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.
