Evidence of meeting #18 for Subcommittee on Private Members' Business in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was charter.
A recording is available from Parliament.
1:15 p.m.
Committee Researcher
I believe so. I would have to refresh my memory specifically on that, but yes, there was a great deal of overlap there.
1:15 p.m.
Liberal
David Graham Liberal Laurentides—Labelle, QC
The objective doesn't overlap; there just happens to be overlap.
1:15 p.m.
Committee Researcher
Yes. If I could categorize it this way, the objective of this act would be to cover a much broader array of institutions around credit cards, regulating the way they use credit cards, whereas the government's bill is only focused on the Bank Act and on institutions in the Bank Act.
You're right that the subject matter is distinct.
November 22nd, 2018 / 1:20 p.m.
Conservative
John Nater Conservative Perth—Wellington, ON
I agree with the analyst's analysis.
I move:
That Bill C-419, An Act to amend the Bank Act, the Trust and Loan Companies Act, the Insurance Companies Act and the Cooperative Credit Associations Act (credit cards), not be designated non-votable.
1:20 p.m.
Committee Researcher
Thank you. Good. I appreciate it. It was not a recommendation.
Thank you for speeding me along. If I am taking time, just wave your hands.
1:20 p.m.
Ms. Linda Lapointe (Rivière-des-Mille-Îles, Lib.)
1:20 p.m.
Committee Researcher
Bill C-420, an act to amend the Canada Labour Code, the Official Languages Act and the Canada Business Corporations Act, seeks to make three amendments that, from my analysis, I understand to be distinct in terms of subject matter.
First, it would amend the Canada Labour Code to prevent employers from hiring replacement workers during a strike.
Second, it would amend the Canada Labour Code to allow for the incorporation of provincial law into federal law for occupational health and safety issues involving pregnant and nursing employees.
Third, it would make amendments to a few statutes to incorporate the Charter of the French Language, which is a Québécois act, into federal law in some respects, and it would apply to Quebec only.
In my briefing note, I flagged two issues. The first is that the language in Bill C-420 that addresses the hiring of replacement workers, the first subject I mentioned, is with minor exceptions identical to the language of Bill C-234, a bill that was previously considered by the House and defeated at second reading on September 28, 2016.
The second issue is that the language in Bill C-420 that addresses occupational health and safety, the second of the three subject matters that I laid out, is, again with minor exceptions, identical to the language of Bill C-345. That bill was considered by the House and defeated at second reading.
The issue here is thus that there is an open question as to whether Bill C-420, in the words of the votability criteria, concerns “questions that are substantially the same as ones already voted on by the House of Commons in the current session of Parliament”.
As I said before in my assessment, the bill has three distinct goals or questions, as the language of the provision allows. Two of them, in both substance and means, are extremely similar to bills the House has previously considered and rejected.
I've spoken a bit with the clerk. She can correct me if I misunderstood, but if I understood her correctly, the position of the House of Commons in regard to the admissibility of a motion, amendment or bill is that so long as it is not more or less verbatim a repeat of something upon which the House has already deliberated, it is admissible. As such, the inclusion of new subject matter in this bill and the change in the wording would make this bill admissible.
That said, I interpret—and I want to reiterate again that my interpretations are not binding—that this criterion of votability is broader than admissibility. I say that because, were that the case, the criterion itself would be redundant. It would require this committee to do work that the House of Commons would already be doing. However, again, that's my assessment; it's not binding.
Go ahead.
1:20 p.m.
Liberal
David Graham Liberal Laurentides—Labelle, QC
There are also other issues in this bill. As I understand it, as you've mentioned, the act would incorporate provincial legislation into federal law, which would bind the federal government to a piece of provincial legislation.
Are there jurisdictional issues on the other point of—
1:20 p.m.
Committee Researcher
There is a provision. I don't want to dig up this big book and go through it—
1:20 p.m.
Committee Researcher
Yes...there are some issues around what's referred to as “interdelegation”, but the federal government is entitled to incorporate by reference provincial acts into federal statutes. That is a power that's available in both directions. In some instances, you could even do it with statutes that come from outside of Canada.
1:20 p.m.
Liberal
David Graham Liberal Laurentides—Labelle, QC
If the provincial act changes, does the federal act necessarily change with it, or does it follow the version that existed at that time?
1:20 p.m.
Committee Researcher
If I'm correct on that, it would follow the version that is in force.
1:20 p.m.
Liberal
1:20 p.m.
Committee Researcher
Yes.
Putting aside the issue on that first criterion, which is whether it concerns a question that has already been voted on, Mr. Graham flagged another issue for me that he wanted me to discuss. I apologize that I didn't include it in my note. I did consider it.
There are some constitutional issues raised by this bill, specifically the portion that is substantially new, the portion about importing the Charter of the French Language into federal law. The issue here is essentially whether or not this bill would be in compliance with two provisions of the charter. The first is section 16(1), which I'll read quickly:
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.
The second is section 20(1), which says:
Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French....
It continues on from there.
Bill C-420 would, as I said, incorporate the Charter of the French Language into federal law, in regard to Quebec in particular. Of note is that it would amend the Official Languages Act to require that the federal government undertake not to obstruct the application of the Charter of the French Language, and that every federal institution has the duty to ensure that positive measures are taken for the implementation of that undertaking not to obstruct the charter.
The Charter of the French Language is quite long, but it contains a number of provisions around the status of language in Quebec, including requirements that the civil administration and the government shall use French in their written communications with each other and with legal persons. The issue here would be whether those provisions of the charter would be affected by importing the Charter of the French Language into federal law and requiring—potentially—that federal entities engaging with legal persons or internally in Quebec would be obliged to use written communications in French only.
The criterion at issue here—I just want to flag this really quickly—is that bills and motions must not clearly violate the Constitutions Act, 1867 to 1982, including the Canadian Charter of Rights and Freedoms. I stress the word “clearly” there because constitutionality is a fuzzy subject, even for bills that receive the full vetting of the government, its drafters and its lawyers. I am only one small cog compared to all of that. I understand that “clearly” has been inserted here so that in “unclear” cases, Parliament has the opportunity to debate the issue fully. Everyone can speak as to how they interpret its relationship to the charter.
As such, when I analyze bills under these criteria, I ask myself whether a plausible case could be made, at the level of basic principles, that the bill complies with the charter. I say “basic principles” because these are frequently highly technical contexts, in which even trained experts would disagree. I would never want to hold myself out as a technical expert on every subject that might appear before the subcommittee.
When it comes to language rights under the charter, it is worth noting that section 16(3) states:
Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
Courts have also recognized that the protection and promotion of the French language in Quebec is a “pressing and substantial objective”, and as a result it may allow for some balancing vis-à-vis other charter rights. It could thus be argued that this act reflects a permissible intrusion on the rights of Quebeckers who wish to receive services in English. That said—and again, this is purely a plausible interpretation that I'm offering—I might also add that it may be possible to read this bill so that it doesn't impose any restrictions on the federal government's provision of services in Quebec.
The Charter of the French Language often refers to the government, the government departments and other agencies of the civil administration, but these could—could—be understood to be references to the provincial government only, to which section 20 of the charter does not apply. As a result, it may be possible to read this bill to simply require that the federal government not obstruct the provincial government's operations in French.
I want to reiterate, as I understand it, the “clearly violates” standard allows a bill that has raised clear and complex constitutional issues to not be found non-votable, but my standard would be, in my assessment, that this is the case and that this does not clearly violate, as those words are meant in the provision, the charter. However, my standard, as always, is not the standard that matters here.
1:25 p.m.
Liberal
David Graham Liberal Laurentides—Labelle, QC
I'm particularly sensitive to constitutional issues, given that I am from Quebec—
1:25 p.m.
Liberal
David Graham Liberal Laurentides—Labelle, QC
—as is the chair. My opinion and my vote on this would be to make it non-votable on the basis of constitutional issues, so I move:
That Bill C-421, An Act to amend the Citizenship Act (adequate knowledge of French in Quebec), be designated as a non-votable item.
However, this is a consensus committee, and I leave it to your opinions.
1:25 p.m.
NDP
Rachel Blaney NDP North Island—Powell River, BC
Of course, I take it as a great compliment that two of our members' bills were thrown in this, with some minor changes. It's nice to know that they support us, but some of the language is a little concerning, and from your assessment—your analysis—it's not your recommendation.
It sounds as though it's a little bit hard to know what the impact's going to be on the ground in terms of implementation. I'm pretty neutral on this one, unfortunately.
1:30 p.m.
Conservative
John Nater Conservative Perth—Wellington, ON
I guess I would err on the side of letting it go to the House and letting the House deal with it. If the will of Parliament is to vote it down, I think that would be an even more effective way to deal with it.
Let it go to the House. That would be my opinion, but....
1:30 p.m.
NDP
Rachel Blaney NDP North Island—Powell River, BC
I always love an opportunity to talk about the great work that my colleagues have done, so yes, I'm fine with it going to the House. It will give everybody an opportunity to talk about the work that the folks in my party have done.