An Act to amend the Citizenship Act (adequate knowledge of French in Quebec)

This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.

Sponsor

Mario Beaulieu  Bloc

Introduced as a private member’s bill. (These don’t often become law.)

Status

Dead, as of May 13, 2019
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Citizenship Act to require that permanent residents who ordinarily reside in Quebec must have an adequate knowledge of French in order to obtain citizenship.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

December 4th, 2018 / 11:15 a.m.
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Liberal

David Graham Liberal Laurentides—Labelle, QC

Bill C-421 specifies that an applicant for citizenship in Quebec must demonstrate a knowledge of French. The only question for me is this: Is demonstrating a knowledge of a language to the government communicating with the government? If it is, then I don't see a credible argument to make this constitutional. I want to hear your thoughts on that.

December 4th, 2018 / 11:05 a.m.
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Philippe Dufresne Law Clerk and Parliamentary Counsel, House of Commons

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 C-421. On November 29, 2018, the committee commenced consideration of matters related to private members' business regarding Bill C-421. The committee heard representations from Mr. Mario Beaulieu, 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 C-421 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 C-421 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 Minister of Justice 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 Minister of Justice 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 Minister of Justice 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.

Thank you.

December 4th, 2018 / 11:05 a.m.
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Liberal

The Chair Liberal Larry Bagnell

Good morning. Welcome to the 136th meeting of the Standing Committee on Procedure and House Affairs. Today we continue our consideration of the 4th report of the Subcommittee on Private Members' Business, wherein the subcommittee recommended that Bill C-421 be designated non-votable.

We are pleased to be joined by Philippe Dufresne, the House's law clerk and parliamentary counsel.

Thank you for being here today. It's great to have you back again and to have your wise counsel. We look forward to your opening remarks—or your remarks. That's the only reason we're here.

November 29th, 2018 / 11 a.m.
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Bloc

Mario Beaulieu Bloc La Pointe-de-l'Île, QC

Mr. Chair and members of the committee, thank you for having us here.

As I indicated in my letter to you, the subcommittee may have found my Bill C-421 clearly unconstitutional, but it did not specify which section of the Constitution or the Charter it was alleged to have violated. In the absence of a clear indication, I will provide an overview of all the provisions that may be relevant. I hope this will answer your question. Otherwise, I am at your disposal to answer any questions you may have.

As you mentioned, I am accompanied by Marc-André Roche, the assistant to my colleague, the member for Joliette. Since we don't have a research team, he gave me a hand.

As you know, the standard used to assess whether a bill is unconstitutional is not very high. On page 1143, Bosc and Gagnon state:

Bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms.

I emphasize the words “clearly violate the Constitution Acts”. It has long been established that a disagreement on the constitutionality of a bill is not enough to make it non-votable. I have a feeling that you will not have difficulty in making your decision.

Right now, permanent residents must meet a number of criteria to become Canadian citizens. These include passing two proficiency tests: a general knowledge test about their host society and a language proficiency test, where they must demonstrate that they have adequate knowledge of English or French.

Bill C-421 is quite simple. It amends the Citizenship Act to ensure that permanent residents who ordinarily reside in Quebec must demonstrate that they have an adequate knowledge of French.

The first constitutionality criterion is the division of powers. Citizenship falls under federal jurisdiction under section 91.25 of the British North America Act, 1867, which specifies that naturalization and aliens fall under the jurisdiction of Parliament. Clearly, my bill meets that condition.

That leaves the Charter. Since the subcommittee has not indicated any specific provisions to support its decision, I will go through it as quickly as possible.

First, there are mobility rights. Subsection 6(2) of the Charter states that citizens and permanent residents have the right to move anywhere in Canada, to take up residence in any province and to pursue the gaining of a livelihood in any province. Whether or not Bill C-421 is passed, nothing would prevent a permanent resident residing in another province from moving to Quebec, settling and working there. Nothing would prevent a permanent resident residing in another province from obtaining Canadian citizenship there, then moving to Quebec and enjoying all the rights and privileges associated with Canadian citizenship.

Since Bill C-421 has no impact on mobility rights, I gather that this is not why the subcommittee found the bill to be “clearly unconstitutional”.

Then there is the language of communication with federal institutions. Subsection 20(1) of the Charter states that the public may communicate with the federal government in either English or French at their discretion, and that the government must be able to provide services in English or French where numbers or the nature of the service warrant it.

Bill C-421 has no effect on the language of communication between the public and the federal administration. Whether or not this bill is passed, a permanent resident will still be able to communicate with the federal government in either English or French.

Similarly, the oath of citizenship may continue to be administered in either French or English, in Quebec and elsewhere in Canada. I might have preferred it otherwise, but that would have made my bill unconstitutional. That's why I did not propose it.

Bill C-421 simply requires that permanent residents residing in Quebec demonstrate that they have an adequate knowledge of French, the official language and the normal language of communication in Quebec.

Let me remind you that there is already a degree of asymmetry in the application of the Immigration and Refugee Protection Act. In Quebec, the Government of Quebec selects and supports immigrants and implements integration programs. Knowledge of French holds a prominent place in all those stages.

Bill C-421 supports Quebec's efforts and extends the granting of citizenship, which already exists at the previous stages, namely selection, support and integration. The selection, reception and integration of immigrants, as well as the granting of citizenship are four elements of the same process. I have difficulty seeing how knowledge of French would be constitutional in the first three steps, but unconstitutional in the fourth. In any event, Bill C-421 has no effect on the language of communication between the public and federal institutions, which resolves the issue of its compliance with subsection 20(1) of the Charter.

There are still the provisions on official languages.

Subsection 16(1) of the Charter states:

English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

I emphasize the words “equal rights and privileges as to their use”. Bill C-421 contains no provisions or requirements regarding the use of English or French. It only refers to the knowledge of French. Knowledge and use are two completely different things. In addition, subsection 16(3) clarifies the scope of the Charter:

Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

That subsection of the Charter refers to the “equality of status or use of English and French” in Canada. The Supreme Court even recognizes that French is the minority language in Canada. It recognizes that, for English and French to progress towards equality in Canada, French must be predominant in Quebec. In the 2009 Nguyen decision, it ruled as follows:

...this Court has already held... that the general objective of protecting the French language is a legitimate one... in view of the unique linguistic and cultural situation of the province of Quebec...

This allows the court to conclude that:

... the aim of the language policy underlying the Charter of the French Language was a serious and legitimate one. [The materials] indicate the concern about the survival of the French language and the perceived need for an adequate legislative response to the problem...

I am talking about a constitutional judgment.

The measures to ensure the primacy of the French language in Quebec effectively promote the equality of status or use of French in Canada. It could even be argued that the government's current practice with a view to making Quebec bilingual contravenes this, since by making French weaker in Quebec, it does not promote the equality of the two languages in Canada. That being said, there's no need to debate this here.

I had to show you that my bill is not “clearly unconstitutional”. I think I have.

I am at your disposal to answer any questions you may have.

Thank you, Mr. Chair and members of the committee.

November 29th, 2018 / 11 a.m.
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Liberal

The Chair Liberal Larry Bagnell

Before I get to the reason for this meeting, I want to update the committee on two things.

One is that the Liaison Committee has asked us where we're travelling between March and June. I said New Zealand, but they wouldn't agree. I assume we'll just put in that we don't need any money for that.

The other thing—and this is more for David Graham—you will remember that the PPS reported in estimates that they will be buying unmarked cars with the new money. You may have noticed there are some new marked cars showing up. PPS just wanted to let you know those were bought with the old money. The new unmarked cars are still coming.

Also, there's been general agreement that in the second half, instead of going into subcommittee, we're going to continue on with the full committee, because then it would have to go to subcommittee anyway.

Good morning, welcome to the 135th meeting of the Standing Committee on Procedure and House Affairs.

Today, we will consider the fourth report of the Subcommittee on Private Members' Business submitted to the Clerk of the Committee on Thursday, November 22. The subcommittee recommended that Bill C-421, An Act to amend the Citizenship Act (adequate knowledge of French in Quebec) be designated as non-votable.

Pursuant to Standing Order 92(2), we are pleased to have with us the sponsor of the bill, Mario Beaulieu, member of Parliament for La Pointe-de-l'Île, to explain why he is of the opinion that this bill should be votable. He is accompanied by Marc-André Roche, a Bloc Québécois researcher.

Thank you for being here, Mr. Beaulieu. For your information, the correspondence you sent on Tuesday was distributed to the members of the committee. You can now make your presentation to the committee.

November 22nd, 2018 / 1:30 p.m.
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Committee Researcher

David Groves

This is another bill that would raise the same criteria, that bills and motions must not clearly violate the charter. It would be presumably the same provisions of the charter—section 16 and section 20.

Bill C-421, an act to amend the Citizenship Act on adequate knowledge of French in Quebec, would amend the Citizenship Act to require that permanent residents who reside in Quebec would, in applying for citizenship, be required to demonstrate an adequate knowledge of French. Typically, under the act, permanent residents are allowed to demonstrate an adequate knowledge of either French or English.

I would first note that as with my comments with Bill C-420, subsection 16(3) of the charter allows for laws that “advance the equality of status or use of English and French”, and that courts in the past have found that the promotion and protection of French—which is arguably the purpose behind this bill—is substantial and pressing. I would also note that Quebec has a great deal more control over immigration than other provinces and so has some unique powers in that regard.

Of course, immigration and citizenship are not necessarily the same, but it's to say that this is a slightly different relationship between the federal and provincial governments. As such, it could—could, again—be argued that this presents a minimal and justifiable intrusion into the section 20 rights of permanent residents who would then be applying for citizenship.

It could—could—also be argued—and again this is hypothetical and simply being offered for this analysis—that the intrusion is particularly minimal since it does not bar a citizen who took the test in English in Ontario or elsewhere from subsequently moving to Quebec. Section 6 of the charter is about how once you become a citizen you can move within the country freely, and that would be untouched by this bill.

As with Bill C-420, there are complex constitutional issues raised by this bill. I would nonetheless, in my assessment, assess that it could be determined not non-votable, but as always, that standard is not mine to interpret or apply.

November 22nd, 2018 / 1:30 p.m.
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Ms. Linda Lapointe (Rivière-des-Mille-Îles, Lib.)

The Chair

Right.

(Motion agreed to on division. [See Minutes of Proceedings])

We will now move on to Bill C-421.

November 22nd, 2018 / 1:15 p.m.
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Ms. Linda Lapointe (Rivière-des-Mille-Îles, Lib.)

The Chair

Right. So Bills C-331, C-419, C-420, C-421 and C-266 remain.

Does everyone follow?

November 22nd, 2018 / 1:15 p.m.
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Liberal

David Graham Liberal Laurentides—Labelle, QC

Bills C-331, C-419, C-420, C-421 and C-266.

Citizenship ActRoutine Proceedings

November 1st, 2018 / 10:30 a.m.
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Bloc

Mario Beaulieu Bloc La Pointe-de-l'Île, QC

moved for leave to introduce Bill C-421, An Act to amend the Citizenship Act (adequate knowledge of French in Quebec).

Mr. Speaker, I have the honour to introduce a bill on citizenship and adequate knowledge of French in Quebec.

The French language is a defining characteristic of Quebeckers as a people, and we are extremely proud of that. To ensure that French survives and thrives, it has to be the common public language in Quebec, as stated in our Charter of the French Language. It constitutes the common good of all Quebeckers of all origins.

Under Canada's current law, knowledge of one of its official languages, English or French, is required. It is high time that adequate knowledge of French was required for obtaining citizenship in Quebec, which has been recognized as a nation by the House of Commons.

(Motions deemed adopted, bill read the first time and printed)