Using Private Members Business To Attack Minority Rights
In 2018, four MPs had to decide the constitutionality of revoking English rights in Quebec
Near the end of the 42nd Parliament, the Bloc brought forward two bills to curtail minority English language rights in Quebec. One mandated that federally-regulated business be subject to Quebec’s language charter. The other, that those applying for citizenship and residing in Quebec be required to speak French, removing English as an option. The two bills came before a committee of four MPs from across the three recognised parties to decide whether or not these bills were constitutional.
Bills proposed under Private Member’s Business are voted on by a little-known but totally public committee known as the Subcommittee on Private Member’s Business, SMEM for short, on which I sat unofficially for half my term in Arnold Chan’s place, and officially for the balance of my term as the Liberal representative. The committee is unique in that it has only one Member from each party, plus an extra one from the governing party to serve as Chair, and it reports to PROC rather than directly to the House of Commons. This structure ensures that, even in a majority parliament, the government cannot unilaterally use its weight to block a private member’s bill from getting to the floor of the House.
SMEM’s function is codified under Standing Order 91.1. The role of the committee is to determine whether each bill being brought forward for debate is “voteable”. Any Member can introduce a Bill that says pretty well anything they want it to, regardless of, for example, precedent or the constitutionality of the proposal or the jurisdiction to enact such legislation. SMEM’s role is to look at the bill, not from the political angle of whether the bill can be supported by the members of the committee, but rather on whether it meets four specific and well-established criteria for votability:
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;
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; and
bills and motions must not concern questions that are currently on the Order Paper or Notice Paper as items of government business.
Traditionally, Library of Parliament analysts come to the committee having studied each bill and bringing objective recommendations as to the votability of each. Each party’s own researchers also look at each bill with their own recommendations, and in almost all cases, everyone agrees as to the votability or non-votability of each bill. In my time on the committee, I mastered the art of the 45-second meeting, and would phone the analysts in advance if I knew we would have concerns about a particular bill simply to give them a heads up to ensure that they were prepared for a more robust discussion. In discussing in advance with my colleagues if they had any concerns about any bills, we could simply dispense with any debate and agree that all bills before us were votable and go back about our day.
It is probably not a surprise that most MPs are not experts on the constitution, so addressing the constitutionality of a bill in this committee can be quite challenging, and so not all meetings were quite so simple.
On the occasion in question near the end of the 42nd Parliament, then, the Bloc introduced two bills that would limit certain federal government activities to French only within the province of Quebec. They came to SMEM on November 22nd, 2018. One, C-420, would have required federal agencies operating in Quebec to work within the framework of the Quebec language charter. That is to say, they would be required to work and correspond uniquely in French. The other, C-421, would require a Permanent Resident seeking Canadian citizenship from within Quebec to demonstrate their proficiency not in either French or English as the law currently requires, but uniquely in French.
This raised a number of constitutional issues. David Groves, the Library of Parliament analyst for the committee at the time, explained, with regard to Bill C-420:
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.
On a vote, Rachel Blaney for the NDP and John Nater for the Conservatives – the Bloc at the time had only ten seats and were not a recognised party, the threshold being 12, so did not sit on the committee – voted to send the bill to the House to have the issues decided there. I believed the bill met the clearly violates standard for the Constitution by unreasonably restricting minority language rights and the bill was sent to the House for debate, in a decision taken “on division” - which means no vote was held, but I wanted my opposition recorded.
For Bill C-421, the bill that would require a Permanent Resident to request citizenship only in French if living in Quebec, Groves offered the following analysis:
This is another bill that would raise the same criteria, that bills and motions must not clearly violate the charter. It would be presumably the same provisions of the charter—section 16 and section 20.
Bill C-421, an act to amend the Citizenship Act on adequate knowledge of French in Quebec, would amend the Citizenship Act to require that permanent residents who reside in Quebec would, in applying for citizenship, be required to demonstrate an adequate knowledge of French. Typically, under the act, permanent residents are allowed to demonstrate an adequate knowledge of either French or English.
I would first note that as with my comments with Bill C-420, subsection 16(3) of the charter allows for laws that “advance the equality of status or use of English and French”, and that courts in the past have found that the promotion and protection of French—which is arguably the purpose behind this bill—is substantial and pressing. I would also note that Quebec has a great deal more control over immigration than other provinces and so has some unique powers in that regard.
Of course, immigration and citizenship are not necessarily the same, but it's to say that this is a slightly different relationship between the federal and provincial governments. As such, it could—could, again—be argued that this presents a minimal and justifiable intrusion into the section 20 rights of permanent residents who would then be applying for citizenship.
It could—could—also be argued—and again this is hypothetical and simply being offered for this analysis—that the intrusion is particularly minimal since it does not bar a citizen who took the test in English in Ontario or elsewhere from subsequently moving to Quebec. Section 6 of the charter is about how once you become a citizen you can move within the country freely, and that would be untouched by this bill.
As with Bill C-420, there are complex constitutional issues raised by this bill. I would nonetheless, in my assessment, assess that it could be determined not non-votable, but as always, that standard is not mine to interpret or apply.
This resulted in some considerable consternation around the table. Linda Lapointe, the Chair, and a Liberal MP from the north shore near Montreal, responded in surprise: “There are citizens in Quebec who speak English and who have permanent resident status. I know many of them. Does this mean that these people could no longer be permanent residents?” And after further clarification from the analyst, “There are permanent residents in my riding who would like to apply to become Canadian citizens, but they speak English. That would mean that they wouldn't be entitled to.”
The analyst confirmed: “Yes, that's right, unless they were to move or learn French. They would have to move to a different province.”
I would like to make a point on that.
My wife speaks five languages. French is not one of them. When she got her Canadian citizenship, we had just moved to Quebec. I had already lived there; she came to Quebec with me. She would have had to return to Ontario or stay in Ontario to get her citizenship, and I think that's against the values of our Constitution, our charter. I cannot support that on constitutional grounds. I cannot vote to allow this to be votable.
I therefore 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.
NDP MP Rachel Blaney added:
As a person who ran an organisation that served newcomers to Canada for many years, I remember helping people in our very anglophone part of the world, in B.C., who spoke only French, and they would still be able to get their citizenship by using the French language, so I am not going to vote in support of moving forward with this, because it simply is not...well, I don't think it's constitutional, and it totally undermines the fact that Canada is a multilingual country. That's something we should all be proud of.
And with that, the committee made the rare move of unanimously declaring that Bill C-421 would “clearly violate” the Constitution.
The Bloc appealed this decision at PROC, and PROC ultimately forwarded the recommendation to the House to designate Bill C-421 as non-votable. The Bloc appealed one more time, and the matter was put to a seldom-used provision of a secret ballot, where all MPs are free to vote without the influence of their Whip on whether or not the Bill should be considered constitutional and therefore votable. I brought it up at the intervening national caucus in an effort to sway votes, noting that Quebec is just about the only place in the world where 100% of the population believes itself to be an oppressed minority.
In the secret ballot, the decision of the committee was upheld, and a majority of Parliamentarians supported SMEM’s call to declare this Bill unconstitutional.
In the next Parliament, a reduced version of the same bill under the number C-223 was brought back in, and SMEM did not discuss it, oblivious to its previous controversy, with the only Quebecker on the committee being from the Bloc and nobody present at the meeting who had been at the one on C-421 two years earlier.
At the October 21, 2020 SMEM meeting, the first anniversary of my electoral defeat, the list of bills for discussion was run through like so by chair the Hon. Ginette Petitpas-Taylor (emphasis mine):
Perhaps now we can proceed through each item. To be efficient with our time, we could maybe just go through them item by item, and if there are no questions or comments, we can dispose of them fairly quickly. We'll be able to address the ones for which there is debate.
Does that sound appropriate to everyone?
We'll start off, then, with Bill C-210. Does anyone have any issues or comments about that one? No.
Next is Bill C-238.
I see there are no comments, so we'll move right along to Bill C-224. Good.
Next is Bill C-215. No comments.
Next is Bill C-204, and now Bill C-229.
I'm not going to jinx it, but we're on a roll.
Now we have Bill C-218 and a motion, M-34.
Next we have Bill C-214, Bill C-220, Bill C-221, Bill C-222 and Bill C-213.
I love working with women.
Next is Bill C-223, followed by M-35.
Now we have Bill C-206, Bill C-216, Bill C-208, Bill C-205, Bill C-237, Bill C-225, Bill C-228, Bill C-236, Bill C-230 and Bill C-232.
Note the single, fleeting reference to Bill C-223. In debate in the House on February 18th, 2021, my intervention to kill the bill was quoted by Bloc MP Christine Normandin, used to justify its continued existence and constitutionality:
This is not the first time that this bill has been introduced. What I find unfortunate is that, in the past, there seemed to be a determination to nip the bill in the bud. I am thinking of former MP David de Burgh Graham, who said the following concerning the bill at the admissibility stage, and I quote:
My wife speaks five languages. French is not one of them. When she got her Canadian citizenship, we had just moved to Quebec. I had already lived there; she came to Quebec with me. She would have had to return to Ontario or stay in Ontario to get her citizenship, and I think that's against the values of our Constitution, our charter. I cannot support that on constitutional grounds.
No evidence was ever provided to show that the bill was unconstitutional, aside from an opinion that was not supported by legal advice, and the clerks of the House had found the bill to be constitutional. It therefore seems that some were determined to kill the bill from the start, which I think is unfortunate.
Bill C-223 reads, in its entirety, simply:
1 Paragraphs 5(1)(d) and (e) of the Citizenship Act are replaced by the following:
(d) if 18 years of age or more but less than 65 years of age at the date of his or her application, has an adequate knowledge of one of the official languages of Canada, unless the person ordinarily resides in Quebec, in which case he or she must have an adequate knowledge of French;
(e) if 18 years of age or more but less than 65 years of age at the date of his or her application, demonstrates in one of the official languages of Canada that he or she has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship, unless the person ordinarily resides in Quebec, in which case he or she must demonstrate that knowledge in French; and
Institutional memory in Parliament, then, is fleeting. Mercifully, the bill was not brought forward for debate before the 2021 election reset the parliamentary agenda once again.