Evidence of meeting #120 for Official Languages in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was power.
A recording is available from Parliament.
8:55 a.m.
Liberal
The Chair Liberal Denis Paradis
Let us resume the session. I remind you that we are now in public session.
Pursuant to Standing Order 108(3), we are continuing our study on the modernization of the Official Languages Act.
This morning, we are pleased to welcome Mark Power, Darius Bossé and Perri Ravon, all of whom are lawyers with Power Law.
Mr. Power, you have fifteen minutes or so to make your introductory remarks. Then, there will be some conversation with committee members.
8:55 a.m.
Mark Power Lawyer, Power Law, As an Individual
Thank you, Mr. Chair.
Good morning, everyone.
Thank you for this invitation to discuss with you a subject about which I am passionate, but which is also important for Canada as a whole: the status of the official languages and the future of our communities.
In the few minutes I have, I thought it would be useful to provide a brief historical overview to get us all on the same page and fully understand what is happening today, both in the Senate and the House of Commons, in terms of the modernization of the Official Languages Act.
You have in your hands a small document. I see that even Ms. Boucher has it.
First of all, we must not forget that, when Canada was created in 1867, the status of French was almost not protected. At the time, the talk was about the status of English in the National Assembly, the status of French here in the federal Parliament, in legislation, or in spoken form. Beyond that, there was nothing. Basically, things got off to a bad start. Our forefathers had been promised that French and English would be the two official languages in all areas of activity, but the Constitution did not reflect that promise. It led to an extremely difficult period, which caused French Canada to wake up, especially in Quebec, but not in that province alone.
At tab 3 of the document, you will find a passage, in French, from Graham Fraser's book entitled Sorry, I Don't Speak French. It is followed by the passage in English. On pages 41 and 42 of the French passage, you will find a quite incredible historical account of when the Social Créditistes from Quebec arrived in Ottawa. When they arrived, they decried the English-only menu in the Parliamentary restaurant, the VIA Rail announcements at the Ottawa station, and so on.
French Canadians, especially Quebec francophones, were so successful in their complaints about the state of affairs that it led to the creation of the Laurendeau-Dunton Commission in the 1960s. It produced its first report in 1965 and a real legislative movement. That is why we are talking to each other today. The real legislative movement, of course, was the first Official Languages Act, introduced in 1968 and passed in 1969.
To remind you of the significant path that Canada has taken in a few generations, I invite you to take a look at the document at tab 1. You can read it on the plane, the train, or before you go to sleep. This is the statement by the Prime Minister at the time, the father of Justin Trudeau, explaining what Canada was trying to do when it introduced that first Official Languages Act.
This was not about partisanship. Mr. Trudeau's speech was advocating for decolonization. He said how much French Canadians have suffered. The speech was well received by all parties in the House. It led to the first Official Languages Act, passed in 1969. You will find it at tab 4.
The good news is that the status of French took a big leap forward, and English was also protected. That had never been the case previously. The bad news is that no implementation mechanism worthy of the name had been included. The implementation had to be done in bits and pieces. Each federal institution was responsible for looking after its own needs. As you can imagine, when a minister was interested, things went well, otherwise, they did not.
Then, in 1982, we had the Canadian Charter of Rights and Freedoms. That allowed the status of French especially, but also English in Quebec, to take another big leap forward. A minimum level of education in English was required.
In the 1970s, your predecessors in Parliament, both in the House of Commons and the Senate, began to deplore the inadequacies of the first Official Languages Act. This led to all kinds of interesting debates. I am not talking about the Meech Lake accord, or the one in Charlottetown, but about the Official Languages Act. Those debates culminated in the act that you know so well and in which you are experts. Since then, it has been concluded that it has to be modernized through and through. I am guessing that one of the questions is to determine how to achieve that. You will find the legislative text at tab 5.
Some more fascinating bedside reading can be found at tab 2. It is a speech by Ray Hnatyshyn, who was the member of Parliament for Saskatoon West at the time, at second reading of a bill, followed by a speech by Jean-Robert Gauthier, speaking for the Liberals, once more underlining the lack of partisanship in the issue. Everyone was in full agreement on the need to review the Official Languages Act from top to bottom. That is what your predecessors did in 1988 and it is what must be done now, quick like a bunny, as our mothers might say.
What does the 1988 act do? I want to highlight three things that we see as important for your work.
The first is that the implementation mechanism has to be completely rethought. In 1969, the implementation of the act was vague. In 1988, almost all the responsibility was placed in the hands of the Treasury Board. Why the Treasury Board? Because it is a central agency that is able, as you know, to give other federal institutions their marching orders.
That was a conscious decision, and it received the support of all parties in the House of Commons. The objective was to correct the errors in the first act and to equip ourselves with the ways to proceed if we really wanted to get things done.
That is reflected in Part VIII of the Official Languages Act. It starts at section 46 and is entitled “Responsibilities and Duties of Treasury Board in Relation to the Official Languages of Canada”. That is clear.
The second thing to stress with the 1988 act is, of course, Part VII, which encourages federal institutions to take measures to foster and enhance the development of French and English everywhere in Canada. These are the famous sections 41, 42 and 43.
I have the impression that we are going to be talking about this after my opening statement, but I want to remind you that Part VII of the act only dates from 1988. When it was passed in 1988, it could not be challenged. In other words, in 1988, no one could go to Federal Court to demand that it be implemented. In addition, Part VII was the responsibility of the Secretary of State. Today, we would say Canadian Heritage. It is one of the only parts of the act that is not the responsibility of Treasury Board. At the time, some people criticized the fact that it probably was not going to work. I am sure you see where I am going with this.
In the Senate, in March 1988, Senator De Bané spoke to Lucien Bouchard, who was Secretary of State at the time and was steering the new Official Languages Act through the federal Parliament. What did Senator De Bané say? Let me read you a passage. Unfortunately, this is not in the document you have. However, I am sure you will agree that it is fascinating:
Second, Mr. Minister, I would like to go back to the section 42 that you alluded to. Let me tell you that, personally, I am very pessimistic about the impact that the Secretary of State will be able to have with a diluted section that reads as follows…
He then read the text of Part VII.
As you know, only two or three organizations in the federal government truly have power of coordination: Treasury Board, the Department of Finance and the Privy Council. I predict, Minister, that section 42 will never give you the authority to tell recalcitrant ministers that, under section 42, they are required to take such and such an action in a certain part of the country in order to help you achieve the objectives of the act. As it stands now, Minister, all that provision will do is cause you frustration. Why did Gérard Pelletier, your predecessor as Secretary of State, transfer to the Treasury Board his responsibilities for upholding bilingualism in the public service? It is not because—and allow me to speak freely—he too has a very close relationship with the Prime Minister. No, it is because the Secretary of State's legislation gave him no coercive power over recalcitrant departments. That is why Gérard Pelletier himself asked, at a certain point, for it to be transferred to the Treasury Board which, by law, must approve the budgets of departments and can impose requirements on them. By so doing, he hoped that he would be able to secure the agreement of those recalcitrant departments, by the back door if necessary. If you think that section 42 as worded will give you those powers, I predict that it will become a major source of frustration for you. Sections like that do not give departments the power to make other departments do work if they do not want to do as you direct.
Unfortunately, ladies and gentlemen, Senator De Bané was quite right. Between 1988 and 2005, for French Canadians and anglophones in Quebec, the implementation of Part VII was a tale of major frustration. Part VII did not work.
That is what led Senator Jean-Robert Gauthier to amend Part VII in 2005. On that occasion, Senator Gauthier received support from all parties, first in the Senate and then in the House. His bill, which received royal assent, is found at tab 7. In official language communities, it is known as Bill S-3.
What does the bill do? It makes Part VII open to challenge. In other words, it makes it possible to go to Federal Court. Now, what Senator Gauthier, or any of your predecessors in Parliament, did not do—I don’t think any member here was there in 1988—was transfer responsibility for Part VII to the Treasury Board.
This may seem strange to you, coming from a lawyer, but Senator Gauthier, instead of choosing an administrative route, chose a legal route, and the result was a disaster. But I say that with the greatest respect and the greatest admiration for the person who previously represented the constituency of Ottawa-Vanier. He made a mistake, everyone made a mistake. Everyone underestimated the rigidity of federal institutions.
Why do I say that? Because, last May, the Federal Court said that Part VII means nothing. So Senator Jean-Robert Gauthier's amendment had no result. Essentially, the act as a whole is ailing.
At tab 8, you will find some passages from Justice Gascon’s decision. The case, entitled Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development, essentially, but not exclusively, dealt with the interpretation of Part VII.
I feel it will be useful for your work to read paragraph 213. You will find it at tab 8. It may hurt to read it, but sometimes it is important to understand the problem. Towards the end of paragraph 213 of the decision, Justice Gascon says:
Clearly, the text of the Act reveals that the expression “positive measures” does not mean the same thing as these other types of measures. It clearly does not have the same attributes of comprehensiveness, necessity, precision or sufficiency found elsewhere in the OLA.
Part VII does not say what we wanted it to say.
Let me quote one last passage. This is paragraph 216, and this is where it really hurts. The paragraph begins:
In short, section 41 does not impose specific and particular duties on federal institutions. The language used in subsection 41(2) is devoid of all specificity.
In my world, what do we do when things do not go well before a judge? We file an appeal, which is what is happening here. We will see what the position of the Government of Canada will be on appeal. In my world, winning is what really counts. What does winning look like? Going before parliamentarians and asking for the act to be appropriately amended.
That brings us back to the topic at hand: what to do with legislation that is clearly inadequate? As we see it, the time has come to rewrite the act completely, as your predecessors did in 1988. The time has come to take the act, section by section, and to ask ourselves whether it still makes sense in 2018 or 2019. Sometimes, the answer may be yes. If not, the provisions of the act will have to be improved.
Part VII is not the only one that must be rethought. We must also consider the major changes that have taken place in Canada over the course of time.
Let me invite you to look at tab 10. The wonderful map you will find there is such stuff as dreams are made on. It tells us that French can survive outside Quebec.
None of those schools outside Quebec existed in 1982. Some of them, in Nova Scotia, were established through the efforts of the member for Sackville—Preston—Chezzetcook. It is a fact that our communities are doing better than ever. But the Official Languages Act of 1988 does not reflect the impact of school administration. School boards are not major players. Very recently, the proposal has been made, through Ms. Joly and Mr. Brison, to amend the federal government's Official Languages Regulations to recognize the existence of a school as a sign of a community's vitality. However, that is all. We have to rethink the act in light of the fact that French Canada is doing much better than in the 1970s and the beginning of the 1980s.
Ideas are coming from all sorts of sources. There are good ideas and ideas that are less good. Let me invite you to take a look at tab 6. There you will find a list as long as your arm, in French and English, of all kinds of bills that tried in vain to amend the Official Languages Act before 2015, that is, before the last federal election. You have ideas of your own. You and the senators hear all kinds of witnesses proposing ideas for reform that are basically good.
In conclusion, in our professional capacity as lawyers, we have four recommendations for you.
First, more power must be given to the Treasury Board. In the 1988 act, everything attributed to the Treasury Board as a central agency was optional. In 1988, it was anticipated that the central agency could act. Instead, we should demand that one central agency be responsible for the official languages.
Second, official languages communities must be given a right to participate and a right to be consulted before major governmental decisions are made. Of course, I am not talking about a right of veto; I am not that naive. The idea is to make sure that official languages communities, language communities in general, can participate in public debates before major decisions are made, just because it is in their interest. We do it for indigenous peoples and rightly so. We should also be able to do it for French-speaking Canadians and English-speaking Canadians.
Third, there must be an appropriate accountability framework. By that, I mean an administrative tribunal that can hear and deal with disputes or problems with the implementation of the act. But the role and responsibilities of Canada's Commissioner of Official Languages must also be rethought. They go hand-in-hand. Some things are going well but some things are going very badly.
Fourth and last, the rest of the act must be rethought. The obligations that should be in the act must be rethought. The rights that should be granted in the act must be rethought. The list is very long. I know that some witnesses have already begun to draw up that list. You have your own ideas. The message is that this federal act needs to be rethought and passed once more, and the sooner the better.
Thank you for your attention.
9:10 a.m.
Liberal
The Chair Liberal Denis Paradis
Thank you very much, Mr. Power.
We will go immediately to comments from our colleagues. We will begin with Mr. Clarke.
9:10 a.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Thank you, Mr. Chair.
Good morning to all three of you. Thank you for being here.
Your presentation was excellent, Mr. Power, as usual. We covered an impressive quantity of material with you in 15 minutes.
I would like you to provide further explanations on the implementation aspect. Here, we often talk about the content of the act, but we talk about its implementation less often.
You mentioned that it should perhaps be centralized within a specific agency or department such as Treasury Board. Could you expand on that aspect and continue to tell us how, in your opinion, it would be possible to strengthen the act's implementation?
9:10 a.m.
Lawyer, Power Law, As an Individual
Thank you for your question, Mr. Clarke.
There are two parts to my answer.
First, I invite you to look at tab 5 of the document. There, you will find the text of the current act. The page numbers are at the bottom. If you go to page 22, you will see the sub-heading of part VIII, “Responsibilities and duties of Treasury Board in relation to the official languages of Canada.” Paragraph 46(1) is entitled “Responsibilities of Treasury Board”. Afterwards, paragraph 46(2) entitled “Powers of Treasury Board” begins as follows:
(2) In carrying out its responsibilities under sub-section (1), the Treasury Board may[...]
Then, there is a list of all sorts of nice powers. I will make a very concrete recommendation: you need to replace the word “may” with the word “shall”.
Secondly, Mr. Clarke, let's stay on the same page and look at paragraph 46(1), which states that “the Treasury Board has responsibility [...] for parts IV, V, VI” of the act. You should instead specify here that Treasury Board is responsible for the enforcement of the entire act, or certainly for part VII, at the very least.
9:15 a.m.
Conservative
Sylvie Boucher Conservative Beauport—Côte-de-Beaupré—Île dOrléans—Charlevoix, QC
At this time, part VII is not included, correct?
9:15 a.m.
Lawyer, Power Law, As an Individual
Precisely, and I recommend that you add it.
9:15 a.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Should we add only part Vll, or the rest of the act as well?
9:15 a.m.
Lawyer, Power Law, As an Individual
In my opinion, Mr. Clarke, we need to add the rest of the act as well.
9:15 a.m.
Lawyer, Power Law, As an Individual
Allow me to add a third point to my answer, Mr. Chair, and then I will stop talking.
Just like his Conservative predecessors, the current President of the Treasury Board Mr. Brison, has all kinds of powers under section 7 of the Financial Administration Act. I am sorry, unfortunately I do not have the text of that section to hand, nor is it in the document, but I will be able to show it to you at the break. That section of the Financial Administration Act defines the role and mission of Treasury Board. It is in a way the enabling legislation for that central agency. It lists the powers that are brought to bear to serve all sorts of important matters, and I think that those powers should also be used to benefit official languages.
9:15 a.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Could you get back to the content of the Official Languages Act? Are there any sections that do not exist and that you would like to see added to the act?
As an example, should the creation of an administrative tribunal be among the top priorities, in your opinion? I think this corresponds to your third recommendation. I felt a lot of opposition all over Canada regarding the idea of having an administrative tribunal. If that option is not possible, what else would you suggest? Why are you more in favour of an administrative tribunal, rather than granting coercive powers to the commissioner?
9:15 a.m.
Lawyer, Power Law, As an Individual
I have a lot of respect for the work you do, of course, but I don't know exactly who you talk to in Canada, Mr. Clarke. I too travel throughout the country—too much, unfortunately—and a lot of people express the opposite opinion. So, it seems that there is more than one point of view.
At this time, the law requires that a complaint first be filed with the Commissioner of Official Languages, and in almost all cases, that people wait for the result of the investigation before going to Federal Court. That process is cumbersome for the complainants and the organizations, and involves difficult evidentiary rules. The idea behind an administrative tribunal is to facilitate, accelerate and generalize access to justice. And on that, with the chair's permission, I am going to yield the floor to my colleague, Ms. Ravon.
9:15 a.m.
Perri Ravon Lawyer, Power Law, As an Individual
In Canada, one of the areas that exemplifies the notion of the administrative tribunal is human rights. The Canadian Human Rights Act mentions an administrative tribunal which has the power to issue binding orders and impose sanctions. The whole regime is explained in it in detail. At tab 14 of the document, you will find the act that creates that tribunal and explains how to access it, as well as the recourse it offers to litigants.
That example is interesting. In fact, it exists elsewhere than solely at the federal level. All of the provincial human rights regimes in Canada have a specialized administrative tribunal. That is the norm.
9:15 a.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Are there examples of administrative tribunals that deal with language rights elsewhere in the world, for instance in Belgium, or Switzerland?
9:15 a.m.
Lawyer, Power Law, As an Individual
Unfortunately, I do not have that information.
9:15 a.m.
Conservative
9:15 a.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
It would be interesting to hear about the experience of another country that has created an administrative tribunal responsible for language rights.
9:15 a.m.
Conservative
9:15 a.m.
Lawyer, Power Law, As an Individual
In the final analysis, human rights and linguistic rights, although they are guaranteed by different provisions of the Constitution Act, 1982—section 15 and sections 16 to 20, respectively—are both fundamental and constitutional rights for which we need strong monitoring and implementation mechanisms.
Of course, there are differences. However, I think it's interesting to take inspiration from the human rights area, as it offers very useful precedents regarding monitoring and sanctions. Of course, you have to be careful because certain provincial human rights systems function better than others.
Pursuant to the Canadian Human Rights Act, the complainant first submits his complaint to the Canadian Human Rights Commission, which investigates before deciding to refer the file or not to a human rights tribunal. That tribunal will hear the parties, listen to their comments, study the evidence, and then issue binding orders and impose sanctions.
9:20 a.m.
Conservative
9:20 a.m.
Mona Fortier Ottawa—Vanier, Lib.
Thank you, Mr. Chair.
Thank you for being here today. Your expertise is very useful in determining how we will proceed with modernizing the act.
Based on your expertise, how should we proceed? For instance, Senator Cormier conducted a very interesting consultation, which gave rise to some reports. We are examining all of that to determine how we will go about modernizing the act.
People have submitted many suggestions. I believe that to begin this modernization, we must mobilize not only the official language communities everywhere in Canada, but all of Canadian society. I am curious to know how you view this.
As you know, we are running out of time to adopt a bill before the next election, planned for next year. What do you think we could do?