Official Languages Committee on Nov. 20th, 2018

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

I don't mean to take anything away from Ms. Joly, but she's not the Minister of Canadian Heritage; it's Pablo Rodriguez. It's a bit complicated and it's sad. Mr. Rodriguez is the Minister of Canadian Heritage, Ms. Joly is the Minister of Tourism, Official Languages and La Francophonie, and then there's the Treasury Board.

Regardless of party, which of those three ministers has the most power? Is it Mr. Brison, Mr. Rodriguez or Ms. Joly?

[Mark Power]

In order, it's Mr. Brison, Ms. Joly and Mr. Rodriguez. Why? Because, when the government reshuffled portfolios, a decree was issued providing that powers normally attached to Canadian Heritage would follow Ms. Joly to her new position. That's the technical answer to your technical question.

Mrs. Boucher, it shouldn't change this way every two or three years, even though intentions may be good. In our view, and as professionals, a proper structure should be codified in the act so that it can't be changed by decrees or alternating government cycles. We think the official languages question is important enough that we can move beyond that.

I admit I've lost my train of thought. I apologize, Mrs. Boucher.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

If I understand your logic, statutes, such as the Official Languages Act, are important enough that they should not be politicized.

We are politicians, but we're nevertheless quite open. An act should be strong enough to remain intact and follow the established calendar if there is a change in the party in power following an election. Isn't that true?

[Mark Power]

All the parties have either contributed directly to the Official Languages Act or made specific suggestions to improve it. The Liberals got the ball rolling in 1969; the Conservatives are responsible for an act that was excellent in 1988; and the New Democrats made all kinds of suggestions along the way.

Now's the time to take action. The Liberals are in power. We need a better act for anglophones and francophones across the country.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Thank you very much.

[The Chair, Liberal, Denis Paradis]

Thank you, Mrs. Boucher.

I turn the floor over to Mr. Choquette.

[François Choquette, NDP, Drummond, QC]

Thank you very much, Mr. Chair.

I'd like to go back to the Gascon judgment. That judgment really shook up all the communities across Canada as a result of the judge's interpretation of part VII.

I appreciated the fact you said that he had made an interpretation that differed from yours and that it was not what legislators wanted at the time.

Part VII must be revised, of course. In particular, we're talking about positive measures, which are not defined.

How do you think those positive measures should eventually be defined?

[Mark Power]

I'll begin by emphasizing that the Federal Court judgment is long, detailed and thoughtful and is a source of ideas for a revision of the act, including part VII.

The government needn't attempt to have the judgment overturned on appeal, or even to institute an appeal, if the Federal Court's ideas were to be applied.

With regard to the substance of part VII as such, we need clarity and detail first and foremost. Those are the two ideas that emerge, that rise to the surface, following the Federal Court judgment.

The Federal Court tells us it's far too general and very vague. Even worse, it tells us that Parliament was very clear in other parts of the act but not clear in part VII.

Senator Gauthier obviously did his best and did us a favour by amending it in 2005. Ironically, the Federal Court, in its own way, may have done us a favour as well last May.

We have diagnosed the problem, and we know the necessary remedy. It's time to take action by drafting a part VII that is detailed, describes a proactive and systemic approach and contains positive and targeted measures, while calling for active citizen participation. My colleagues, M^e Ravon and M^e Bossé, and I said so, but the Commissioner of Official Languages also said it in his annual report.

Can you guess the year? It was 2006.

We've been talking about it for a long time. Now let's take action.

[François Choquette, NDP, Drummond, QC]

The regulations were recently revised. Some stakeholders and organizations wondered why we didn't talk about regulations under part VII. That might've clarified certain obligations pending a revision of the act. That's a result we're expecting from this part VII.

There have been debates on this. Unfortunately, the regulatory review is done. Next, if I correctly understand it, regulations should be made under this part VII.

[Mark Power]

There are no doubt things I don't know about. However, there is theoretically nothing preventing the government from making regulations under part VII soon. Theoretically, it can be done.

On the other hand, Mr. Choquette, the real question is whether the official language communities need a band-aid or treatment for the underlying problem.

Sometimes a band-aid is good, but it's not a long-term solution. We need a reform of the act. True, the Federal Court judgment will encourage us to clarify our thinking on part VII.

For a year and a half, your colleagues in the Senate have been examining all kinds of issues related to the act, not only to part VII and the regulations. Your predecessors did the same. That's why we felt it was useful to include, at tab 6, a list of bills introduced before the last federal election.

It will take more than regulations to solve the problem, Mr. Choquette.

[François Choquette, NDP, Drummond, QC]

Lastly, let's talk about the Office of the Commissioner of Official Languages. You began to explain the need to review somewhat the commissioner's role and the provisions of the act respecting the commissioner's office. For example, you recommend that an administrative tribunal be added. Are there any other aspects of the act concerning the commissioner's office that should be reviewed, revised or improved?

[Mark Power]

Mr. Choquette, it would already be a very good thing if those two items were implemented.

I would also emphasize how actively involved the federal commissioner, Mr. Théberge, is in this societal debate. He recently proposed some new and constructive ideas for moving matters forward in a different way.

Since you, as MPs, want tangible ideas, here's a tangible example. Under a new version of the act, the Commissioner of Official Languages could be required to prepare evidence files that would then be produced in court, either in Federal Court or in an official languages administrative tribunal. However, preparing evidence is a costly undertaking. It's complicated and it takes time.

Consequently, it would be helpful for complainants to know that this evidence and the legal argumentation are substantiated when they're submitted to the body that decides their cases, whether it be a tribunal or a Federal Court judge. In most cases, the complaints are founded. Some may be frivolous, of course, and will have to be dismissed.

At the moment, the burden of proof is solely on the complainant. The commissioner may choose to file evidence if he wishes. I think it would be useful for the future of French and the official languages that the commissioner be required to produce evidence files in certain cases. That would represent a very significant change for access to justice and—here's an ironic comment from a lawyer—would reduce the need to put the matter before a tribunal. The quality of the evidence would be better, which would encourage transactions.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

Mr. Clarke, you have the floor.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Two weeks ago, we heard from senior officials at the departments of Canadian Heritage and Tourism, Official Languages and La Francophonie. Exactly how they were divided was unclear.

I asked them whether they had begun to take their first step, regardless of what it might be, in the process of revising the act. Someone answered yes. I asked what that first step was, and the answer was that they had to organize consultations, slowly but surely. I asked whether that first step had begun. I think he answered that that was not really the case, but I'll have to look at the transcript of the meeting. The witness seemed to be saying that the officials in question were currently in talks with the minister to determine how to move forward and begin the first step.

Mr. Power, I'm recalling these facts in order to tell you that I don't think a major revision of the act will take place between now and the next election. I want to be logical and efficient for the benefit of the OLMCs across the country, and I don't want to repeat myself. However—I think you addressed this question indirectly with Mr. Choquette—the judgment that was rendered in British Columbia is really negative for language rights in Canada. However, it significantly illustrates the deficiencies of part VII of the act.

Consequently, if I tell you, sadly, to abandon hope of a major revision of the act before the 2019 election, what legislative measures could the government introduce immediately without waiting for that revision? I'm thinking here of measures that can be easily passed in the House in the six months we have left in which to sit.

[Mark Power]

I don't know whether you'll like my answer, Mr. Clarke, but I prefer to tell you the truth. The next version of the Official Languages Act must be properly done. However, it will take a little time for it to be properly done. I obviously recommend that you proceed quickly and allocate the necessary resources, and I hope that's what the government will do. However, I don't think it would be prudent to adopt a bad act soon, at any cost, without awaiting the outcome of all the work.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Without producing a completely new act, could we simply amend part VII of the act?

[Mark Power]

Mr. Joly...

[Voices]

Oh, oh!

[Mark Power]

Mr. Clarke, please pardon that sign of fatigue.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

I thought I was making you sad by telling you it wouldn't be done before 2019. In fact, unlike the Liberals, I don't know the truth.

I'm asking you whether it would be possible simply to amend the act without completely changing it.

[Mark Power]

The act is sick. It's cancerous. It requires major surgery. More than a band-aid, it needs chemotherapy.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

However, let's not forget the judgment that was rendered in British Columbia, and which could quickly become case law in a year. By the time the new version of the act comes into force, in perhaps two or three years, if we wait until after the election, we must prevent another judgment from confirming this one. Consequently, what can we do right away? How can we amend part VII to prevent immediately this judgment in British Columbia from becoming case law?

[Mark Power]

First, Mr. Brison, the Treasury Board President, could take action by exercising the powers conferred on him under section 46 of the act. That would already go a long way. That may mean making our government friends do their homework, but that's why they're here. That would be something tangible and possible.

Second, and here I'm speaking as an individual, not on behalf of the Fédération des francophones de la Colombie-Britannique, I see no reason why we couldn't immediately file an appeal from that judgment in the Federal Court of Appeal, since all the parties currently agree the act should be reformed. That would be another tangible action, but you'll probably want to call the Fédération in Vancouver and request its opinion on this.

Specific administrative measures may indeed be taken, for example, with respect to the federal-provincial agreements currently being negotiated, in education, in particular. Many things can be done by various means other than under the act.

Whatever happens, I encourage you to continue your work. Thus, in the worst case, we won't have to go back to square one at the start of the next Parliament, regardless of who's in power, and we'll be able to take up the torch again and pass an act that suits everyone.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Are there currently any other cases before the Canadian courts in which one of the parties might want to rely on the BC judgment?

[Mark Power]

Yes, there are all kinds of complaints.