moved:

That, in the opinion of the House, all Members of Parliament should be allowed to vote freely on all matters of conscience.

Mr. Speaker, my motion has a number of significant points that I am asking the House to support: first, that the motion apply to every member, regardless of rank or position in the House or party, and on all matters that come before the House captured by this motion whether in the nature of private members' motions or bills, government bills, motions or other legislative initiatives; second, that members be allowed to vote freely, meaning without order or demand by party leaders, House leaders, whips or anyone else in the party structure, to vote in a certain or particular way on pain of censure or sanction if they will not; and third, that this would be so in matters of conscience.

There may be a great deal of debate and some difference of opinion on what are matters of conscience. I can, however, say with a great deal of confidence that matters relating to life, more particularly to the termination of life at any time from the point of conception to the point of natural death, would easily fall within that definition. Whether or not to terminate before death naturally occurs, or to terminate a life before it fully becomes a living being or while it has the potential to be a living being is certainly a matter of conscience, as may be a number of other matters falling somewhere between these two.

In my view, a matter of conscience would arise out of a religious, moral or ethical issue that has to do with one's inner sense of what is right or wrong. The right to freedom of conscience is represented in all international conventions concerning human rights. Article 18 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948, states, “Everyone has the right to freedom of thought, conscience and religion”. There is no question that one's conscience is and ought to be sovereign.

In fact, the Canadian Charter of Rights and Freedoms, commonly referred to as the charter, states, in paragraph 2, with regard to fundamental freedoms, “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion”. This fundamental freedom is found alongside those freedoms that we cherish: freedom of expression, freedom of the press, peaceful assembly, and freedom of association. In fact, the first words in the preamble in the Canadian Charter of Rights and Freedoms gives rise to potential conscience struggles that may occur when interpreting laws or even with respect to charter matters when it states, “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”, is bound to bring the rule of law, the supremacy of God into conflict at times.

When it comes to matters of conscience, Sir Thomas More said it best when he had to make a decision whether to obey God's law as he saw it rather than man, that one should be most cautious not to offend his conscience than anything else in the whole world. Of course, his head was taken off and placed on the Tower Bridge in London as the price for not offending his conscience.

An email made public, sent to the member for Papineau, the Leader of the Liberal Party of Canada, by former Liberal members of Parliament also made the point well when they stated in part:

We, the undersigned, former Liberal Members of Parliament, are concerned about your recent pronouncement that people who hold a particular view on a given moral issue, as a matter of conscience, cannot be Liberal candidates for the position of M.P. unless they agree to park their consciences at the entrance to the House of Commons and vote directly opposite to their fundamental beliefs, as directed by you.

In the House, the Conservative Party has on a number of occasions allowed for free votes, and that is the way it should be. The party policy also states very specifically in section 7 that the party believes in restoring democratic accountability in the House of Commons by allowing free votes. It states all votes should be free, except for the budget, for obvious reasons, main estimates, and core government initiatives.

On issues of moral conscience, the Conservative Party acknowledges the diversity of deeply held personal convictions among individual party members and the right of members of Parliament to adopt positions in consultation with their constituents and to vote freely.

The Supreme Court of Canada's decisions on the recent Lee Carter, et al. v. Attorney General of Canada, et al. decision, commonly referred to as the Carter decision, which related to end-of-life issues, and R. v. Morgentaler, commonly referred to as the Morgentaler decision, related to abortion, fall into the category where actions taken in the House should be the subject of free votes. In each case, the court relied on the Canadian Charter of Rights and Freedoms and gave the House the benefit of the court's view on the charter's application.

The Carter decision essentially referred to section 7 of the charter, which reads:

Everyone has 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 decision said that it would require legislation allowing for physician-assisted death for a competent adult who clearly consents to the termination of life and has a grievous and irremediable medical condition, including an illness, disease or disability that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. I may not agree with the court's logic in the use of section 7, but it has said that and it has said that Parliament needs to address that.

The type of legislation, the substance of the legislation and the views of the members may vary. Many members may struggle in deciding in good conscience whether or not they should support that piece of legislation, another piece of legislation or something in between. However, when it comes before the House for a vote, it should be a free vote.

Similarly, in the Morgentaler decision, the court decided in essence that the Criminal Code provisions then existing regarding abortion offended the same section 7 rights. The court was also of the view that it was Parliament's prerogative or obligation to put forth legislation, not theirs, that would balance this right with the rest of the charter that would provide for the protection of the unborn. In fact, section 1 of the charter states:

The Canadian Charter of Rights and Freedoms 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.

It is all conditional. This clearly indicates that there must be a balancing of interests, or at least a consideration of interests, if one truly wishes to rely on the charter.

Justice Wilson, on page 183 of the Morgentaler judgment, stated:

The precise point in the development of the foetus at which the state's interest in its protection becomes "compelling" I leave to the informed judgment of the legislature which is in a position to receive guidance...from all the relevant disciplines. It seems to me, however, that it might fall somewhere in the second trimester.

She based her views squarely on the charter, so I feel that it is safe to say that the protection of the unborn is a charter consideration relating to the unborn requiring legislative action by Parliament. She specifically left open the entirely different question of whether the unborn is covered by the word “everyone” in section 7, so as to have an independent right to life under that section.

There is no doubt that members feel strongly on matters such as this, relating to issues of life. Some would feel strongly that life is sacred and that they should not be required to vote for any legislation that is against their conscience if it takes or allows for the taking of such life after conception and before natural death. These may be absolute positions, but on all matters of life, there may also be positions somewhere in between, where honest, sincere and good thinking members will, I am sure, struggle with their decision and differ in their views. Ultimately, however, they should all be free to vote with their conscience.

By allowing members to vote freely, it presupposes that members of differing points of view and different persuasions, personal convictions and religious beliefs are allowed to run for public office and to be elected by constituents. To say, as the leader of the Liberal Party, the member for Papineau, stated, that anyone who has a view other than what is commonly referred to as a “pro-choice” view cannot run for the office of a member of Parliament or, at the very least, would not be given a free vote on the same issue runs absolutely contrary to this motion, as well as the Charter of Rights and Freedoms. Indeed, it would run against the fundamentals of democracy, where issues should be debated freely and then voted upon.

The very definition of “Parliament”, which I have taken from How Parliament Works, by John Bejermi, stems from the French parler, meaning “to speak” or “to discuss”. “Parliament”, then, or this House is a meeting place where the representatives of the people can speak, discuss, criticize, argue and express their opinions publicly on all matters of state.

In Canada, therefore, we have a system called “parliamentary government”. It is regrettable that because of the positions taken by leaders like that of the Liberal Party, some of the press, the media, and others, we cannot have a good or reasonable debate on these issues, with contrary points of view, without it seeming to be something unusual, unacceptable, or in bad taste. It is most unfortunate. This has to change in this House. For too long we have felt that difficult issues should not be moved, debated, or discussed in Parliament, many times simply because we have strong views on the subject and do not want to entertain anything else. That is not what democracy is about.

When it comes to matters of conscience, there should be nothing that causes an MP to vote contrary to his or her conscience, for if members are forced to cross that line, they have violated who and what they are and what they believe in. I dare say that it is self-evident that no one should be required to do that. Their conscience is sacrosanct, inviolable, and should not be impinged upon, for indeed if it can be, what value is the opinion or vote of those members going forward and what reliance can be placed upon them. I think most Canadians and most constituents would expect no less from their members, even if they disagreed or had a different point or a different position. If the majority of constituents disagree, they should then elect a new member.

In fairness, these issues should not be raised time and again ad infinitum. There should be some rules around that. I personally like one of the rules that regulates whether a private member's bill or motion such as mine is votable. Does it involve issues that have already been considered in the session? If it does not, it can go forward. A new session could give rise to new debates.

Many have said that Parliament should use the charter section 33 “notwithstanding” clause to allow for an act or provision thereof to operate notwithstanding a provision included in section 2 or section 7 of the charter. Although this option is available, it is something, in my view, that ought to be used sparingly and only in exceptional circumstances. That said, we cannot cherry-pick which part of the charter we like and which to disregard.

I found it interesting that the member for Papineau and leader of the Liberal Party was quick to put forward a motion, voted upon on February 24, 2015, asking the House to recognize the Supreme Court of Canada decision in Carter, which ruled that the prohibition on physician-assisted dying violated a section 7 charter right and stated that Parliament has a responsibility to respond to the Supreme Court ruling.

I did not see that same vigour and immediacy in requesting that this House respond to the Supreme Court of Canada ruling in Morgentaler indicating that it is for Parliament to decide at what point the state's interest arises and becomes compelling so as to provide some protection for the unborn.

Indeed, the member asked that a special committee be appointed, with the usual parameters, and that the committee report on an expeditious basis to the House. Yet when the member faced the motion presented by the member for Kitchener Centre, which also asked that a special committee of the House be appointed to review the Criminal Code declaration of when a child becomes a human being and report to the House, the member for Papineau and leader of the Liberal Party voted against it.

I found it somewhat hypocritical when the member for Papineau and leader of the Liberal Party said on one hand that we need to ensure that we are charter compliant and respect the rights and privileges we may have under the charter when it comes to an issue of pro-choice but then voted against the protection of a right or privilege under the charter when he did not agree with it, as in the case where the court said that it is up to Parliament to draft legislation protecting the rights of the unborn. It is like respecting the decision of the Supreme Court when one likes it and not respecting the Supreme Court and the charter when one does not like the decision. We cannot be selective when it comes to charter rights unless we are prepared to use the “notwithstanding” clause.

In the same email sent to the member for Papineau and leader of the Liberal Party of Canada by former Liberal members, they made this point quite well when they stated:

Second, since your edict singles out the issue of being opposed to abortion, but only that issue, it clearly discriminates against a select class of people, namely those who oppose abortion, and no one else, such as those who might oppose, or be in favour of, say, assisted suicide. We believe that such discrimination is a clear violation of the spirit, if not the letter, of The Charter of Rights and Freedoms, section 2 (a) which guarantees everyone, even Liberal Members of Parliament, “freedom of conscience”, and (b), which guarantees everyone, even Liberal Members of Parliament, “freedom of thought, belief...and expression”.

In my view, we need to get off the premise that some subjects are off limits for debate. We should have legislation go forward, agreeing that this is precisely the place where hard and difficult decisions must be made, accepting the fact that members may have to struggle with their conscience to support a particular position. In the interest of democracy, justice and good government, we want all members to vote on these issues freely and without impediment. I am hopeful and expect that not only my colleagues on this side of the House but all members of Parliament will see fit to support Motion No. 590.

This motion is straightforward and unambiguous. Matters of conscience for obvious reasons should be subject to free votes. I think it is a timely motion, especially given the most recent Supreme Court of Canada ruling in the Carter case and the languishing ruling on the Morgentaler case, which so far parliamentarians have not been able to face head-on or even in a peripheral way.

Ed Komarnicki

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