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

[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.

[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.

[The Chair, Liberal, Larry Bagnell]

I'm just going to go informally and let people ask questions.

I just want to ask two things quickly, though. You talk about helping members of Parliament. Roughly how many people are you?

[Philippe Dufresne]

The total in my office is 36. We have two main mandates. One is legal advice to the House itself, and one is the legislative drafting. The legislative drafting would be about half of my office, including the publication of bills.

[The Chair, Liberal, Larry Bagnell]

When you talk about the justice minister's requirement to see if a bill's content doesn't offend the Charter of Rights and Freedoms, they do not do that analysis of private members' bills in advance, do they?

[Philippe Dufresne]

They do not. They do that for government bills.

[The Chair, Liberal, Larry Bagnell]

Right.

Mr. Graham.

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

Mr. Dufresne, for clarity, the charter provides that Canadians can communicate with the government in either language. Is that correct?

[Philippe Dufresne]

Yes.

[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.

[Philippe Dufresne]

I tried to anticipate some of the dilemma and analysis. I would look at the arguments that could be made in favour of there being a violation and arguments that could be made to say that there is no violation.

To argue that there's a violation of section 20, the argument would be, as you suggest, Mr. Graham, that a person would be forced to speak French with the federal government in establishing that they have an understanding of the French language, and that this would breach section 20 and maybe, arguably, section 16 of the charter in terms of official languages. Another argument could be that it would discourage the use of English by permanent residents in Quebec who wish to obtain citizenship. Those would be some of the types of arguments to say this is breached.

The arguments in support of the provision's constitutionality on those grounds, I think, would be that the bill doesn't prevent a person from communicating with the government. If the government is writing letters to the individual, if the individual is getting invited to the ceremony or is being asked for documentation to demonstrate their knowledge of French, all of that could be done in English, and then of course, demonstrating that the knowledge of French would be dealt with. The argument could be that you need to show that you can understand French, but in your communication with the government, are you able to do that largely in English? That would be the argument.

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

But Mr. Dufresne, there's no standard saying “largely” in a language. You communicate in the language of your choice. The moment at any step in the process here when you're required to speak only one of the official languages, the whole purpose of that section of the charter seems to be broken to me. Is that fair, or am I misinterpreting it?

[Philippe Dufresne]

I think this is probably why the Federal Court of Appeal has adopted the standard of, “Does it clearly violate?” You can see the argument. How can you demonstrate your knowledge of French without speaking French? That's the argument on that side of the ledger.

On the other side, you could say that section 20 requires that communication.... When the government invites you and communicates with you, it does it in the language of your choice, which could be English, in this case. The criterion that you have to meet is to demonstrate your knowledge of French. That's part of what you have to show to meet the condition of citizenship, but otherwise, the communications with you by the government before, after and during this are done in the language of your choice. That would be the argument.

At the end of the day, what would a court decide? It's hard to predict. You can have those two arguments. You can have arguments that subsection 16(3) of the charter talks about promoting the use of both French and English in Canada. Is it a relevant consideration that French is the minority language in Canada, but it's the majority language of Quebec? Again, you could have some arguments on those sides.

Assuming there is a violation—the court could say that if you're asked to demonstrate your knowledge of French, you are required to communicate in French, so it's a violation of section 20—then the issue would become whether is it justified by section 1 of the charter. There is case law about the test that has to be met. The test generally requires showing that there is a sufficiently important objective to the legislation, and that it is a reasonable limit. In terms of a reasonable limit, the court will look at whether it minimally impairs the right that is affected.

Case law to date has recognized that the promotion and preservation of French in Quebec is a legitimate objective. The most recent decision of this is the Nguyen case at the Supreme Court of Canada. The first ones were Ford and Devine, talking about the importance there.

It's in the second criterion that it's become quite difficult. Is it a minimal impairment of the right? Then the question becomes, have you adopted the measure that's least intrusive to achieve your objective? In the case law about the language of business in Quebec, when the law required only French, it was found to be an unjustifiable limit because it was too extreme. When the law was that you had to have both French and English, the court found that that was a reasonable measure, even if it brought some disadvantage to English-speaking stores.

Those are all the things that courts will look at when faced with a charter challenge. They will look at evidence to ask what is the impact, what could be alternative measures, and are there any ways to allow some flexibility in the bill? For instance, if someone has a learning disability and has difficulty learning French, is that going to be an absolute prohibition, or is that going to be something that's taken into consideration by providing reasonable accommodation? Those would be some of the issues at play in a court looking at this and determining constitutionality.

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

Thank you.

[The Chair, Liberal, Larry Bagnell]

Mr. Reid.

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

Thank you for your presentation today.

Could I just ask what year the Nguyen case was?

[Philippe Dufresne]

The Nguyen case was 2007, if memory serves.

I'll just confirm the date: December 2008.

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

The reference to the least intrusive measure that's available, you're referring to the Oakes test, I assume?

[Philippe Dufresne]

That's correct.

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

Effectively, the Oakes test has been applied then to a number of language rights. Nguyen is the most recent, but Ford is another example. What was the third case you mentioned?

[Philippe Dufresne]

It was the Devine case.

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

Both of those go back to the 1990s, or even the 1980s.

[Philippe Dufresne]

That's right, they were 1984 and 1988.

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

Ford, in particular, was vis-à-vis Bill 101, I think.

[Philippe Dufresne]

That's correct.