Justice Committee on April 12th, 2016

[Ted Falk, Conservative, Provencher, MB]

Thank you to all of our witnesses for coming to committee this morning. I've enjoyed hearing your testimony.

I'd like to begin by asking the Honourable Ms. Jennings some questions. Thank you for your presentation.

I come from Manitoba, so Quebec issues sometimes make the news there too. Periodically in the news we see that there are signage issues, English versus French and how large a sign can be and how much English can or cannot be displayed on a particular sign.

Can you tell this committee a little bit more about some of the other challenges, or the challenges English-speaking Canadians face in Quebec, and also elaborate on whether Quebec legislation is consistent with federal legislation when it comes to language issues?

[Marlene Jennings]

Quebec has Bill 101. It has its own charter of rights, and in the charter of rights there is a section that recognizes the existence of the English-speaking minority communities, and recognizes our right to continue to thrive.

I have to bring it back to what was stated by the previous panel; you have rights that governments adopt on paper, but lived experience does not always match up.

In terms of the signing issues, it's really not a major issue these days except primarily in one area, and that's in the area of health services. The issue of having equal access to health services and social services in the English language flares up again and again. There is a process that exists in Quebec to ensure that every single health establishment has a policy and a program to ensure that the clients they serve can receive their service in English.

There was recently a major health reform in Quebec that established new integrated health and social services centres, called “integrated university health and social services”. Existing establishments, rehab centres, long-term care facilities, hospitals, and so on, were regrouped by geographical territory. As a result, we are now in the process—if I take the island of Montreal for example—of redeveloping the process to establish the regional committee for Montreal for access to English services in health and social services program.

That's a whole process and I'm part of that process because I'm vice-president of the board of one of the largest CIUSSS. That's what we call them on the island of Montreal, and that CIUSSS is going to be responsible, under the law, for appointing the members to the regional access program committee, which will oversee all of that.

Yes, there are issues, and on that level the issues are being handled, and we hope that it will be successful.

Where we have an issue is with Bill 86, a new educational bill that completely reforms our structures and abolishes school boards, school board elections, and overhauls everything. Many constitutional experts believe that it violates section 23 of the Canadian Charter of Rights and Freedoms, the English-speaking community's constitutional guarantee to control and manage education. Given that our schools and school boards are the sole public institutions that our minority community continues to control and to manage, that would spell death. A court challenges program, reinstated and re-enhanced, would go a long way towards providing our communities with the necessary tools to contest that legislation if the government proceeds with it, adopts it at the National Assembly, and then begins to implement it.

Right now, nothing's happening because it hasn't been adopted. It's still before the National Assembly.

Have I answered your question?

[Ted Falk, Conservative, Provencher, MB]

Yes, somewhat.

Do you not see the LRSP as being able to fulfill that need as well?

[Marlene Jennings]

No. The reason is this. I wasn't a politician, but I was an activist in my community back in the 1980s when the court challenges program was put into place. The court challenges program was supremely effective at pushing back on the Quebec government, largely on major issues that concern the vitality of our community and our language. We then saw it abolished in 1992. The good thing is that there was a short gap before it was reinstated. We see the differences between it and the existing program, which was put into place after a court challenge, by the previous government. It did not reinstate the court challenges program but put into place the language access rights program.

There is a major difference. It is not as effective. It is not as accessible, and that whole experience has simply driven home the point that FCFA and QCGN are trying to make here, that it's not good enough to have a government program for which the government is actually responsible for governance, and the very survival of that program is based on the whim and the will of whatever government is in place.

It should, in fact, be a separate institution created by an act of Parliament, reporting to Parliament, endowed with capital funds to start off, and able to solicit funds from private sources as well, and that would provide a greater measure of protection for the two official language communities across Quebec than any program will do.

[Sylvia Martin-Laforge, Director General, Quebec Community Groups Network]

I just wanted to add something.

The issue around the provincial government is certainly critical, but most of the worries we have in the provincial government are of provincial jurisdiction. I think the other major improvement to the program would be to have it cover the federal Official Languages Act. We feel somewhat abandoned, sometimes, around what the federal government does in terms of section 7, around helping the English-speaking community as well.

Certainly across Canada, it would be an improvement to have it cover the Official Languages Act, but certainly in Quebec we would feel less abandoned by the provincial government. I have to tell you that most federal ministries don't know what to do in Quebec to help the vitality of the English-speaking community, and quite frankly, some of them have lots of imagination, but many have no imagination, and it might help them to get more imaginative if there were a carrot and a stick.

[The Chair, Liberal, Anthony Housefather]

Those were excellent questions and excellent answers.

My colleagues have been kind enough to let me be the questioner for the Liberals on this round because I am from an official language minority. I just wanted to add, in response to the QCGN response, that as a former mayor of a community in Quebec, I think there is a major distinction between the way the English-speaking communities in Quebec have issues versus francophone communities outside Quebec.

One example would be bilingual status. If you are not a municipality where the English-speaking community makes up the majority in Quebec, your municipality is banned, by law, from adopting bylaws in both languages. You're not able to work in English within the municipality. You're not able to send out bilingual communications. You're not allowed to erect bilingual signs. So even if English-speaking people are 45% of your community, the Quebec law bans you from putting up signs in both languages. Ontario has a very good law that sets a certain number.

I'm not sure but I think it's 5% or 10% of the population of Ontario, with a threshold of 5,000. In light of this, there really has to be bilingual status in Quebec. Bilingualism is prohibited if anglophones do not make up a majority in the community. This is very problematic.

On the question of signs, as they said, it's mostly government signs. A hospital that doesn't have a majority of English-speaking users is unable to put up bilingual signs, which has caused problems in many small English-speaking communities in the Gaspé peninsula and other parts of Quebec.

Personally, I am delighted that the FCFA and the QCGN have worked together on these recommendations. It's very important for all official language minority communities in Canada to work together. I also have some questions for you in that regard.

If I understand correctly, you would like the CCP to be expanded to apply not only to the language rights set out in the charter but indeed to all federal laws relating to language. Do you think we should allow provincial laws to be challenged under this program? Did a witness recommend that? Do you think we should expand its scope to include not only federal laws but also provincial laws that undermine language rights?

I would like to hear first from the FCFA and then from the QCGN.

[Sylviane Lanthier]

This is a delicate matter. In my opinion, we are getting into the distinctions between provincial and federal jurisdictions. In my view, this makes it a political issue.

We are here before the Standing Committee on Justice and Human Rights of the House of Commons, which examines federal laws and federal matters. For the moment, our priority would be for the new program to include all federal laws that involve language rights. There is the Official Languages Act, of course, but there are twenty or so other laws that could be subject to various judicial reviews or be covered under the program.

These are very important points, in our opinion.

[The Chair, Liberal, Anthony Housefather]

Ms. Jennings.

[Marlene Jennings]

Thank you.

QCGN has the same position as FCFA. We do not believe that an enhanced court challenges program is a forum or instrument the government decides to use to put it into place. It should not be available to contest provincial laws. It should be available to contest federal laws for the official languages legislation. As Madame Lanthier mentioned there are at least 20 other federal laws that have clear linguistic issues and rights contained in them, and they should be part of what's allowed to be contested.

It's a different jurisdiction. Provincial governments have their own responsibility to put into place their own instruments available to their citizens to contest their legislation.

We're talking about a federal charter. We're talking about federal laws.

[The Chair, Liberal, Anthony Housefather]

Fair enough.

You didn't get a chance I think to extrapolate on Bill 86. Bill 86, for my colleagues, is essentially proposed legislation that is currently before the National Assembly of Quebec that would abolish the election by universal suffrage of school board commissioners. On the English side at least there's a legitimate argument that many people feel could be made that it takes away from the English community the right to control and govern their schools.

Ms. Jennings, would the current language rights program cover a challenge to Bill 86, and how would you see that being done or recommend it be done with respect to the court challenges program, or Ms. Martin-Laforge?

[Marlene Jennings]

I think the current program would probably cover it. If that bill was adopted and came into force it would be under section 23 of the charter that a challenge would be made. I do believe the current program would be available to provide funding for that.

[Sylvia Martin-Laforge]

I can support that in the sense it is our understanding that the notion of parent, and who is a parent and how that works, could become a test case, because when the Mahe decision came out things had changed. Jurisprudence and the communities have evolved and so it would be considered. It could be considered as a test case, because that's what we're constrained with.

LRSP talked to you about it having to be a test case. We're always up against that, but the English-speaking community of Quebec in recent years has not been litigious. We don't take stuff to court much. We believe we should try and make it work. Often we haven't looked at possibilities of going to court, but this time I think this might be the straw that broke the camel's back in terms of if they try and put this through that we would look at it.

There have been talks with LRSP, and there is a potential for it in the context of being a test case.

[The Chair, Liberal, Anthony Housefather]

I have one last question for the FCFA.

You recommended that funding be allocated to create an independent program. I can understand this since the Court Challenges Program was abolished twice.

You also spoke about making a distinction between cases involving equality issues and those involving language issues. Would you recommend a program with two separate expert groups, as was the case with the first Court Challenges Program? Or would you advocate two completely separate programs?

[Sylviane Lanthier]

We would argue for two completely separate programs. These are two sets of very specific rights that do not apply in the same way at all. We are talking about individual, collective, and linguistic rights, as well as equality rights. They are not at all the same thing.

In looking at previous programs, it would, in our view, be more effective to have a program devoted to a single set of rights and not two. We think this would be more effective and, equally important, that this model would ensure the survival and independence of the program, which are key to our proposal. These are also key conditions for the program's long-term success.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

You have the floor, Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Mr. Chair.

First of all, I would like to thank all the witnesses who appeared before us today.

My first question is for Ms. Lanthier, the president of the Fédération des communautés francophones et acadienne du Canada.

I read your proposal from February 27, 2016. You also mentioned it today. You recommend that the Court Challenges Program be expanded to allow for recourse under the Constitution, including charter rights. That would include other federal laws and the Official Languages Act of Canada. Would you like to elaborate on this?

Moreover, to pursue the chair's line of thought, I wonder why provincial laws shouldn't be added? I am thinking, for instance, of New Brunswick's Official Languages Act. Why not include a provincial law?

[Sylviane Lanthier]

There are two parts to your question.

First, you asked what kinds of laws we would like to see covered by the program. As things stand, I would say the programs pertain to constitutional rights only. That means the charter.

We would also like the Official Languages Act, which is quasi-constitutional, to be covered by the next program, since it is an extremely important statute for francophone and Acadian communities, and for all minority communities. This act provides the framework for the federal government's specific actions relating to language rights, services to the public, public servants' language rights, and support for official language communities.

Under part VII of the act for instance, the government is required to take positive measures to enhance the vitality of official language communities. What exactly do “positive measures” entail? Does the government do this systematically and at all times? How does it do this? These are important questions for us because this legislative tool gives us leverage to bear upon the government to take positive steps to support community development. We are therefore adamant and strongly recommend that the act be covered by the new program.

Other federal laws also impact language rights. Consider, for example, the Criminal Code or the Canada Revenue Agency Act. There are about twenty laws in all that impact language rights or concern matters affecting language rights. If all of these laws were covered by the next program, the program would then be able to review the federal government's whole legislative framework relating to language rights to ensure that these rights were respected and upheld.

[Murray Rankin, NDP, Victoria, BC]

Thank you. I see your point.

Perhaps I could ask a question of Ms. Jennings.

Thank you for your presentation, and welcome back to Ottawa, as a former deputy.

I'd like you to elaborate a little on the distinction that you made between the English language being in danger in Quebec with respect to individuals and with respect to communities. You drew a distinction, and then you seemed to depart from that distinction and say that English was in danger, in a sense, globally, both within the communities and at an individual level, if I understood you properly. I'd like you to explain and elaborate a bit, if you could.

[Marlene Jennings]

The point that I was trying to make—and I may have made it badly, so I'll attempt again—is that the English language, as a language, is in danger in Quebec. Part of the reason for it is that, to flourish, language requires that the community, the members who hold that language, be able to conduct many of their daily human activities in their language. In Quebec, because of certain pieces of provincial legislation, members of the English-language community are unable to conduct a lot of their daily activities in English.

I gave the example of the labour force. The largest employer in Quebec is the provincial government. A little more than 13% of the Quebec population are members of the English-speaking minority community. Only 1% of the Quebec provincial public service are members of the English-speaking minority community.

If you, as members of Parliament, support and adopt either government legislation—which I don't believe would ever happen—or a private member's bill that stipulates that federally regulated companies and organizations located in Quebec are subject not to the Official Languages Act but instead to Quebec's provincial language, then you have just taken a whole chunk of the labour force where we will no longer be able to work in our language.

Right now, if you work for the federal government in a department, agency, or company that is federally regulated under the Official Languages Act, you have a right to work in English. That would no longer be the case. Then, what's the point? We educate our children. We hold dearly our schools, which are the only public institutions we now control. We no longer control our hospitals, which our communities raised monies for, established, built, and ran, and did so because our doctors and nurses, who were coming out of universities, were not able to find employment in those health institutions that at the time were largely run by religious orders. We created our own institutions. We created our own rehab centres. Gradually, under the modernization of the infrastructure in Quebec—and it's a good thing—those institutions were declared public and became, many of them, francophone institutions. A very few of the institutions were designated bilingual, and therefore you can continue to work there in English. You can provide the services to the clientele in English.

There is a psychological collective mindset in Quebec, which was largely justified, by the majority community for decades and decades and decades, and that was that their language in Quebec was in peril and the francophone culture in Quebec was in peril. In fact, it was a well justified fear at the time when, prior to the modernization of the Quebec state, virtually all of the levers of power were in the hands of members of the English-speaking minority communities. That is no longer the case. All of the levers are in the hands of the francophone majority. There is a demographer called Richard Bourhis, who specializes in doing scientific study, demographic studies of the English-speaking minority communities of Quebec.

Richard Bourhis has been stating that Quebec is in fact a secure dominant francophone majority and therefore should act as such, which means that the relationship with the English minority community should change inherently.

It's a long discussion. It's not something that we can discuss fully here, but it's something that I would urge the justice committee to ask the official languages committee to take a look at. They should be inviting Richard Bourhis to come and discuss his studies.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I wanted to clarify one thing for the committee, because I think it's important. In Ms. Jennings' first response she was talking about the under-representation of English-speaking Quebecers within the Quebec civil service, which also applies, by the way, to the municipal civil services and the federal civil service in Quebec, although not to the same extent.

Although it may be causally linked, that's a separate issue from the fact that Quebec's Charter of the French Language says that the Quebec government and all institutions within Quebec that are not officially bilingual, where the minority is the majority, have to operate only in French. She's saying that if the Charter of the French Language were applied to federal institutions in Quebec, the people in those institutions, even if they were in an area in which English was the majority language, would work only in French. They would have no option to work in English.

Companies of over 50 people in Quebec are also subject to the provisions of the Charter of the French Language. So except for small businesses, there is little space for English-speaking Quebecers to work in English. That's what I think she was saying, in case any of you didn't get it.

Monsieur Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chairman, and thank you so much for your presence here today and your excellent presentations. We also appreciate the work that you do on this important issue.

First, I would like to ask a question of the FCFA.

It's a question of the administration of justice, which falls under provincial and territorial jurisdiction.

Do provincial and territorial employees providing services have sufficient support to serve clients in their official language?

[Sylviane Lanthier]

Are you referring to municipal and provincial employees? Is that what you mean?

[Colin Fraser, Liberal, West Nova, NS]

Yes.

[Sylviane Lanthier]

Okay.

It varies from province to province. Our experience is very different from that of Anglo-Quebecers, who live in a single province. Francophone communities are spread out across the country outside Quebec. As a result, the situation can vary dramatically by province and territory.

Let me just say that some provinces provide more extensive services in French. There is just one province, New Brunswick, that is officially bilingual. The other provinces have French-language services acts, such as Ontario. Others have policies pertaining to French-language services, such as Manitoba and others. The availability of services in French and the way in which the province or territory offers them varies. The same is true at the municipal level. To my knowledge, three provinces currently have bilingual municipality associations or groups of municipalities that offer services in French, but they do not necessarily do so because they are required to by law. These provinces offer services in French because they have francophone communities and because they wish to offer services to them. I am referring to Ontario, Manitoba, and New Brunswick. I do not have sufficiently detailed information to add anything further in this regard.

To return to what I said earlier, I would say that the main concern of the Fédération des communautés francophones et acadienne at present is to identify what actions the federal government can take and, since it already has tools to enhance the vitality of official language communities, how it can use and apply them. I am referring to the Official Languages Act. It is not fully implemented but should be to ensure first that the federal government fulfills its own commitments across all provinces and territories. This is very important. In so doing, we believe that the federal government would also set the right tone and could then be an official languages champion and encourage the provinces to do more in this regard.

As to francophone communities, the conference of francophone ministers is held once per year to address a range of issues related to living in French across Canada, including Quebec. The federal, provincial, and territorial ministers review all the laws pertaining to French-language services in various provinces and discuss ways of improving them. The provinces compare notes and make slow progress. They do make progress, though, and actions can be taken. In this regard, the federal government has a key leadership role to play to ensure that the provinces and territories continue to participate in this movement to promote linguistic duality right across the country.

Such promotion could enable the 2.6 million people who want to live their lives in French in Canada to do so, and to have the space to do it in as many sectors as possible. This also includes education, health services, economic development, cultural life, and so forth.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Lanthier. That will be all for now.