Official Languages Committee on Feb. 17th, 2023

[Warren Newman]

The word “necessary” imposes a high standard. It also raises some debate about what is necessary and what is not. On the other hand, the word “appropriate” leaves room for institutions to manoeuvre, to have the discretion to implement the commitment in spirit, without necessarily forcing them to the point where they have to justify the necessity of each measure.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Mr. Newman, does your answer apply if the wording includes the verb “consider”?

[Warren Newman]

Are you referring to the debate from earlier?

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

No.

You are saying that the word “necessary” is binding, entails obligations, is open to interpretation, and is discretionary. How is the word “necessary” defined? What is necessary for me may not necessarily be necessary for you and vice versa. The same is true for the verb “consider”. When I consider, I do it in one way and you do it in another, so it's discretionary as well.

Of these two words, how can we say that one is stronger than the other?

[Warren Newman]

I assume you are proposing the word “necessary” because you feel it is more constrictive than the phrase “that it considers appropriate”.

For us, necessity is a criterion that is going to lead to debate when it comes to determining whether or not the threshold of necessity is met. These institutions also need to maintain some measure of discretion. The current wording reflects this desire to maintain flexibility in the implementation of these obligations. We assume that institutions will act in good faith, consistent with part VII of the act and the new provisions.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

In fact, you are right, in the sense that the word “necessary” is, in our view, more binding, while not imposing limits and still leaving room for interpretation.

Our goal is to strengthen the approach so that federal institutions are even more responsive to positive measures. It makes no difference whether the measures are considered appropriate or necessary, but “necessary” is a bit stronger.

We are trying to provide semantic nuance.

[The Chair, Liberal, René Arseneault]

Thank you, Mr. Godin.

As there are no further interventions on this subject, we will call for a vote on amendment CPC‑26.

(Amendment negatived by a vote of 6 to 5.)

[The Chair, Liberal, René Arseneault]

This brings us to amendment LIB‑14.

I would like to bring to the attention of the committee that if amendment LIB‑14 passes, amendment LIB‑15 on page 79 of the amendment bundle cannot be proposed because it is identical. Also, if LIB‑14 is passed, amendment NDP‑6, on page 80 of the amendment bundle, will not be able to be proposed, this time due to a line conflict.

Mr. Drouin, you have the floor.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Thank you very much, Mr. Chair.

I will follow your advice and simply read amendment LIB-14 in its entirety. It proposes that Bill C-13, in clause 21, be amended by replacing lines 30 to 32 on page 11 with the following:

the commitments under subsections (1) to (3) are implemented by the taking of positive measures.

I'm going to ask the officials, who have spent a lot of time with us during the last few meetings, to comment on this amendment in relation to the original text of the bill.

[The Chair, Liberal, René Arseneault]

Ms. Boyer, go ahead.

[Julie Boyer]

Thank you, Mr. Chair.

The current wording of the bill requires departments to ensure that the commitments under subsections (1) to (4) of section 41 of the act, as amended by Bill C-13, are implemented by the taking of positive measures.

This amendment would express the first obligation mentioned in part VII of the act more directly. While retaining the idea that it is a matter of several positive measures and not of one, the amendment would remove the discretion provided by the current wording of the bill, which we just discussed when considering amendment CPC-26. The amendment would thus remove a department's ability to judge that a measure is not appropriate or important.

By removing the possibility of such a value judgment, the amendment would require departments to put in place positive measures to meet the commitments under subsections (1) through (4) of section 41 of the act, as amended by the bill.

[The Chair, Liberal, René Arseneault]

Thank you, Ms. Boyer.

Is that okay with you, Mr. Drouin?

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Yes, it is.

[The Chair, Liberal, René Arseneault]

Mr. Godin, go ahead.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Mr. Chair, what I predicted has happened.

The French version of amendment LIB-14 proposes “que les engagements énoncés aux paragraphes (1) à (3) soient mis en œuvre par la prise de mesures positives”, instead of referring to “des mesures positives.”

In my view, a reference to all positive measures would demonstrate a greater obligation of result. As I understand it, the phrase “de mesures positives” would imply that some measures may be taken, but not all the measures. So the nuance is quite important here.

We're discussing one letter. So it's pretty specific, but as long as we're doing our job, let's do it right. I am not comfortable with the wording “de mesures”. We should use the wording “des mesures”, to include all the measures that the officials have identified. Currently, there is no commitment that all the measures that have been identified will be implemented, some of which may be left to the whim of officials or politicians who may decide that, even if there are 10 measures, they will only implement three and put the other seven in the drawer.

I would like to hear what Ms. Boyer and Mr. Newman have to say about this.

[Julie Boyer]

I thank the member for his question.

In my opinion, this reflects the current jurisprudence, as the proposed wording in the French version of amendment LIB-14 uses “de mesures positives” in the plural. The requirement that “de mesures positives” be taken therefore implies that “des mesures positives” will be taken.

I will now turn to my colleague at the Department of Justice for confirmation that this does reflect the most recent jurisprudence.

[The Chair, Liberal, René Arseneault]

Thank you, Ms. Boyer.

Mr. Newman, go ahead.

[Warren Newman]

That is also the way I understand it. As I said earlier, the idea is to adopt a series of provisions that are consistent with the Federal Court of Appeal ruling that was mentioned. Obviously, the latter had to deal with the text as it was written.

The French version of this amendment proposes to delete the phrase “qu'elles estiment indiquées” to simply emphasize the fact that the institutions will take the measures. So we can conclude that these would be the necessary measures, which is consistent with “les mesures positives qu'elles estiment indiquées”, if you will.

As Ms. Boyer was explaining, I think the proposed wording is going to encompass the range of relevant measures, without constraining the institutions to the point where they lose flexibility in implementing this commitment and these obligations.

[The Chair, Liberal, René Arseneault]

Thank you.

Mr. Godin, go ahead.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Mr. Chair, the wording of the new subsection 41(5) of the Official Languages Act proposed in clause 21 of the government's Bill C-13 requires “that the positive measures that it considers appropriate are taken for the implementation of the commitments under subsections (1) to (3).” We will not revisit the debate surrounding the phrase “it considers appropriate”.

However, this same government is now proposing an amendment that would, in my opinion, water down or soften Bill C-13 by suggesting, in the French version, “la prise de mesures positives”. The word “les” is eliminated from line 29 of the French version of the bill to include the word “de”, which has the same meaning as “des”.

I'll return to my example from earlier. Assuming the existence of 10 positive measures, LIB-14 would allow for the application of only one, or three, four, five, or all 10. We don't know. The current wording of this bill would require federal institutions to implement all 10 measures. Why diminish and water down this bill?

[The Chair, Liberal, René Arseneault]

Is your question for someone in particular, Mr. Godin?

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

We can ask Ms. Boyer or Mr. Newman to answer. If anyone else wants to answer, they are welcome to do so. Positive measures do not affect Mr. Quell, I believe.

[Julie Boyer]

In my opinion, this is not a lessening of commitment. It is clearly an obligation for the federal government. It seems to be a more direct way of saying that the government must take positive measures, in the plural.

Indeed, the exact number of positive measures to be taken is not prescribed. It is up to the Crown to decide on the investment and level of ambition, and it is up to the government to decide on the budget. That said, the wording does specify the obligation to take positive measures to implement these commitments.

[Warren Newman]

The sentence in new section 21(5) of the act proposed by clause 21 in the French version of Bill C-13 does not end after “mesures positives”, as there is no period. The current wording states “que soient prises les mesures positives qu'elles estiment indiquées pour mettre en œuvre les engagements énoncés aux paragraphes (1) à (3)”. Thus, it is a matter of appropriate, timely measures.

On the other hand, the English version is very strong.

Every federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments

It seems to me that it's even stronger than saying “the positive measures that it considers appropriate are taken....”

There is also “the positive measures necessary for the implementation of the commitments under subsections (1) to (3) are taken.”

To me, that's pretty strong wording.

[The Chair, Liberal, René Arseneault]

Mr. Godin, before you ask another question, I want to inform you that, for all kinds of reasons, we have to end the meeting at 10:45 a.m. sharp. I will let you continue, but at 10:45 a.m., we are going to have to adjourn the meeting, even though we have not finished the discussion on amendment LIB-14.

The floor is yours.