Madam Speaker, before speaking specifically about Bill S-4, I would like to remind the House that I have been a member of the Standing Committee on Official Languages for a number of years and that I have heard a great deal of testimony on the relevance of making Part VII of the Official Languages Act enforceable.
At one time, I even worked with various experts, legal and constitutional experts, on the possibility of making amendments myself and introducing a bill to make Part VII of the Official Languages Act enforceable. Consequently, the Bloc Quebecois does not take the firm position of absolutely not wanting to make this part enforceable.
That having been said, I am pleased to speak to Bill S-4, which amends Part VII of the Official Languages Act. The amendments in Bill S-4 affect sections 41, 42 and 43 in particular. Senator Gauthier's bill thus is intended to make Part VII enforceable, whereas this part has until now been interpreted as a statement of government policy.
Let us take a look at the history of Bill S-4. This is the third bill introduced in the Senate by Senator Jean-Robert Gauthier during this Parliament. He proposed Bill S-32 during the first session, and then Bill S-11 in the second session. These two bills were predecessors of Bill S-4, the bill before us today, which has got this far, the two earlier bills having died on the Order Paper when Parliament was prorogued.
As the member for Glengarry—Prescott—Russell has done, I must also recognize the hard work by Senator Gauthier in promoting the rights of francophone minorities outside Quebec. Much to his credit, Senator Gauthier is an ardent defender of francophones outside Quebec.
Nevertheless, after reading and thoroughly examining the bill before us, we must say that we cannot accept it unless it is amended to meet the constitutional requirements for all legislation. I shall explain.
In section 41 of the Official Languages Act, we read:
The Government of Canada is committed to (a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and (b) fostering the full recognition and use of both English and French—
This last part of section 41 is important:
—in Canadian society.
It seems to me that the scope of section 41 is too broad and too vague. The reference to Canadian society should be eliminated and replaced with “in respect of provincial jurisdictions”, because we want the government to respect and implement the law within its own jurisdiction. In my view, that is the spirit of the law. That is what is understood in the law, but unfortunately not what is written.
We want the federal government to respect and apply the Official Languages Act within its own jurisdiction and not throughout Canadian society in defiance of its constitutional obligations. I am certain that Senator Gauthier intended what I just said, in other words, for the federal government to intervene in its own jurisdiction.
I am certain that this is also the intention of the hon. member who sponsored this bill, the member for Glengarry—Prescott—Russell, but that is not clear. That is the problem and I will explain why a little later.
In section 43 we find once again a reference to Canadian society as a whole, and I quote:
The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to advance the equality of status and use of English and French in Canadian society—
More worrisome are paragraphs ( d ) and ( f ) of subsection 43(1).
Paragraph 43(1)( d ) states:
encourage and assist provincial governments—
Paragraph 43(1)( f ) is even more worrying. It states:
—encourage and cooperate with the business community, labour organizations, voluntary organizations and other organizations or institutions to provide services in both English and French—
Here, for example, are the main reasons we can conclude that, as it stands today, Bill S-4 does not meet the laudable objectives it had set, that is, to encourage the development of minority francophone communities and protect their rights.
More worrying still is the issue of its constitutionality, as it stands today. The then justice minister, the member for Outremont, spoke to us about this. I will quote from his testimony on April 30, 2002, before the committee. I think it is important, in seeking to amend the bill, to properly heed the warnings we have been given.
However, as Minister of Justice, I must tone down the tool used, the method used. Why? Section 41 has existed for 15 years now, as we speak. Section 41 is ultimately a policy statement which has enormous scope and is binding on the government, but, at the time it was passed, it was an enormous concern for all the provinces and territories, all our Canadian partners. Why? Because, it was said, the influence of section 41 was so great that the statement enabled the Canadian government to intervene in fields outside its jurisdiction.
That is what the then justice minister said. He continued, in saying:
In my view, if we added elements to section 41 that would make this part binding, we would risk jeopardizing the important tool this section represents. I very humbly submit that court challenges would result that would jeopardize section 41. I believe that this element alone shows how important it is to address section 41 from the standpoint of its very meaning, which is that of a policy statement.
Later, he stated:
In my mind, if we proceeded with Bill S-32—
That is S-4, which is now before the House.
—we would take the risk of losing such a... tool, because some people would raise more than concern: they would start to go to court in order to declare invalid section 41 and part VII.
On March 6, 2002, Warren J. Newman, of the Department of Justice's Constitutional and Administrative Law Section, said the following at the Senate Committee on Legal and Constitutional Affairs:
At the time the Official Languages Act of 1988 was introduced, certain provinces questioned the constitutional validity of Part VII, the aims of which go beyond federal legislative jurisdiction. These provinces were reassured as to the validity of Part VII by the fact that it is based on the federal spending power, and because this part of the act is not regulatory, but rather, program-oriented in nature.
I also point out that, in the view of many legal scholars, the commitment is probably not justiciable. Moreover, the Honourable Senator Beaudoin, in his excellent book on federalism in Canada, states that the court may say that the federal government must commit, but it cannot determine the amounts to be spent. That would mean getting involved in the parliamentary sphere with respect to the constitutional commitment.
What the justice minister of the time told us is that if Bill S-4 were adopted as it stood, there would be a number of bad reactions by the provinces. There would probably be a Supreme Court challenge of the constitutionality of the Official Languages Act as amended, and that most likely the provinces would be successful. As a result, the act would be weakened, and by the same token, the rights of francophone minorities.
I know that the francophones in minority situations are fed up with debates and with all the hemming and hawing, but we must not do more harm to them while intending in all good faith to help them.
One aspect we often neglect to keep in mind in a debate such as this one is that the two minority communities in Quebec and in Canada are not on an equal footing. Some francophone communities in Canada are still in a very precarious situation, and the rate of assimilation of francophones is in fact continuing to increase.
One major flaw in the Official Languages Act is that it does not recognize the asymmetry that exists at the present time in Canada as far as language minorities are concerned. The situation of the francophones outside Quebec is far more cause for concern and far more precarious than that of Quebec anglophones, and the act must acknowledge this.
And in section 41, let us eliminate the reference to “in Canadian society” and replace it with “respecting provincial areas of jurisdiction”. We must define the scope of section 41. That is very important in the legislation.
I am convinced that both Senator Gauthier and the sponsor of this bill, the hon. member for Glengarry—Prescott—Russell, were—and still are—acting in good faith when they introduced this bill, and I assure them of my complete cooperation.
Nevertheless, the Bloc Quebecois cannot support a bill that is likely to interfere in provincial areas of jurisdiction, and which would be immediately challenged before the courts and would not in any way improve respect for the rights of linguistic minorities.
The rights of francophones in Canada have been trampled for such a long time that what we need to find is an unequivocal solution to this situation, and not a law that will once again result in one court challenge after another. Francophones have waited long enough. They want real protection of their rights.
That having been said, the Bloc Quebecois would be in favour of amendments to strengthen enforcement and the presence of French in federal institutions, as long as such amendments do not weaken the status of French in Quebec.