Official Languages Committee on Nov. 20th, 2018

[Perri Ravon]

First of all, generally speaking, the reparations that a human rights tribunal awards go instead to the victims. That's the main objective. Then there may be penalties, such as administrative or monetary sanctions, for example, but the primary role of a human rights tribunal is to remedy a violation that has been committed. We're talking about damages, and an amount of money is offered to the victim as compensation, as you see in other areas of law.

In addition to that, a tribunal may award declaratory relief by stating that a person's rights have been violated. There may also be various forms of injunction. For example, the tribunal could inform an organization or institution that it must take or stop taking a given action. Lastly, there could also be punitive sanctions. That's sort of what you were saying.

You have to think of the entire range of potential remedies that a tribunal can use. That's the benefit that this kind of institution represents. It affords a great deal of flexibility. In the area of language rights, a tribunal could opt for the remedies that we consider most appropriate in that field. They would be somewhat tailored to the situation.

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

Do you have in mind any examples in which a human rights tribunal had to sanction a Crown corporation by imposing monetary or administrative sanctions? What I most often hear is that it would be ridiculous to create a tribunal that would sanction the government. With respect to a human rights tribunal, this kind of situation has definitely occurred over the past 30 years. As I previously said, you may send us that information by email or some other means.

[Perri Ravon]

Yes, I think it would be preferable for us to provide some specific examples.

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

All right.

We need to know how the tribunal proceeds and when that occurs. When I speak with people about this, they all tell me that what I'm saying is ridiculous, that no one would ask a department to pay money to the central government for contravening a law of that same government. It's a vicious circle. That must certainly happen with a human rights tribunal.

[Perri Ravon]

You have to understand that the money generally goes to the victim.

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

Yes.

[Perri Ravon]

Everything is oriented toward the victim. Whether it's a human rights violation or a language rights violation, the money goes to the victim, not to the government.

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

I see.

[The Chair, Liberal, Denis Paradis]

Mr. Power, do you want to add a comment?

[Mark Power]

Yes.

Mr. Clarke, I can assure you it's not ridiculous. We'll explain it to you in writing. Depend on us and we'll give you the information you need.

At tab 12, you'll find an excerpt from the Official Languages Act of Nunavut. It's far away, but the purpose is to see how things have changed in Canada since 1988. What do we see here? We see an official languages promotion fund that is supported by court orders. We're not talking about the personal enrichment of anglophones or francophones. It's possible to view this as a community development tool.

My third and final comment will be very brief. This may seem quite curious coming from a lawyer, but I would point out that the main purpose is to avoid going to court. Yes, it's important to talk about an administrative tribunal and a plan B when things don't work out, but, basically, you have to rethink administrative management in order to avoid the courts. And for that, you need a central organization that actually takes action rather than one that "may" take action.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

Now I turn the floor over to Mr. Samson from Nova Scotia.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Thank you very much, Mr. Chair.

Colleagues, thank you very much for your outstanding presentation. It has informed us on many aspects and further clarified the issues in our minds.

I'm going to follow on from the question by my colleague Mr. Deltell. I don't know whether this is a good thing, but I would've answered it the same way you did, Mr. Power. There are two founding peoples in Canada. The federal government is responsible for enforcing the Official Languages Act for both the francophone minorities outside Quebec and the anglophone minority in Quebec. It is essential that we have the power to ensure it is complied with. We can definitely ask that it apply to health or other sectors, but it's essential the provinces have the power to enforce the act.

My questions will focus on education.

The Official Languages Act doesn't mention the education sector. How can we include it in the act? The Supreme Court has held that the school boards or francophones have a right to schools in their language. That's not included in the act, but how can we include it?

[Mark Power]

First, the federal Official Languages Act touches on the education issue. Take a look—not now but later—at paragraph 43(1)(b) of the act, which concerns encouraging and supporting the learning of English and French. That was good in 1988, but it's bad in 2018. Things have changed.

Second, the consequence for the schools, as illustrated by the nice map at tab 10, is that there are now school governments. As you know, they recently signed a strategic agreement with the Department of Canadian Heritage, and not without reason. The official language minority communities that exercise schools management should have a say in the way the federal funding sent to the provinces and territories for their benefit is spent.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

That leads me to my second question. Shouldn't the federal government forward the money directly to the school boards? After all, they're responsible for doing the work.

[Mark Power]

Mr. Samson, that's already being done in other sectors. The Canadian government sometimes signs agreements directly with community organizations. It has already done that in economic development, but, to date, not in education. Why? I would suggest the following hypothesis. Since significant sums of money are involved, some provinces may prefer to spend that funding as they wish.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

School boards are recognized to a much greater degree in the Canadian Charter of Rights and Freedoms than community organizations. Consequently, they have a power of governance. You mentioned government; that's like governance. Shouldn't school boards have that power, even more so than the health sector? Health is an example of a field where this obligation doesn't exist.

[Mark Power]

Mr. Samson, the point is that the Government of Canada has thus far been inconsistent in the way it signs or doesn't sign agreements with the communities. The basic aim in modernizing the act is to ensure greater consistency. In education, the provinces and territories negotiate agreements with Canadian Heritage for our benefit. Accordingly, what's currently happening is that Mr. Ford and his officials are in talks with Canadian Heritage for the purpose of signing an agreement between Canada and Ontario for my benefit and that of my granddaughter. However, right now, I'm not convinced the Government of Ontario has my best interests at heart.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Mr. Power, I have to stop you, but I know where you're headed, and I completely agree with you. We saw some evidence of that last week.

There's a real property problem in the provinces. We don't have access to properties. The provinces can spend 5, 10 or 20 years trying to buy a property, as is the case in British Columbia, and we're in the process of selling properties that belong to the federal government. That's a specific example. What can we do? What can we change in the Official Languages Act to ensure direct consultation is conducted and so that the needs of the minority are known?

[Mark Power]

I'm going to be more succinct, and I accept feedback.

The Conseil scolaire francophone de la Colombie-Britannique, the CSFCB, submitted a brief to your committee. On page 7, it suggested the exact wording of section to be added to the act. That section would have the effect of requiring the Canadian government at least to consider the official language communities before selling a property. Those communities aren't seeking free properties; they're prepared to buy them, but they must at least have a chance to do so. I'm essentially talking about an option to purchase.

Mr. Samson, I'm anticipating your next question. How serious is this problem? We don't know because we don't enumerate all rights-holders. That's another request that the CSFCB has made; it appears on page 15 of its brief. Personally, I would like to answer to additional questions in the 2021 census.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

I have a final question. You say the Treasury Board "shall" ensure that rights-holders are enumerated, and I entirely agree with you; we've discussed that here.

What would happen if we had a weak government and a weak Treasury Board minister? What should be included in the act to ensure it's complied with, or can the way it's drafted be challenged in court?

[François Choquette, NDP, Drummond, QC]

Good lawyers.

[Mark Power]

Thank you, Mr. Choquette!

I want to think that the two official languages are important enough for a beautiful consensus such as the one you have in your committee to continue. I'm reassured to know there's unanimous support for a beautiful upcoming announcement.

I also want to think that the scenario you describe is only hypothetical. Going back to your scenario, let's imagine things go badly. If the Official Languages Act was reworked so that a central agency was genuinely responsible for its administration, that would make life simpler in the event of court challenges because accountability would be much clearer. It would also reassure the Federal Court judge who might one day have to order it done, or not, to see that the legislator, Parliament, had clearly worked through the issue and intended that the act should actually be enforced.

One clear point emerges from the recent judgment by Judge Gascon, which appears at tab 8. He found that your predecessors didn't really want the act to have teeth. I want to think he's mistaken, and we're counting on you to prove it.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Power.

Mrs. Boucher, the floor is yours.

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

Good morning, Mr. Power.

It's always an honour to have you with us. Your remarks are clear and precise, which is not always the case of those of other lawyers. I congratulate you on that.

All joking aside, Mr. Power, I'm going to continue along the same lines as Mr. Samson.

I agree we should use the word "shall" rather than "may". What should be changed in the act? New responsibilities have been assigned to the Department of Canadian Heritage. It must conduct consultations, but that department is in addition to the Treasury Board. Perhaps I'm extrapolating, but I don't think Canadian Heritage has a lot of power, unlike the Treasury Board. That's what I understand from everything I read.

Canadian Heritage conducts consultations with other federal departments. Apart from that, has the person responsible at Canadian Heritage, regardless of the party in power, ever had enough power to change things with regard to the Official Languages Act, or should we still turn to the Treasury Board?

[Mark Power]

Your question concerns a point of law, and, yes, we are a few lawyers and a few lawyer apprentices. Not everyone drags the Constitution around in their briefcase.

Your question elicits two answers. First, the act confers certain optional powers on Mr. Brison and not on Ms. Joly. Basically, you should repatriate and enhance those powers and not use a common denominator.