Procedure and House Affairs Committee on Dec. 11th, 2007

[Pierre Paquette, Bloc, Joliette, QC]

But my father did.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Yes, but such knowledge is not necessarily handed down. It is not like royal blood. It is not transmitted from generation to generation.

[Pierre Paquette, Bloc, Joliette, QC]

Oh, really?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

I know that you are trained as an economist.

However, here is something that will help the members of the committee in their interpretation task: given that the legislator does not speak for no reason, if a bill or a constitutional instrument does not prevent or prohibit something from being done, the corollary is that that thing is permitted.

If there is nothing in the legislation that prevents this application and this recognition of the French fact in Quebec... There is nothing in the Constitution that says that this is prohibited,right?

[Pierre Paquette, Bloc, Joliette, QC]

That is right.

Moreover, under subsection 16(3) of the Constitution Act, 1982, which deals with the advancement of the equality of status for English and French, the proposed bill will promote the advancement of French in Quebec. It must be recognized that French is somewhat vulnerable in North America. This is the case in Quebec, but it is probably more so in other regions of Canada.

But this bill, if it were to be passed, would give an added impetus to efforts to promote French and the advancement of the status of French and English across Canada.

I will conclude with a reminder to committee members that Statistics Canada released some troubling numbers last week. I am not saying that they were completely discouraging or disastrous. The fact is that the rate is still at 75% for immigrants to Quebec who choose to use French at home, despite the existing provisions.

So some impetus is needed. And the Larose Commission at the beginning of this decade suggested exactly what the Bloc Québécois is proposing with Ms. Picard's bill.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

One cannot deny the political point.

A majority in Parliament passed a motion recognizing the Quebec nation and at the first opportunity to craft legislation that would codify that recognition, we are being told that it does not comply with the Constitution?

Would that mean that a motion passed by a majority in Parliament would be meaningless? In other words, it has been put somewhere in limbo, between heaven and hell, and there is nowhere for it to land.

What is your bill asking for? It is asking that this recognition be concretely codified, am I right?

[The Chair, Conservative, Gary Goodyear]

Perhaps we could get that answer on the next round.

If I could just ask for clarification, Mr. Paquette, you mentioned a section of the 1882 Constitution. I didn't catch what section. Was it 92(10)?

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

It was 1982.

[The Chair, Conservative, Gary Goodyear]

It was 1982. Do you recall the subsection you mentioned in the 1982 act? Was it 92(10)? My apologies.

[Pierre Paquette, Bloc, Joliette, QC]

It was subsections 16(1) and 16(3).

[The Chair, Conservative, Gary Goodyear]

Thank you.

My apologies also to Mr. Reid. I should have gone to Mr. Reid before that.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I have the sections there if you want them.

[The Chair, Conservative, Gary Goodyear]

Thank you very much. I have them now.

Mr. Reid, you're next, and then Monsieur Godin.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Mr. Chair.

I would like to thank our witnesses.

I have considerable respect for the committee members. They are of good faith and they are intelligent. This bill is based on good intentions. However, unfortunately it is unconstitutional because it involves transferring authority from one order of government to another. It is unconstitutional under our Constitution. There is a very clear case that explains why.

I'm afraid I have to switch to English now. You have my apologies for that.

I'm going to read from a Supreme Court decision from 1950, which makes it clear that the kind of delegation of power that's proposed here is unconstitutional. I should mention that I have this text in front of me in English only, which is the reason for doing this in English.

This is known as the Nova Scotia interdelegation case rendered by the Supreme Court of Canada on the October 3, 1950. The Nova Scotia government had attempted to delegate certain legislative powers to the federal government, something that is contemplated in reverse in this bill.

This bill says--I'll just start with Madame Picard's bill--in a number of places that the Commissioner of Official Languages

shall carry out...duties...in a manner that does not obstruct the..Charter of the French Language.

and this shall be done in conformity with or meeting the requirements of the charter of the French language. It imposes a requirement.

Now let me read what the Supreme Court said in its decision in 1950:

The Parliament of Canada and the Legislatures of the several Provinces are sovereign within their sphere defined by The British North America Act but none of them has the unlimited capacity of an individual. They can exercise only the legislative powers respectively given to them by sections 91 and 92 of the Act, and these powers must be found in either of these sections.

I'm going to skip a little bit because there's quite a bit of additional text.

It is part of [the] protection [granted to us] that Parliament can legislate [only] on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92. The country is entitled to insist that legislation adopted under section 91 should be passed exclusively by the Parliament of Canada in the same way as the people of each Province are entitled to insist that legislation concerning the matters enumerated in section 92 should come exclusively from their respective Legislatures. In each case, the members elected to Parliament or to the Legislatures are the only ones entrusted with the power and the duty to legislate concerning the subjects exclusively distributed by the constitution Act to each of them.

No power of delegation is expressed either in section 91 or in section 92 nor, indeed, is there to be found the power of accepting delegation from one body to the other; and I [—this being the Chief Justice—] have no doubt that if it had been the intention to give such powers it would have been expressed in clear and unequivocal language. Under the scheme of the British North America Act there were to be, in the words of Lord Atkin and the Labour Convention Reference...“watertight compartments which are an essential part of the original structure”.

That ends the quote.

So what was said here is that one government cannot give legislative power, the ability to set law, to another. This is what has been done in this act. I note that Monsieur Paquette had made a reference to Bill C-15, which refers to provincial regulations and gives a regulatory capacity to accept provincial regulations in the Canada Labour Code.

I have to draw his attention to the fact that this is permissive language. It permits the minister to look to the provincial legislation and take that as advice. It doesn't bind him, and thus it's essentially a note of encouragement, which is very different from that practice, which was forbidden in the case from 1950, and which I cited.

I'm afraid the language used in Madame Picard's bill is not permissive. It imposes an obligation. For that reason, I believe this bill would in fact be an unconstitutional delegation of federal power to a provincial legislature.

[The Chair, Conservative, Gary Goodyear]

There's still a little time on your watch, or Mr. Paquette can use the time to respond. It's up to you, Mr. Reid.

Mr. Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

First, I would like to point out that the ruling my colleague referred to involves taxation.

We are referring to language of work and labour relations, and I should point out that there are precedents. This does not involve the delegation of powers. We are asking the federal government to amend its federal legislation in order to incorporate parts of other legislation. In this case, it would involve the language of work in Quebec. It has been done in the past. No powers have been delegated to Quebec.

This involves the federal government who, on its own initiative, would make a decision that would amount to recognizing the fact that Quebec constitutes a nation within the Canadian political landscape. Given that the French language remains vulnerable within North America, it would decide to include in its own legislation, whether that be the Official Languages Act or the Canada Labour Code, provisions that would ensure that the Charte de la langue française applies to businesses under federal jurisdiction, for language of work.

I would like to recall that in 1966, the Supreme Court ruled that matters such as hours of work, salary levels, working conditions, and other matters, are essential parts the administration of any commercial and industrial business, and that, when the businesses in question are federal businesses under federal jurisdiction, these matters fall under the exclusive jurisdiction of the federal government.

This principle was confirmed and extended later on. This did not prevent the federal government from deciding, on its own initiative, to use the referral I mentioned earlier and to amend its own Canada Labour Code. Section 178(1), and I will wrap up with this, Mr. Chairman, reads as follows:

178. (1) Except as otherwise provided by or under this Division, an employer shall pay to each employee a wage at a rate: (a) not less than the minimum hourly rate fixed, from time to time, by or under an Act of the legislature of the province where the employee is usually employed [...]

It is the federal parliament and not the Government of Quebec or the provinces that decided that this provision could be included in federal legislation. It probably did this because it was easier administratively. The same applies to Bill C-15. We are referring to regulation, not even to legislation. This is taking place within a legislative framework, of course, but it is the regulations that, as I mentioned, provide for provincial legislation being allowed to be presented and adapted within a bill. There are many precedents for this.

[The Chair, Conservative, Gary Goodyear]

Thank you very much, Mr. Paquette.

Mr. Godin, you have the floor.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Thank you, Mr. Chair. I would like to thank our witnesses.

Mr. Chairman, to begin, I would like to make a comment. We all know that the committee must decide whether or not this bill is votable. We were in camera, but this is a separate thing. If we are to make a decision...

[The Chair, Conservative, Gary Goodyear]

As a point of clarification by the chair, we're not in camera at this point.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

That's not what I said.

[The Chair, Conservative, Gary Goodyear]

Okay, my apologies.

Please continue.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

It was in camera. That does not prevent our committee from making decisions. I believe that before coming to a final decision, we should invite experts to whom we can address questions, so that we are certain of making the right decision. We want our appeal system to work well, and it is not because something was said in camera that we should be prevented from getting to the heart of the matter.

That being said, I would like to ask Mr. Paquette if he does not see the difference between the issue of minimum wage and the issue of having two official languages in this country.

Let's talk about minimum wage. There has been no change in Quebec to eliminate minimum wage. Nor has there been any change providing that only Quebec has the obligation to comply with the requirements of minimum wage in that province. I believe the federal government has reviewed the matter. The government issued an order saying that it would respect the minimum wage in each province. We are talking about the bare minimum. If it wants to pay $20 an hour, it can do so, but we are talking about a minimum. The federal government will respect the minimum wage of the province. You cannot have both. That means that in Quebec, minimum wage prevails. At the federal level, it will be the minimum wage of Quebec, in New Brunswick, it will be the minimum wage of New Brunswick. I believe this was decided in 1996. The federal government never said that it would eliminate the minimum wage in Quebec or New Brunswick, or that it would allow the provinces to do so.

In this case, I am not yet ready to speak to the constitutionality of the bill, but the following argument could be made. We could argue that in Quebec alone, anglophones would not be protected by the Canadian Charter of Rights and Freedoms. In Quebec, an employer could say that the language of work is exclusively French. Not only would citizens be deprived of this protection, but so would employers and everyone else.

Like me, do you believe that there is a difference between these two? Thank you.

[Pierre Paquette, Bloc, Joliette, QC]

In my opinion, the only difference is that language is much more significant.

You are getting to the very heart of the problem, which I am also prepared to address. Essentially, with respect to language of work, we want to give the 8% of workers who fall under federal jurisdiction the same right as other wage earners, that is to say, the 92% of workers who have the right to work in French. It is not an obligation incumbent upon individuals.

However, companies would have the obligation of allowing people to work in French, which takes nothing away from the anglophone minority, which as you know, is a group that already enjoys a certain number of rights and privileges under the French language charter.

Absolutely nothing is being taken away.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Are you telling me then, that under your bill, if I were an anglophone in Quebec, and I decided to speak English rather than French, an employer could force me to speak French under the French language charter?

[Pierre Paquette, Bloc, Joliette, QC]

No, not at all. This legislation would give you, Mr. Godin, the right to ask your employer to speak French.

In fact, the French language charter includes a provision that does not allow linguistic reasons to be used as grounds for dismissal. You cannot be fired because you cannot speak French. This is already set out in the charter. The rights of the anglophone minority are protected by the charter, and will be protected by the proposed amendments.