Procedure and House Affairs Committee on Dec. 4th, 2018

[Chris Bittle, Liberal, St. Catharines, ON]

As I just said, Mr. Reid—and I'm sure you were paying full attention to that—as a lawyer, I respect solicitor-client privilege, but if the honourable member says they have no expertise and there is nothing they can bring forward.... It's something they could have provided. It's not something I'm suggesting he should have provided, but it's their job, his job, to present us with evidence that the original committee was wrong. It's something he didn't do. At the end of the day, that was an avenue that was open to him. He didn't choose it. He shouldn't have to. I respect solicitor-client privilege, as I mentioned in the same paragraph.

You're still listening at the same level that you were before. I appreciate that, Mr. Reid.

At the end of the day, I'm not convinced, and I respect and give deference to the original committee. Thank you.

[The Chair, Liberal, Larry Bagnell]

Ms. Sahota.

[Ruby Sahota, Liberal, Brampton North, ON]

The credible argument.... I'm going back to what David said originally about how you demonstrate knowledge of a language without being forced to speak it or communicate in it. I don't think there is another credible argument. How else would you do it? Is being forced to demonstrate knowledge of a language not a violation of the charter at that point? You're being forced to speak it. Doesn't everyone have the right to choose?

What's the argument? Can you walk me through the other credible argument on the other side?

[Philippe Dufresne]

I indicated that the argument would be that the person can communicate with the federal government in the language of his or her choice. It would only be the part of demonstrating proficiency in the language that might require speaking French or providing some kind of evidence to satisfy the department that the person has an understanding of French. The debate would become—

[Ruby Sahota, Liberal, Brampton North, ON]

But it's not a could. They would have to.

[Philippe Dufresne]

They would have to demonstrate that they have an understanding of French.

What I was adding afterwards is that if it were found to be a violation of section 20 the issue would become whether this can be justified under section 1 of the charter, and there would be issues there.

[Ruby Sahota, Liberal, Brampton North, ON]

I think we're pretty much at a point where it would violate but section 1 could pass in this case. The bill itself would violate the charter—

[David Christopherson]

Should the House be able to vote on it, though?

[Ruby Sahota, Liberal, Brampton North, ON]

The House should only be able to vote if it's not a violation of the charter in the bill. This bill is essentially a violation of the charter.

[David Christopherson]

Who said that? Who made that proclamation?

[Ruby Sahota, Liberal, Brampton North, ON]

I'm making it. I feel it is. I guess it could pass the charter test if the court feels it's a justifiable limit.

[David Graham, Liberal, Laurentides—Labelle, QC]

I thought this would be quick.

[Ruby Sahota, Liberal, Brampton North, ON]

I'm done. I'm just pondering.

[The Chair, Liberal, Larry Bagnell]

Before we go to Mr. Christopherson, do people know what the bill says? The French they have to have is not just the language but it's the language in relation to an adequate knowledge of Canada and the responsibilities and privileges of citizenship as demonstrated in French. They have to be able to demonstrate all that in French.

We'll have Mr. Christopherson, and then Mr. Reid.

[David Christopherson]

Thanks, Chair. I'll be brief.

Again, I reiterate. I don't like the bill. I can't think of an argument. I'll be open-minded, because it's important, it's our Constitution, but it's an uphill climb for somebody to convince me to vote for that bill for all the good reasons my colleagues have made. That's not the issue. What is in front of us is not whether we like it or not or would vote against it or not or whether we believe it's constitutional or not.

The question before us is just this. Forget the substance of the bill. I guess you can't completely set it aside, fair enough, but the matter that's before us, the decision, the instant case before us is, should this bill be allowed to go to the floor of the House of Commons for a debate and a vote?

The reason I asked for the floor, Chair, was that I heard Mr. Bittle and, in fact, it was at the last meeting that I agreed with Mr. Bittle that this turned on the question of whether this is constitutional or not. If it's clearly not constitutional, slam dunk, we support the subcommittee, case closed, next.

But, Mr. Bittle, I have to tell you that I'm very disappointed that you would use the argument based on that at the last meeting and you would now use the argument that the members themselves didn't offer up the legal argument or the legal case that the parliamentary law clerk just did, which by the way, was the sole purpose for us coming together. I find that intellectually dishonest.

There is not a requirement for us to hear from colleagues the definitive legal case, and that's the end of it. If you weren't smart enough to bring it to the table, well too bad. We as a committee decided that our next step was to ask for some legal advice, so at that point, if it's legal advice that carries water, whether it came from our parliamentary law clerk at our request or whether it came from the members when they were here is not the point. I just have a real problem with that.

Again, so far, everybody who has taken the floor is arguing the merits of the bill. I'm still not hearing a strong argument as to why we should extinguish the member's right to have a vote when the only thing that would preclude it is if it's clearly unconstitutional. I'm not hearing clearly from anybody that it's unconstitutional. That is debatable.

Some may think it's a weak debate against a strong debate, but is it so outrageous that it would never have a credible argument in front of the Supreme Court? I'm not hearing that. To me, that should be the test when we are going to extinguish a member of Parliament's right, especially a sacred one, especially when there's so damn few of them.

I still remain unconvinced, and I'm still listening.

[The Chair, Liberal, Larry Bagnell]

Okay, just before we go to Mr. Reid, I'll just reiterate what Mr. Christopherson just said.

The decision we're making is whether the criterion that bills and motions must not clearly violate the Constitution Act of 1982, including the Canadian Charter of Rights and Freedoms.... It's not just whether you can vote, but whether it violates the Constitution.

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

To be clear, it's “must not clearly violate” as opposed to “clearly must not violate”, which would be utterly different. Lawyers put a lot of emphasis on that kind of thing, and so do courts, actually.

[Voices]

Oh, oh!

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I want to say the same thing that Mr. Christopherson said in his very first remarks. If this comes to the House of Commons, I would be voting against it. It's not a policy that I could support. Having said that, I do want to respond to the question about deference.

A suggestion was made that we ought to defer to the subcommittee. I just disagree. This is a language issue, perhaps, between Mr. Bittle and me, as opposed to a substantive difference maybe, but by definition you don't defer to a body that is subordinate to you.

When the courts deal with an item that has been dealt with on appeal from a lower court, they adopt a language of respect. They respectfully disagree. They go to great lengths in their language to demonstrate that they are respectful of the thoughtfulness of the body with whose decision they are disagreeing. Nonetheless, they disagree.

The body we defer to is the House of Commons. We are the subordinate body of the House of Commons. By taking away the right of the House of Commons to consider this potential piece of legislation, we are actually being the opposite of deferential, and there is no court of appeal for our decision. Effectively, we kill it before the House can hear it.

I know there is a way. If the sponsor can get a signature from a member of the majority of the parties in the House—he himself does not represent a recognized party, so this is a doubly hard task for the member—then he can have it go to the House, where we decide by secret ballot whether it lives or dies.

That is a tough criterion to meet, particularly since it seems that the real point of all of this is to get the governing party, the Liberals, off the hook of having to vote on something that splits them on a regional basis. I would maintain that it is not our business to make life politically easier for one of the parties—

[An hon. member]

Hear, hear!

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

—and to get them off of the hook on something that's awkward, where the Quebec members and the members outside of Quebec will be driven to vote on different sides of the same issue, an issue that is inherently awkward, and we have members of all three of the parties here, both from Quebec and outside of Quebec.

There is a simple solution to this. I invite the Liberals to think about this. Allow a free vote of your members in the House of Commons and, presto, you've resolved the matter very tidily. Killing this is not the right way to do it.

A final note regarding deference is that this is a matter where what we're trying to do is to not go outside our legitimate authority. Surely the decision as to whether or not something would clearly violate the Charter of Rights as determined by the courts—which means the Supreme Court in the end—is not something where we ought to be prejudging the Supreme Court and anticipating what they might do by saying, “No, you guys, you don't even get the chance to do this because we've decided that we know what you will say yes and no to.”

Now, if something is really clearly unconstitutional, if there is a reason that a reasonable person would accept where we would say that we can reasonably be certain that the Supreme Court would never accept this, then we're not wasting the court's time or, for that matter, the House's time, but no argument to that effect has been presented. It's been only arguments that are like the arguments I would give in the House of Commons if I were presenting a speech as to why I'm voting against this bill and urging my colleagues to do the same thing. On that basis, I simply disagree with Mr. Bittle and a number of the other Liberal speakers.

The final thing I want to say about this is that what's important here is not ultimately how we vote on this piece of legislation, on this yes-or-no vote. What is important is that we should not be in the position of inventing arguments as to unconstitutionality as a way of killing items of private members' business that are difficult for us to deal with. By definition, the things that are difficult for us to deal with are the hard questions that are the most important for us to deal with: language rights, other constitutional rights....

Just go through all of the things that have been hard during your career, Mr. Christopherson.

[David Christopherson]

Abortion, divorce....

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

There were issues relating to—

[David Christopherson]

Gender rights....

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Yes, euthanasia, assisted dying, the cannabis legalization discussion that's gone on for a number of years.... We should not be killing private members' business dealing with this sort of stuff. We should allow an open debate in the House at which point we all go out and vote according to our consciences. That splits our caucuses. That is a sign that it is an issue that is not easily resolvable, not easily incorporated into a party's platform, and if that's the case, then my goodness, we really should be discussing and debating it as parliamentarians, as decision-makers. That's the principle. Even if I consider the precedent we set, we just get into the habit of killing every uncomfortable piece of legislation. Having been in the position of arguing as someone asking the private members' business committee to make my item votable, and having also sat in the committee when it was trying to deal with these things, I'd just say that is a really bad precedent to set.

The best place to deal with the contentious issues is first by means of private member's legislation so we can work out the bugs, and then when government legislation comes along, we are better equipped to handle those pieces of legislation.

Openness in government, openness to the private member's initiatives is surely the hallmark of an increasingly open society. We've moved really far in this direction over my career, and Mr. Christopherson's career. I would like to not see us starting to backpedal now.

That is my plea to the Liberal members on this committee.

Thank you, Mr. Chair.