Bill C-202 (Historical)

Mauril Bélanger Ottawa—Vanier, ON

Madam Speaker, I have the honour to table, in both official languages, the ninth report of the Standing Committee on Official Languages.

Pursuant to reference order made by the House of Commons on March 20, 2003, your committee has considered Bill C-202 and agreed, on Wednesday, October 29, 2003, to report its observations and recommendations to the House.

Pursuant to Standing Order 109, the committee requests that the government table a comprehensive response to this report.

This is a very important report for official language minority communities. The committee makes fourteen recommendations to improve access to health care for these communities.

For several years, we have found that, all too often, these communities lacked access to health care in the official language of their choice. Our recommendations seek to provide them with permanent and improved access to health care so that they too can benefit from the Canada health system, which is one of the best in the world. We realized that these communities have not always had such access. It is extremely important, if not essential, that the government provide a positive response to these recommendations.

Robert Bertrand Pontiac—Gatineau—Labelle, QC

Mr. Speaker, last March this House adopted a motion referring the subject matter of Bill C-202 to the Standing Committee on Official Languages.

Hon. members will recall that the purpose of the bill was to add a sixth principle to the Canada Health Act, namely the respect of linguistic duality. The report was to be produced by today.

Can the committee chair tell us what progress the committee has made on this?

John Reynolds West Vancouver—Sunshine Coast, BC

Mr. Speaker, Bill C-205, an act to amend the Statutory Instruments Act, is designed to provide a statutory basis for the current disallowance procedure and to extend the application of that procedure to regulations made by persons or bodies, other than the governor in council or ministers of the Crown. The bill is consistent with recommendations made by the Standing Joint Committee for the Scrutiny of Regulations for the reform of the current disallowance procedure.

One aspect of the current disallowance procedure that has long been identified as problematic by advocates of better parliamentary control of delegated legislation is that it limits the possibility of disallowance to those statutory instruments that are made by the governor in council or by ministers of the Crown.

As a result, the considerable body of delegated legislation promulgated, for example, by the CRTC, the Canadian Transportation Agency or the National Energy Board is not subject to the disallowance procedure provided for in the Standing Orders. This is a consequence of the choice made in 1986 to implement the new disallowance procedures by means of amendments to the Standing Orders of the House of Commons rather than legislation.

In any event, it is clearly both logical and desirable that all statutory instruments subject to review by Parliament under the Statutory Instruments Act be subject to disallowance. There is no reason, either in theory or in practice, why a regulation made by the governor in council or a minister can be disallowed by Parliament while a regulation made by some other delegate of Parliament cannot.

The effectiveness of the current procedure also relies on the cooperation of the governor in council or the minister concerned to carry out a disallowance after it has been ordered by the House of Commons. In itself, an order of the House of Commons cannot affect the revocation of a regulation. The authority that made a disallowed regulation must still formally intervene in order to revoke that regulation following the making of a disallowance order. Putting the disallowance procedure on a statutory footing will allow Parliament to enact that a disallowed regulation will be deemed to be revoked and thereby streamline the disallowance procedure as well as improve its effectiveness.

On reviewing some of the interventions that have been made against this bill or its predecessor in the last session, Bill C-202, one is struck by the fact that many of the arguments put forward do not go to the principle of the bill, but focus on alleged perceived practical difficulties with the bill as it stands. In many instances these difficulties are more apparent than real. In any event, the objections that have been raised could easily be dealt with, if warranted, by means of amendments to the bill in committee.

We have heard a curious claim that for the Parliament of Canada to enact a statutory disallowance procedure might be incompatible with the principle of responsible government.

The reality is that the procedure laid out in Bill C-205 is entirely consistent with, and in fact promotes, responsible government by increasing the accountability of the executive branch to Parliament.

There are at least 12 parliaments in the Commonwealth, including provincial legislatures, that have adopted a statutory disallowance procedure. I believe no one would seriously suggest that these jurisdictions have turned their back on the principle of responsible government.

In addition, the Parliament of Canada has itself previously enacted a negative resolution procedure in some of its statutes. If the argument that was made was correct, those who are making it would have to conclude that the federal Parliament has already abandoned the principle of responsible government. Of course, this conclusion is absurd.

The purpose of Bill C-205 is to expand the scope of the current disallowance procedure so as to allow parliamentarians to exercise the same control over the making of regulations by all its delegates that it already exercises over the making of regulations by the governor in council or by a minister.

At present, regulations made by persons or bodies other than the governor in council or a minister are subject to parliamentary scrutiny by the Houses, acting through the Standing Joint Committee for the Scrutiny of Regulations, but the Houses are powerless to control these regulations through disallowance. This is an anomaly that needs to be corrected.

An attempt has been made to present the correction of this anomaly as involving an unwarranted parliamentary intrusion in the affairs of regulation makers. For example, in her intervention the Parliamentary Secretary to the Solicitor General drew attention to the fact that rules made by the courts--one of the three pillars of a democratic society--would fall under and be captured by Bill C-205. She then asked: “What about the separation of the judiciary and the government?”

Court rules made under statutory authority come within the scope of Bill C-205 because they are delegated legislation, just as they come within the scope of the existing Statutory Instruments Act because they are delegated legislation.

Bill C-205 is a bill to amend the Statutory Instruments Act and, as such, the provisions of the bill reflect the structure and organization of the statute it amends. If the possible application of the disallowance procedure to rules of procedure is problematic, it is the Statutory Instruments Act that should be amended to exclude court rules from the definition of “statutory instrument”. This is not something that is within the scope of Bill C-205.

While making that argument, the parliamentary secretary was probably not aware that in its 10th report of the second session of the 33rd Parliament, 1988, the scrutiny committee informed both Houses that it would not scrutinize the rules of procedure made by courts intended to have the same degree of independence as that guaranteed by the Constitution to superior courts. The committee took that decision nearly 15 years ago out of its sensitivity to the principle of the independence of the judiciary.

Given that court rules are also subject to examination by Department of Justice employees under the Statutory Instruments Act, it is the subjection of those rules to the control of the Department of Justice employee that might properly be said to breach the “separation of the judiciary and the government”. In these circumstances, any concern about the separation of the judiciary and the government might be better directed to the current practice of the government than with regard to the parliamentary procedure proposed in Bill C-205.

It is interesting to note that on more than one occasion the House has been assured that the disallowance procedures of the Standing Orders process have worked well. If anything, this should be an argument in favour of adopting Bill C-205, but more fundamental, those who use this argument to justify the status quo are overlooking the fact that the statutory disallowance procedure proposed in Bill C-205 is not put forward because the current procedure has not worked. It is put forward because it is necessary to adopt legislation to expand the scope of parliamentary control of delegated legislation to include all instruments that are now subject to parliamentary scrutiny. As has been said by others, this purpose simply cannot be achieved by the standing orders and requires a legislative approach.

Thirty years after the enactment of the Statutory Instruments Act the benefits that have accrued from our scrutiny of delegated legislation are indisputable. Effective parliamentary scrutiny, however, requires effective parliamentary control. A step in the right direction was taken in 1986 and I believe the time has come to complete the process and to eliminate the gap that now exists between scrutiny and control of delegated legislation.

This is what Bill C-205 proposes to do. Full parliamentary control of delegated legislation with such exceptions as are warranted represents a meaningful and significant reduction of the democratic deficit. More than 30 years after the enactment of the Statutory Instruments Act it is believed that the time has come for the Parliament of Canada to give itself the means to ensure full democratic control of federally delegated legislation.

I congratulate my colleague from Surrey who has put forth the legislation. I trust when the House has to vote we will all support it like we should.

Alan Tonks Parliamentary Secretary to the Minister of the Environment

Mr. Speaker, discussions have taken place among all parties, as well as with the member for Ottawa--Vanier, concerning the taking of the division on Bill C-202 scheduled at the conclusion of private members' business later this day and I believe you would find consent that at the conclusion of today's debate on Bill C-202, all questions necessary to dispose of the motion for second reading of the said bill be deemed put, a recorded division requested and deferred to Thursday, March 20 at the end of government orders.

Jeannot Castonguay Parliamentary Secretary to the Minister of Health

Mr. Speaker, I rise today to discuss the goals of Bill C-202, which was introduced by my colleague, the hon. member for Ottawa—Vanier.

The bill clearly stems from a concern for the future of linguistic minorities in Canada. I want members to know that the federal government shares this concern in every respect and supports official-language minority communities.

On March 12, 2003, and as a result of the commitment it made, in particular in the September 2002 throne speech, the federal government tabled its action plan on official languages, a concrete measure on behalf of official language minority communities.

The Prime Minister and the Minister of Intergovernmental Affairs have announced the new Official Languages Action Plan, which I shall refer to as the action plan in this speech.

This action plan includes a $119 million plus investment in health care, to implement positive steps such as the retraining and retention initiative for health professionals and a community networking initiative designed to improve access to services provided to minority communities in both official languages.

In addition, Health Canada reallocated a total of $30 million from its Primary Health Care Transition Fund to improve access to services for official language minority communities.

The government strongly supports linguistic duality in Canada and the action plan clearly shows its commitment for the future.

The plan includes an accountability framework setting out how the commitments and obligations under the Official Languages Act are to be met.

The government is clearly committed to meeting its responsibilities, in addition to defining mechanisms for coordinating the policy and the new measures included in the action plan, meaning that Health Canada and official language minority communities will have real means of improving access to health care services.

Improving access to health care for official language minority communities and ensuring their viability are major priorities for Health Canada.

Health Canada's commitment is clear and has been demonstrated in many ways already, namely:

by funding various projects within these communities on its own initiative or in partnership with Canadian Heritage;

by funding the “Santé en français” forum in Moncton in November 2001, during which the francophone advisory committee made its report public;

and, finally, by funding various projects within these communities, on its own initiative or in partnership with Canadian Heritage. More than $13.6 million has been allocated to official language minority communities over the past three years. This funding, taken from existing programs, was a response to requests made by the communities.

The action plan on official languages will help support the development of French and English language minority communities and will make health care services more accessible to them in their official language.

The action plan is proof of the federal government's support for official language minority communities. This action plan respects provincial and territorial jurisdictions and requires these governments to contribute to improving access to health services for official language minority communities in their own language.

As members know, under the Canadian Constitution health is primarily the responsibility of the provinces and territories.

In other words, the provincial and territorial governments are responsible for the development and delivery of health services to Canadians.

This means that provincial and territorial governments are responsible for the planning and management of their own health care systems.

As for the federal government, it is committed, through the Canada Health Act and the action plan on official languages, to promoting and protecting the health of all Canadians.

I remind everyone that we must never forget that the Government of Canada cannot get directly involved in a provincial or territorial jurisdiction. Nor should it infringe on provincial and territorial jurisdictions.

The federal government cannot and must not act unilaterally in a shared provincial jurisdiction. Any decision to broaden the scope of the Canada Health Act requires extensive consultations with the provinces, and the agreement of all governments.

In Canada, there is a long-standing tradition of partnership and cooperation between the federal, provincial and territorial governments in the health sector.

We continue to work with the provinces and territories to ensure that Canadians have access to health services in both official languages. In fact, the action plan on official languages helps make health services in their own language more accessible for francophones and anglophones in minority communities.

The action plan's accountability framework is the concrete expression of our commitment to these linguistic communities, and it ensures that Health Canada will fulfill its responsibilities to improve access to health care services for official language minority communities.

In order to reaffirm the government's commitment, I move, seconded by the hon. member for Beauséjour—Petitcodiac, the following amendment:

That Bill C-202, an act to amend the Canada Health Act (linguistic duality) be not now read a second time but that the Order be discharged, the bill withdrawn and the subject matter of the bill be referred to the Standing Committee on Official Languages to report back to the House on or before October 31, 2003.

Christiane Gagnon Québec, QC

Mr. Speaker, I am pleased to speak today on Bill C-202, introduced by my colleague, the member for Ottawa—Vanier. I congratulate him on his initiative.

The purpose of his bill is to amend the Canada Health Act in order to take linguistic duality into account. It would mean that the provinces would, as soon as possible, in cooperation with the facilities of the province that offer health services, develop a program ensuring access to health services for members of the province's anglophone or francophone minority and, in so doing, take account of the human, material and financial resources of each facility and the social, cultural and linguistic characteristics of the members of the public served by the facility.

The result would be that this would be placed entirely in the hands of members of the province's anglophone or francophone minority.

Like those of my colleagues who have spoken in the House on this bill, I acknowledge that the principle being pursued by the hon. member for Ottawa—Vanier is a laudable one. The means he is using to achieve that principle, however, are not necessarily either desirable or optimal.

I do not believe that a Canadian law relating to health, an area of provincial jurisdiction, is going to go over very well with the people of Quebec.

In Quebec, we took a different approach, by passing bill 142 in 1986, which guarantees access to health care services in English throughout Quebec. Initiatives have already been taken in Quebec, and they have worked.

Like my colleagues, the members for Repentigny and Hochelaga—Maisonneuve, I do not believe that this country is bilingual, nor do I think that it can be. The efforts that have been made to make it bilingual have not produced the desired results. I would like to point out that only Quebec and New Brunswick have passed legislation on bilingualism and have demonstrated any real will to provide bilingual services to their residents.

Even though members here have been critical, at times, of bilingualism in Quebec, I believe that Quebec is ahead in this area and that it has demonstrated and continues to demonstrate that it is very open when it comes to applying its laws.

While the principle may be laudable, this is not, as we see it, the right way to achieve the objective.

Also, the Canada Health Act, passed in 1984, was another example of interference by the federal government in an area of provincial jurisdiction. We will never accept any further intrusions into provincial jurisdiction.

Let us not forget that the Canada Health Act was passed at the very end of Pierre Elliott Trudeau's regime. Even though all of the federal political parties supported it, all of the provinces were against it. This new legislation would again encroach on provincial areas of responsibility.

I understand that the purpose is to provide French services for francophones living in minority communities. However, amending the Canada Health Act by making payment of the full cash contribution under the Canada Health and Social Transfer conditional, is not the solution. It is akin to blackmail.

It could have the effect of delaying or compromising care provided in different institutions, either in Quebec or in the provinces. It seems to me that all of the provinces should respect the principle of linguistic duality.

If negotiations and exchanges were proposed instead, which could be accepted by the federal government and the provinces, then we would be more inclined to support them over provisions contained in a federal act.

Personally, I recognize the provinces' right to determine how health care services will be delivered to their residents. I do not think that amending a federal statute, which would apply from coast to coast, will help us reach that goal.

Health care is a very complex sector that is facing significant cost increases with regard to the delivery of services, especially those related to the aging population.

Since it is specified in the bill that the province “shall take account of thehuman, material and financial resources”, it is very possible that such amendment would never be implemented because there would be no financial resources available.

The member for Ottawa—Vanier knows how important the promotion of the French language is to me, but I am not sympathetic to his fight for linguistic duality as represented by his proposed amendment to the Canada Health Act.

Therefore, I must tell him that the Bloc Quebecois will not support this bill mainly because it would mean allowing further federal intrusion into provincial jurisdictions. It is very difficult to talk about health and bilingualism in political terms but we often have no choice but to face that reality.

In conclusion, I congratulate the member for Ottawa—Vanier on his fight for bilingualism and I invite him to find other avenues than further intrusion in provincial jurisdictions to achieve that objective.

Scott Reid Lanark—Carleton, ON

Mr. Speaker, I am rising to speak to Bill C-202.

I would like to begin by making a brief mention of my colleague, the hon. member for Ottawa—Vanier, the man behind this bill. He is a man of good will and great intelligence, a real spokesperson, who has distinguished himself in his battles for the Franco-Ontarian minority community to which he belongs. I have a great deal of respect for him as a spokesperson for his community.

I am therefore sorry that I must oppose this bill. I will explain why I am opposed.

Let me start by reviewing the bill's provisions. It would add linguistic duality as a sixth provision of the Canada Health Act. There are currently five provisions in the Canada Health Act which the act states must be provided in provincial health services in order to receive federal funding. Those provisions are: portability, universality, accessibility, comprehensiveness and public administration. If any of those provisions are not followed then the result is that the federal government is supposed to, under the provisions of the Canada Health Act, withhold funding from provincial health spending. That means that the Canada Health Act can only be enforced by reducing the amount of money available for health care in this country.

That is a very blunt instrument for ensuring better health care. It means that the Canada Health Act ought to be used, and not be enforced through the reduction of funds, only in the most severe cases where some practice is so outrageous in its restriction on the health care rights of Canadians that it would result in a genuine loss of health care benefits. Otherwise, the enforcement itself would result in lesser qualities of health care, longer waiting lists and, in general, poorer health indeed. If it were enforced too strictly and too many funds withdrawn one could not unreasonably expect that there would be some fatalities caused by the over stringent enforcement of the act. Therefore, we must be extraordinarily cautious how we apply this law and how we consider rewriting the law.

The bill provides for some things that seem completely unobjectionable. I will read one of the parts of the law and it would be hard for anybody to object to this in principle. The proposed bill states:

12.1(b) the provincial health insurance plan shall offer insured health services in the language spoken by the members of the anglophone or francophone minority of the province, taking into account the organization of human, material and financial resources of the province's facilities that offer such services and, where applicable, in accordance with any program ensuring access...

That does not seem unreasonable. However, in the case of a piece of legislation like this it is necessary to take a step back and ask why is it only francophone and anglophone minorities that would get this kind of protection?

Let us think very carefully. In this place we have the right to speak either English or French and to have translation provided and documents provided for us because we represent the two largest language groups of the country, and the two languages that have always been in use in this country.

However, when we are talking about a life and death service we must take a somewhat different attitude. If we do find, as we do indeed, in parts of this country that there are large numbers of people who speak some other language and are really not capable of speaking either French or English, it seems reasonable to try to provide those life and death services, emergency medical services for example, in their language.

My colleague from Surrey Central made this point quite eloquently when he spoke of his own constituency, which has the largest Indo-Canadian community in the country. He pointed out that there are 35,000 people in Surrey Central for whom Punjabi is the mother tongue and 18,700 people in his constituency who use Punjabi as their home language. Many of those people would be fluently bilingual in English, but many would not. Something similar is true in Toronto for the large Chinese community, for the Chinese community in Vancouver, and one could go on and point out a number of other very substantial language groups.

There is a precedent here. In the court system there is a common law right that if individuals are involved in a court case either as plaintiffs or defendants and are incapable of speaking the language, translation services will be provided so that the goings on would not be a mystery. And that applies not merely to English and French speakers but also to speakers of any other language.

Something similar ought to be provided where possible. When people come to a hospital for emergency services, they are frequently not in the best mental state. They are often stressed out. These are often not the conditions that would cause persons who are struggling to know either of Canada's official languages to be able to speak and convey clearly what their problems are and indeed to understand the information provided by service providers who do not have the capacity to speak their language.

That is one reason I think this is not a good piece of legislation for us to propose.

The other reason relates directly to what my hon. colleague from Ottawa--Orléans was saying in his comments. He talked specifically about the Montfort Hospital and how this relates to the Montfort Hospital. I listened with interest as someone who is a former patient of the Montfort Hospital. A few years back I was there for an operation. I was very satisfied with the service I received.

I think this piece of legislation deals very specifically with the case of the Montfort Hospital. Probably there are two or three other hospitals in Canada where this might apply. I am thinking of the hospital in Sainte-Anne-de-Bellevue and perhaps a couple in northern New Brunswick. What relates to these hospitals particularly is the following part of the proposed law, which I will read:

As soon as possible, the province--

--the provinces that are bound by this law--

--shall take action to ensure that the management of any facility in the province that offers insured health services is placed entirely in the hands of members of the province's anglophone or francophone minority, where the number of users from the anglophone or francophone minority is sufficient to warrant that action.

To be honest, I simply cannot see the value of this. The point of health care is to provide good health care. The point of placing someone in the role of being an administrator of health care services is to find the person most capable of providing those services, regardless of the community to which they belong and simply using merit as the principle.

I would not want to see, and unfortunately because of the way the Canada Health Act is written this inevitably would happen if it were added to the law, a situation in which the federal government would be forced, if it were to comply with the Canada Health Act, to enforce this provision of the law by withholding funds from the provinces because the administrators at various hospitals who had been appointed by the provinces were not people of the appropriate linguistic or ethnic group. That would be a very unwise thing to place in our law, given the nature of the Canada Health Act and the way it is administered. That is a very substantial problem with the law.

I want to say something else in relation to the whole question of conditions under the Canada Health Act. Perhaps we took a wrong turn when we put the five conditions in the Canada Health Act the way we did.

There is really one fundamental condition that ought to apply under the Canada Health Act. That is if the federal government is to provide money and it attaches conditions, the one condition ought to be simply that no Canadian can be deprived of quality services at an equal level to those provided by our public system to all other Canadians due to inability to pay and, I think the point has been quite well made by my hon. colleague, due to an inability to speak the relevant language of the provincial majority. I would say if one is to include that secondary right regarding languages, that right ought to include those individuals who cannot speak the majority language of the province or the other official language.

Delayed health care is health care denied. Health care that cannot be delivered due to a lack of capacity to communicate is also health care denied. That applies not merely to francophones and anglophones, but to all Canadians regardless of their linguistic background.