Thank you very much, Mr. Chair and members of the committee.
I'm pleased to be here with you today to assist the committee in its work as it considers the votability of Bill . On November 29, 2018, the committee commenced consideration of matters related to private members' business regarding Bill C-421. The committee heard representations from , the member of Parliament for La Pointe-de-l'Île and sponsor of the bill, and Mr. Marc-André Roche, researcher for the Bloc Québécois.
I understand that the conversation was focused on whether Bill complies with the Charter of Rights and Freedoms, and following that meeting the committee decided to invite me to appear to discuss some of the legal issues raised.
My remarks today will be focusing on the following topics. I will address the charter questions and the drafting of private members' bills. I will note the confidentiality of the private members' drafting process in my office. I will speak to the non-votability criterion adopted by this committee specifically, and the requirement that the bill does not clearly violate the Constitution. I will discuss some recent case law of the Federal Court of Appeal that may be helpful in identifying the parameters of this criterion. I will, of course, be happy to respond to any questions that the committee members may have about the specific constitutional issues that have been raised to date.
The legislative counsel working for my office are responsible for drafting bills for members who are not part of the government. In my opinion, this is an essential service for parliamentary democracy. We are committed to this mandate and we fulfill it with a great deal of enthusiasm. I am extremely proud of the dedicated team who does this work in a professional and impartial manner.
In addition to drafting the bill properly, the legislative counsel assigned to the bill advises the member if they believe that it raises issues related to the Canadian Charter of Rights and Freedoms or to the Constitution of Canada. Depending on the nature of the issue, the counsel may suggest that the member contact the Library of Parliament to obtain further information or they will draft a formal legal opinion for the member. Those exchanges about the bill are confidential and cannot be divulged without the member's consent.
Constitutional issues may be resolved in various ways. For example, the counsel may discuss with the member and suggest an approach to mitigate the risks of violating the charter. The counsel may also suggest drafting a national strategy if the matter in question is rather under provincial jurisdiction, or if the member proceeds by way of a motion instead of a bill. Regardless of any concerns raised, the final decision to proceed with the bill rests with the member.
Confidentiality is extremely important to us. It is mentioned in the 34th report of the Standing Committee on Procedure and House Affairs dated March 16, 2000, in which the committee noted that the work of legislative counsel is covered by parliamentary privilege, which has an even higher legal basis, as it is provided for in our Constitution. The committee quoted the Speaker from March 13, 2000, who stated:
All staff of the House of Commons working in support of Members in their legislative function are governed by strict confidentiality with regard to persons outside their operational field and, of course, vis-à-vis other Members.
This is fundamental. When we serve you as legislators in providing the legislative drafting services, we do so with strict confidentiality. I will not be discussing today any conversations or advice that could have been given to any member on any specific topic. I am available and here to address the issues generally before you, and specifically, to talk about the criteria around non-votability.
As you know, a bill that is added to the order of precedence will be reviewed by the Subcommittee on Private Members' Business to determine its votability. An analyst from the Library of Parliament is assigned to assist the subcommittee when considerations relating to votability are raised. The analyst can provide information and analysis on the issue but cannot provide a legal opinion. The votability criteria are established by the Standing Committee on Procedure and House Affairs. In the most recent version of the criteria established in May 2007, the four criteria are as follows:
Bills and motions must not concern questions that are outside federal jurisdiction;
Bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms;
We are most interested in that last criterion.
Bills and motions must not concern questions that are substantially the same as ones already voted on by the House of Commons in the current session of Parliament, or as ones preceding them in the order of precedence;
Bills and motions must not concern questions that are currently on the Order Paper or Notice Paper as items of government business.
Bills that fail to meet the criterion, with a clear violation of the Constitution Act, will be found to be non-votable.
To determine if a bill is non-votable, the question is not whether any given bills, or in this case Bill could violate the charter, but rather whether the bill clearly violates the charter, which is a higher standard for intervention. It is one that is more favourable to allowing debates about bills in the House. The process is internal to the House of Commons. As I've stated, it was set out and the criterion was adopted by this committee.
However, a useful comparison can be made to the standard applied by the for the review of government bills for charter compliance pursuant to section 4.1 of the Department of Justice Act. This section requires the minister to “ascertain whether any of the provisions” of a government bill “are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms”. It requires the minister to report any such inconsistency to the House.
In a recent decision, Schmidt v. Canada, the Federal Court of Appeal had to determine the interpretation of this criterion of ascertaining whether it's inconsistent. There were two possibilities: Are you going to ask whether it's likely in violation of the charter, or are you going to ask for a higher threshold?
In the decision written by Justice Stratas for the Federal Court of Appeal, the court found that the appropriate standard obliges the to report when there is no credible argument supporting the constitutionality of a proposed bill, and not when the proposed bill or regulation may likely be unconstitutional.
The court held that, given the uncertain difficult jurisprudential terrain of constitutional law and the time when the minister is expected to assess proposed legislation, the only responsible reliable report that could be given under the examination provisions is when proposed legislation is so constitutionally deficient it cannot be credibly defended. In other words, the court affirmed that the only needs to inform the House of inconsistency between a government bill and the charter when no credible argument can be made in support of the measure. The court added that this approach was justified, given the inherent difficulty in predicting the outcome of constitutional law cases before the courts.
The court gave a number of examples. The case law can evolve, the Supreme Court itself can change its previous findings, and a lot of the charter cases will be dependent on the facts that will be led in justification of any violation. It's difficult to predict, and that supported a strict standard. The court also noted that it made sense for the standard applied by the minister to be commensurate to the standard applied by this committee in determining votability.
Leave to appeal has been sought, in this decision, to the Supreme Court of Canada. It may not be the last word on this point, but it is to date, at this time, the last word on the interpretation. As a result, in a similar way, the committee examines proposed legislation to determine whether it clearly violates the charter, not whether it could violate the charter.
In my view, if we apply this standard, if you apply it, a bill would only be deemed non-votable in situations where no credible argument could be made in support of the bill's constitutionality. That is, in my view, a helpful standard because it helps to deal with uncertainties.
Justice Stratas talked about this in his decision, saying that there will be rare cases where it's so obvious and so clear that you can make this determination, but in others the standard will not be met. That's the question before this committee, and I will be happy to assist as best I can in answering any questions you may have. I know there were some specific charter issues that were discussed in the previous hearings, and I'm happy to address those.
I tried to anticipate some of the dilemma and analysis. I would look at the arguments that could be made in favour of there being a violation and arguments that could be made to say that there is no violation.
To argue that there's a violation of section 20, the argument would be, as you suggest, Mr. Graham, that a person would be forced to speak French with the federal government in establishing that they have an understanding of the French language, and that this would breach section 20 and maybe, arguably, section 16 of the charter in terms of official languages. Another argument could be that it would discourage the use of English by permanent residents in Quebec who wish to obtain citizenship. Those would be some of the types of arguments to say this is breached.
The arguments in support of the provision's constitutionality on those grounds, I think, would be that the bill doesn't prevent a person from communicating with the government. If the government is writing letters to the individual, if the individual is getting invited to the ceremony or is being asked for documentation to demonstrate their knowledge of French, all of that could be done in English, and then of course, demonstrating that the knowledge of French would be dealt with. The argument could be that you need to show that you can understand French, but in your communication with the government, are you able to do that largely in English? That would be the argument.
I think this is probably why the Federal Court of Appeal has adopted the standard of, “Does it clearly violate?” You can see the argument. How can you demonstrate your knowledge of French without speaking French? That's the argument on that side of the ledger.
On the other side, you could say that section 20 requires that communication.... When the government invites you and communicates with you, it does it in the language of your choice, which could be English, in this case. The criterion that you have to meet is to demonstrate your knowledge of French. That's part of what you have to show to meet the condition of citizenship, but otherwise, the communications with you by the government before, after and during this are done in the language of your choice. That would be the argument.
At the end of the day, what would a court decide? It's hard to predict. You can have those two arguments. You can have arguments that subsection 16(3) of the charter talks about promoting the use of both French and English in Canada. Is it a relevant consideration that French is the minority language in Canada, but it's the majority language of Quebec? Again, you could have some arguments on those sides.
Assuming there is a violation—the court could say that if you're asked to demonstrate your knowledge of French, you are required to communicate in French, so it's a violation of section 20—then the issue would become whether is it justified by section 1 of the charter. There is case law about the test that has to be met. The test generally requires showing that there is a sufficiently important objective to the legislation, and that it is a reasonable limit. In terms of a reasonable limit, the court will look at whether it minimally impairs the right that is affected.
Case law to date has recognized that the promotion and preservation of French in Quebec is a legitimate objective. The most recent decision of this is the Nguyen case at the Supreme Court of Canada. The first ones were Ford and Devine, talking about the importance there.
It's in the second criterion that it's become quite difficult. Is it a minimal impairment of the right? Then the question becomes, have you adopted the measure that's least intrusive to achieve your objective? In the case law about the language of business in Quebec, when the law required only French, it was found to be an unjustifiable limit because it was too extreme. When the law was that you had to have both French and English, the court found that that was a reasonable measure, even if it brought some disadvantage to English-speaking stores.
Those are all the things that courts will look at when faced with a charter challenge. They will look at evidence to ask what is the impact, what could be alternative measures, and are there any ways to allow some flexibility in the bill? For instance, if someone has a learning disability and has difficulty learning French, is that going to be an absolute prohibition, or is that going to be something that's taken into consideration by providing reasonable accommodation? Those would be some of the issues at play in a court looking at this and determining constitutionality.
I hope colleagues will agree that, if nothing else, when you bring in the parliamentary law clerk, it's always fascinating.
Just help me make sure I have the horse in front of the cart. The matter before us right now is not specifically the constitutionality of the bill. That is the second step. The first step is that we as an appellant body have been asked to overrule a judgment that a given bill is not votable because it is obviously unconstitutional.
I moved the motion to bring you in. What I wanted to hear from you was just that. Is it that blatant? If so, it's a slam dunk for us, but I'm hearing something very different from that. I'll get to that in a moment.
Staying with the votability, colleagues, I come to this with a strong bias. I've always had a great deal of difficulty with the notion that the majority of MPs get to decide whether an individual MP's bill gets the right of a vote. This is in the context of how our rights as members of Parliament have been lost over the decades as our parliamentary system has evolved. I always start with the bias that you better have a darn good reason for telling a member of Parliament that they don't have the right to air their issue. The one area where you have some sovereignty around here is the private member's bill, and now you're being told by everybody else that your right has been extinguished, and that this was done by peers, colleagues, so I offer my bias up front.
Having said that, I think it makes good sense that if something is outrageously unconstitutional, if it is obviously a violation of our Charter of Rights, we would not want to give it credibility by allowing a vote on it. The fact that it is unconstitutional means, in my view, that you haven't done your homework as member of Parliament. Rather than just saying your rights have been extinguished, go back and do your homework. Do the job right and figure out a way to bring it forward so that it is at least constitutional. If you can't do that, too bad. That's kind of where I am.
Parenthetically, I want to say that one of the things I am truly going to miss in not being a member of Parliament is having a fascinating discussion with a group of people where one of them says, “Yeah, I wrote a book about that.” This didn't happen in my previous life, and I don't expect it to happen in my future life, but in this life it happens, and it's amazing, especially when it's someone of the credibility of the person I'm talking about.
To get back to the point, for me, that's why it was so important to have you in here. There was some question that, by virtue of your office, your having given a constitutional opinion to the author of the bill would somehow negate our right to have an equally thoughtful opinion. That was a real problem.
I think we seem to be okay with that. We're not asking what advice you gave them. We are saying, “This is now before us. What advice do you give us?” It may be the same. It may be different. That's between you and the member, but anything that would preclude a committee of Parliament from seeking and benefiting from the thinking of the parliamentary law clerk nullifies, to me, what the system is there for. I'm a layperson. I have a grade 9 education. If we're going to talk constitutions, I want my lawyer. Who's my lawyer? The parliamentary law clerk.
Anyway, I think we got past that, and it's all good and fine.
Coming back to the actual issue, help me again with the test. Can a credible argument be made against the constitutionality? Tease that out a bit for me, please.
How many more tests do we need, though? This is my point.
Regardless of how we feel about the issue—set the politics of the issue aside—the question before us as an appellant body is, should this bill be allowed to have a vote? The only way that it should not be is that if it's so in violation of the Constitution that it just makes a mockery should we allow that vote. That doesn't seem to be where we are.
Now, I've entered into a dialogue with colleagues. I'm only the second speaker—sorry, third—and I enjoy these discussions. I'm looking forward to feedback as we go through, but I have to say, Chair, that this is where I thought we might end up.
Regardless of how I feel about the bill, as a member acting in an appellant body manner, I'm now finding it very difficult to justify saying to a colleague, “Your private member's bill does not deserve to be voted on.” Because why...? The only thing I can think of is that we either start getting into the constitutionality, in which case it seems that there's at least a valid argument and debate to be had, on both sides. Second, of course, is that if it does get past this body and goes on to the House, the House can use a different standard, that is, whether they like the bill or not and whether they agree that it ought to be the law of the land. That's not what we're doing right here and right now.
Somebody please correct me if I'm wrong, but where we are right now is hearing from a subcommittee that has said, “We believe this is not votable because it's not constitutional”. The member has appealed that decision to us. It is our decision to make before it goes to the House. I haven't heard a good argument that backs up the subcommittee argument that it's unconstitutional, because the parliamentary law clerk has at least offered up that there can be at least a credible argument on both sides, as a starting point, recognizing that at the end of the day it's the Supreme Court that will make a final determination on its constitutionality. Even that may not be the end of the day. A further Supreme Court in the future could do something, but for our purposes here, this is where we are in that process.
Right now, colleagues, I am strongly inclined to vote against the recommendation of the subcommittee and vote in favour of this, allowing it to go forward. Having said that, I'm going to listen intently. This is a serious matter. If people see it differently than I do, I can be persuaded. That's my thinking so far.
I thank you for the floor, Chair.
Thank you very much, Mr. Chair.
I have listened carefully to your arguments, both positive and negative. I have listened carefully and I fully understand, coming from Quebec.
You referred to subsection 16(1), but also to paragraph 20(1)(a) of the Constitution Act, 1982, which states that “there is a significant demand for communications” in English or French. An application for Canadian citizenship is more than significant, it is very significant because the goal is to make you a true Canadian citizen.
Let me take you back to my riding of Rivière-des-Mille-Îles, which is north of Montreal, where there are exclusively English-speaking permanent residents with links to people from the United States.
Many of my fellow constituents who became Canadian citizens told me that it was very difficult to pass the exam and that it required a lot of preparation. If a person has to choose between French and English when they are not fluent in French, it is difficult for them. They all told me that it was already difficult to pass the exam in either of the two languages.
If anglophones in Quebec are not allowed to take their citizenship test in English, will they have to go outside Quebec to do so? Is that the other possibility?
Let's say that I am a permanent francophone resident living outside Quebec, but not in New Brunswick, the only bilingual province. I am elsewhere and the same thing, only in reverse, happens to me. Will I have to take my exam in English when we know that the exam is very difficult and requires a lot of preparation?
You used the words “clearly, likely, could”, but I don't know where the line is drawn. Let me go back to what paragraph 20(1)(a) of the Constitution Act, 1982, says: “there is a significant demand for communications” in English or French. In my opinion, an application to become a Canadian citizen is one of the most significant communications with the federal government.
As I said with regard to the test, is there a credible argument to defend its validity? So we're really talking about something clear.
With respect to section 20, the issue is whether individuals are prevented from communicating with the government in the language of their choice.
You said that people would be forced to take the citizenship test in English. That would be something to explore. Would the bill you are studying have that effect? According to the bill, people will have to demonstrate that they have “adequate knowledge of French”. Is that separate from the exam?
When other questions are asked, such as about the knowledge of Canada, is the person being forced to take the test in French or are those two completely different things? That would be something important to look at. If the person is actually forced to answer all the other questions of the citizenship process in French, it becomes more difficult to defend, and perhaps it is easier to refer to section 1. However, if people can take their citizenship test in English but, in one part of the process, they must demonstrate that they have an adequate knowledge of French, in terms of a potential violation, it is probably a little less intrusive. It is one of the many facts to be considered.
The Supreme Court, in Schmidt, noted that some constitutional disputes depend on evidence brought before the court.
In practice, how does that work? The charter sets out human rights principles, and the case law says that legislation must be interpreted in a manner consistent with the charter.
In fact, the Solski case in Quebec has set a precedent for the right to education in the minority language. The question was whether the education act violated the charter. The Supreme Court said that the section could be salvaged if it were interpreted more broadly. Allowing a person to study in the minority language in a qualitative way is acceptable, as it it is in keeping with the spirit of the charter. However, if we adopt a stricter approach and evaluate only the quantity, not the quality, of education, it is too stringent and it violates the charter.
That would be the kind of question to ask here. How is this interpreted? Are we really saying that all communications with the government and departments must be in French or are we saying that they can be in the language of one's choice but that, during this process, people must demonstrate that they have an adequate knowledge of French? This could certainly influence the outcome.
Chris, do you want to go first?
We are talking about credible arguments. However, let me point out that there is a difference between a credible argument and one that seems credible. We could talk at length about arguments that seem credible. For example, an argument against climate change may seem credible, even though there is no credible argument against climate change. We might say that we cannot act on an argument that seems credible, so we are no longer moving forward. I just wanted to share these thoughts with you.
When people demonstrate an adequate knowledge, as the bill says, they must do so by communicating. By definition, they are communicating: they are in front of an officer who administers a test to check their ability to speak in one of the two languages in particular.
I have a hard time understanding how this would not apply to communications with the government. Nowhere in the bill does it say that we should normally, or most of the time, speak in a particular language; it says that we must be able to communicate in that language.
Let's take the example of someone who would like to drive from here to Rio de Janeiro. The person would face a slight problem, called the Darién Gap, between Panama and Colombia. There is no road across it. That region is more than 110 kilometres long, and no roads cross it. So we can't drive to South America. It's therefore like saying that, because we can cover 99% of the route, we can cross America by car.
That is not a very compelling argument. Yes, an argument seems credible with respect to the constitutionality of the bill, but I see no credible argument that makes it constitutional.
I would like to hear your comments on that.
I listened very carefully to Madame Lapointe and Mr. Graham, but what I heard were arguments against the bill. Fair enough. Let me be further transparent. I'm not a judge, so I don't have to worry about some of those standards.
Somebody is going to have a heck of a time convincing me to vote for that bill for the obvious reason that I think Mr. Graham touched most closely, which is, “What? Are you kidding me?” That's me, the MP from Hamilton Centre, my first blush. I'm like, “Whoa, I don't like this at all.” If I have an opportunity, unless somebody convinces me otherwise, I'm going to vote against it. That is very separate from whether or not my colleague, a fellow MP, has the right to have his private member's bill put to the test of the House.
For those of you who served on local councils, perhaps you would be reminded, like I am, of zoning issues, where you have, say, a small business that is being opened on a corner. It's a good commercial location, but it's abutting a residential area. You can tell that I represented downtown. The zoning allows for use as, let's say, a pizza parlour, but it's short two parking spots. You could go to the committee of adjustment. Its sole focus is whether or not those two spots should be enough to deny them what otherwise they have as of right. Nine times out of 10, residents come in—and constituents, understandably—and they argue against the pizza parlour being there. Really, the only question in front of the committee of adjustment is whether the lack of the two parking spots that are a requirement justifies negating the rest of the right of that property owner to have their as-of-right zoning applied.
I feel the same way here. We keep wanting to get into the issue and whether we like it or not.
Mr. Chair, I would ask you to please be specific and clear. Unless I have this wrong, that's not what's in front of us. What's in front of us right now is us in our capacity as an appellant body to a subcommittee that has recommended that this is not votable. So far, I'm not hearing arguments that justify the banning of a colleague's right to bring a bill before the House of Commons.
Remember colleagues, the day we stop allowing members of Parliament to bring a bill to the House.... This is some dangerous water that we're wading into. It doesn't seem like it in our peaceful kingdom, but when you get a chance to get out in the world and see what can happen, or get a little experience around here or at the provincial level and see the kinds of things that can happen, you will see that these things matter. It's really important that we get them right when there isn't a crisis because when there's a crisis, the politics of the day will take over.
I say that because, colleagues, I am listening carefully. However, I'm still not hearing a good argument yet on why we should deny our colleague the right to have his day in court. In this case, that means his right to put forward his private member's bill that he believes is incredibly important to his riding and, in this case, his province. We should move very, very cautiously when we start denying each other that right.
I'm still listening, Mr. Chair.
We were implored by the member from the Bloc to look at this from a legal standpoint, and I appreciate what Mr. Christopherson is discussing. I look at us—and I think this was mentioned by Mr. Christopherson—as the appeal court in this. Someone is bringing forward an appeal. The way an appeal works is that you have had a trial, the evidence has been presented and the decision has been made. The onus is then on the appellant to come forward and bring some evidence that the trial court was wrong.
I'll be honest that I haven't heard that, especially from the honourable member who brought his appeal forward to us, in that there was no good legal argument. I even asked, “Have you spoken to constitutional scholars about it?” and he said, “Yes, three of them,” but he wouldn't provide their names. There was no briefing. There was no background. There was no information.
I respect Mr. Dufresne and his experience and expertise and what he brings to the table. We have an argument that it could go either way.
As an appeal court would, I give deference to the original decision-makers. It's not a committee that the government has majority on. I give deference to those decision-makers who have made the decision, and I haven't heard anything to really change my mind.
I appreciate the passion and vigour with which Mr. Christopherson is arguing, but nothing was brought forward by the member to really go against what the committee had decided. I even asked him, in terms of bringing an argument.... In the argument he brought forward, he cited one case. That isn't a problem if you have one great case—that's perfectly fine—but it was based on a different section of the charter than the sections of the charter he was arguing about.
Even looking at this from a legal standpoint, I am not convinced that the original committee was wrong. That's what we have to decide at the end of the day: Were they wrong? Again, with respect to Mr. Dufresne, it's not his role and he didn't come here to say someone's right and someone's wrong. He walked a very fine line, and I commend him for doing that.
Mr. Dufresne can correct me—not that he ever has to. I'm a lawyer and would never advise my clients to waive their confidentiality, their solicitor-client privilege, but if they couldn't afford the legal advice, which is something they said, we've been told that the confidentiality could be waived with regard to the legal advice that may or may not have been provided by the parliamentary clerks, and that wasn't done. That was another opportunity for the members to come forward and say, “Here's some evidence that the original committee was wrong.” At the end of the—
Thanks, Chair. I'll be brief.
Again, I reiterate. I don't like the bill. I can't think of an argument. I'll be open-minded, because it's important, it's our Constitution, but it's an uphill climb for somebody to convince me to vote for that bill for all the good reasons my colleagues have made. That's not the issue. What is in front of us is not whether we like it or not or would vote against it or not or whether we believe it's constitutional or not.
The question before us is just this. Forget the substance of the bill. I guess you can't completely set it aside, fair enough, but the matter that's before us, the decision, the instant case before us is, should this bill be allowed to go to the floor of the House of Commons for a debate and a vote?
The reason I asked for the floor, Chair, was that I heard Mr. Bittle and, in fact, it was at the last meeting that I agreed with Mr. Bittle that this turned on the question of whether this is constitutional or not. If it's clearly not constitutional, slam dunk, we support the subcommittee, case closed, next.
But, Mr. Bittle, I have to tell you that I'm very disappointed that you would use the argument based on that at the last meeting and you would now use the argument that the members themselves didn't offer up the legal argument or the legal case that the parliamentary law clerk just did, which by the way, was the sole purpose for us coming together. I find that intellectually dishonest.
There is not a requirement for us to hear from colleagues the definitive legal case, and that's the end of it. If you weren't smart enough to bring it to the table, well too bad. We as a committee decided that our next step was to ask for some legal advice, so at that point, if it's legal advice that carries water, whether it came from our parliamentary law clerk at our request or whether it came from the members when they were here is not the point. I just have a real problem with that.
Again, so far, everybody who has taken the floor is arguing the merits of the bill. I'm still not hearing a strong argument as to why we should extinguish the member's right to have a vote when the only thing that would preclude it is if it's clearly unconstitutional. I'm not hearing clearly from anybody that it's unconstitutional. That is debatable.
Some may think it's a weak debate against a strong debate, but is it so outrageous that it would never have a credible argument in front of the Supreme Court? I'm not hearing that. To me, that should be the test when we are going to extinguish a member of Parliament's right, especially a sacred one, especially when there's so damn few of them.
I still remain unconvinced, and I'm still listening.
To be clear, it's “must not clearly violate” as opposed to “clearly must not violate”, which would be utterly different. Lawyers put a lot of emphasis on that kind of thing, and so do courts, actually.
Voices: Oh, oh!
Mr. Scott Reid: I want to say the same thing that Mr. Christopherson said in his very first remarks. If this comes to the House of Commons, I would be voting against it. It's not a policy that I could support. Having said that, I do want to respond to the question about deference.
A suggestion was made that we ought to defer to the subcommittee. I just disagree. This is a language issue, perhaps, between Mr. Bittle and me, as opposed to a substantive difference maybe, but by definition you don't defer to a body that is subordinate to you.
When the courts deal with an item that has been dealt with on appeal from a lower court, they adopt a language of respect. They respectfully disagree. They go to great lengths in their language to demonstrate that they are respectful of the thoughtfulness of the body with whose decision they are disagreeing. Nonetheless, they disagree.
The body we defer to is the House of Commons. We are the subordinate body of the House of Commons. By taking away the right of the House of Commons to consider this potential piece of legislation, we are actually being the opposite of deferential, and there is no court of appeal for our decision. Effectively, we kill it before the House can hear it.
I know there is a way. If the sponsor can get a signature from a member of the majority of the parties in the House—he himself does not represent a recognized party, so this is a doubly hard task for the member—then he can have it go to the House, where we decide by secret ballot whether it lives or dies.
That is a tough criterion to meet, particularly since it seems that the real point of all of this is to get the governing party, the Liberals, off the hook of having to vote on something that splits them on a regional basis. I would maintain that it is not our business to make life politically easier for one of the parties—
An hon. member: Hear, hear!
Mr. Scott Reid: —and to get them off of the hook on something that's awkward, where the Quebec members and the members outside of Quebec will be driven to vote on different sides of the same issue, an issue that is inherently awkward, and we have members of all three of the parties here, both from Quebec and outside of Quebec.
There is a simple solution to this. I invite the Liberals to think about this. Allow a free vote of your members in the House of Commons and, presto, you've resolved the matter very tidily. Killing this is not the right way to do it.
A final note regarding deference is that this is a matter where what we're trying to do is to not go outside our legitimate authority. Surely the decision as to whether or not something would clearly violate the Charter of Rights as determined by the courts—which means the Supreme Court in the end—is not something where we ought to be prejudging the Supreme Court and anticipating what they might do by saying, “No, you guys, you don't even get the chance to do this because we've decided that we know what you will say yes and no to.”
Now, if something is really clearly unconstitutional, if there is a reason that a reasonable person would accept where we would say that we can reasonably be certain that the Supreme Court would never accept this, then we're not wasting the court's time or, for that matter, the House's time, but no argument to that effect has been presented. It's been only arguments that are like the arguments I would give in the House of Commons if I were presenting a speech as to why I'm voting against this bill and urging my colleagues to do the same thing. On that basis, I simply disagree with Mr. Bittle and a number of the other Liberal speakers.
The final thing I want to say about this is that what's important here is not ultimately how we vote on this piece of legislation, on this yes-or-no vote. What is important is that we should not be in the position of inventing arguments as to unconstitutionality as a way of killing items of private members' business that are difficult for us to deal with. By definition, the things that are difficult for us to deal with are the hard questions that are the most important for us to deal with: language rights, other constitutional rights....
Just go through all of the things that have been hard during your career, Mr. Christopherson.
Mr. David Christopherson: Abortion, divorce....
Mr. Scott Reid: There were issues relating to—
I appreciate your comments, both Mr. Reid and Mr. Christopherson, very much. I resent the comments that it's because it's going to cause a division in the caucus.
I'm an English MP for a riding that's 94% French, and I'm the one here on the record saying that this is unconstitutional. If it's going to be awkward for anybody, it's going to be awkward for me. I'm the one who is taking this quite as far as I can because I think it is fundamentally on its face unconstitutional, and that is a standard we as a committee have adopted.
If we don't agree with that standard, then it's up to us in the committee, and we have the power, to change that standard. But when I look at this law, cut and dried, it attacks minority language rights in all of Canada on its face, and that is against the purpose and the intent of the Constitution, and the Constitution itself.
That's the only reason I'm voting against it being votable. It's not to go after his rights. He has the right, as was just outlined, to replace it with another bill that is not unconstitutional. He has that right. We're not taking away his right to present a bill. We're taking away his right to violate the Constitution out of the gate.
People vote where they may, and if one person on this side changes their mind, then I'll lose my argument too, and that's fine. That's the way this place works. This is private members' business. It's up to us as individuals to make our decisions.
I was at the private members' meeting. I looked at the bill. I had this debate all the way through it. My assessment of it is that it is 100% unconstitutional. I see a credible founding, but I do not see a credible argument to how this could be constitutional. You are communicating with the government and you are being forced to pick a language in one province alone that goes against several aspects of the Charter of Rights. That is the only reason that I am opposing this. In English, as a minority anglophone in a French riding in Quebec, I am saying this is wrong. On the rules that we have adopted as a committee, we cannot vote for it.
That is my take. I'll leave it there. It is my personal decision. I came to this myself, and this is where I land.
Mr. Reid, I have the floor. I don't interrupt you when you have the floor, and this is now the second time today.
The issue at the end of the day.... Maybe we're speaking to it from a different standpoint. I'm coming at it from the legal side of things in terms of how a court would view deference, which is polite respect of a lower court, or in this case the subcommittee that had the chance to hear it, debate it and deal with it. It was not just the members from this side. It required a vote from the opposition to engage this process, and that's the reason we're here.
Again, at the end of the day—and back to Mr. Christopherson's point—I don't think it's the members' responsibility to bring us a legal case, but it's their duty to bring forward their best case and their best foot forward. The fact that we have Mr. Dufresne here....
That's part of that case and I respect that, and different members can think differently about that, but what I'm hearing is that it could go either way. In my mind, if the subcommittee heard...and in their view it went one particular way, I haven't been blown away by evidence to overturn that subcommittee's decision. That's where I'm coming from.
I didn't want it to come across as academically dishonest and I don't want to discount Mr. Dufresne and his expertise, but that's where I'm coming from at the end of the day.
I would just like to make one clarification.
Ms. Lapointe, in our discussion, we talked about doing the citizenship test on the knowledge of Canada in French. We had a discussion about whether or not this would be required.
If paragraphs 1(1)(d) and 1(1)(e) of the bill are considered together to be joint requirements, the argument could be the second: knowledge of benefits and responsibilities should be demonstrated in French.
It is also important to ask whether this part is stricter than paragraph 1(1)(d), which simply requires an adequate knowledge of French
As for taking the citizenship test in French, would the court consider whether the interpretation of this part could be mitigated, because it would be considered excessive, while the first part would be justified?
That would also be part of the discussion.
On the issue of appeals, the only thing I would add is that, in some cases, courts will defer—that's quite right—and courts also, in other cases, will ask the questions: Who is best placed to make the determination? Is the administrative tribunal a better place or has it better expertise than the reviewing court? If no, then sometimes the reviewer court may call for less deference.
However, that's a part of administrative law in terms of asking those questions: How much deference, if any, is owed to the initial decision-maker?
I've been sitting here for the past hour and a half as the proverbial sponge to take it all in. As I meandered my way through the arguments, I'm going to be quite honest with you, it was a fantastic discussion in many regards.
Mr. Christopherson brings up some really salient points about who we are and what we need to do, not only to represent our constituents but on our shoulders comes the responsibility of governing a nation as parliamentarians—not an executive, but as parliamentarians. We keep them in check, but by the same token, we also have given to us, thank goodness, by the sheer grace of this wonderful democracy, that we can put together a private member's bill to be understood by everybody and voted on by our peers and which eventually may or may not become the law of the land. Thank goodness for that.
Let me go to Mr. Graham's argument. There is a process in place by which the protection or the reputation of the Constitution is not held in contempt by anyone's private member's bill. At the core of it, some of that needs to be changed because it just might be too overly prescriptive in how we filter through these bills, who gets to go to the House and who does not.
The standard is set at a certain level. Maybe that standard should be—I know this is going to sound terrible—lowered to the point where we defer to the sheer respect of a member of Parliament to bring a law to this land.
Mr. Christopherson, I'm with you all the way, but this gentleman here has got a point about the system that exists right now. I'm going to have to defer to that, but in the future, I'm going to look at it with a closer eye and say maybe we're just being a little overly prescriptive in how we may be.... We're not allowing a member of Parliament to freely do their job, not as a partisan, not as an executive, but as a member of Parliament who has rights and privileges.
I'll leave it at that. Thank you.