Charter of Rights and Freedoms. In June 1981, in his inaugural speech at the National Assembly, René Lévesque said:
|| Under the pretext of giving citizens a new charter of rights, Ottawa's project is in fact an unprecedented attack on the powers of the National Assembly of Quebec, which it would limit and oversee, especially in the areas of language of education.
I gave the very recent example of bridging schools, which were legalized by a Supreme Court ruling. There is currently debate about Bill 103, the response by Quebec's Liberal government to the Supreme Court's concerns. It is a completely unacceptable response for the vast majority of Quebeckers. It explains, in part— although it is not the only explanation—the success of the Parti Québécois in the riding of Kamouraska-Témiscouata for the first time since 1985. We would like to congratulate the newly elected member, Mr. Simard.
I would now like to talk about the second part of the motion, which is a motion we can all support. At the beginning of the debate we proposed an amendment to try and find some common ground. This amendment conceded that the charter has had positive effects on some levels, but that its negative effects—notably on Quebec's areas of jurisdiction—should not be forgotten. In this respect, I would refer to the previous quotation from René Lévesque's June 1981 inaugural speech in the National Assembly, about Quebec's areas of jurisdiction, particularly in terms of its language laws.
As for the Conservatives' and the 's attitude towards the Canadian Charter of Rights and Freedoms, I would point out that the Prime Minister has already said that human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society, and that they are in fact totalitarian.
In my opinion, this statement from the current Prime Minister is an accurate reflection of this government's general attitude towards rights. For example, when Canadians have problems overseas, whether or not they are defended depends on whether they are considered to be good or bad Canadians. I am referring to the attitude that the government has had towards a certain number of Canadians who were imprisoned or even sentenced to death. It refused to help them at all., even though, traditionally, the government would try to help them avoid the death penalty and repatriate them so they could finish serving their sentences here.
Since the Conservative government has been in power, such transfers have been drastically cut or slowed down. In my own riding, there are cases of people who have committed relatively minor crimes in the United States. I wrote to the and the , but I did not even receive an acknowledgement from them. When I have received one, it has usually been after the person has finished serving their sentence in the United States and has returned to Canada or Quebec.
It is abundantly clear that this government is not a fan of rights and freedoms. Its vision of justice is repressive and will not result in safety and social cohesion. The Conservative government is following the American model, which has proven ineffective. Crime and incarceration rates are much higher in the United States than in Quebec and Canada.
In fact, if the current prison population in the United States were taken into account in calculating the country's unemployment rate, there would be 3% more unemployed people. The rate would not be 9%, as it is now; it would be 11% or 12%. Most of the people in jail are black African Americans.
Behind their repressive brand of justice is social and political bias. That is what the Conservative government is trying to do.
The government introduced the idea of security certificates in a bill. We do not disagree with the idea, but there has to be at least some balance between the rights of an individual listed on a security certificate and the state's responsibility to ensure public safety. In general, a person listed on a security certificate does not have access to the evidence or the reasons for which the government requested the security certificate. As a result, the person does not have an opportunity to plead innocence. This is a totally unacceptable reversal of the onus of proof. In fact, the Supreme Court of Canada agreed with us and with those who oppose the existing security certificate mechanism.
Following a Federal Court of Appeal decision, the Supreme Court said that the constitutional rights of Omar Khadr, a young Canadian who was captured by the Americans at 15 years of age as a child soldier in Afghanistan and who ended up in Guantanamo, were being violated and that the Government of Canada had an obligation to make reparations and compensate him. The Supreme Court did not go as far as the Federal Court, which said that the only way to compensate Omar Khadr was to repatriate him. The court said that his constitutional rights had been violated and that Canada was responsible for repairing the damage that had been caused.
Yet the government did not respond and refused to listen to its own courts. That is how the Conservatives view justice, rights and equality. That is unacceptable to the Bloc Québécois and to the vast majority of Quebeckers and Canadians. The Conservatives are in no position to teach us anything about justice.