Official Languages Committee on Feb. 28th, 2019

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

I'm doing fine.

We all understand that it must be very hard for you to work from Montpellier. We can see that you're very sad and feeling terrible about being in the south of France with all the good wine they have there.

I'm from New Brunswick. I share a mother tongue with Antonine, an Acadian from New Brunswick. If I were in your neck of the woods I would say Robert Paquette, because I love music.

With respect to positive measures, we heard plenty of testimony suggesting that the problem lies with the federal transfers, and that often the money does not get to the right place. The funds transferred to provincial governments end up eventually shrinking or disappearing. For example, the money is given to the province for education or health, and the province is responsible for disbursing it to the communities. Often, it's the francophone communities that get shortchanged.

Is it possible to discern in subsection 41(2) on positive measures a federal obligation to direct money to where it should go in linguistic communities, whether they be official language minority communities in Alberta, in Yukon, in Ontario or in Nova Scotia, as well as the anglophone minority community in Quebec? Would it be possible, under this part VII obligation, to reduce or withhold the general transfers to the provinces, if necessary, according to what the federal government should have to transfer or will transfer to the communities?

I'm not sure whether my question is clear and you follow what I'm saying.

[Dr. François Larocque]

I think so.

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

To put it another way, could we do some legal manoeuvring without opening the Constitution, by saying that British Columbia must take care of its linguistic minority communities or, in any case, that the federal government must step in?

For example, the federal government could find that the Province is not meeting its education obligations and that the communities need a new school. If a secondary school cost $15 million to build, the federal level could build it and then remove those $15 million from the federal transfers for education, since it took on the project itself.

Could this considered as a positive measure?

[Dr. François Larocque]

I think so; that is a positive measure.

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

Would this measure hold up, legally?

[Dr. François Larocque]

Yes.

I'm coming back to Justice Gascon's ruling, which will be heard very soon at the Federal Court of Appeal. We may get a more detailed and intelligent answer to your question than the response I'm about to give you.

At trial, Justice Gascon said that the term was not defined and was therefore too vague. Personally, as a law researcher, I see this as an opportunity with plenty of potential. When a definition or a term is too vague, that means there is a certain discretion in selecting the positive measure that would meet the part VII obligation and commitment.

In my view, the intention of part VII was to take the positive measures that are likely to meet the commitment objective. The commitment is to enhance the vitality of these communities. If the money is sent directly to the communities and the transfers are reduced accordingly, this would be a positive measure that can achieve the objective of part VII.

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

Although, in terms of education or health, we would be touching on that sacrosanct division of provincial and federal powers.

In the official languages act, is it a constitutional breach to say that the federal government has obligations and that the money will go exactly where the linguistic community needs it?

There are calls for accountability—I'm thinking of British Columbia as an example—but no one knows where the money is going to meet the needs of minority communities.

You are a constitutional expert. Do you think it would be tenable, from a legal standpoint, to insert this element in the official languages act?

[Dr. François Larocque]

I would need to study it in more depth, but instinctively my immediate answer would be yes, that would hold up. I think that people who are more intelligent than I am and who certainly have given it a lot more thought have made that suggestion. I also trust their judgment.

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

I brought you to this topic, but I would also like you to tell us about the administrative mechanisms, in a practical sense, relative to the reluctance for administrative tribunals.

In regard to the mechanisms as opposed to tribunals I will ask: why, how and how many?

[Dr. François Larocque]

I want to make sure this is clear.

When I talk about administrative mechanisms I mean that the ombudsman and the commissioner are administrative mechanisms, in the sense that they are not legal ones. Do you see?

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

Yes.

[Dr. François Larocque]

Administrative tribunals are somewhere in between the commissioner and the courts. They are therefore quasi-legal.

As for the number, we need a tribunal that would administer the act in its entirety. At this time the remedies mentioned in part X apply only to certain parts of the act. I—

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

I have to interrupt you, Dr. Larocque, because I only have 20 seconds left.

We heard testimony from the commissioners of Ontario and New Brunswick, and if memory serves, they were not too keen on administrative tribunals. They said the only effect would be that it would become standard practice to refer delicate cases to the tribunal, where they would get lost in all the constraints and procedure. Instead, they wanted us to strengthen the act and give it some teeth. I'd like to hear what you think.

[Dr. François Larocque]

I think it's possible to create an act with teeth that sends cases to an administrative tribunal. You just have to make sure that that part of the act is carefully thought out and that the procedure is simple. It has to be accessible and straightforward for users. By users, I mean Canadians and the commissioner. The commissioner needs to be able to access the tribunal too. In some cases, he may even have to intervene to support a party that might not have representation.

I think there is a way to draft an act that wouldn't create an administrative morass for cases to get lost in, and that would instead be simple to apply quickly and effectively.

[The Vice-Chair, Conservative, Alupa Clarke]

Thank you, Dr. Larocque.

We now have the honour of moving on to northern Nova Scotia.

Mr. Samson, you have the floor.

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

Thank you, Mr. Chair.

Thank you very much for your presentation, Dr. Larocque. You did a great job of walking us through the history to give us some background. I have two points I want to raise.

Everyone seems uncomfortable with the decision handed down by Justice Gascon, whose position seems to be that if something isn't specified in the act, it doesn't have to be done. That runs counter to everything that's come out of the courts over the past century, especially at the Supreme Court. The conclusions or approach of that court are almost always more liberal. Its position is that even if something isn't specified, it should be done by default, because that's probably what the legislator intended at the time but wasn't sure about.

However, Justice Gascon opted for a more restrained interpretation. Everyone was disappointed, but not you, and I find that interesting. You said there was an opportunity to be seized, because in your view, the fact that the judge found the definition of “positive measure” too vague means that this definition is broad enough to give the federal government plenty of discretion in choosing such measures.

I'd like us to spend a few minutes on that issue.

[Dr. François Larocque]

I want to make it very clear that I too was disappointed by Justice Gascon's decision, because I think it's too formal and restrictive. As you said, Mr. Samson, in the past, the courts have taken a broader, more liberal and very generous approach in their interpretation of the act. It's just a theory, but this whole issue could just be a matter of judicial philosophy.

With all due respect to the honourable members of the committee who are from Quebec, Justice Gascon is a specialist in civil law. Lawyers from civil law rely on a code and would be reluctant to interpret anything that's not written into that code.

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

They would be lost.

[Dr. François Larocque]

Whereas lawyers from common law, like me, would be more comfortable dealing with grey areas and would be able to find a way forward by relying on broader, more general concepts.

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

Exactly. That's what I think too, that civil law is different and much more prescriptive. It comes out of another jurisdiction, and it may also be a little conservative.

[Dr. François Larocque]

In a blog post I wrote recently about this decision, I mentioned how much I admire Justice Gascon. He's good at civil law, and his judgment is very sound and logical. He presents a premise and develops his arguments very fully.

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

This is the first time we've met, but I already like you, because you stay positive and you're always looking for the positive side.

I'd like to ask you one last question that I think is very important. When judges make rulings, they have the power under common law to retain jurisdiction in order to monitor compliance with their orders, so why don't they invoke that power more often?

That's what happened in Nova Scotia in a case pitting francophone parents against the provincial government and the Acadian school board. The case was heard by Justice LeBlanc. I just want to mention that he's from Isle Madame, the same region as me, and he's now Lieutenant Governor of Nova Scotia, the first Acadian to be appointed to that position. When the defendants appeared before him, he ordered them to build schools and chose to retain jurisdiction by making them come back to see him in six months to report on the progress they had made. The province fought the ruling all the way to the Supreme Court, but the highest court in the land confirmed that Justice LeBlanc was entitled to maintain his jurisdiction.

Why don't judges use that power to help us out?

[Dr. François Larocque]

You'd have to ask them, Mr. Samson. That question comes up all the time, but unfortunately I don't have an answer for you. What we do know is that the Supreme Court has confirmed the right to retain jurisdiction and that it's perfectly valid to do so where circumstances warrant.

I can think of other cases where a court or tribunal maintained its jurisdiction. For example, in the case about underfunding of services to indigenous children, the Canadian Human Rights Tribunal retained jurisdiction in order to require periodic reports.

The next Official Languages Act could grant this power to an administrative official languages tribunal, if it creates one. That would allow the tribunal to retain its jurisdiction, remain seized of certain cases, and require periodic reports. The House of Commons has the power to write that into a bill, and I encourage you to do so.

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

It's always up to us, isn't it?

Thanks anyway. I really appreciated your comments.

[The Vice-Chair, Conservative, Alupa Clarke]

Thank you, Mr. Samson.

I have one more question, Dr. Larocque. We have one or two minutes left.

Going back to the Netflix issue that Mr. Choquette was talking about, the commissioner had the power to require certain documents to be produced, but he didn't use it. You said that it could be a matter of idiosyncrasy and strategy. Would it be advisable to take that power away from the commissioner? That would show him that we don't really care about his personal opinion and idiosyncrasy and that he has to take action and do what he has to do.