Official Languages Committee on Nov. 20th, 2018

[Mark Power]

To respond to the premise of your question, Mrs. Fortier, I must say we think the communities and Canada as a whole are mobilized over this issue. The official language minority communities and francophones in Quebec have been criticizing certain structural problems in the act for years now.

What about the anglophone majority? It's fallen in love with French. People in Vancouver, Calgary and Toronto line up to enrol their children in immersion programs. It doesn't just appeal to francophones outside Quebec and Acadians either, but also to anglophones who would prefer to avoid line-ups and spend more time with their families.

So the communities are mobilized. In my way, I reject the premise of your question.

That being said, we of course recommend that you conduct consultations. However, extensive consultations have already been held. You heard from many witnesses during your study on access to early childhood services in the minority language, which led to a recommendation on modernizing the act, and your Senate colleagues have done a herculean job to date. What's already been said must clearly be taken into account. Is it necessary to conduct consultations on the issue over two or three years? No, I don't think that's necessary since much consultation has already been done. You could do as judges do and take judicial notice of the work your Senate colleagues have done. The Office of the Commissioner of Official Languages has also conducted consultations. It's heard from thousands of people, and that's a good thing.

Times have changed. With smart phones and all the technology, the situation in 2018 is not what it was in 1988. It's not like it was at the time of the B and B Commission. We don't need to consult people for years on end. A few months would be enough, particularly when people are aware and have already had a real chance to participate.

My colleague Mr. Bossé is absolutely right to remind me of the scope of the consultations that Ms. Joly conducted in order to develop the action plan. People were heard. Anglophones and francophones talked about the action plan during those consultations and about the deficiencies noted in the act.

In short, what's needed now is action. Is it realistic to think a bill can be passed before the election? Probably not. However, the official language situation requires that the federal government take action soon.

As a Franco-Ontarian with a young daughter who attends a francophone school, it reassures me to hear the main parties and the government say something will be done, but it troubles me not to know what will in fact be done or when.

[Mona Fortier]

Thank you. I wanted to hear your opinion on that.

I've really been upset since last Thursday over what's happening in Ontario. How can the act protect the gains that have been made across the country? Should we take a look at how the federal-provincial agreements and cooperation within Canada can help us revise the act in a way that strengthens federal institutions and protects the rights and services provided across the country? Is there a connection that should be made with the exercise of modernizing the act in which were currently engaged?

[Mark Power]

Yes. I have two comments on that point.

First, you'll find the wording of the federal act at tab 5 of our document. The page numbers are noted at the bottom. On page 20, you'll find the wording of part VII, which—let's tell it like it is—is cancerous to say the least. If you read section 43, at the bottom of the page, what are the current powers of the Minister of Canadian Heritage? The minister isn't required to do anything but nevertheless has powers. What I want to point out is that certain powers were conferred on the Minister of Canadian Heritage under Lucien Bouchard's act. For example, the minister may take measures to "enhance the vitality of the...minority communities," as provided under paragraph 43(1)(a); to "encourage and support the learning of English and French in Canada," under paragraph 43(1)(b); to "encourage and assist provincial governments to support the development of linguistic minority communities," under paragraph 43(1)(d); or to "encourage and assist provincial governments to provide opportunities for everyone in Canada to learn English and French," under paragraph 43(1)(e).

These provisions definitely constitute the legislative foundation on which the Government of Canada may, if it so wishes, exercise its spending power to fund, in whole or in part, the start-up of a Franco-Ontarian university, for example. This was discussed this morning in Le Devoir, for example. That power could also be exercised to fund, in whole or in part, the operation of an office of the commissioner of official languages or an office of the French-language services commissioner. I believe that's already being done in the territories and perhaps even in New Brunswick.

That was my first comment.

Here's my second. Sure, the government may occasionally do something in times of crisis. That's fine, but it's not fantastic. The reworked act should clearly include a revision of part VII. That would be a revision of the federal framework for funding allocated to the provinces for official languages. I'm obviously talking about the federal government here, not the provinces. I'm anticipating the question, or perhaps I'm a bit paranoid, but what I mean to say is that's being done. That's what I'm trying to say, Mrs. Fortier and Mrs. Boucher.

Tab 15 of the document contains a federal statute respecting the most provincial jurisdiction there is, health. Remember the page numbers are at the bottom. The funding criteria appear on page 5. The federal government says it pays out large sums of money in exercising its spending power but requires that certain conditions be met.

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

That doesn't appear in other acts.

[Mark Power]

That's correct, Mrs. Boucher.

With your permission, I'm going to state those funding criteria:

(a) public administration; (b) comprehensiveness; (c) universality; (d) portability; and (e) accessibility.

Why not add a paragraph (f), which would be linguistic duality, to this act or to our own? Is that dreaming in technicolor? No.

Now I ask you to go to tab 16.

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

We'll have covered the entire document.

[Mark Power]

We're here to work, after all.

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

Yes, I like that.

[Mark Power]

Tab 16 contains a bill sponsored by the late Mauril Bélanger. What did he propose? He suggested that we add this paragraph (f) to the Canada Health Act. I think we could improve Mr. Bélanger's bill by including the idea in the Official Languages Act.

To answer your question, Mrs. Fortier, I must say that fortunately something can be done to the present act. As for what comes next, some very good ideas have already been advanced, and we think they can and must be implemented as part of a modernized federal act.

[The Chair, Liberal, Denis Paradis]

Thank you.

Mr. Choquette, you have the floor.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

Mr. Power, dear colleagues, thank you very much for being here today. Your presentation is informative and will guide us, and we thank you for that. It will guide both our thinking and the recommendations our future report contains. Thank you very much.

I'd like to go back to what Mrs. Fortier just said. We're currently going through a crisis. We're naturally trying to preserve the gains we have made, but we've suddenly realized that some gains we thought we had made, such as the Office of the French Language Services Commissioner, remain fragile. As I understand it, there are three official language commissioners: one at the federal level, another in New Brunswick and a third in Ontario, in the Office of the French Language Services Commissioner. The francophone university project in Toronto falls under another heading, education, which is a provincial jurisdiction. Anglophones and francophones have succeeded in managing their school boards, but early childhood and postsecondary education are beyond their control.

Are there any changes that we can make, as part of the revision of the Official Languages Act, to improve respect for language rights and, of course, access to education in both official languages across the country?

[Mark Power]

I have two or three comments in response to your question, Mr. Choquette.

First, without wanting to repeat what I've already explained, I don't think anyone should underestimate the fact that, when federal parliamentarians say they're in favour of official languages, that's both symbolically and genuinely useful and important for the linguistic communities, even in disputes, fights and crises, to borrow the term you used, at the provincial level.

I personally want to thank all of you here, in particular, Mr. Clarke, who has expressed his dissatisfaction in this matter, but also the present government and its members. As a francophone outside Quebec, I find this reassuring and I'm grateful to you. It's very important. I think this is part of the federal role in the federation.

My second comment kind of follows in the wake of what Mrs. Fortier began to say. You mentioned early childhood and postsecondary education. For years, the Canadian government has granted millions of dollars to the provinces and territories and set very few conditions and, in some instances, none. That makes absolutely no sense in 2018. Responsibility, transparency and accountability have become values that can be properly used or misused, as we saw last Thursday. It's illogical for the Canadian government to allocate so much funding to Toronto without requiring something in return, such as that it keep the promises it made to francophones. I'm stating this in a general way, but that's enough for the moment.

For my third comment, I want to go back to the modernization of the Official Languages Act. It's the issue of the moment after all, despite last Thursday's surprise. As witnesses have already recommended to you, the Official Languages Act should include a section requiring, for example, that an OLEP or a federal-provincial education agreement be adopted every five years. That section could also require that a five-year action plan be adopted. I'm referring here to what the Fransaskois recommended to you. This would be a structural and structuring way to enable the federal government in future to monitor the money it gives to the provinces more closely. If the provinces knew there would likely be consequences, they would think twice or even three times before cutting the programs and services that are dear to us.

Federal support for education from kindergarten to grade 12 is not unusual, Mr. Choquette. Neither francophones outside Quebec nor anglophones in Quebec had any constitutional right to their schools in the 1960s. What did the Canadian government of the time, the government of Justin Trudeau's father, do? It put money on the table, but with conditions attached, and those conditions were met. It's time to reinstate that notion of reciprocity, more specifically by adding provisions to the act respecting responsibility, transparency and accountability.

[François Choquette, NDP, Drummond, QC]

Do I have any time left, Mr. Chair?

[The Chair, Liberal, Denis Paradis]

Just 10 seconds.

So we'll immediately go to Mr. Rioux and Mr. Arseneault, who will share their speaking time and will have three minutes each.

[Jean Rioux, Saint-Jean, Lib.]

Thank you, Mr. Chair.

I'm going to continue on the same subject as Mr. Choquette.

We've just completed a tour of western Canada, where people constantly talked to us about accountability. Representatives of the school boards told us they didn't know whether they were receiving all the money they were entitled to.

You addressed the issue. Is there any more specific action that could be taken to guarantee accountability and thus to ensure that the school boards in fact receive the money the federal government sends them?

On another topic, I was told early childhood didn't fall under any agreement respecting linguistic minorities. Some people from Vancouver told us that four out of five francophone children didn't have access to early childhood services in their language.

[Mark Power]

I don't really know where to begin, Mr. Rioux.

Things are going well in some respects, as you can see from the map of Canada's francophone schools, but poorly in others. We need a lot more early childhood spaces, for example, and we need the money allocated to the provinces and territories to be spent for the purposes for which it is granted.

You told me you had heard from representatives of the Conseil des écoles fransaskoises, which specifically proposes that a paragraph be added to the act under which the Government of Canada "ensure[s] that the funds transferred to the provinces and territories are actually spent as provided for in the agreements negotiated." If the act so provided, officials would have a completely different mission, and the debate itself in Parliament would probably be quite different as well.

I briefly want to add that the transparency and accountability issue obviously involves the minorities, such as the Fransaskois and the Franco-Colombians, but also concerns the majority just as much, perhaps even more so. In British Columbia, the Vancouver School Board is making cuts to immersion programs. And yet federal funding has remained stable, and the province is rich. How is it, then, that Ottawa winds up paying as much money as previously to fund fewer immersion spaces? Where does that money go? How is it that I'm the one asking the question? It makes no sense.

I don't think the revision of the act should concern only the linguistic minorities. It's a societal and national issue.

[The Chair, Liberal, Denis Paradis]

Now we'll continue with Mr. Arseneault.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chair.

I have a lot of questions, but you are so—how should I put it—eloquent, transparent and clear.

[Mark Power]

That's quite a compliment for a lawyer.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Yes.

I have only three minutes.

The more we look at the issue and share ideas, the more we see that we'll have to focus on the transfer of funding. Funding is crucial, and that's how the provinces get hurt. When the federal government allocates these enormous amounts to them, we must ensure they meet their obligations.

Going back to section 43 of the act, I don't like the wording where it states that the Minister of Canadian Heritage may take measures to "encourage and support the learning of English and French." That's paragraph 43(1)(b). I don't like the word "encourage". Since we're talking about accountability for funding transfers, it would be a good idea to use another expression such as "to ensure" the learning of French. The words in paragraph 43(1)(b) may sound right in church on a Sunday morning, but they're totally meaningless from a legal standpoint.

Don't you think that, to achieve what you're proposing, we should replace that wording with something more restrictive that will ensure that federal funding granted under agreements with the provinces goes to the right places?

I would draw a parallel with the mini-crisis involving the Quebec government and the federal Minister of Health, Ginette Petitpas Taylor. On the one hand, the minister claims there can't be two health systems in Quebec if the province wants its share of federal transfers. On the other, Quebec tells us to keep our nose out of its business. It's exactly the same situation.

How do you think language obligations should be enforced in the provinces in those circumstances?

[Mark Power]

First, as a lawyer, I think what Canada needs, and what we need as francophones, as Acadians or as English-speaking Quebecers, are better rights. The only realistic thing to do is to amend the federal Official Languages Act. It would be unrealistic to consider constitutional reform. We need tangible results, and that will be possible if we amend the act to provide for a bigger or better framework for what the Canadian government does. So I propose that you focus your efforts on Ottawa.

Second, Mr. Arseneault, your predecessors in Parliament previously sketched out what part VII could be. I invite you to go back to tab 5 of the document. You referred us to page 21 of the act, but let's go instead to the middle of the next page, where the powers of the Treasury Board are listed. I want to raise a new point here. All of you have deleted the verb "may" from subsection 46(2) and replaced it with the verb "shall". Now I want to underscore some other words.

What can Mr. Brison do in his capacity as Treasury Board President. According to paragraph (a), he may "establish policies". Under paragraph (b), he may "recommend regulations to the Governor in Council". According to paragraph (c), he may "issue directives to give effect" to certain parts of the act. These are quite restrictive provisions, Mr. Arseneault. Under paragraph (d), the Treasury Board President may also "monitor and audit federal institutions" in respect of their obligations. According to paragraph (e), he may "evaluate the effectiveness and efficiency of policies and programs."

Let's take another look at these verbs and transpose them to part VII, or, even better, let's rewrite part VII to assign those obligations to the Treasury Board; let's transform the word "may" into "shall", and your successors will be dealing with much less serious problems in a generation or two. The structural problem at the federal level is federal-provincial/territorial accountability, but also governance. That requires the parties to shoulder their responsibilities.

I'm working from the assumption that Ms. Joly has the best intentions in the world. However, the current act doesn't give Ms. Joly or Mr. Brison the necessary powers to do what must be done for us as francophones.

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

They don't have enforcement powers.

[Mark Power]

That's correct.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Arseneault.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

May I have another 10 seconds?