Official Languages Committee on March 21st, 2023

[The Chair, Liberal, René Arseneault]

Your objection is duly noted, so—

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

I have a point of order, Mr. Chair.

It's disappointing when the Liberals vote against our amendments. The Liberals should respect our position when we don't vote the same way they do.

[The Chair, Liberal, René Arseneault]

All right.

Here is the question: Shall clause 21 as amended carry?

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

I'm voting against the clause, but I think I'm the only one.

(Clause 21 as amended agreed to)

(On clause 22)

[The Chair, Liberal, René Arseneault]

The floor is yours, Mr. Godin.

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

Mr. Chair, with CPC‑33, we are again stressing the importance of clarifying the necessary measures.

The amendment seeks to amend Bill C-13, in clause 22, by replacing line 14 on page 14 with the following:

22 (1) The portion of subsection 43(1) of the Act before paragraph (a) is replaced by the following: 43 (1) The Minister of Canadian Heritage shall take the measures necessary to advance the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to (1.1) Paragraphs 43(1)(b) to (g) of the Act are re-

That's the amendment, Mr. Chair. I think everyone here has the ability to understand the purpose of CPC‑33, so I won't go on and on.

[The Chair, Liberal, René Arseneault]

Thank you, Mr. Godin.

Are there any comments on CPC‑33?

Go ahead, Mr. Drouin.

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

Thank you, Mr. Chair.

I'd like to propose a subamendment to the honourable member's amendment. I move that CPC‑33 be amended by replacing “shall take the measures necessary to advance the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to” with the following:

in advancing the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to

The English version is even more complicated than the French.

It is, in principle, that the amendment replace, in proposed subsection 43(1), “shall take the measures necessary to advance” with the following: “in advancing”.

Taking into account the amendment as amended, the proposed subsection would read as follows:

43 (1) The Minister of Canadian Heritage in advancing the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to

[The Chair, Liberal, René Arseneault]

We are going to suspend momentarily in order to distribute copies of the subamendment.

[The Chair, Liberal, René Arseneault]

We are back now that everyone has a copy of Mr. Drouin's subamendment.

Are there any questions?

Go ahead, Mr. Godin.

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

Mr. Chair, I have a question for Mr. Newman.

My understanding is that Mr. Drouin's subamendment would replace “shall take the measures necessary to advance” with “in advancing”.

How is that different, and what impact would it have on how the Official Languages Act was interpreted?

[Warren Newman, Senior General Counsel, Constitutional, Administrative and International Law Section, Public Law and Legislative Services Sector, Department of Justice]

Thank you for the question.

Don't forget that, in French, to express the imperative, we use the present tense. So, whether we write "take the necessary measures to advance" or "advance", we come to the same result. In English, we always say "shall." Therefore, it is an obligation.

When I read both the amendment and the sub-amendment, off the top of my head, it seems to me that the idea is to ensure that the Minister advances the equality of status and use of English and French. It's obviously the principle underlying section 16(3) of the Canadian Charter of Rights and Freedoms. The text also indicates that the minister may avail themselves to a range of measures. That's how I read it in French.

I'm trying to capture it in English. It would be:

The Minister of Canadian Heritage in advancing the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to

It seems to me it would lead to the same result.

We take for granted that the minister will promote—"advance" in the English text—the equality of status and use of French and English, and that they can avail themselves to a range of measures to do so.

[The Chair, Liberal, René Arseneault]

Thank you, Mr. Newman.

Mr. Godin, you have the floor.

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

In short, the proposed sub-amendment would have the exact same effect as the amendment. That's what I understood from Mr. Newman's answer.

In that case, I question the usefulness of this sub-amendment, besides wasting our time. Just thinking out loud.

[The Chair, Liberal, René Arseneault]

Mr. Serré, you have the floor.

[Marc Serré, Liberal, Nickel Belt, ON]

I'd like to ask Ms. Boyer for a clarification.

The proposed amendment would replace the text so that it says "the necessary measures." What does that mean? What would be the meaning of this change?

[Julie Boyer, Assistant Deputy Minister, Official Languages, Heritage and Regions, Department of Canadian Heritage]

The question was raised more than once during committee discussions.

When we say "the necessary measures", their necessity must be proven. Often, a stakeholder must prove that a specific measure is necessary, or the minister must be persuaded of its necessity, which can add needlessly to the burden of proof. It could even dissuade certain ministers from implementing positive measures because they would not be deemed necessary.

It explains the wording still used by legislative drafters in Bill C‑13, which specifies that federal institutions must implement commitments by taking measures "they consider appropriate," or possible measures, rather than talking about measures deemed necessary, because that requirement adds to the burden of proof.

[The Chair, Liberal, René Arseneault]

Thank you, Ms. Boyer.

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

In fact, Ms. Boyer's answer tells us it could dissuade departments from implementing necessary measures. Indeed, every department must take necessary positive measures. That's why, from the beginning, we insisted on a single department, in this case the Treasury Board, as the final authority for implementing the legislative provisions. So, I don't understand.

I won't fight and I won't render my shirt over it, but I think we're running in circles. Again, we're not including as many aspects as possible in the bill to make sure it's highly effective.

We know that the Liberals will vote against my proposal in favour of theirs, and the NDP will follow their vote. So, I won't waste my time.

[The Chair, Liberal, René Arseneault]

Mr. Godin, we don't have a crystal ball. Let's follow the process, please.

Are there any other comments on the sub amendment proposed by Mr. Drouin?

Hearing none, we will proceed to the vote.

(Subamendment agreed to: yeas 6; nays 5.)

[The Chair, Liberal, René Arseneault]

We are coming back to amendment CPC‑33, as amended.

There doesn't seem to be any other comments, so we will proceed to the vote.

(Amendment as amended agreed to: yeas 7; nays 4.)

[The Chair, Liberal, René Arseneault]

This brings us to amendment BQ‑39.2. I will specify the number of reference, so that there's no confusion: it is indeed 12291732. That is the new amendment BQ‑39.2, if I may put it that way.

Do you want to introduce this amendment, Mr. Beaulieu?

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

Yes.

[The Chair, Liberal, René Arseneault]

Just before, I want to mention that if amendment BQ‑39.2 passes, amendment BQ‑40 cannot be moved due to a line conflict.

You have the floor, Mr. Beaulieu.

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

Unless I table the modified amendment, but that's another story, Mr. Chair.

Amendment BQ‑39.2 is not binding, but in my opinion, it is important.

Under paragraph 22(1)c) of the bill, in the section that reads "provide funding to an organization, independent of the Government of Canada, responsible for administering a program whose purpose is to provide funding for test cases [...] to be brought before the courts", we propose to add the word "transparently" before the word "administer".

For some time, it's been impossible to know how the funds are used and which organizations receive them. It's justified in part by the fact that we don't want to undermine a litigant launching a lawsuit.

For example, at one point, the Fédération des communautés francophones et acadienne, or FCFA, told us that if a provincial government knew ahead of time that the funding was coming, the government could prepare for it, which would weaken the FCFA's position. In my opinion, that means it's important to have as much transparency as possible.

As we know, the Court Challenges Program can occasionally undermine some provincial legislation, not only in Québec, but also in other provinces.

As for point b), we propose to add "rights granted under provincial and territorial linguistic regimes" after the section that read, "for test cases of national significance to be brought before the courts to clarify and assert constitutional and quasi-constitutional official language rights".

I was told that New Brunswick planned to offer bilingual services in all of its cities, but the measure came into conflict with the Official Languages Act, which specifies that the services have to be offered where numbers warrant. As that can sometimes come into conflict with francophones' rights, it's important to consider rights granted under provincial and territorial linguistic regimes, which already exist in Bill C‑13 in other respects.

Amendment BQ‑39.2 also intends to add a point to subsection paragraph 22(1)c), which would become paragraph 22(1)c.1). The wording would then become "provide this funding as transparently as possible, including by requiring that, after a test case is brought, the name of the funding recipients of the program referred to in paragraph (c) and the nature of the case be disclosed in the annual report of the independent organization, unless there are reasonable grounds to believe that the disclosure would cause harm to the recipients;".

Again, this is not a binding amendment; instead, it's a goad to increase transparency as much as possible. Since the money comes from taxes, it's normal to have a minimum of accountability.

The text in paragraph 22(1)c.1) was proposed by the Standing Committee on Justice and Human Rights, which led a study on the subject. Furthermore, I think Mr. Housefather was the chair at the time.

To summarize, it's simply about making the Court Challenges Program as transparent as possible.