We are resuming the public session.
Pursuant to Standing Order 108(3), we are beginning the briefing on the Official Languages Act and the regulations under the act.
Dear colleagues, Justice Bastarache has not yet arrived. We may create a precedent, but under the circumstances, I will read to you the presentation he was supposed to deliver. Once he gets here, we will put questions to him on this presentation.
Presentation to the House of Commons Committee on Official Languages, Ottawa, October 30, 2018.
I believe there are three ways to address the issue. The first would be to consider the cases that have been brought before the courts and certain analyses of the Commissioner of Official Languages to identify what the current legislation may be lacking. The second would be to examine the scope of the legislation in light of the public's expectations and the principles put forward by the government, and to identify areas where new rights or new obligations should be created. The third way would be to assess the quality of the implementation of the act and to see whether deficiencies could be remedied through legislative amendments.
You know that I said before the Senate Committee on Official Languages that I think there is a limited number of areas that could be dealt with through legislation and that many problems are due to an ineffective enforcement of the act. I would point out in passing that it is difficult to read the act and get an idea of its scope without taking into account the legal decisions that have defined its meaning and its scope, especially when its main objective is to implement certain provisions of the Canadian Charter of Rights and Freedoms. For example, what is an “equivalent” school, a service “of equal quality”, “a sufficient number”? The legislation can recommend criteria, but those criteria must be defined.
A basic problem comes from the fact that the people involved have different perceptions. For the litigant, it is a matter of recognizing a right. For their lawyer, it is a question of a government obligation. Very often, for the government, it is a problem because the claim is seen as political more than legal.
In education, which is a critical area if there ever was one, a 2016 decision of the Supreme Court of British Columbia calls into question a good portion of what the linguistic minority takes for granted. That decision has been largely supported by the Court of Appeal. Justice Russell referred to Supreme Court of Canada decisions that have recognized and clarified the rights, but she provided a surprising application of them, implicitly asserting that only the minimum should be done because assimilation is inevitable either way. She felt that the numbers would be enough to justify the right to a school if it was cost-effective. The justification would be established if an English-language school had to be set up for the same number of anglophone students. The need to do a comparison was accepted, but the comparison would only be done if a similar anglophone school existed in the service area.
The Supreme Court of Canada had, however, already decided that the minority language representatives were in a better position to determine when a school was necessary and where it should be located. The court stated that the standards applicable to the majority were not acceptable. However, Justice Russell said that not too much attention should be paid to the opinion of parents because they were not objective. What should be referred to is the hypothetical concept of “reasonable parent”. That case mostly focused on the right to physical facilities comparable to those of the majority. But the justice was of the opinion that the word “facility” rather referred to an “equivalent educational experience” than to a building. That “educational experience” would be analyzed with respect to a number of factors, with the quality and the location of buildings in a physical sense being two among many others. In reality, the deference to the judgment of the minority language school board would be minimal. The justice made that point by stating that the francophone school board's decision could not be accepted if it created obligations that are inconvenient for the government, taking into account the fact that the government is responsible for many other social benefits. This means that the financial considerations extend well beyond those that apply to education. The obligation to consider the past errors and injustices is forgotten.
The justice also said that it would not be practical to consider the need for equivalence for all minority schools, and that it would be unacceptable to create new schools simply to prevent the minority from enrolling their children in majority schools. Equivalence, according to her, is a threshold, with the right being that of respecting a proportionality rule.
All those expressions and categories seem very artificial to parents who simply want an establishment that is right for their children's education. There was extensive expert evidence on cultural attachment, community ties and the role of schools as gathering places for the minority, but the justice concluded that the socio-linguistic evidence was not useful. Even the opinion of teachers and other members of staff from the minority school was not accepted because, according to the justice, it did not have the hallmark of authenticity. She concluded that chapter by stating that the creation of a school, after all, was not a remedy to a social ill.
I will stop here, as the justice has arrived.