Procedure and House Affairs Committee on June 7th, 2022

[The Chair, Liberal, Bardish Chagger]

I call this meeting to order.

Welcome to the 23rd meeting of the Standing Committee on Procedure and House Affairs.

The committee is meeting today to consider Bill C-14 for the first half of the meeting.

Today, we welcome Professor Patrick Taillon from the faculty of law at Université Laval.

Welcome Professor Taillon. You have the floor for five minutes to give your presentation.

[Patrick Taillon, Tenured Professor, Constitutional Law, Faculty of Law, Université Laval, As an Individual]

Thank you, Madam Chair.

I would like to thank the members of this committee for this invitation.

Bill C‑14, which amends the Constitution Act, 1867, is clever: it masks the decline in Quebec's political weight behind a freeze in the number of seats Quebec has in the House of Commons. Frankly, Bill C‑14 diminishes that decline. Without this bill, Quebec's political weight would drop from 23.1% to 22.5%; with this bill, it drops from 23.1% to 22.8%. In short, that's a difference of 0.3 percentage points in Quebec's political weight.

The reduction in the number of seats, which Bill C‑14 avoids, cannot be confused here with the reduction in Quebec's political weight, which the bill sanctions.

For some, the decline in Quebec's political weight is inevitable. For others, it's possible to take action, and I share that opinion. Bill C‑14 proposes to do something in that sense, but very modestly, very temporarily and without the whole picture of the problem.

The reason for the problem is complex. On the one hand, there is the factual reality, that the demographic decline in Quebec within the federation has practically been a continuous problem since 1867. On the other hand, there are many reasons for that decline. Some are linked to Quebec's political choices. However, those reasons always give rise to the question of whether the federal government's actions are related more to the problem or the solution.

However, it's an even more significant problem, because it will increase over the coming years. It's well known that the current government's policy aims to substantially increase the population of Canada, almost doubling immigration thresholds over the medium term. The targets were 280,000 immigrants per year when the Conservatives were in power. Based on the current objectives, the annual number of immigrants will increase to 430,000, so there's a complete deadlock. Indeed, from Quebec's standpoint, the current policy comes down to the choice of maintaining its political weight by following Canada's pace for immigration, or adopting lower immigration thresholds and thus increasing its ability to integrate immigrants, to be a melting pot for them, an adopted home, and to help them learn French.

There is suddenly the need to consider the issue of reforming the electoral map and Quebec's political weight in the broader context. This is a sensitive issue, one that affects the very nature of the agreement between Quebec and this federation since 1867. The question is what is Ottawa prepared to do to maintain Quebec's political weight. Quebec's representation within federal institutions is not solely a matter for the House of Commons. The House can take action, but action can also be taken elsewhere. I think that, on several fronts, more could be done and done better.

There's another question: what can Ottawa do to improve Quebec's ability to follow a demographic policy similar to that of the rest of Canada? Here again, recent events give us several ideas and reveal several steps that could be taken. Of course, it goes beyond the specific issue addressed in Bill C‑14, but even in the specific and technical context of the electoral map, Parliament could do more than simply freeze the number of seats per province.

After all, Quebec is a nation, as was made clear by a resolution adopted by the House in the 2000s.

Jurisprudence from the Supreme Court of Canada, including its 2014 reference regarding the Supreme Court Act, sanctioned and recognized that national characteristic of Quebec, and did so in a case that affected Quebec's political weight and its representation within a federal institution, the Supreme Court of Canada.

As well, under Bill 96, which has just been passed in Quebec, it will now be stated in black and white in the Constitution Act, 1867, in new section 90Q.1, that “Quebecers form a nation”. That bill, like Bill C‑14, directly and explicitly amends the text of the Constitution.

There are aspects of the makeup of the House of Commons, however, that cannot be amended by Bill C‑14. The principle of proportional representation can only be amended with the support of seven provinces representing 50% of the population. However, the principle of proportional representation is a rule, a principle, a constitutional objective, and, like all other rules, principles and constitutional objectives, it's not absolute. It can be subject to reasonable limits of accommodation. Jurisprudence from the Supreme Court of Canada has repeatedly established that the court's interpretation of proportional representation is not a purely mathematical concept. It has recognized considerable flexibility within each province to tolerate certain discrepancies between certain types of jurisdictions. That type—

[The Chair, Liberal, Bardish Chagger]

Mr. Taillon, I apologize, but you're at six and a half minutes, when you had five minutes. You can send your presentation to all the members sitting on the committee. We must now move on to the question period.

[Patrick Taillon]

No problem. I understand.

[The Chair, Liberal, Bardish Chagger]

Thank you very much.

We'll begin with a six-minute round, starting with Mr. Kmiec, followed by Mr. Fergus, Mr. Therrien and Ms. Blaney.

Mr. Kmiec, you have the floor for six minutes.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Thank you, Madam Chair.

I'd like to offer Professor Taillon the opportunity to continue discussing the provinces' considerable flexibility, as I found that interesting and would like to know more about it. If he'd like to continue on the topic, I'll offer him a few minutes. I'd then have a question for him about the decline in political weight. As a member from the west, I'd like to consider other options.

You can therefore continue Mr. Taillon.

[Patrick Taillon]

The flexibility recognized in jurisprudence was related to discrepancies in the principle of proportional representation that exist within the same province, between representatives from urban and rural areas. Regardless, the Supreme Court demonstrated, in its decisions, that its interpretation was not simply based on a mathematical or arithmetical imperative.

Also, in practical terms, our laws and even the text of our Constitution include small exceptions to proportional representation. I think of the senatorial clause, which establishes that a province is entitled to at least the same number of members as senators. This was also upheld in 1982 and is now very explicitly protected by section 41 of the Constitution Act, 1982. There's also an equivalent clause for the territories. In that particular case, there's no basis for the clause other than the actions of the federal Parliament. Thus, an exception to proportional representation was made for the territories through the same procedure that is being used to try to adjust the electoral map and electoral representation here.

In the case of the Senate, the exceptions have increased over time. Proportional representation was not the logic that prevailed during the allocation of Senate seats in 1867. For example, when Newfoundland joined, it was given seats, but they did not come out of the number of seats belonging to the Maritimes.

That means there's a logic from 1867 concerning the allocation of Senate seats that was enshrined by the Constitution, which is is hard to amend, but it does not prevent small exceptions through a unilateral constitutional amendment, if only for the territories and Newfoundland.

The principle of proportional representation therefore cannot be considered as absolute, as though it were the only constitutional basis in question in this type of extremely sensitive matter.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Taillon, the last time a province lost seats in the House of Commons was in 1966, and that affected Quebec, Nova Scotia, Manitoba and Saskatchewan as well, I believe.

This is a bit of a persnickety question, but why should western Canadians, such as Albertans, accept having less representation in the House of Commons? It's not 1867 anymore, but 2022. As you mentioned, our country is a lot bigger now; it's population has grown a lot through immigration, of course, but also through births. We're not a former colony anymore, but a major country in North America. Why do you think western Canadians should accept having less representation in the House of Commons?

[Patrick Taillon]

Western Canadians also have concerns about their representation in Parliament. The number of Senate seats in the western provinces raises very legitimate concerns. At times, this country must be able to have a genuine discussion to determine where it's been and where it's going.

The question of political weight for both Quebec and the maritime provinces in Canada's Parliament cannot be examined in isolation, in terms of the electoral map. Representation can be improved for everyone by strengthening their seats in the Senate and the House of Commons.

Dealing with the issue by freezing the number of seats and increasing the overall number of seats is a clever way to avoid a real debate, which we won't always be able to ignore. We won't always be able to put off considering the west's concerns or Quebec's concerns about the decline in political weight, which has been ongoing since 1867. They are legitimate concerns and must be the subject of a real debate, one that can't be continually swept under the rug.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Taillon, what are the other options for respecting the political weight of the various provinces within Confederation?

[Patrick Taillon]

The solution that I prefer is for there to be a certain number of provincial representatives in the Senate. Currently, senators are appointed by the federal executive. If the Prime Minister, through mere convention, were to accept the nominations recommended by the provinces, there would immediately be better senators. I'm not saying the senators would be better, but they would better represent the interests of the provinces. In Quebec's case, the National Assembly would simply need to recommend senators. Suddenly, the decline in Quebec's political weight in the House of Commons could be offset by the presence of representatives in the Senate, as a direct result of appointments by the province, made official by the Prime Minister of Canada and the Governor General.

That's my preferred solution. It's an example that shows that representation in the federal Parliament can better reflect the provinces. That would apply to both the prairie provinces and Quebec. Everyone would win.

[The Chair, Liberal, Bardish Chagger]

Thank you very much.

I would remind everyone that all comments by members and witnesses must be addressed through the chair.

Mr. Fergus, you have the floor for six minutes.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Madam Chair.

I'd like to welcome Professor Taillon.

I've been reading his many articles in publications, journals and magazines in Quebec for at least 20 years. I admire his way of thinking, although I don't always agree with his conclusions. I must admit that today is one of those times when I don't entirely agree with Professor Taillon's recommendations. However, his ideas and the solutions he proposes certainly merit our close examination.

First, I'd like to thank Professor Taillon for being here with us today. I also want to thank him for recognizing that Bill C‑14 is certainly a better solution than pure popular representation, which would cause Quebec to lose a lot of its demographic weight.

I should note that this situation doesn't affect only Quebec. That's what we're looking at today, but if we rely on demographic projections, in the next redrawing of boundaries, other provinces will probably face the situation that Quebec is now looking at.

I'd like to ask Professor Taillon a question.

You say that there are many complex reasons for the problem. I agree with you on that. In terms of immigration, you say that Quebec has a certain capacity for integration, particularly in terms of the francization of economic immigrants. I'm from a region of Quebec that attracts the second-most newcomers to Quebec, and many of them are from francophone west Africa.

Would it be a good solution for Quebec to increase the number of economic immigrants from francophone countries, like those in Africa, who would come to live in Quebec?

[Patrick Taillon]

I thank the member for his question.

The day when Ontario has double the political weight of Quebec is not far off. Do the calculation for the other provinces. The phenomenon that's emerging for the Canada of the future is visible: the demographic imbalance we're already seeing will increase.

Immigration is just one factor, but it's an important factor. In discussing the future of this federation and each province's political weight, things need to be examined from a broader perspective than just the electoral map.

Several decades ago, Ottawa and Quebec signed an agreement to give Quebec a bit more independence in the choice of certain classes of immigrants and integration policies. Here again, the issue must be examined from a broader perspective. Ottawa still plays an important role in this respect. In recent weeks, people from francophone Africa who had applied for temporary resident permits for education or applied for long-term permits saw their files—

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I'm sorry, but my question was related, in particular, to economic immigrants, who make up the vast majority of immigrants. Those who come here to study aren't automatically admitted after that to Quebec or elsewhere in Canada. My question is about a class of immigration that could really change things in a significant and immediate way.

Does Professor Taillon have an opinion on that?

[Patrick Taillon]

I totally agree with the member that it's one of the many solutions. I deplore the fact that when certain types of applications from francophone Africans are processed by Immigration, Refugees and Citizenship Canada, those files face obstacles.

This is a phenomenon that's in the news, but we can see it over a much longer period. Quebec and French-speaking Canada had political weight in 1867, and Quebec's membership in the federation led to a decline in that political weight. That's a factual reality, but it isn't known who's to blame. Maybe it would have been worse if Quebec had been an independent country, but maybe it would have been better; we'll never know.

This is a sensitive issue, because it affects the ties between Quebec and the federation. Solutions need to be found, in particular through the electoral map and Senate representation, but also in how Ottawa acts in Quebec when it receives applications from people who want to come here to build the Canada of tomorrow in French, a language they're already proficient in. However, the processing of those files is delayed, and many applications are even rejected.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I have another question for Professor Taillon. Since my time is almost up, I'd like a quick answer.

Is it possible to do what he's proposing without amending the Constitution?

[Patrick Taillon]

The answer is easy: Bill C‑14 already proposes an amendment to the Constitution. Clause 2 of the bill explicitly states how the text of the Constitution Act, 1867, will be worded going forward.

The only difference is that the procedure used for Bill C‑14 gives Parliament the right to do certain things, but not those for which it would need the agreement of seven provinces representing 50% of the population. What can't be done here, essentially, is to abolish the principle of proportional representation. There's a difference between abolishing it and slightly amending it, as is being done here for the territories. Can a bit more be done in other situations? That's somewhat the opinion that I've submitted to you.

[The Chair, Liberal, Bardish Chagger]

Thank you very much, Professor Taillon.

I'd like to ask everyone to try to give answers that are the same length as the questions. It's very important for us to receive answers to the questions the members want to ask.

Mr. Therrien, you have the floor for six minutes.

[Alain Therrien, Bloc, La Prairie, QC]

Thank you, Madam Chair.

First, I want to welcome the witness, who has come to give us insight on a topic that's very important to Quebec.

I agree entirely with what he said in his opening statement: this bill only masks or temporarily diminishes the decline in Quebec's political weight. It's been known for a while that Quebec is losing political weight. That's clear, and this bill offers no permanent solution.

On the one hand, there's this problem, and on the other hand, there are these draft solutions.

Last year, Parliament accepted the idea not only that Quebec was a nation, but also that French was its common language. I think that's quite clear. It's not a province like the others; it's a nation. It's the only province that's considered to be a nation, so powers have to be tied to that designation as a nation.

In March, we proposed another motion, which was adopted with a large majority, saying that Quebec must not lose any members. Bill C‑14 strengthens that position of the House. However, the motion also said that Quebec's political weight in the House of Commons must not be reduced, which the bill does not respect.

Since everyone, with a few exceptions, agrees that Quebec is a nation and that its political weight must be preserved, I think the stage has been set for this bill to go further.

The member for Hull-Aylmer spoke about immigration. Last week, the Legault government asked for more powers in the area of immigration, and the federal government refused, so I don't know why we're talking about that here. I think the matter's closed. There's an impasse in that respect.

I'll ask Mr. Taillon a simple question so he can further clarify this problem. What could Parliament do to guarantee—I did say “guarantee”—that Quebec's political weight within federal institutions was at the very least consistent?

[Patrick Taillon]

I can propose two solutions.

First, just as the principle of proportional representation is adjusted for the territories, a slight discrepancy—a reasonable and justified discrepancy that would be statistically marginal—could be established to maintain Quebec's weight at about 25% and end this decline.

However, that requires political courage, because it could in fact spark off a debate about whether that is consistent with the principle of proportional representation. I think that a Parliament with the desire could, as it does for the territories, defend the fact that it's an adjustment and that the principle of proportional representation is essentially respected.

That's a first solution.

However, other means of improving Quebec's political weight in Parliament must be considered.

For example, senators would finally need to be appointed based on recommendations from the provinces. This would finally inject some federalism into the federal Parliament.

The same thing would need to be done for other federal appointments, such as the appointment of Supreme Court and superior court justices. Federalism needs to finally mean something in how this immense power of appointment is structured, a power that the federal government currently holds. In the end, we currently have a Parliament in which the Prime Minister appoints all senators, all judges and all ambassadors, and requires party discipline from most members of the House of Commons. The trend towards the concentration of power needs to be reversed by injecting more federalism into Parliament and, clearly, more democracy.

[Alain Therrien, Bloc, La Prairie, QC]

The Supreme Court recognized the fundamental principle of effective representation, which encompasses two conditions. First, there must be relative equality so the weight of an elector's vote is not disproportionate. Second, it's important for there to be respect for natural communities. In other words, factors such as geographic characteristics, history and community interests must be taken into consideration. That's why the senatorial clause, the grandfather clause and the territorial clause were enacted.

The Charlottetown accord guaranteed that, from a historical perspective, Quebec would not lose its political weight and that it would be at least 25%. That was in 1992. We know the rest of the story, and we know what happened to the Charlottetown accord.

Would it be beneficial to take up the intent of the Charlottetown accord and create a clause, possibly called the Quebec nation clause, that would establish Quebec's minimal representation at 25%, to ensure its political weight in the House of Commons?

[Patrick Taillon]

Canada's Constitution enshrines proportional representation as a limit to the ability of Parliament to act alone in amending the Canadian Constitution in these areas.

The member is correct in saying that the jurisprudence of the Supreme Court has made clear that the court did not have a strictly mathematical or arithmetical approach for dealing with these issues and that it was not the only concern.

Issues related to electoral representation are sensitive. Canada has been able to avoid the American trap of transforming the debate about the electoral map into a debate about each party's partisan interests in setting boundaries in their own way. The Supreme Court has in fact created some flexibility, as long as we respect the spirit of the matter, if I may put it that way. In that context, it relies a lot on the concept of effective representation, as the member mentioned. For the Supreme Court, proportional representation is not an absolute. It is instead about the desire to effectively move toward that objective, but in a federation as complex as Canada, that desire must take into account other concerns as well.

That said, the flexibility for statistical or mathematical discrepancies between rural and urban ridings in the same province will always be greater than the flexibility that probably exists, in my opinion, for adjustments between territories and provinces overall. It's clear that a little flexibility can be leveraged. It already is and has been for other issues, so it could be as well for the issue of Quebec's political weight.

[Alain Therrien, Bloc, La Prairie, QC]

I'd simply like to say that the Quebec nation clause, in terms of a minimum 25% threshold, is achievable. That's what the Bloc Québécois will be proposing in order for the bill to respect the motion that was adopted with a strong majority in the House of Commons.

Thank you.

[The Chair, Liberal, Bardish Chagger]

Thank you very much.

Ms. Blaney, you have the floor for six minutes.