Evidence of meeting #19 for Official Languages in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was côté.
A recording is available from Parliament.
Liberal
The Chair Liberal Emmanuel Dubourg
I call this meeting to order.
Welcome to meeting number 19 of the House of Commons Standing Committee on Official Languages.
The committee is meeting on its study of Government Measures to Protect and Promote French in Quebec and in Canada. This is our first meeting on this study.
Madam Clerk, are there any replacements for members participating in person?
The Clerk of the Committee Ms. Josée Harrison
There is no one in the room today.
We have Mr. Scarpaleggia, who is replacing Ms. Lalonde.
Mr. Mazier is replacing Mr. Williamson once again today.
Liberal
The Chair Liberal Emmanuel Dubourg
Thank you, and welcome, everyone.
To ensure an orderly meeting, I would like to outline a few rules to follow.
For those participating virtually, I would like to take this opportunity to remind all participants to this meeting that screenshots or taking photos of your screen is not permitted, and also highlight the fact that this was mentioned by Speaker Rota on September 29, 2020.
Members and witnesses may speak in the official language of their choice. Interpretation services are available for this meeting. You have the choice at the bottom of your screen of “floor”, “English” or “French”.
Before speaking, click on the microphone icon to activate your own mic. When you are done speaking, please put your mic on ‘mute’ to minimize any interference.
As a reminder, all comments by members and witnesses should be addressed through the chair.
When speaking, please speak slowly and clearly.
Unless there are exceptional circumstances, the use of headsets with a boom microphone is mandatory for everyone participating remotely.
Should any technical challenges arise, please advise the Chair. Please note that we may need to suspend a few minutes as we need to ensure all members are able to participate fully.
I won't read the information usually intended for those participating in person. We know there is no one in the room today.
I would like to offer a warm welcome to our witnesses and to inform them that they will have a total of seven and a half minutes for their opening remarks, which will be followed by a period of questions from members of the committee.
I am in the habit of using a yellow card to indicate that you have one minute left. When I wave the red card, that means that your speaking time is over.
Our witnesses this afternoon are, from the Association des juristes d'expression française du Nouveau-Brunswick, Érik Labelle Eastaugh, Professor and Director of the International Observatory for Language Rights, Faculty of Law, Université de Moncton, and, from Impératif français, Jean-Paul Perreault, President, who is accompanied by François Côté, Lawyer.
Mr. Labelle Eastaugh, you have the floor for seven and a half minutes.
Érik Labelle Eastaugh Professor and Director of the International Observatory for Language Rights, Faculty of Law, Université de Moncton, Association des juristes d’expression française du Nouveau-Brunswick
Mr. Chair, honourable members of the committee, first, I want to thank you for giving me the opportunity to address you as part of your important work on the future of language rights in Canada.
I also want to say I'm glad to see that all of you have turned on your cameras. This is quite different from the courses I have been giving since the pandemic started.
Given my occupation, my comments will address legal aspects of the subjects taken up by the committee pursuant to its motion of November 24, 2020. I propose to address briefly the following three themes: first, the respective constitutional roles of the federal government and the provinces in linguistic matters; second, the relationship between the principle of equality in Canadian law and the concept of asymmetry; and, third, the approach Parliament should take to regulating federal works, undertakings or businesses.
First, language as an area of jurisdiction falls within the purviews of both the federal and provincial governments. Each order of government has the power to legislate on language matters that are ancillary to its areas of jurisdiction.
In addition, the Constitution imposes on some governments, both federal and provincial, specific duties to protect the French language. Accordingly, language planning is not and cannot be the responsibility of a single level of government. To wit, subsection 16(3) of the Canadian Charter of Rights and Freedoms encourages Parliament and the provincial legislatures to pass legislation to advance equality of English and French in Canadian society.
The principle of equality of the official languages, including its relationship with the concept of asymmetry, is a frequently recurring issue in recent debates on the modernization of the Official Languages Act. In this regard, I believe some clarifications are in order.
First, no one can deny that English and French are asymmetrical from a sociological standpoint. The enormous appeal of English, stemming partly from its large number of speakers, means that francophone communities—whether they are a minority or majority within a province—must make a much greater effort than anglophone communities to maintain their vitality and develop in their language. This sociological difference leads some to claim that the equality principle enshrined in the Charter and the Official Languages Act puts French at a disadvantage rather than supporting it. They say this principle requires the two languages to be treated equally. This view is mistaken.
It is worth remembering that the official languages system was established in order to strengthen French and protect francophones, who were severely disadvantaged. English needs no law to protect it. While the Official Languages Act is based on the principle of equality between English and French, its very existence is the result and evidence of a recognition that English and French are unequal.
The principle of linguistic equality, as defined by the Royal Commission on Bilingualism and Biculturalism and as recognized by the courts, is designed to give francophone communities the capacity to maintain their vitality and develop despite the sociological asymmetry that exists. It is thus a "substantive" rather than "formal" equality principle. Unlike formal equality, substantive equality requires the government to account for the asymmetries between the two linguistic communities and sometimes apply different standards.
Indeed, the case law on language rights consistently takes into account the sociological asymmetry between English and French. Let me give you some examples. In the Ford decision, which concerns the signage requirements of Quebec's Charter of the French Language, the Supreme Court of Canada recognized that French is under threat and that the Quebec government has a special role to play in protecting it.
Furthermore, the cases dealing with section 23 of the Charter, including Solski, which concerned bridging schools, show that this provision must be interpreted in light of the specific context of each linguistic community. In fact, section 23 applies to Quebec asymmetrically because of an explicit exception in the Constitution Act, 1982. As a result, if Parliament wishes to take additional measures to protect and promote French as a vulnerable language, it can do so within the current system, without breaching its fundamental principles.
For months now, the debate surrounding the promotion of French has been fuelled by the idea that Parliament should pass legislation bringing federal works, undertakings or businesses located in Quebec under the Charter of the French Language. However, since the purpose of such legislation would be to guarantee francophone workers the right to work in their language without facing discrimination and to guarantee the public the right to be served in French, it is neither necessary nor desirable to abandon the current framework. Parliament could easily achieve this outcome by making federal works, undertakings or businesses subject to the Official Languages Act. By contrast, an approach based on the Charter of the French Language would have significant drawbacks.
First, such an approach would apply only to Quebec. Consequently, Parliament would be straying significantly from the federal government's basic linguistic duties. When the official languages system was set up, a "territorial" model—such as that used in Switzerland—in which language rights would vary from province to province, was explicitly rejected. Instead, a "mixed" model was adopted, in which the same rights are granted to francophones across the country, subject to a numerical criterion at the local level. Following this principle, it would be difficult to justify legislation that grants rights to francophones in Montreal but not to those in Moncton or Sudbury.
Second, legislation that draws directly from the wording of the Charter of the French Language, which includes some bills introduced in the past, could contravene subsection 16(1) of the Canadian Charter of Rights and Freedoms. The Charter of the French Language is based on the principle of the primacy of French, and the wording of the rights it confers reflects that principle. Federal legislation that reprises that structure could be challenged under section 16 of the Charter, as it would give rights to French that it does not give to English.
On the other hand, parts IV and V of the Official Languages Act grant essentially the same rights to francophones as the Charter of the French Language, but without creating a hierarchy between English and French. With that in mind, the Association des juristes d'expression française du Nouveau-Brunswick welcomes the proposals that Minister Joly recently made in this regard. However, we will have to examine the resulting bill before reaching a final position.
With that, I thank you once again for the opportunity to appear before you.
I would be happy to take your questions.
Liberal
The Chair Liberal Emmanuel Dubourg
Thank you very much, Mr. Labelle Eastaugh.
You may send us your notes, if you wish. They could be of use to the members of the committee and to our analysts.
We will begin a period of questions and answers, during which each party will have six minutes.
We will begin with Mr. Blaney.
Mr. Blaney, you have the floor for six minutes.
Conservative
Steven Blaney Conservative Bellechasse—Les Etchemins—Lévis, QC
Thank you, Mr. Chair.
Welcome to our committee, Mr. Labelle Eastaugh.
We were hanging on your every word during your presentation, as your students must do as well.
Are there any points that you would like to go back over.
I was struck by two points in your speech.
First, you said that "no one can deny that English and French are asymmetrical from a sociological standpoint."
Liberal
Liberal
The Chair Liberal Emmanuel Dubourg
Yes, I just realized what's happening.
Pardon me, Mr. Blaney, but we have three witnesses for the first hour. We also have the representatives from Impératif français. My apologies.
Consequently, we will hear from Impératif français and then come back to you.
Conservative
Liberal
The Chair Liberal Emmanuel Dubourg
Yes.
We now have Mr. Perreault and Mr. Côté from Impératif français. I don't know which of you would like to start.
You also have seven and a half minutes.
Conservative
Conservative
Joël Godin Conservative Portneuf—Jacques-Cartier, QC
I'd like to know whether we received the speaking notes from this afternoon's witnesses. I know we haven't received any from Mr. Labelle Eastaugh. You requested them from him.
However, I'd like to know whether we've received those from the representatives of Impératif français. My question is for the clerk.
Liberal
The Chair Liberal Emmanuel Dubourg
As far as I know, we haven't received them, but I will turn the floor over to Madam Clerk.
The Clerk
As you know, all documents forwarded to the members of the committee must be in both official languages. I cannot distribute them until they have been translated. Consequently, we will have them translated and then forward them to the members.
Liberal
The Chair Liberal Emmanuel Dubourg
Thank you very much for that clarification.
I now turn the floor over to Mr. Perreault and Mr. Côté.
You have seven and a half minutes.
Go ahead.
François Côté Lawyer, Impératif français
Good afternoon, everyone.
I will be speaking since Mr. Perreault, the president of Impératif français, seems to be having technical issues. He will probably join us later.
Good afternoon, Mr. Chair, members of the distinguished committee and citizens of Quebec watching these live or recorded proceedings.
It is an honour for me to appear before this parliamentary committee. Special thanks and a nod as well to Impératif français and its president, Mr. Perreault.
I am going to present three simple, clear and detailed legislative proposals. We believe that they are entirely feasible from a legal standpoint and that the federal government could adopt them as a tangible contribution to stemming the decline of the French language in Quebec in its areas of jurisdiction. All it would take—could this be too big a price to pay?—is the political will to take real action to that end.
The recommendations and legislative proposals that we are submitting to the federal government are set forth in detail in the 60-page brief we submitted to the House of Commons on February 5. Appended thereto are detailed proposals and amendments to the legislative model that the government could readily enact.
We have chosen to focus our recommendations on three specific points. In our view, they are of the utmost importance and do not prejudice the many other language issues involving the Government of Quebec within the federation. They have all evolved…
Liberal
The Chair Liberal Emmanuel Dubourg
Pardon me for interrupting you, Mr. Côté. I would ask you please to speak more slowly for the interpretation, which is being provided at the same time.
Lawyer, Impératif français
Of course.
All our proposals have evolved from a common core idea: that the individualistic symmetrical equality model of bilingualism long and currently advocated by the federal government merely proclaims an artificial and superficial equality whose actual usefulness to Quebec is debatable in that it absolutely fails to protect the collective language rights of the Quebec nation in respect of its sole common language, French.
In our view, the equality of status and equal rights model in place at the federal level, under which English and French are treated equally, is merely the equality of La Fontaine's iron pot and clay pot in a North American context.
We believe it is time to undo that dysfunctional model and to adopt an asymmetrical and territorial bilingualism approach whereby, in a collective perspective broader than individual claims alone, the French language would be granted distinct, reinforced and special protection to reflect the North American reality and the fact that the language question is not merely an individual one in Quebec. It is a societal issue that calls for the permanent retention of a strong francophone majority within the population of Quebec, a condition associated with the very existence of the Quebec nation. History has shown that this is true, and contemporary reality still does so today.
That being said, our three proposals are as follows.
First, we suggest that the Charter of the French Language be extended to apply to private businesses under federal jurisdiction. The idea would be to extend the Charter fully to embrace private businesses under federal jurisdiction so that Quebec workers employed by those businesses may finally enjoy the same rights as the millions of their counterparts who are already protected by that act in the rest of Quebec's private sector.
In tangible terms, we propose two ways to achieve that end. The first would simply be for Ottawa to allow the National Assembly of Quebec to proceed with this extension on its own, which would be entirely feasible from a constitutional standpoint under the constitutional double aspect doctrine, which was recognized and clarified in the Canadian Western Bank judgment. The federal government could also proceed on its own, and, for that purpose, we would suggest that it amend the Canada Labour Code by adding a provision incorporating by reference the provisions of the Charter of the French Language so that the Code retains the Charter's operative legislative intent.
It is our firm view that, on this specific issue, an amendment to the Official Languages Act would probably be a bad idea. The OLA is a public act, designed to regulate the public service and services to citizens far more so than private-sector labour relations. Remodeling it in that way could cause problems of legislative consistency. Furthermore, extending it, even if only to expand current federal language policy in this field, would not solve the problem but rather conceal it under a legislative veil. What is really necessary is a comprehensive and detailed regime that has proven itself and functions smoothly, a regime such as that of the Charter of the French Language, which would also come with decades of instruction, jurisprudence and legal stability.
Furthermore, in this matter—and we support the territorial approach here—the National Assembly is clearly much closer than Ottawa to the reality of businesses in Quebec and, in our view, is the most legitimate political, legislative and democratic partner in the federation to address these kinds of issues.
Our second proposal would be to amend the Official Languages Act to establish a special regime to protect the French language in Quebec and in Canada's national capital region, given its undeniable importance to the federation. Our second proposal thus submitted would be to amend the Official Languages Act to include a detailed protection regime for the language rights of public servants in Quebec and in the federal capital to fully work and communicate in French in the workplace, based on sections 45 and 46 of the Charter of the French Language, thus precluding all forms of linguistic pressure or discrimination in hiring and employment.
We propose here to adopt, not only the spirit of the Charter of the French Language, and to transpose it to the federal level, but also the legal regime and court access rights that it entails—adapted to the federal context, but along the same lines—to guarantee genuine and effective language rights for federal public servants using French in Quebec, more than 44% of whom are revealed by the recent reports of the Office of the Commissioner of Official Languages as suffering from linguistic insecurity in the workplace in a culture that is transitioning to English. Once again, the Charter of the French Language appears to be the ideal model to combat this situation.
I'll speed up a little but will then be happy to answer your questions.
Our third and final proposal will be to revisit the constitutional issue and to suggest a return to the initial version of the Charter of the French Language as an official statute. The time has come to turn the page on the Supreme Court's judgment in Blaikey, a decision it rendered more than 40 years ago in a different constitutional context from the present one, having since evolved to enable Quebec to establish French as the sole official language of its legislation.
A strange situation prevails in Canada: under section 133 of the Constitution Act, 1867, Quebec alone is subject to a legislative bilingualism obligation, whereas, just next door, Ontario may publish its statutes in its official language, English, and translate them into French. We are merely seeking equality, a symbolic change that would have a powerful effect on generational renewal and immigration.
Lastly, a brief word simply to provide context for my remarks. Our comments focus solely on the situation of Quebec, without prejudice to francophones outside Quebec. We share their concerns but here are focusing solely on Quebec.
Liberal
The Chair Liberal Emmanuel Dubourg
Thank you very much, Mr. Côté.
We are still waiting for Mr. Perreault to join us, but we will now move on to the period of questions.
Members of the committee, as you know, it is my thankless task to manage time, and I therefore inform you that the next speeches will be limited to five minutes.
Mr. Blaney, go ahead for five minutes, please.
Conservative
Steven Blaney Conservative Bellechasse—Les Etchemins—Lévis, QC
Thank you, Mr. Chair.
I'll skip my brief introduction.
This is interesting because, this time, we're hearing testimony from two individuals and two, at times, contradictory versions.
I'm turning to you, Mr. Labelle Eastaugh, to ask you a question. So you acknowledge that there's a sociological asymmetry and that this proves that the current version of the act hasn't achieved its objectives.
Exactly how do you propose to build recognition for that actual asymmetry?
I'll put the same question to Mr. Côté.
Professor and Director of the International Observatory for Language Rights, Faculty of Law, Université de Moncton, Association des juristes d’expression française du Nouveau-Brunswick
Thank you for your question.
First, Supreme Court precedent is very clear. The asymmetry between the two communities has to be considered in interpreting the rights that already exist. Consider the comment I made at the outset: the very purpose in creating the system of language rights that we have today was to protect French in particular. Consequently, those rights are designed, first and foremost, to protect the French language and the equality of francophones. In my view, to criticize that system for its apparent symmetry is to fail to understand the context in which those measures were adopted and to lose sight of the way the courts have interpreted those standards.
I don't have a comprehensive proposal for you, except to say that the way to meet the needs of each community should be assessed on a case-by-case basis consistent with the provincial context and the linguistic dynamic concerned.
Conservative
Steven Blaney Conservative Bellechasse—Les Etchemins—Lévis, QC
I'll be more specific, Mr. Labelle Eastaugh.
The Standing Committee on Official Languages has always scrutinized the fate of francophone minorities outside Quebec. Based on our current reading, however, we realize that there's a minority that we have neglected for decades. That's the Quebec minority, Quebec, the French Canadian heart of North America as a whole. I thought you would have proposals to make on the subject, and that's the context in which I asked my question.
Mr. Côté, people say that we shouldn't change the act, that everything's fine and that there's a symmetry. You, on the other hand, advocate an asymmetrical approach. How should we go about that?
You've made some proposals for Quebec, but I'd like to hear what you have to say about how we could take that turn and expand the scope of the Official Languages Act to include what I would call the Quebec francophone minority in North America as a whole.
Lawyer, Impératif français
My answer is simple: that wouldn't be the way to go. I don't think the Official Languages Act is the way to go if you really want to protect the language rights of Quebec's majority francophone society.
The individualistic model is the model on which the Official Languages Act is based, and it may have its benefits. I won't comment on the communities that are demographically in the minority in their regions, but the act—it's the way it's made— can't really protect the language rights of a community that forms the majority in its territory but is a minority in a larger region.
To provide better protection for the language rights of the francophone community in Quebec, which forms a minority within the federation, we think that Canada should really defer to the National Assembly of Quebec, delegate powers to it and move toward Quebec's more broadly territorial approach to the law. We think the territorial model is really the one to follow.
Conservative
Steven Blaney Conservative Bellechasse—Les Etchemins—Lévis, QC
I see, but Quebec nevertheless has its challenges, particularly in education.
My last question is for Mr. Labelle Eastaugh.
You propose that federal entities within Quebec's borders should be made subject to the Official Languages Act. Would that apply where numbers warrant, somewhat as the government proposes? Is that the approach you advocate so that the employees of federal institutions in francophone areas can work in French?
