Official Languages Committee on Feb. 17th, 2023

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

Mr. Chair, I would like the meeting to be suspended for a moment because I need to consult the clerk.

[The Chair, Liberal, René Arseneault]

Okay. I will suspend the meeting for a few minutes.

[The Chair, Liberal, René Arseneault]

We are resuming the meeting.

We are now discussing amendment CPC‑24, as amended.

If there is no further debate, I will call the vote.

The clerk has the floor.

[The Clerk of the Committee, Ms. Michelle Legault]

Okay. Let's begin.

Mr. Serré—

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

I would like to say something, Mr. Chair.

[Marc Serré, Liberal, Nickel Belt, ON]

We've started the vote.

[The Chair, Liberal, René Arseneault]

Yes, we've started the vote already, Mr. Godin.

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

I want to talk to you, Mr. Chair and hear your thoughts.

I know that the clerk has started the vote on amendment CPC‑24, but I would like you to see if there is unanimous consent for me to withdraw my amendment.

[The Chair, Liberal, René Arseneault]

The vote has already begun.

The only way to proceed is to get unanimous consent, Mr. Godin. The committee can do anything as long as there is unanimous consent.

Is there unanimous consent by the committee to withdraw amendment CPC‑24?

[Marc Serré, Liberal, Nickel Belt, ON]

No.

[The Chair, Liberal, René Arseneault]

We already started voting on amendment CPC‑24, but we will start again to avoid any confusion.

(Amendment as amended agreed to: yeas 6; nays 5. [See Minutes of Proceedings])

[The Chair, Liberal, René Arseneault]

That brings us to amendment BQ‑30.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

I will not present this amendment or amendment BQ‑31.

[The Chair, Liberal, René Arseneault]

Amendments BQ‑30 and BQ‑31, which are found on pages 75 and 76 of our amendments package will therefore not be presented.

We will now move on to amendment CPC‑26.

Before I give the floor to Mr. Godin, I want to say that, if amendment CPC‑26 is adopted, then amendments LIB‑14, LIB‑15 and NDP‑6 cannot be moved because they pertain to the same lines of the bill.

Mr. Godin, you have the floor.

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

Thank you, Mr. Chair.

In my opinion, this is another very important amendment. After hearing from many witnesses, including representatives of the Fédération des communautés francophones et acadienne du Canada, I think that using the word “les” instead of “des” in French makes all the difference. There is only one letter that is different, but the word “des” is vaguer than the word “les”.

I will read the amendment and then I will present my arguments to try to convince my colleagues to adopt it.

Amendment CPC‑26 proposes that Bill C‑13, in Clause 21, be amended by replacing lines 30 to 32 on page 11 with the following:

the positive measures necessary for the implementation of the commitments under—

In other words, in addition to the change that I just explained, the amendment seeks to replace the words “that it considers appropriate” to “necesssary” in reference to positive measures.

I will summarize.

A ruling was handed down in May 2018 after the Fédération des francophones de la Colombie‑Britannique, or FFCB, was forced to fight in court for services to be offered in French and for investments to be made in the francophone community. It talked about employment centres, among other things. I think that everyone is familiar with this case and its outcome. If I remember correctly, the judge ruled in favour of the FFCB based on the distinction between the words “les” and “des” in French. It was the case of FFCB v. Employment and Social Development Canada.

Then, there was Bill C‑32, which was well done.

The government then appealed the Federal Court's decision. You will understand that it is rather odd for the federal governmnet to take an organization that defends minorities to court.

In reference to federal insittutions, Bill C‑13 indicates “that the positive measures that it considers appropriate are taken”. I have heard that people want to replace the word “les” with “des” in French but we will see what happens later in committee. It is important to leave in the word “les” in French and to remove the phrase “that it considers appropriate” so that the number of rights-holders can be enumerated rather than estimated. That is the debate we just had in committee.

If we adopt amendment CPC‑26, it would strengthen the bill. I think that the goal of all members here is to properly support both official languages. If, in the near future, anyone argues in favour of replacing the word “les” with the word “des” in French, it will take us back even further than Bill C‑32.

Amendment CPC‑26 is vital to show respect for what we are doing here, for the FFCB and for the FCFA, which brings together nearly 200 organizations that represent francophone minorities outside Quebec. Even though this amendment may seem trivial because it is so short, it is vital. It seeks to do two things: to leave in the word “les” rather than changing it to another word like “des” in the French version of the bill and to remove the words “that it considers appropriate”.

I presented my arguments, as did my colleagues, on eliminating the idea of consideration.

I will stop there, Mr. Chair. I think it is very important that we adopt this amendment.

[The Chair, Liberal, René Arseneault]

Thank you, Mr. Godin.

Mr. Drouin, you have the floor.

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

Thank you very much, Mr. Chair.

I want to thank my colleague for proposing this amendment.

I do not believe the amendment has the effect of replacing the word “des” with the word “les”, which is already part of the bill. However, it does make a change by adding the word “necessary”. On that point, I would like to ask the officials here a question.

There was talk the last time about the effect of including the word “necessary”, so that the wording would be “necessary positive measures”. I want to be clear that it does not say “necessary positive measures”, it says “positive measures”. That is already in the bill. The amendment aims to add the word “necessary”.

In your opinion, what effect would adding the word “necessary” have?

[Julie Boyer]

Thank you very much for the question.

The amendment targets the beginning of the proposed wording in the bill, which reflects the obligations that would be set out in part VII of the Official Languages Act. There is indeed an obligation. The words “positive measures” remain as they are. The wording proposed in Bill C‑13 reflects the case law, and that is also reflected in the amendment. What is new, however, is the word “necessary”. The question here is who decides what measures are necessary. Should the department determine or judge whether a given positive measure is necessary, or should the stakeholders determine and demonstrate that?

Here, the word “necessary” could have a limiting effect on the measures that would be taken. There is indeed a judgment call in determining whether an action is necessary. Is it necessary for the stakeholders or necessary for the department? The department might feel that it is not necessary. Stakeholders would then have to demonstrate why it is necessary. Therefore, it could have an unintended limiting effect.

The language found in Bill C‑13, that is, “that it considers appropriate”, gives the department the option to impose them. Thus, the burden of proof does not apply, in this case.

Mr. Fallu could probably provide more details.

[Marcel Fallu]

The obligation to take positive measures was introduced into part VII of the Official Languages Act in 2005, through Bill S‑3.

I won't repeat everything that stakeholders have argued before this committee, but let's just say that over the years, a number of criticisms have been made about implementation. The jurisprudence has also evolved. The latest decision on this issue is the Federal Court of Appeal's ruling in the case between the FFCB and ESDC.

The wording “measures that it considers appropriate” found in Bill C‑13 and the current wording used in subsection 41(2) of the act have the same meaning, although the words are slightly different. In essence, it is still a binding obligation on federal institutions.

As Ms. Boyer mentioned, adding the word “necessary” could introduce a bit of a filter. That is probably not what was intended, but we think that this language could create a ceiling, or a requirement to demonstrate why something is necessary. In contrast, the language found in the current act and the language found in Bill C‑13 gives federal institutions the flexibility to decide the best means.

[The Chair, Liberal, René Arseneault]

Are there any other questions?

Mr. Godin, you have the floor.

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

Mr. Chair, my question is for Ms. Boyer.

You said that the proposed wording in amendment CPC‑26 leaves it up to the agencies to judge whether a measure is necessary. Can you please explain the difference between the wording? In the bill, it is a matter of interpretation when it says that federal institutions have the duty to “ensure that positive measures that it considers appropriate are taken”. Agencies will still make their case to officials. The wording “necessary positive measures” implies the same thing with respect to officials. They are still the ones who will decide whether or not a measure is necessary. Whether the wording is “positive measures that it considers appropriate” or “necessary positive measures”, it is a question of interpretation in both cases. There is no push back or elements that will obstruct the work of public officials.

Can you explain how the word “necessary” is more restrictive than the words “that it considers appropriate”? I, for one, do not understand your reasoning.

[Julie Boyer]

I would ask Mr. Newman from the Department of Justice to explain the distinction between the two terms more clearly.

[Warren Newman]

Thank you.

There is a margin of discretion when implementing positive measures. The phrase “that it considers appropriate” gives some discretion to federal institutions, which are still in control of the design and delivery of their own programs and services. This phrase gives them some leeway in implementing this commitment and obligations.

That said, Bill C‑13 sets forth a series of positive measures and guidelines that add more. These guidelines are very helpful and are consistent with the Federal Court of Appeal decision that was mentioned. In particular, the measures must be concrete and be taken with the intention of having a positive effect, while respecting the needs to protect and promote. I don't need to read out all of these provisions, but that is quite considerable.

When you look at how part VII has evolved since 1988, the federal government has gone well beyond the original commitment, which was a solemn commitment, but was not intended to create obligations. Now, the obligations are there and they must be implemented. Having said that, there still needs to be some discretion or leeway for federal institutions to implement these measures “that it considers appropriate”. That is the wording we prefer to use.

[The Chair, Liberal, René Arseneault]

Mr. Godin.

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

In fact, Mr. Newman, you just ended your remarks by saying that you prefer to use the phrase “that it considers appropriate”. I understand that is a preference, but you have not convinced me that the concept of “necessary positive measures” will be binding in its application in the day-to-day lives of public servants.