Madam Speaker, this is one of the most important speeches that I have given in this virtual chamber. I want to clarify for the people in my riding and across Canada what this motion means, and even more importantly what it does not mean. I also want to contribute my views to the public record so that they can be examined by any court that may, in the future, be called upon to consider the significance of this motion.
First, I want to clarify that if this motion is adopted, it does not constitute an agreement by this House to a constitutional amendment. Amending Canada's framework document would require a proper bill, extensive public consultation, committee study and hearings, legal analysis and extensive debate in this House and across the country. I would never support any constitutional amendment that did not follow this process.
Second, what does this motion do?
It asks the House to recognize that section 45 of the Constitution Act, 1982, allows Quebec and the other provinces to unilaterally amend their respective constitutions. What the motion does not say is that section 45 is subject to section 41. Section 41 refers to section 43(b), which clearly states that any amendment to any provision that relates to the use of the English or the French language within a province also requires the approval of the House of Commons and the Senate. I will speak to what this means a little later.
This motion also calls on the House to acknowledge the fact that Quebec intends to use section 45 to amend its constitution to state that Quebeckers form a nation, that French is the only official language of Quebec and that it is also the common language of the Quebec nation.
Third, let me be clear about the mechanism being used. Quebec's proposed Bill 96 has not yet been the subject of hearings. It has not been debated, amended or adopted. Since the determination of whether section 45 applies to an amendment will depend on the final wording of Bill 96, it would be premature to offer more than a preliminary assessment as to whether section 45 could apply.
No amendment to the constitution of a province made under section 45 can have any legal effect on the Constitution of Canada. Our Constitution is very clear that if any amendment relates to the use of English or French language in the province, section 43(b) must be used, not section 45. Therefore, this amendment cannot be used to reduce or impact the rights of the Quebec English-speaking minority in any way.
It would not and could not change the scope of section 133 of the Constitution, which says that English is an equal language with French within the National Assembly and the courts of Quebec. It would not and could not change the scope of the rights of the minority language community under the charter, such as education rights under section 23. Perhaps most importantly, in my view, this amendment cannot be used to interpret whether any charter right has been breached or to justify a section 1 limitation of that right.
Fourth, I support the exact wording adopted by the House of Commons in 2006. That motion stated, “that the Québécois form a nation within a united Canada.” I want members to note those last words, which are “a united Canada.” The current proposal is missing those words.
I also believe that it is very important to understand the legal implications of the notion of French as the common language of the Quebec nation. I hope that there will be presentations and debates in the National Assembly on this issue.
Quebec's Charter of the French Language states that French is the official language of Quebec. French is the first language used in Quebec, and French-speaking Quebeckers should be able to live, work and be served in French throughout our province.
Some proposals in Bill 96 have raised real concerns that common language means something else. For example, is the Quebec government seeking to limit those who can receive certain services in English? Sections 22.2 and 22.3 of Bill 96 link the ability to receive certain government services in English to those who are eligible to receive instruction in English. This has never previously been done in the Charter of the French Language outside of education rights.
Let us look at what that means. Suddenly hundreds of thousands of people who considered themselves part of the English-speaking community of Quebec will no longer be eligible to receive certain services from the state in English. This would include people who came to Quebec from the United States or other English-speaking countries, and even Holocaust survivors in their nineties who have been part of the English-speaking community since arriving in Canada over 70 years ago. This is profoundly disturbing, and I very much hope this section is amended by the National Assembly.
There is also section 18.1, which states that the personnel members of the civil administration shall use exclusively French when communicating orally or in writing with one another in the exercise of their functions. I do not think it is reasonable to ask two anglophone public servants to speak and write to one another in French.
In light of these and other provisions in Bill 96, we can understand why leaders of the English-speaking community, including former member of Parliament Marlene Jennings, who is the president of the Quebec Community Groups Network, have expressed some serious concerns about Bill 96.
I am particularly concerned about the impact of Bill 96 on how we see the charter and how individual rights interact with collective ones. In my view, we have a Charter of Rights because we, as a society in Canada and Quebec, have accepted that there are certain rights which are inalienable, rights that are not subject to change by a simple majority in the legislature. A charter is designed to protect minorities, even unpopular minorities.
In Bill 96, Quebec has departed entirely from this principle. First, the bill says the Charter of the French Language would no longer be subordinate to the Quebec Charter of Human Rights and Freedoms. This means that Quebeckers would no longer be able to argue that the Charter of the French Language breaches rights under the Quebec Charter of Human Rights and Freedoms.
Quebec is also proposing to use a notwithstanding clause in an omnibus and pre-emptive way, preventing any Quebecker from arguing that fundamental freedoms, including freedom of expression under the Canadian Charter of Rights and Freedoms, are breached under this bill. I would like to be very clear that I am against the notwithstanding clause. I do not believe it should be part of the charter.
We already have section 1, which allows legislatures to place reasonable limits on rights. To allow legislatures to allow unreasonable limits on rights, or to put laws outside the review of the judicial branch of government, is not something I can ever support. I oppose the use of the notwithstanding clause by Quebec, Ontario or any other jurisdiction.
Although we have to accept that the notwithstanding clause is part of the charter and can be invoked, it should be invoked only on very rare occasions, in response to a legal ruling. It must not be used pre-emptively. The idea of insulating a bill from possible legal challenges is profoundly troubling. The public would have no way to find out whether a right has been violated. As a Quebecker and a Canadian, I believe that we need an extensive public debate on this matter.
What is clear is that the issues related to our Constitution, our charter and our two official languages are at the very core of the fabric of our country. They are not documents or concepts to be taken lightly, but to be approached thoroughly, transparently and with the best interest of the federation at heart. Canadians place their trust in us to protect our country, protect our rights, including minority rights, and protect our democracy. These are not conversations that happen in one day, but rather require time, reflection and public debate. Our Constitution and Canadians deserve nothing less.
In the end, while I believe that this motion is purely symbolic in that it only asks this House to acknowledge what Quebec intends to do as opposed to the House agreeing to anything substantive, I also understand why this may be unclear to Canadians, especially official language minority communities and in particular, English-speaking Quebeckers.
Therefore, I move that this motion be amended by adding, after the words “of the Quebec nation”, the following: “That the House acknowledge adopting a motion in 2006 stating that this House recognize that the Québécois form a nation within a united Canada and reaffirm this position, and declare that the rights of Quebec's English-speaking minority under the Canadian Constitution may not be impacted or reduced by such an amendment.”