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.