Evidence of meeting #136 for Procedure and House Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was whether.
A recording is available from Parliament.
Linda Lapointe Rivière-des-Mille-Îles, Lib.
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.
Law Clerk and Parliamentary Counsel, House of Commons
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.
Law Clerk and Parliamentary Counsel, House of Commons
If I may, I want to go back to one comment you made, Mr. Christopherson. Not to be too technical about it, but I do take the confidentiality of the work of my office so seriously that I want to mention it.
I understood your remarks to say that we did give legal advice to the member in this case, and I want to say I'm not here confirming whether we gave any advice, let alone what the advice would be. That is all confidential. I was speaking very generally to say that as a rule we can give advice—sometimes we do and sometimes we don't—but I'm not here confirming even the fact of advice being given, because that is part of the strict confidentiality.
Hamilton Centre, NDP
I see the importance put on individual members. That's why this matters, whether someone gets a vote or not.
Thank you.
Liberal
David Graham Liberal Laurentides—Labelle, QC
Thank you.
Chris, do you want to go first?
No? Okay.
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.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Graham, all I can say on the matter is that this is really your decision. It is up to you and the committee to assess it. For my part, I try to indicate as best I can what the test is. It's a tough test. I have tried to identify some problems related to the Charter of Rights and Freedoms. For example, does this bill violate section 20?
Even if that were the case, you would also have to check whether this is justified under section 1. There are other considerations as well, including minimal or no impairment, and even how important the objective is. To be consistent, it is important to acknowledge that, even if the court recognized in Nguyen that the objective was sufficiently important, this would likely no longer be the case now. Those are the factors at play, but it is really up to you to decide.
Liberal
David Graham Liberal Laurentides—Labelle, QC
What if the same bill reversed were to say that, in Alberta alone, you have to demonstrate a knowledge of English in order to apply? There is a francophone community in Alberta.
If there were a requirement to take the test in English or to demonstrate knowledge of English in Alberta, would we be having this discussion? Instead,would we be saying that this is not good and that it is a blatant attack on the French language? It's the same thing. Would we be having the same discussion?
Law Clerk and Parliamentary Counsel, House of Commons
All I can say is that, in terms of the constitutionality issues, it would be the same discussion in that we would be asking ourselves whether this violates section 20. If so, we would then ask ourselves whether it is justified, whether the legislative objective in this province and in this context is sufficiently important to require knowledge of English in such circumstances and whether it is a minimal impairment.
That being said, for you, members of the committee, the issue would not be to decide whether it is constitutional or not, but to establish whether it is clearly a violation of the charter and whether there is a lack of credible arguments to defend the bill.
Liberal
David Graham Liberal Laurentides—Labelle, QC
Let me point out to my colleagues that there is no credible argument, but there is one that seems credible.
I will yield my place.
Thank you, Mr. Dufresne.
Liberal
The Chair Liberal Larry Bagnell
Is there something, though, in the jurisprudence that because it's a minority language, it's a different situation, because French is a minority?
Liberal
December 4th, 2018 / 11:50 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
That's where the court in the Quebec case is dealing with the promotion of language. That's the element, with regard to section 1 of the charter, that has to be justified. The court will look at the purpose of the bill. Is it a sufficiently important objective that's being sought and that's infringing a provision of the charter?
In those cases in Quebec, so far, the courts have said it is a sufficiently important objective to promote French in Quebec as a minority language in Canada.
That depends on the facts of the circumstances, and the onus is on the government, in defending the legislation, to establish that for the court.
Hamilton Centre, NDP
Thanks, Mr. Chair.
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.
Liberal
Chris Bittle Liberal St. Catharines, ON
Thank you.
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—
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Are you suggesting that the member ought to give up some of his privilege in order to satisfy you, or...?
Liberal
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Are you suggesting duplicity here on Mr. Dufresne's part? I'm just not sure what accusation you're making or what you are insinuating.