- Member of Parliament
- Liberal
- Lac-Saint-Louis
- Quebec
- Voting Attendance: 67%
- Expenses Last Quarter: $123,581.21
- Government Page
Mr. Speaker, as a member of Parliament who represents a great many anglophones, a minority community with unique needs in the Quebec context, I have studied Bill C-13 with a critical eye.
First, I would like to say that my community is not impressed by the Quebec government's pre-emptive, and one could say almost perfunctory, use of the notwithstanding clause to escape judicial and political scrutiny of its recent language legislation, Bill 96, and its law on religious symbols, Bill 21.
Quebec anglophones have a unique political perspective because they are a minority within a minority. This makes the community particularly understanding of the importance of minority rights, including francophone minority rights. This perspective leads to an inherent sense of fairness and moderation among Quebec anglophones that makes the community wary of government overreach that can harm not just minority-language rights, but minority rights generally.
My colleague from Mount Royal has put it well. Section 1 of the Charter of Rights and Freedoms allows for an override of rights where reasonable in a democratic society. Recourse to the clause when section 1 is otherwise available but deemed insufficient by the legislator is by definition a tacit admission that rights are being unreasonably suppressed.
The timing of Bill C-13 unfortunately intersects with the Legault government's heavy-handed approach to a legitimate objective, which is the strengthening of the French language against unrelenting pressures in the proverbial sea of English, pressures heightened by the new Internet-based communications technologies, a challenge our government is addressing through Bill C-11 and Bill C-18.
I believe Bill C-13 and Bill 96 have been conflated and a narrative has taken root that obscures key facts about this legislation and minority-language guarantees in Canada. Anglophones in Quebec have legitimate grievances with aspects of Bill 96, but Bill C-13 is not Bill 96.
As former Supreme Court Justice Michel Bastarache said, the objective in Bill C-13 is to give special attention to the French-speaking minority outside Quebec and it is not inconsistent with the interests of the anglophone community in Quebec. Let me quote the former Supreme Court justice:
I don't really know what it is in the bill [Bill C-13] that worries them. I don't think that promoting French takes anything away from anglophones.... One can help a community in trouble [that is, francophones outside Quebec] without harming another.... I don't think the anglophone issue in Quebec has anything to do with the federal government, but rather the Quebec government.
That said, in my view, we could have done without the preamble in Bill C-13, with its reference to the Charter of the French Language, and the confusion and controversy this has sown. In fact, there was an attempt to remove the reference, but that attempt was blocked by the opposition parties in committee. One would not expect co-operation from the Conservatives or the Bloc, but the lack of support from the NDP was disappointing.
Bill C-13's preamble refers to the fact of the existence of the Charter of the French Language, just as it also makes reference to iron-clad constitutional guarantees for minority-language communities across Canada, including the anglophone community in Quebec.
For example, the preamble states:
the Government of Canada is committed to enhancing the vitality and supporting the development of English and French linguistic minority communities—taking into account their uniqueness, diversity and historical and cultural contributions to Canadian society—as an integral part of the two official language communities of Canada, and to fostering full recognition and use of English and French in Canadian society;
Preambles, however, are not the substance of a law. They are not normative, nor determinative. In fact, they have not always been included in Canadian legislation. According to an article by Kent Roach in the McGill Law Journal, between 1985 and 1990, only nine statutes had long and substantive preambles. Since then, there has been an increasing trend to incorporate preambles into legislation. As Mr. Roach puts it, “Once departments and ministries saw their colleagues using preambles, this created a demand for more preambles.”
The same article outlined different types and uses of preambles. In some cases, preambles are meant as a recognition of “the complexity...of modern governance” and as “an appeal...to embrace tolerance and diversity as part of what it means to be Canadian.” Roach gives the example of the preamble of the Canadian Multiculturalism Act, which states that “the Government of Canada recognizes the diversity of Canadians as regards race, national or ethnic origin, colour and religion as a fundamental characteristic of Canadian society”.
He continues by saying, “The symbolic nature of preambles means that they are often concerned with the politics of recognition” and they “frequently recognize goals that are in some tension with each other.”
He then adds, “By definition, preambles will be better in securing expressive as opposed to instrumental purposes because they do not impose rights and duties.” Here is a final quote: “courts have frequently been reluctant to give great weight to preambles.”
This all sounds a lot like Bill C-13's preamble. I will quote from the preamble: “the Government of Canada recognizes the diversity of the provincial and territorial language regimes that contribute to the advancement of the equality of status and use of English and French in Canadian society”.
In response to those who argue that preambles are interpretive, I would say that this is typically the case only when the body of law in question is not clear, which is not the case with Bill C-13. I will quote British case law in Attorney-General v. Hanover: “It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail.”
I will quote Ruth Sullivan, from her book The Construction of Statutes, in chapter 14 on page 445: “Preambles must be measured against other indicators of legislative purpose or meaning, which may point in the same or a different direction. If there is a contradiction between the preamble and a substantive provision, the latter normally prevails.”
Finally, I will quote former Supreme Court Justice La Forest: “it would seem odd if general words in a preamble were to be given more weight than the specific provisions that deal with the matter.”
Bill C-13, in its body, is specific in its language, including with respect to the need to protect the interests of Quebec's anglophone minority. This would avoid any confusion that would otherwise require the courts to rely on the bill's preamble for interpretation.
For example, Bill C-13 would add, in black and white, the following to section 3 of the Official Languages Act: “For the purposes of this Act...language rights are to be given a large, liberal and purposive interpretation”. The body of the text also reiterates phrasing from the preamble on the federal government's commitment to enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development.
This brings me to the fear that Bill C-13's preamble endorses the pre-emptive use of the Constitution's notwithstanding clause.
Some contend that the reference to the Charter of the French Language in the preamble of Bill C-13 endorses the Quebec government's pre-emptive use of the clause, but the federal government has been clear that it does not approve of the pre-emptive use of the clause, whether against organized labour in Ontario or in both Bill 96 and Bill 21. The Attorney General has said clearly that the federal government will argue the point in court, specifically when Bill 21 reaches the Supreme Court.
Parliament also made its view known when it recently voted against the Bloc motion seeking to affirm the legitimacy of the pre-emptive use of the clause. I note that the Conservatives voted with the Bloc to support the motion affirming pre-emptive use. However, both together failed to carry the day.
These official parliamentary and governmental expressions of opposition to the pre-emptive use of the notwithstanding clause matter. As the Supreme Court said in 2023 in the case of Murray-Hall v. Quebec, “To analyze the purpose of a law, courts rely [also] on...extrinsic evidence, such as parliamentary debates and minutes of parliamentary committees”. This would include, in my view, statements by the government and votes in Parliament.
As such, there should be no confusion in a future court's mind that the federal government has no intention of legitimizing Quebec's pre-emptive use of the clause by referencing the Charter of the French Language in Bill C-13.
Finally, something that has been lost in this debate is that the notwithstanding clause cannot override minority-language education rights, nor the right to speak English in Quebec in the courts or in the National Assembly.
Some suggest that Bill C-13 would allow the Quebec government to ignore obligations to the anglophone community under federally funded programs delivered through negotiated agreements with the province, but those agreements are governed by section 20 of the Charter of Rights and Freedoms, which refers to the right of the public to communicate with and receive services from federal institutions in English and French, and by part IV of the Official Languages Act, which is meant to implement section 20.
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- Feb/9/23 1:35:25 p.m.
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Madam Speaker, first I would like to ask the member what he is afraid of. Why does he seem to be afraid of having an open, democratic debate on the use of the notwithstanding clause down the road in a legislature in public, in front of the media?
I thought I heard him or someone else say earlier that this would not amount to anything, that too much money would be spent going to court only to arrive at the same conclusion.
My second question is, does the member want Quebeckers' rights to be determined by money?
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- Feb/9/23 11:04:35 a.m.
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Mr. Speaker, I want to thank my hon. colleague for her question. I think it basically goes without saying that many of my constituents are very concerned about what seems to be an increasingly common use of this provision as a preventive measure. It is indeed a issue of concern in my riding.
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- Feb/9/23 11:02:32 a.m.
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Mr. Speaker, that is a good question, and I appreciate it. However, we know that the court's decisions evolve over time, depending on the circumstances and how society has changed.
Of course, I respect the Supreme Court's decisions. As I said in my speech, I have never supported the use of the notwithstanding clause by this Parliament. I respect the views of the court, but I would like to hear more from my colleague on this matter.
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- Feb/9/23 11:00:57 a.m.
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Mr. Speaker, I am a bit mystified. We are talking about a very solemn issue, the rights and freedoms of Canadians, and how those rights and freedoms can be maintained within a democratic framework, which includes the potential use of the notwithstanding clause, yet the member is bringing in a discussion about economic interests. I do not see the relevance.
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- Feb/9/23 10:51:10 a.m.
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Mr. Speaker, I would like to start by talking about this big, beautiful country we call Canada, a country blessed with a diverse abundance of riches that make us the envy of the world.
Take hydroelectricity from Quebec, for example. It not only meets our energy needs and heats our homes, but it also supplies energy to our neighbours in Ontario and New York State, in the U.S. We also grow wheat and other crops that help feed our planet. We even produce oil that is used to manufacture medical supplies and that continues to heat our homes during our transition to a cleaner, greener economy. Lastly, our waterways nourish our ecosystems and serve as transportation routes for our resources and our intermediate and finished products headed for markets in North America and overseas.
However, a country's real strength lies in its citizens' values. Here in Canada, Canadians, including Quebeckers, value community spirit and co-operation. They also espouse democratic values. These values translate to, among other things, a profound attachment to the Canadian Charter of Rights and Freedoms and the Canadian Constitution. Whether in British Columbia, Prince Edward Island, Quebec or Ontario, Canadians across the country are tenacious about asserting their rights and freedoms, regardless of what governments may do from time to time.
Consider, for example, the late Nicole Gladu, who invoked the Canadian Charter of Rights and Freedoms and the Canadian Constitution to assert her right to medical assistance in dying. I must point out that it was a Quebec court that granted her that right under the charter. I believe that we should thank and honour Pierre Elliott Trudeau for his decision to devote his political life to patriating the Constitution and adding the charter, which is one of the most modern laws in the world, in that it recognizes community interests.
The charter also includes a notwithstanding clause. It should be noted that this clause cannot be used to violate the rights of official language minorities. I want to stress that point because many people often forget that this notwithstanding clause cannot violate every right, because some are guaranteed by the charter and the Constitution Act, 1982.
Since being elected, and even before that, I have never been in favour of invoking the notwithstanding clause, which, by the way, Parliament can do under the Constitution. People seem to forget that. This clause exists and it has a clear objective, namely to allow the federal government or a provincial government to take the time to consider and adjust to a court decision that would invalidate one of its laws in whole or in part. Its application is time-limited, so it is not a blank cheque nor open season. In fact, the use of this notwithstanding clause has to be renewed every five years.
There are several aspects of this clause that we could view as democratic. For example, it is not quite the final word, because the clause must be re-invoked every five years. It allows a legislature to temporarily derogate from a court decision.
Obviously, this matter is open to debate, but, in my opinion, the notwithstanding clause was intended to allow courts to render judgments and provide opinions based on our legal system's judicial traditions. Moreover, the notwithstanding clause was intended to create a requirement to have an open political debate every five years on the merits of using the notwithstanding clause.
In both of the cases that are before the court right now, namely Bills 96 and 21, the Legault government in Quebec used the clause pre-emptively. This pulled the rug right out from under the court. In fact, the court's hands are tied. It cannot do anything. We know that, in the case of Bill 21, the Superior Court of Quebec discussed some aspects of the bill that impede certain rights. However, it admitted that it could not do anything because of the notwithstanding clause.
What is problematic about the pre-emptive use of the notwithstanding clause is that not only are the court's hands tied, but we cannot have a full debate on the use of the clause, a debate in a legislative assembly in front of the cameras, a debate whose every detail could followed by our media. I find that extremely problematic, and it adds an anti-democratic element to a provision that is undeniably democratic and perfectly legal.
When governments use this provision pre‑emptively, whether it is New Brunswick, Ontario, Quebec or any other province, one question comes to mind: What are those governments afraid of? Are they afraid of their legal experts, their courts or their citizens? Are they afraid that their citizens might watch the debate on a measure that will take away their rights and that they will change their minds about the measure that the government has put in place with its law? Are these governments afraid of both the lawyers and the public?
I will stop there, and I am ready to answer questions.
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- Feb/9/23 10:27:25 a.m.
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Mr. Speaker, after reading the motion, I think I found an omission. The Bloc Québécois seems to have forgotten that the Parliament of Canada can also invoke the notwithstanding clause. It has never done so. I find it difficult to imagine a situation in which we would invoke that clause.
My question for the leader of the Bloc Québécois is this: Should his motion be corrected?
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