Evidence of meeting #135 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 federal.
A recording is available from Parliament.
Liberal
The Chair Liberal Denis Paradis
Pursuant to Standing Order 108(3)(f), we will resume our study of the modernization of the Official Languages Act.
This morning, we are pleased to have Benoît Pelletier, a professor at the University of Ottawa's Faculty of Law.
Welcome back, Mr. Pelletier. You have been here before.
We will proceed as usual.
Mr. Foucher has just arrived.
Pierre Foucher Professor, Faculty of Law, University of Ottawa, As an Individual
My apologies. There were delays downstairs.
Liberal
The Chair Liberal Denis Paradis
Mr. Foucher is also a professor at the University of Ottawa's Faculty of Law. The U of O is my alma mater. Welcome, Mr. Foucher.
As usual, you will each have about ten minutes for your presentation, followed by questions and comments from the committee members.
Let's start with you, Mr. Pelletier.
Prof. Benoît Pelletier Professor, Faculty of Law, University of Ottawa, As an Individual
Very good.
I would like to thank the committee for inviting me here today to discuss an important topic, the modernization of the Official Languages Act.
I would like to congratulate you all on your work to promote and develop Canada's linguistic duality. That brings me to my first point. I will touch on just six points, each one briefly so I don't go over my allotted time.
The act does not mention Canada's linguistic duality. It does, of course, refer to English and French as Canada's official languages. It also talks about the development and vitality of English and French linguistic minority communities. All of that implies that Canada has a linguistic duality. However, the act does not specifically mention the concept, which, I'm told, has been losing so much ground that, as Senator Miville-Dechêne said at a recent seminar at the University of Ottawa, attitudes toward linguistic duality in federal institutions are becoming less and less friendly.
What she said really worried seminar participants, and it made me realize how important it is for Parliament and, ultimately, the Government of Canada, to formally recognize the concept of Canadian linguistic duality. As you know, multiculturalism and bilingualism have already been recognized, and it might be time to recognize Canada's linguistic duality as well.
My second point is international immigration. The Official Languages Act says precious little about immigration, which is absolutely crucial to the vitality and development of official language minority communities, especially francophone and Acadian communities. Their demographic weight in this country is shrinking steadily.
It seems to me that the modernization of the act provides an opportunity to include provisions regarding immigration. However, great care must be taken not to compromise the Canada-Quebec accord relating to immigration. Lawmakers will have to be extremely careful when it comes to respecting the agreement Quebec and the federal government have in place.
My third point is about Canada's international image. Perhaps the Commissioner of Official Languages should be mandated to ensure that Canada's institutions and representatives abroad convey an image of our country that respects the linguistic duality I referred to earlier. In other words, up to now, too little consideration has been given to Canada's international image.
The commissioner has well-established responsibilities here in Canada. Sections 23 and 24 of the act relate to travellers and Canada's offices abroad. I am familiar with those provisions, but the commissioner's role with respect to Canada's international image should be much more clearly defined.
I would also note that the act does not prevail in all cases. According to section 82, only some parts of the act prevail over other federal acts and regulations. In my opinion, that partial primacy should no longer be. I think all parts of the act should prevail.
One issue you probably did not expect me to raise is bilingualism in the Supreme Court of Canada. I am thoroughly convinced that bilingualism is possible in the Supreme Court of Canada. I am referring to section 16 of the act, which covers courts other than the Supreme Court of Canada. That means it is possible to institute bilingualism in the Supreme Court of Canada without seeking a formal constitutional amendment. Anyone who says otherwise is, I believe, mistaken. I have no compunction about raising this important subject.
My final point relates to something you have already heard a lot about: the importance of strengthening the act, giving it teeth. At this time, the commissioner does have important powers, it's true. For one, he has the power to investigate, report and make recommendations, but he doesn't have the power to impose sanctions. I think the time has come to focus on that gap in the Official Languages Act and give the commissioner the power to impose sanctions.
I know quite a few people interested in linguistic rights in Canada have proposed creating an administrative tribunal. I think that idea is worth exploring. I can go into more detail when it's time for questions.
That concludes my presentation.
Liberal
The Chair Liberal Denis Paradis
Thank you very much, Mr. Pelletier.
I will now give the floor to Pierre Foucher.
Professor, Faculty of Law, University of Ottawa, As an Individual
Thank you very much, Mr. Chair.
As the Supreme Court justices say, I concur. I could stop right there, but I will add a few remarks of my own.
The last time I appeared before the committee, we were talking about Air Canada. Now the scope of the discussion has broadened to include the entire act and how to strengthen its application.
As everyone knows, the act is difficult to enforce. More and more things are being allowed to slide. Just yesterday or the day before, a National Energy Board report was published in English only, which is a clear violation of the act. That should not happen. We need to find ways to make sure it doesn't happen again. The Official Languages Act is now 50 years old, and violations like that are completely unacceptable.
That said, how can the Official Languages Act be modernized and improved? I will focus on a few points related to enforcement.
First, I have long called for transferring responsibility for enforcing the act to the Privy Council Office. PCO is crucial to the machinery of government, and making it responsible for enforcement would be very efficient and effective. That's how it worked under Stéphane Dion. Back then, the act worked well. That would be one way to improve enforcement of the act.
Second, and on a similar note, it might be a good idea to clarify Justice Canada's role. The act lists Treasury Board's and Canadian Heritage's responsibilities, but the Department of Justice, though an important player here, is not involved in applying the act.
Third, a number of recent court cases have led to disappointment. In the Air Canada case, for example, the court refused to award damages. Section 77 could be clarified to give judges some ideas. For example, it can state explicitly that, where they find a party to have been in violation of the act, they can award damages if appropriate.
Fourth, there was a lot of talk about administrative penalties during the Air Canada affair. It might be easier to sanction private entities, but the Treasury Board Secretariat can impose administrative or monetary penalties on departments too. Why not adopt a carrot-and-stick approach and make it clear to departmental officials that constant, repeated, ongoing violations of the act may affect their budgets?
The final issue I want to talk about is an administrative tribunal. It could be useful; there are pros and cons. It would be most useful for part IV on language of service, part V on language of work, part VII on positive measures and section 91, a technical provision on linguistic designation of positions. An administrative tribunal's expertise could be very useful in these areas, and having a tribunal deal with matters would be faster and cheaper than going to Federal Court.
There are cons, however, such as potential conflicts with other administrative tribunals that can deal with official languages. There will be legal debates over which body has the power to rule in a particular case. It distances litigants from the court if they decide to seek a judicial review in Federal Court following an administrative tribunal's decision. I don't want to get too technical, but it's important to know that when courts are conducting a judicial review of an administrative body, they tend to respect the administrative tribunal's jurisdiction and decline to intervene unless something unreasonable was done.
In any case, I am not alone in saying that the existence of the court challenges program, if not the details of how it operates, should be included in the act. It's important to remember the court challenges program. If an administrative tribunal were to be created, the court challenges program would have to be authorized to pay for proceedings before the administrative tribunal, not just the courts.
Thank you. I am happy to answer your questions.
Liberal
The Chair Liberal Denis Paradis
Thank you very much, Mr. Foucher.
We will get right into questions and comments.
Mr. Clarke, you have the floor.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Thank you, Mr. Chair.
Mr. Pelletier and Mr. Foucher, I'm very happy to see you here this morning. I was the one who requested your appearance here.
Mr. Pelletier, as I told you, I'm very happy to meet you. Many people have told me that you are an accomplished constitutional expert. I think of myself as an amateur constitutionalist. Maybe we can put that to the test.
I would like to get right down to business. We decided to improve on the Senate's study by focusing on elements related to the tribunal and the positive measures mentioned in part VII. If I understand correctly, when the act was last amended in 2005, lawmakers wanted to make the notion of positive measures more tangible in part VII.
Mr. Pelletier, I've been told that you are an expert on intergovernmental relations. Perhaps you are too, Mr. Foucher. I don't know.
Here's what I'd like to ask you. Take the Université de l'Ontario français, an exceptional undertaking that, for the first time in Canada's history, would give the federal government the opportunity to implement a truly positive measure by circumventing the provincial government and funding the university directly by various means. If that were to happen, what would the consequences be?
Similarly, if the wording of part VII were to extend beyond the realm of possibility into duty, any community could, at some point, contact the federal government, tell the government the community is dying, and call on the government to take positive measures. My question is really two questions in one.
First, in a case like that, how could the government determine if the community is truly in danger?
Second, if the government were to take positive measures in an area under provincial jurisdiction, what would the consequences be in terms of shared jurisdiction under the Constitution?
Professor, Faculty of Law, University of Ottawa, As an Individual
I picked up on two things you said.
The first is the division of legislative responsibilities, which both levels of government must respect, of course. In other words, Parliament cannot directly legislate in an area such as education, as in your example.
The division of legislative responsibilities is one thing, but federal spending power is another. Although the jurisprudence has not provided a definitive answer to date, the Supreme Court of Canada has, on many occasions, shown itself to be in favour of the federal government using its spending power regardless of the division of legislative responsibilities. In other words, the Supreme Court has found that the federal government can spend money in areas under provincial jurisdiction and has never shown any sign of wanting to restrict that power.
Some may say that such statements are merely obiter dicta, incidental expressions of the Supreme Court of Canada's opinion on federal spending power. I can tell you that in some cases, such as Chaoulli, the Supreme Court went a long way by legitimizing and affirming the Canada Health Act, which, in a way, provides guidelines for federal spending on health. Technically, therefore, Parliament can do a lot with its federal spending power, even in areas under provincial jurisdiction.
That brings us to the political problem of Canadian intergovernmental relations. It would look very bad if the Government of Canada were to intervene directly in matters under provincial jurisdiction against the wishes of a provincial government. I cannot overemphasize how bad that would look in terms of intergovernmental relations.
I also know that a number of provinces, including Quebec—maybe especially Quebec—are very resistant to accountability. What that means is that, when the federal government spends money to help the provinces help official language communities, Ottawa can ask for accountability. Many of the provinces take a pretty vague approach to accountability, and some are downright opposed to the idea of the federal level requiring accountability for areas under provincial jurisdiction.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Part VII says that the minister “may”. If it said “must” instead of “may”, you're saying that could be politically dangerous.
Given what you've said, do you think it would be a good idea to go that far an put the work “must” in part VII?
Professor, Faculty of Law, University of Ottawa, As an Individual
I don't think so.
I have seen a number of recommendations about swapping “must” for “may” in the act. Every time I see that, I feel that it suggests a lack of political will or of will on the part of the Commissioner of Official Languages himself to fully exercise his powers.
In the specific case you mentioned, no, I don't think it would be a good idea to replace “must” with “may”.
Liberal
Liberal
Darrell Samson Liberal Sackville—Preston—Chezzetcook, NS
Thank you very much, gentlemen.
Mr. Foucher, we last saw each other a year ago, and before that, it had been quite a while.
Mr. Pelletier, as I said earlier, I don't remember what forum I was at 10 years ago, but you were a minister in Quebec at the time and a key supporter of francophone minorities outside Quebec. That was much appreciated.
Mr. Pelletier, I'd like to follow up on my colleague's question about jurisdiction, the shared powers you mentioned and spending power. I find that very interesting.
Minister Duclos included a clause in the early learning and child care agreement stating that there must be spaces for francophones. This is the first time we've seen something concrete. It's not as much as we would like, but it's a start.
You referred to Quebec, particularly in the context of immigration.
When it comes to spending power, if I give you something, I'd like to know how you're going to spend it.
Do you think we can add something to the act to strengthen that notion of accountability?
Professor, Faculty of Law, University of Ottawa, As an Individual
What I can say is that, when it comes to agreements like the early childhood agreement, it's down to intergovernmental negotiation. The federal government can go as far as possible by including clauses that favour Canada's francophone and Acadian communities.
It has to negotiate, obviously. There has to be an agreement with the province in question. In many cases, the Government of Canada manages to include clauses in agreements to make them stronger and more robust than previous agreements.
Liberal
Darrell Samson Liberal Sackville—Preston—Chezzetcook, NS
For example, for health, in addition to the bilateral agreement, we've added two new investments, and the provinces cannot use that money for anything else.
The first investment is for mental health services, and the second is for home care. We made those investments on condition that the money be used for those purposes. The parties agreed, and that's how it's working, which is extremely good.
Mr. Foucher, I'd like to talk about the debate around the Montfort Hospital in Ontario. The decision in that case is very interesting. The judge clearly stated that institutions are crucial to the vitality and longevity of communities. That is a very important concept. Not long ago, someone talked about how Quebec protects its institutions, but in minority communities, the institutions protect the community.
Would you like to comment on that?
Professor, Faculty of Law, University of Ottawa, As an Individual
If I may, I'd like to answer the first question you asked Mr. Pelletier.
I'm thinking of the workforce development agreement with British Columbia, which is currently before the Federal Court of Appeal because the lower court decision was detrimental to communities.
I see two possible responses to the situation. The first would be to clarify section 25 of the act to say that provincial governments that sign agreements act on behalf of the federal government, which makes them responsible for accountability.
The second would be to include a provision in the act to allow communities that feel their province has violated the linguistic conditions of a federal-provincial agreement to seek recourse. The problem is that communities themselves do not sign these agreements. Either they should be included in signing the agreements—which governments may not be open to—or the act must provide a mechanism for third parties that believe provisions directly affecting them have been violated to seek recourse. That would enable communities themselves to hold provinces accountable for violations of an agreement.
That's my answer to the first question.
Liberal
Darrell Samson Liberal Sackville—Preston—Chezzetcook, NS
I like that idea. It would be good to have a community consultation mechanism written in to—
Professor, Faculty of Law, University of Ottawa, As an Individual
—make sure their concerns are addressed in agreements without actually having them sign the agreements, which I doubt governments would accept.
Liberal
Darrell Samson Liberal Sackville—Preston—Chezzetcook, NS
I know my time is almost up. How much time do I have left, Mr. Chair?
Liberal
Darrell Samson Liberal Sackville—Preston—Chezzetcook, NS
I have one last question.
Mr. Pelletier, I agree on the issue of Supreme Court justices. I also think that we should include court challenges, the census, and immigration. The whole issue of real estate is essential as well, since some people across Canada do not have property or access to real estate. I know there may be a possibility in sight with British Columbia. All these issues should be included, but the question is where and how. Perhaps you could tell us some other time.
Liberal
The Chair Liberal Denis Paradis
Thank you for your comments, Mr. Samson.
We will now hear from Mr. Choquette.
NDP
François Choquette NDP Drummond, QC
I want to thank the witnesses for being here today.
We also thank you for reminding us of the importance of having bilingual judges at the Supreme Court and encouraging us to change the law accordingly. The committee recently tabled a report on the matter, recommending that the current government amend the Official Languages Act or other legislation before the end of the current mandate to make it a requirement for Supreme Court justices to be bilingual. However, I don't think that is going to happen, sadly.
I also want to say a few words about what the National Energy Board did recently. It is horrible and you are right to mention it. I have been following this translation issue since 2014, first with the Energy East pipeline project and now with the Trans Mountain project. I moved a motion in the House of Commons on the matter and I will be filing a new complaint with the Commissioner of Official Languages.
As you said, we now have a problem with some non-compliant agencies or departments. Take the Royal Canadian Mounted Police, for example. The Commissioner of Official Languages made three recommendations to the RCMP that were so simple that my colleague Yvon Godin took it as a slap in the face. However, five or six years later, the RCMP still has not complied with these three simple recommendations, which is disrespectful to the Commissioner of Official Languages. You provided some solutions, but what can we do about agencies like the National Energy Board, which does not respect both official languages, or the RCMP, which does not respect the Commissioner of Official Languages? What can we do to improve this situation?
Professor, Faculty of Law, University of Ottawa, As an Individual
We raised the possibility of charging administrative monetary penalties. We also talked about budgetary consequences or even using an administrative tribunal. It would also be possible to have a recommendation by the commissioner registered by the Federal Court, which would be the equivalent of a ruling by that court and would make an agency in contempt of court if it failed to comply. That would be a rather drastic solution, but the option is there.
NDP
François Choquette NDP Drummond, QC
I believe you mentioned earlier that the Privy Council Office was responsible for the Official Languages Act. Did I understand that correctly?