The Legislative Process / Form of Bills

Drafting: constitutionality; improper form

April 17, 2008

Debates, pp. 5070-2

On April 9, 2008, Derek Lee (Scarborough–Rouge River) rose on a point of order with respect to the constitutionality and form of Bill C-505, An Act to amend the Canadian Multiculturalism Act (non-application in Quebec). He argued that the Bill as formulated should not be considered for debate. He submitted that it was unconstitutional as clause 2 was inconsistent with section 27 of the Canadian Charter of Rights and Freedoms. Another possibility was that the Bill, he affirmed, could be seen as a de facto constitutional amendment, in which case it should not be in the form of a bill but, instead, in the form of a resolution. Based on both constitutionality and form, he requested either that clause 2 be struck from the Bill or that the Bill be struck from the Order Paper.^[1] After hearing from other Members, the Speaker took the matter under advisement.^[2]

On April 17, 2008, the Speaker delivered his ruling. He emphasized that since the Speaker has no authority to rule on the constitutionality of legislation, he had examined the Bill only with respect to whether it was in the appropriate form. He stated that the Bill could not be ruled out of order simply because it was in the form of a bill and not a resolution. He ruled that as the purpose of the Bill was to restrict the application of an existing statute and as it proposed to amend an existing statute to achieve that objective, it was in the proper form. Accordingly, the Speaker ruled that deliberations on the Bill could continue.

Decision of the Chair

The Speaker: I am now prepared to rule on a point of order raised on April 9, 2008 by the hon. Member for Scarborough–Rouge River concerning Bill C-505, An Act to amend the Canadian Multiculturalism Act (non-application in Quebec).

I would like to thank the Member for Scarborough–Rouge River for having drawn this matter to the attention of the House, as well as the hon. Whip of the Bloc Québécois, the hon. House Leader of the Bloc Québécois, and the hon. Member for Mississauga South for their comments.

The hon. Member for Scarborough–Rouge River raised two issues in relation to this Bill. First, he argued that the Bill as formulated is unconstitutional in that clause 2 states, “The Government of Canada’s multiculturalism policy does not apply in Quebec”. This, he believed, was inconsistent with section 27 of the Charter of Rights and Freedoms.

Second, he argued that Bill C-505 could be seen as a de facto constitutional amendment. He based this assertion on the claim that the provisions in the Canadian Multiculturalism Act mirror the provisions concerning multiculturalism that are enshrined in the Canadian Charter of Rights and Freedoms. If the proposed measure is indeed an attempt to amend the Constitution, the Member argued, as his second point, that it should not be in the form of a bill but, instead, in the form of a resolution. His conclusion is that Bill C-505 is not in the correct form and requested either clause 2 be struck from the Bill or that the Order for second reading of the Bill be discharged and that the Bill be struck from the Order paper.

In his intervention, the Whip of the Bloc Québécois pointed out that one of the criteria used by the Subcommittee on Private Members’ Business in determining the votability of an item is whether or not it appears to be unconstitutional. As the Subcommittee did not judge Bill C-505 to be non-votable, the Member argued that the matter of constitutionality had been settled.

In his arguments on April 10, the hon. House Leader of the Bloc Québécois argued that the objections raised to the Bill were of a legal nature, and not procedural, and reminded the House that the Speaker does not rule on legal matters. He also claimed that the Bill seeks to amend an existing law only and has no effect on the Constitution.

The Member for Mississauga South stated that the Subcommittee on Private Members’ Business, in determining whether or not a bill should be votable, may not be in a position to assess fully its constitutionality. He maintained that the process for dealing with reports of that Subcommittee did not afford an opportunity for Members to express concerns regarding constitutionality and stated that it was therefore appropriate for the Member for Scarborough–Rouge River to seek a ruling from the Speaker.

In light of the issue at hand and the arguments put forth, I would be remiss if I did not refer Members to House of Commons Procedure and Practice, at page 542, which states:

Though raised on a point of order, hypothetical queries on procedure cannot be addressed to the Speaker nor may constitutional questions or questions of law.

Mr. Speaker Fraser also succinctly addressed this limited role of the Chair, when he declared in a ruling regarding a similar matter, which can be found in the Debates of September 16, 1991, at page 2179, and I quote:

It may later be for a court to decide that the House has done something that does not have the force and effect of law, but that is a matter for the court and not a matter for the Speaker.

Therefore, mindful of my limited responsibility in this case, I have undertaken to examine the Bill only with respect to whether it is in the appropriate form for the purpose that it seeks to achieve.

Let me first address the contention of the hon. Member for Scarborough–Rouge River that amendments to the Constitution must be in the form of a resolution. There is no disputing that the House has in recent years considered several resolutions of the type referred by the hon. Member. For example, on November 18 and December 9, 1997, the House adopted resolutions dealing with the school systems in Quebec and Newfoundland respectively; and, on October 30, 2001, the House adopted a resolution changing the name of Newfoundland to Newfoundland and Labrador.

But the House has also seen bills proposing to amend the Constitution. Examples in this Parliament include private Member’s Bill C-223, An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms and to amend the Constitution Act, 1867, standing in the name of the hon. Member for Yorkton–Melville; as well as Government Bills C-22, An Act to amend the Constitution Act, 1867 (Democratic representation) and C-19, An Act to amend the Constitution Act, 1867 (Senate tenure), both standing in the name of the hon. Government House Leader.

I offer these examples simply to explain that this Bill cannot be considered not in order simply because it is in the form of a bill and not a resolution. That said, let us examine the actual provisions of the disputed bill.

Bill C-505 consists of two clauses, both of which seek to amend provisions of the Canadian Multiculturalism Act. Clause 1 proposes the addition of a new paragraph to the preamble of the Act, concerning the special situation of Quebec and clause 2 adds a subsection to section 3 of the Act, exempting the province of Quebec from the Government’s multiculturalism policy. There is no reference in the Bill to any other statute or for that matter to the Canadian Charter of Rights and Freedoms.

I have therefore concluded that, since the purpose of this Bill is to restrict the application of an existing statute and since this Bill proposes an amendment to the existing statute to achieve that objective, Bill C-505 is in the proper form.

As your Speaker, I have no authority to rule on the constitutionality of Bill C-505. Accordingly, given that Bill C-505 is in the proper form, deliberations on it may continue in accordance with our rules governing the consideration of Private Members’ Business.

I thank the hon. Member for Scarborough–Rouge River for having raised this matter.