Evidence of meeting #73 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 questions.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Yvan Déry  Senior Director, Policy and Research, Official Languages Branch, Department of Canadian Heritage
Johanne Denis  Director General, Census Subject Matter, Social and Demographic Statistics, Statistics Canada
Jean-Pierre Corbeil  Assistant Director, Social and Aboriginal Statistics Division, Statistics Canada
Pierre Foucher  Professor, Faculty of Law, University of Ottawa, As an Individual

4:55 p.m.

Liberal

The Chair Liberal Denis Paradis

Thank you very much, Mr. Clarke.

The floor now goes to Mr. Arseneault.

4:55 p.m.

Liberal

René Arseneault Liberal Madawaska—Restigouche, NB

Thank you, Mr. Chair.

Mr. Foucher, what a pleasure to see you here! We have not seen each other for more than 20 years.

4:55 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

Pierre Foucher

That’s right.

4:55 p.m.

Liberal

René Arseneault Liberal Madawaska—Restigouche, NB

Mr. Foucher was my constitutional law professor. He was also a coach for the Laskin moot court competition. But above all, he was an excellent musician who would strum the guitar and sing the songs of Robert Charlebois.

4:55 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

Pierre Foucher

You have a good memory, Mr. Arseneault.

4:55 p.m.

Liberal

René Arseneault Liberal Madawaska—Restigouche, NB

My colleague Mr. Clarke had some excellent questions. They coincide with mine, actually.

Monetary penalties seem to be a really economical solution, legally and procedurally.

It seems that we are talking about amending the Air Canada Public Participation Act. That is the act in question, is it not?

4:55 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

4:55 p.m.

Liberal

René Arseneault Liberal Madawaska—Restigouche, NB

Do we have to reconcile that with subsection 77(4) of the Official Languages Act, the scope of which is much broader?

How could we amend both acts in order to achieve that objective?

4:55 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

Pierre Foucher

Well, clearly the administrative penalties in the Air Canada Public Participation Act would apply only to Air Canada. It would leave the other provisions in the Official Languages Act open, if required. The mechanism would really be squarely aimed at Air Canada.

I do not want to go even further beyond the mandate you gave me, but, if I had the choice, I would include it directly in the Official Languages Act, so that it applies to everyone.

4:55 p.m.

Liberal

René Arseneault Liberal Madawaska—Restigouche, NB

That is where I was heading.

4:55 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

Pierre Foucher

It is not the question I was asked, but if you are asking me for my opinion, the answer is yes.

In my opinion, it is a scandal that the Official Languages Act is one of the only acts in Canada that provides for such little recourse and so few penalties when it is not complied with. It would be in our interests to tighten the mechanisms a little.

4:55 p.m.

Liberal

René Arseneault Liberal Madawaska—Restigouche, NB

We are talking about Air Canada, but I would still like to talk about the Official Languages Act.

If you read subsection 77(4), you can see that it has almost no teeth.

If we have one problem to solve, it really is Air Canada. In fact, the history that the former Commissioner of Official Languages provided is overwhelming. It has not stopped, from 1974 to today.

What solutions would allow for subsection 77(4) to be amended in order not only to solve the problem with Air Canada, but to protect and promote other institutions?

4:55 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

Pierre Foucher

For those around the table who are not legal scholars, section 77 is the one that allows judges to grant appropriate and just remedy. It presupposes that a person is already before the court, the court in this case being the Federal Court. It is the mechanism that the Official Languages Act has established. If you are talking about administrative fines, that is the mechanism you have to go through, but if you are talking about administrative monetary penalties, or AMPs, you don't have to. The responsibility would go directly back to the Commissioner of Official Languages. You would not need to rely on subsection 77(4).

Subsection 77(4) leaves the door open to various options. The courts could have been innovative in the matter of sanctions. We have seen Justice Moreau award compensatory damages in the Northwest Territories case. In the Thibodeau case, we saw the court of first instance make an order that was termed “structural”. It had the power to do so. The Supreme Court reversed the order, saying that it was too vague, and so on. However, the court's power to make a ruling already exists.

The difficulty comes in the fact that judges are prudent; they do not wish to be too innovative in terms of the remedies they grant. So we could provide them with some ideas. We could, for example, tell them to levy a fine or to order compensatory damages, and to develop a series of criteria along those lines. We are not going to rewrite the act this afternoon, but we could tempt them a little by telling them that they have the power to act and, if they do so, they will be reflecting Parliament's intention.

4:55 p.m.

Liberal

René Arseneault Liberal Madawaska—Restigouche, NB

Those are excellent comments. We had Mr. Thibodeau here at our last meeting. In his opinion, a $1,500 fine would be just. He told us that he had become an expert in his case, more so than some lawyers. It is now easy for him to present his claims in court, but, for the person in the street seeking a remedy against Air Canada, for example, for the first time, alone and unrepresented, it is a whole pile of work. What do you think about a $1,500 fine? Do you feel that it is a just penalty, with enough teeth to act as a deterrent?

5 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

Pierre Foucher

For a first offence, it might perhaps be acceptable. However, if Air Canada re-offends, the answer is no. The amount of the fine would have to increase significantly, as I was saying earlier. This should not simply be a business tax. It should be a real deterrent. I always like giving as examples speeding fines, and the loss of a driver's licence. The greater the speed, the higher the fine. On Highway 417, between Montreal and Ottawa, there is a big sign indicating that, if someone is caught driving at such and such a speed, the penalty can go right up to a licence suspension, perhaps in addition to a $1,000 fine, I am not sure. When you see that, you tell yourself that it is worth easing off the gas. That is the kind of position that has to be taken with airlines, just like with anyone else. If you go too far, you are going to be paying quite a significant fine.

5 p.m.

Liberal

The Chair Liberal Denis Paradis

Thank you very much.

We now move to Mr. Choquette.

5 p.m.

NDP

François Choquette NDP Drummond, QC

Thank you, Mr. Chair.

Thank you for your testimony, Mr. Foucher. Your remarks are very interesting and enlighten us as to the possibilities and advantages of the four options suggested by Mr. Fraser, the former Commissioner of Official Languages. I asked people from the commissioner's office why there were four options and whether one was preferable to the others. They had a hard time giving me an answer.

I was hoping to get an answer from you. I have some inkling of what it would be, but I am going to ask you the question anyway. Do you have a preference for any of the four options?

5 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

Pierre Foucher

The last one.

5 p.m.

NDP

François Choquette NDP Drummond, QC

Okay. Oh, that's excellent!

5 p.m.

Liberal

Darrell Samson Liberal Sackville—Preston—Chezzetcook, NS

He didn't hesitate.

5 p.m.

NDP

François Choquette NDP Drummond, QC

At the beginning, you mentioned that each of the options had advantages and disadvantages. Now I gather that, if there has to be a preference, it would be for administrative monetary penalties.

5 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

Pierre Foucher

That's it.

5 p.m.

NDP

François Choquette NDP Drummond, QC

It would be very simple and would happen quickly, wouldn't it?

5 p.m.

Professor, Faculty of Law, University of Ottawa, As an Individual

5 p.m.

NDP

François Choquette NDP Drummond, QC

Amendments would have to be made to the Air Canada Public Participation Act, right?