Debates of April 22nd, 2004

Criminal Code

[Sue Barnes, Liberal, London West, ON]

Here is my question for the member, Madam Speaker. Why has he participated in delaying the bill in the House? The legislation is needed.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Madam Speaker, in case this member was not here, I sat in here most of the day watching the Liberal government filibuster Bill C-11, which we have agreed should be hurried and should get done, and then she dares to accuse me of suddenly getting up to speak on this bill, which I have not spoken to since it was initiated.

I am going to take the opportunity to speak to it because this is my first kick at it and I want to express some things. There is one thing I really want to express to the member, who must be a lawyer, because only a lawyer would stand at her seat and constantly agree that we need a clause like “public good”, because I will guarantee that this clause will bring case after case to the courts. It will be a lawyers' haven. Boy, will they have a lot of work to do to determine if there is any public good in child pornography.

I would like any member, any lawyer in the country, to tell me that it is worth spending hours and hours and tons and tons of money to determine whether a piece of garbage like we have witnessed, and like what the police are going through, is for the public good of any kind, of any nature.

All I am asking for, and all we have ever asked for from the beginning, is some legislation that would remove the defence from these people who exploit children.

Maybe I left it out, but the member knows very well that it was in the motion: to eliminate “all defences”. Also, if she was listening, I suggested that we protect our law officials, doctors, medical people and educators.

What are her priorities? Her priorities appear to be to get everything in the proper legal terms, which most people will not even be able to understand, to make sure that the courts will be filled with people who are going to make claims so they can be protected under the public good while they are exploiting our children. The police are going to have continue to spend hour after hour going through all this material to determine if there is any possibility that there is any public good, like they had to do for the artistic merit work. It is no wonder that people like John Sharpe, along with other pedophiles across the country, cheered when this legislation came through.

The trouble is that this particular member, as well as too many members in here, lives on a higher plane, above average Canadians, because 90% or so of average Canadians would say, “For heaven's sake, get rid of that garbage and get rid of it in the firmest way you possibly can”.

And yes, my suggestion might even go against the charter of rights, because it would take away the right of some idiot out there to use this material for his own personal use or whatever.

I am telling this lady and this House and this country that it is time today to stand up and say they are not going to use the charter to exploit our children or to protect themselves and that we are going to put in laws that will protect children. That is more important than protecting the rights of these idiots who would produce, distribute and use this to damage young people.

The government needs to get firmer and not give me any more legal garble and babble-gabble about what may happen. I know what is going to happen. It is going to be in the courts constantly because the government does not have the fortitude to put the law in place and mean business about it.

[Ken Epp, Canadian Alliance, Elk Island, AB]

Madam Speaker, I want to commend my colleague for his compassion and passion on this issue.

What I would like to pose to him as a question, because we have such a very limited time, is simply this. He proposed during his speech that instead of having the defence of artistic merit or public good, either of those defences, we would simply list those people who would be able to possess this for a valid, legal reason, whether they were prosecutors or whatever.

I wonder whether he is afraid that perhaps by having a specific list someone may be convicted who was inadvertently omitted from the list. In other words, who should be on the list and who should not?

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Madam Speaker, as was stated earlier, we have already in there educational, scientific, medical purposes, but I would also include for law enforcement purposes. From those descriptions of what it may be used for, then bona fide people who are in those professions and could possibly be tied to any of that, they only need to be recognized as being a bona fide doctor, psychiatrist, prosecutor or whatever.

We do not need to make a list. We just have to make sure that those four areas are protected when it is absolutely certain that is what it is being used for, but for Pete's sake, we must stop the exploitation of children by not leaving any cracks where it can happen. It is important to me and I hope it is to the rest of us.

[Paul MacKlin, Liberal, Northumberland, ON]

Madam Speaker, it is a pleasure to participate in the debate, although I see the time is somewhat limited this evening.

I was at least encouraged to hear the previous speaker advance the fact that now he is giving a selection of items that were clearly referred to as examples that would be included as serving the public good in Bill C-12. I think we are starting to make some progress. We are starting to see that in fact we cannot start off with a bill that has absolutely no means of allowing people to deal with that issue, and the phrase “public good” is an excellent way of expressing that. The hon. member has come a long way toward accepting that principle.

Today I find this a special opportunity to discuss and debate further the issues that are so important, as everyone has pointed out today. I believe this discussion, although it has gone on at some length, should go forward with the concept of trying all ways and means that are meaningful to protect our children while preserving all the rights that are within our charter. I say that of course because Bill C-12 does bring forward, not just child pornography reforms in terms of criminal law, but actually goes beyond that and brings forward other reforms which better protect those who are most near and dear to us, our children, and those people with disabilities.

Bill C-12 is much needed and welcome and I look forward to the reforms that it will introduce. Each of us wants to make sure that the criminal law meets the needs and concerns of Canadians, especially those who are most vulnerable, which includes those with disabilities and our children.

Although the previous speaker concentrated on one particular area of the bill, we must understand and appreciate that there are a number of areas that are being addressed. First, the bill deals with the concept of strengthening our existing child pornography provisions in two respects. One is to broaden the definition of written child pornography to include material that is created for a sexual purpose and predominantly describes prohibited sexual activity with children and the other would narrow the existing child pornography defences so that there would only be one defence of public good.

Within the scope of public good, the previous speaker's commentary about dealing with science, education, law enforcement, the administration and process, the medical issues that arise from this, and the entire study process, this is developing the idea of public good. I am very happy to see that there is some movement in my hon. friend who previously spoke to this concept, because up until this point there was a desire on the part of that party to simply say that there should be absolutely no defence.

I think those members are starting to get the idea. They are starting to develop the concept that there are legitimate uses that have to be there. There have to be opportunities to educate our people to deal with the medical realities and to go through and deal with the administration of justice.

I think it is very important that we are making progress in that area. In narrowing the defences to the one defence of public good, is something that will better serve the public interest, but I think there is a limitation on that.

As one would argue for public good as a concept, one would also have to put a cap on that because we cannot let it go beyond a certain point. The point that has been determined is that one has to weigh the entire public good against the risk of harm that it would pose. Therefore, when it outweighs the benefit, that is the public good defence, to society, then in fact it would be limited.

Second, the bill also proposes to create a new prohibited category of sexual exploitation of young persons. I think the examples that were given by the previous speaker speak to those points. What we are concerned about is the exploitation of children.

[The Acting Speaker (Mrs. Hinton)]

It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

Official Languages Act

[Don Boudria, Liberal, Glengarry—Prescott—Russell, ON]

moved that Bill S-4, an act to amend the Official Languages Act (promotion of English and French) be read the second time and referred to a committee.

Madam Speaker, it is an honour for me today to speak to Bill S-4, an act to amend the Official Languages Act (promotion of English and French).

Before going any further, I think it is important for me to say that I informed the Standing Committee on Official Languages—to which I asked that the bill be referred—and my colleagues that, should the bill be considered by the committee in the future, I did not intend to chair said committee during meetings on Bill S-4. In the interest of transparency, I asked that the vice-chair or one of the vice-chairs of the committee take the chair in my place while I sit elsewhere in the room in order to avoid chairing a hearing which will judge the merits of a bill that I am sponsoring.

I also want to commend Senator Jean-Robert Gauthier, who has championed this issue for many years. This bill, which sets out to give more teeth—if I can put it that way—to the Official Languages Act, is so important to the hon. senator that he has returned to the charge three times since 2001.

I also want to point out that Senator Jean-Robert Gauthier has faithfully been representing Canadians in the House of Commons and the Senate since 1972, if I am not mistaken—32 years . In a few months, Senator Gauthier will leave us because of his age—75—as unfair as that may seem, especially to those who work as hard on initiatives such as protecting minorities. I know that the senator is undoubtedly listening to this debate and that the members of his staff—his assistant, Sébastien Goyer, in particular—are listening closely and watching it too.

The bill is important to me and Senator Gauthier because we clearly remember a time when it was difficult to obtain services in French and English from the Government of Canada. Senator Gauthier has become a symbol of the struggle to obtain respect for the rights of francophones and minorities everywhere.

Francophones know him well as an advocate in this field, but he was long and is still an advocate of many other causes affecting minority communities. Naturally, we will be able to talk about the rights of public servants or various other similar subjects that have been and continue to be important to Senator Gauthier.

Consequently, when the official languages policy was instituted, some 30 years ago, the senator had just been elected as a member of Parliament. I am sure that when he arrived in the House of Commons, although French and English had the same status here in the House as they do today—with simultaneous interpretation and the other things that have existed since Mr. Diefenbaker's time—things were quite different elsewhere in Ottawa.

However, despite all our efforts, something still remains unchanged, and it must be admitted that rights are not always recognized as they should be. Furthermore, there is even one section of the Official Languages Act that, to some people—and I say some, because one senator does not share this opinion—makes section 41 and others declaratory only and not enforceable.

On March 29, the Official Languages Commissioner, Dyane Adam, published her report entitled, “Walking the Talk:Language of Work in the Federal Public Service”. The information in the report was compiled from questionnaires sent to 2,000 public servants working in the national capital region. So, we are talking about this region. The results prove beyond any doubt that we need to make these parts of the Official Languages Act enforceable, if this is not clear to some people.

In her report, the Official Languages Commissioner said:

Anglophones and Francophones are both in favour of the increased use of French in the workplace.

However, even if both groups are in favour of it, that is not always what happens. We know that this is not always the case.

Now it is time to go further. It is time to give the government of Canada the tools to promote the development of the francophone and anglophone minorities. It is also time to ensure that the necessary measures are taken to implement our commitment. When I say our commitment, I mean the commitment of the House, because, after all, it was Parliament that passed the Official Languages Act. Section 41 is already in the law, of course. Now it is time to make it enforceable.

Section 41 of the Official Languages Act reads as follows:

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 in Canadian society.

Nevertheless, we have been told that this paragraph is only declaratory, as I said before. There are those who claim that, in any case.

Bill S-4 wants to go further. It wants to add two paragraphs to section 41. Proposed subsection 41(2) would now read as follows. I am reading from the senator's bill, which I am now sponsoring in the House. I suppose I could call it our bill, although that would be unfair because he did far more than I ever will be able to do. Nevertheless proposed subsection 41(2) states:

Within the scope of their functions, duties and powers, federal institutions shall ensure that positive measures are taken for the ongoing and effective advancement and implementation of the Government of Canada's commitments--

Proposed subsection 41(3) states:

The Governor in Council may make regulations in respect of federal institutions, other than the Senate, the House of Commons or the Library of Parliament, prescribing the manner in which any duties of those institutions under this Part are to be carried out.

I understand that some may wish to make amendments to some part of this in the future when the bill goes to committee, at least some of what is going to come a little further on. The bill states in proposed subsection 43(1):

The Minister of Canadian Heritage shall take appropriate measures to advance the equality of status and use of English and French in Canadian society--

Finally, the bill confers more power on the Commissioner of Official Languages, who will use it to raise awareness of the rights of francophones and anglophones living in minority situations. Subsection 77(1) will therefore ensure that, and I quote:

Any person who has made a complaint to the Commissioner in respect of aright or duty ... may apply to the Court for a remedy under this Part.

I would ask members of Parliament to see it in their hearts to adopt this bill today and to send it to committee. I hope at the conclusion of the debate sometime later this day that they will let the debate collapse, which is what I am asking the House to do, and also not to ask for a recorded vote.

The reason I ask for both is obvious. We may be somewhat, shall I say, late in the term of this Parliament--who knows--and if we are, we could send the bill to committee. If any members wanted to make amendments to the bill, these amendments could be offered.

Of course, after the bill goes to a parliamentary committee, obviously it comes back to us in the House, so we may all take part in a recorded division on the bill in its final form.

That is why I feel it would be important for the bill to go to committee today, to enable consideration of it to start as early as next week.

That is what I am asking my colleagues today. First of all, to support the bill, and second to allow this privilege of terminating debate today and, by not asking for a recorded vote, to allow the bill to be immediately referred to the Standing Committee on Official Languages. I hope that decision will be made later on today.

Passage of this bill on second reading would let the 975,000 francophones in a minority situation, as well as the 585,000 anglophones in a minority situation in Quebec, know that their rights are important, and will be even more so in future. If it is true, of course, that certain minorities are well treated, this narrows the scope of the bill, but it is proportionally more important for the minority that is less well served. This is what a colleague on the other side has said.

I thank hon. members in advance for their work, and I again congratulate the senator behind this bill. I congratulate the Senate as a whole, because it passed the bill unanimously, need I emphasize at this point.

Of course I also wish to thank in advance the members of the Standing Committee on Official Languages, which I normally chair, but not this time as I have already said. I know they work very hard where official languages are concerned, and they will examine this bill thoroughly, and come back with amendments if they feel they are appropriate.

Regardless, once the bill has finished its passage through the official languages committee, whether unchanged or with amendments, it will have had the committee's blessing, as it were. Then, of course, in my opinion at least, the House will surely be prepared to pass it unanimously, once it has seen the comments from the Standing Committee on Official Languages.

Once again, I thank my colleagues. I congratulate the senator and his staff, and all those who have been involved in preparations on this bill on more than one occasion, and who have produced the bill we have before us today.

[Scott Reid, Canadian Alliance, Lanark—Carleton, ON]

Madam Speaker, this is a somewhat unusual bill in that it has come to us from the Senate. Most bills do not come that way, although it is not unique. Also, it is a private member's bill and therefore is being sponsored by a private member rather than by a member of the cabinet.

This represents my only chance to ask the member in the House about his intentions regarding the bill. I do have some appreciation for the member's concerns. It might be late in the term of the government, very true. It might not however be late in the term of the government. We just do not know. That is something on which the Prime Minister will be making a decision. If anybody is asking me, I think the election should be called in the autumn rather than in the spring, because there is no hurry for an election, but that is just my opinion.

At any rate, what I am getting at here is that while I think the intention of the bill is something that on the whole many members would find to be reasonable and worthwhile, there may be some flaws with the bill. I do not think it is necessarily a good idea to agree, not really to let it go forward to committee, but to effectively agree that it ought to go forward to committee and come back to the House entirely unamended. The pressure for time would imply that there is no opportunity to amend the bill, to improve it and perhaps to make it achieve its goals more effectively. That would require that it go to committee, that we have witnesses and that we look at any problems that might exist with the bill as it is worded, that it come back to the House, perhaps be amended and go back to the Senate, if necessary. That is simply the way these things work because of the way the bill came to us. Had it come by some different means, that would not be necessary.

I do worry that we might find ourselves in a situation where we have to choose between the bill, assuming that it must go forward in its current state completely unamended, and voting against it. It seems to me that one ought to show some willingness to look at amendments, particularly friendly amendments that help achieve its objectives better than perhaps its initial wording had intended to do.

I ask the member if he and the sponsor of the bill in the Senate are willing to consider the possibility of looking very seriously at amendments that are intended to improve the bill. During my own remarks I will make reference to one such amendment, but there are others that could be imagined.

[Don Boudria, Liberal, Glengarry—Prescott—Russell, ON]

Madam Speaker, first, of course, I am prepared to have witnesses appear before the committee. I will not chair the meeting. I will be one of the members, voicing my opinion on this matter. If I am asked today whether I want witnesses to appear, I would say of course. I want, for example, to hear from the Official Languages Commissioner, and perhaps the president of the Public Service Commission. There are others, no doubt. Perhaps members want to hear from prominent legal experts, to name just one example.

We are prepared to hear from these witnesses. In light of the testimony of such experts, if they talk about how to improve the bill, we should also be prepared to heed their advice, naturally. If we seek criticism, the ultimate goal is to improve the bill, if need be. I cannot pretend to speak for the senator. That is not my role today.

In any event, when the bill is before the House it is up to the House to decide, not the person who sponsored the bill and had the decision-making power in the first place. Nonetheless, I know that the senator is a very reasonable person. Knowing him as well as I do, I know that if someone were to present him with amendments to improve his bill and he sincerely believed this would make his bill better, he would not be so vain as to say that what he did in the past could not be improved. I know him well enough to know that he is not like that.

We want the bill to be good, not only so that we can be proud of it on a personal level, but so that it will be good legislation for Canadians. That is what we are all here for in the House of Commons and in Parliament in general.

Let us hear from witnesses, and at third reading we will vote for or against the final product. It is quite possible that the final product will be identical to what we have today. We shall see. Time will tell. I agree with the member opposite. Like him, I would not want to hastily move on to third reading and pass a bill that we do not want.

[Scott Reid, Canadian Alliance, Lanark—Carleton, ON]

Madam Speaker, the purpose of Bill S-4 is to make part VII of the Official Languages Act justiciable.

The most important parts of part VII are sections 41 and 43. The bill seeks to change the wording of sections 41 and 43 which, in the case of section 41 is declaratory, and in the case of section 43 is discretionary. As I indicated in my question to the hon. member opposite, my belief is that the bill is not as successful as it could be in achieving these goals.

In the time that is available to me, I would like to point out some of my concerns in this respect. I would like to start in reverse order with section 43 and then move on to section 41. Section 43 in the Official Languages Act currently reads as follows:

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 and, without restricting the generality of the foregoing, may take measures to

(a) enhance the vitality of the English and French linguistic minority communities--

(b) encourage and support the learning of English and French in Canada;

(c) foster an acceptance and appreciation of both English and French by members of the public;

(d) encourage and assist provincial governments to support the development of English and French linguistic minority communities--

It says “The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate”. In other words, it is entirely at the discretion of the minister. There is no actual obligation. Similarly, it goes on, without the restriction of the foregoing, “may take measures to” do all those things that I just listed. That is purely a discretionary section. I think there is, in general, merit in avoiding such broad discretion in legislation.

Section 43 would be changed by Bill S-4 to read as follows:

The Minister of Canadian Heritage shall take appropriate measures 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 [do all the things I described--enhance the vitality of English and French, encourage and assist provincial governments, et cetera.]

The word “discretion” has been removed. What that means is the minister still has complete discretion insofar as one is addressing all the specific obligations laid out in sections (a) through (h) of the act, but is bound by the law in a non-discretionary manner and in a justiciable manner. One could go to court if one is unsatisfied on the most general part of the provisions.

I want to suggest to the House that this is exactly backward. What one ought to do--what is most likely to produce good policy, good regulations and actions from the minister, and some kind of coherent judicial action should any action be taken--is the reverse and leave the first part of section 43 discretionary and make the specific provisions mandatory. This is something I suggested in the Standing Joint Committee on Official Languages on March 12, 2002.

At that committee meeting we were discussing section 7. At the time, Senator Gauthier was a member of our committee. I pointed out that one could read the last part of section 43 to say “and without restricting the generality of the foregoing, the minister must take measures to encourage and assist provincial governments to support the development of English and French in linguistic minority communities”, while leaving the first part, the general part, in a discretionary manner.

That is the way that laws are normally written. That would lead to a much more coherent and logical implementation of the act and of adjudication under the act should anybody seek to make use of the remedies provided by the other changes that Senator Gauthier proposes in this law.

I want to turn to section 41. Section 41 currently reads as follows:

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;--

This is purely declaratory. It is almost the exact wording used in the preamble to the act. I suggest it is a kind of internal preamble.

It seems to me that with the changes that are proposed by Bill S-4, we now have the following added:

Within the scope of their functions, duties and powers, federal institutions shall ensure that positive measures are taken for the ongoing and effective advancement and implementation of the Government of Canada's commitments under subsection (1)

That would be just as simple. One could take that to court if one felt the government was being inadequate in carrying out its really rather vague obligations under section 41. It seems to me that what one ought to do is to try to have very specific obligations, stated clearly, in law and perhaps something should be added in. Then one could deal with the law that way rather than giving a vague proposal and expecting that the vague instruction to the government would be justiciable.

There is a problem in fact that this may even be unconstitutional. To explain how this might be the case, I will turn to testimony.

I would like to quote what the hon. member for Outremont said when he was Minister of Justice in the Chrétien government. When he appeared before the Standing Joint Committee on Official Languages on April 30, 2002, the former Liberal justice minister said:

—when we proceeded with the full enactment of section 41 some years ago, it raised some concern from the provincial governments, because they had the feeling at the time that if we were involved with such a section we would be involved in their jurisdiction. What we said is it's government policy. The government has a role to contribute with what we find within part VII and, to be more precise, in section 41. Because of that, we've been able to proceed with the full enactment of this tool, which is a great tool. In my mind, if we proceeded with Bill S-32, we would take the risk of losing such a fantastic 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.

There is the possibility, and this is the opinion of the Liberal justice minister two years ago, that this bill, which was exactly the same under its prior designation as it is today, would have the effect of invalidating the government's obligations under part 7 of the act. This seems to me to be a very serious problem with the bill and one that causes it to perhaps not be as effective as it could be in achieving its goals.

This is the kind of thing that I think ought to be discussed at committee. This is the kind of thing that means that we ought to move very carefully and if necessary make amendments to the bill, and if necessary be prepared to send it back in an amended form to the Senate.

It is incumbent upon us to ensure that we have good legislation, that all legislation that leaves this place actually accomplishes the goals that it can. This bill, hopefully, would do that in an amended form. Should it fail to be amended and fail to deal with some of the problems that I raised today, and there may be others, then it seems to me that we could very well be doing the opposite of what we intended. Our responsibility as lawmakers is to move very carefully and to seek to produce the best legislation on this topic and indeed on every topic which comes before us.

[Benoît Sauvageau, Bloc, Repentigny, QC]

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.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Madam Speaker, first I want to thank the member for Glengarry—Prescott—Russell for sponsoring this bill by Senator Jean-Robert Gauthier, a man who sets great store in the recognition and respect of linguistic rights, particularly those of minorities in Canada.

It is a pleasure to debate Bill S-4 on the official languages and the promotion of French and English. First, I would like to congratulate the members of the Standing Senate Committee on Official Languages and the members of that other place for having adopted Bill S-4 unanimously and without amendments. I also want to congratulate Senator Gauthier for his dedication and hard work to promote linguistic duality in Canada.

The bill before us today is without a doubt a step in the right direction, in promoting the official languages in Canada. Since the Official Languages Act came into force in 1988, the government has always had good intentions, but it has never took the next step and recognized the enforceable nature of section 41, part VII, of the Official Languages Act.

Earlier, the sponsor of the bill said that this was true even before 1988. It is still unclear if this section is enforceable or not. After fifteen years, the same question remains. It is time to clarify this legislation.

Not recognizing the enforceable nature of section 41 would mean that the government never intended to assume the obligation under this act of ensuring that French and English progress toward equality of status and use in Canadian society.

What does this mean for the official languages in our country? It means that this government lacks commitment—it is not serious—and has failed to ensure linguistic duality in Canada.

Take for example the Dion action plan on official languages. This highly ambitious plan commits the federal government to a $751 million investment over five years in order to improve the status of both official languages and to protect linguistic minorities.

Incidentally, I must say that I sometimes get the feeling that this $751 million is being used for appealing decisions each time the francophones or anglophones—most of the time the francophones—win a court case. This is why I talk about lack of seriousness.

I am not faulting the official languages action plan, full of good intentions as it is, but there is no mechanism in place to back it up on the legislative level for the development of official language communities.

Lack of seriousness and counterproductivity is evident when a government commits to encouraging the development of French- and English-speaking minorities in Canada by investing more than $750 million, but the language minorities cannot even go before the courts to ensure their rights are respected. If we cannot defend ourrights before the courts, we are at a disadvantage in manyregions.

Since section 41 of part VII of the Official Languages Act came into effect, it has remained a kind of paper tiger, weak and toothless, unable to defend itself against the power of the majority over the country's French- and English-speaking minorities.

Bill S-4 is well received by the NDP, because its purpose is to strengthen and give some teeth to an act that currently is totally unenforceable. The rate of assimilation is increasing, and constitutes a serious problem, even a critical one, throughout the country. The government therefore has to provide linguistic minorities with all the necessary tools to ensure their survival and development.

I find it most regrettable that Bill S-4 is the third to be presented to the government, following on S-32 in 2001, and S-11 in 2003, and all were aimed at giving some teeth to the Official Languages Act.

The Liberals' position with respect to these bills has always been that recognition of the enforceable character of the Official Languages Act would bring too many official language minority cases before the courts.

This is a facile argument and one that is readily challenged. I do not believe that the minorities would abuse their right to legal recourse, but if that were the case, it would be an important sign of the government's shortcomings as far as protecting official language minorities, and of the ground that is being lost by the official language minority communities.

We need strong legislation in order to protect linguistic minorities and to reverse the assimilation that is happening in this country. The federal government must assume its responsibilities and strengthen its commitment to these minorities.

Government investments to support linguistic minorities must go hand in hand with the right to court challenges under section 41 of Part VII of the Official Languages Act, if these investments are to have any weight and meaning.

A right that cannot be defended is not a right, but a mere statement of good intent, one that remains vulnerable and open to encroachment. I am not questioning the good will of the majority, but the statistics do indicate that the rights of the francophone and anglophone minorities in this country are being increasingly ignored.

The NDP is in favour of linguistic and cultural diversity as an important value in this country. It is therefore in favour of Bill S-4 as a means of protecting linguistic minorities and ensuring their vitality. I hope to have the opportunity to examine the bill in depth in committee.

The only way the committee can do that is for Parliament to vote in favour of the bill, and then it will go to committee. I side with my colleague from the Bloc Quebecois on this; he has just said that it might be a better bill with some amendments. With amendments, some things might be changed and would respect provincial areas of jurisdiction. The only place this can be done is in committee. So, if we get this to committee successfully, we will propose amendments there.

This is why I am asking my colleagues to support this bill, so that it may be referred to a committee and then get back to the House. We would therefore have the opportunity to vote on this bill twice. So give us the opportunity to be able to examine it in committee, to make any necessary amendments, but let us not take a backward step by saying no.

I think this is important. We could invite knowledgeable people to appear before the committee and help us. I recommend Professor Michel Doucet from Université de Moncton. He is very qualified in constitutional and linguistic matters. We could invite people of his calibre and I am certain my colleagues in this House know other people who could inform us.

For these reasons, we must not reject this bill at this time, because it is so important. It would be like asking people to obey speed limits, but not having a law to stop them when they drive too fast. It is no different to me.

I want to congratulate the government, which, in 1988, passed official languages legislation. Nonetheless, having a law without teeth is like not having a law at all.

Let us look at an example that I already talked about here in the House of Commons. It had to do with food inspectors. A case was won in New Brunswick courts and the Liberal government appealed the decision.

The issue is whether the law has teeth. We will find out. However, with a bill like this, we would know for certain. That is why I am calling on the hon. members of this House to truly support minorities in our country and provide legislation to help us ensure that minorities will be protected.

[Bernard Bigras, Bloc, Rosemont—Petite-Patrie, QC]

Madam Speaker, I am pleased to rise today in the House on such an important subject as the Official Languages Act. Discussions have been going on for some time among parliamentarians on whether or not it is relevant to amend Part VII of that act, which was promulgated in 1969 and revised in 1988.

Bill S-4, introduced in the Senate by Senator Jean-Robert Gauthier and sponsored in the House of Commons by the member for Glengarry—Prescott—Russell, basically proposes to make Part VII of the Official Languages Act enforceable. This part deals with the federal government's commitment to enhance the vitality of the English and French linguistic minority communities in Canada, to support their development, and foster the full recognition and use of both English and French in Canadian society. That is, in brief, section 41, to which amendments are proposed. Two subsections would be added to this commitment. The first is, and I quote:

(2) Within the scope of their functions,duties and powers, federal institutions shall ensure that positive measures are taken for the ongoing and effective advancement and implementation of the Government of Canada’s commitments under subsection (1).

The second new subsection is:

(3) The Governor in Council may make regulations in respect of federal institutions, other than the Senate, the House of Commons or the Library of Parliament, prescribing the manner in which any duties of those institutions under this Part are to be carried out.

Moreover, section 43 would also be amended by Bill S-4. It would read:

The Minister of Canadian Heritage shall take appropriate measures to advance the equality of status and use of English and French in Canadian society—

This wording would replace “such measures as that Minister considers appropriate to advance the equality of status and use of English and French in Canadian society—”

Finally, subsection 77(1) would read as follows:

Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV, V or VII, or in respect of section 91, may apply to the Court for a remedy under this Part.

The problem that the bill is trying to solve relates to the current ineffective implementation of this bill. It is well known that, since 1969, federal institutions, among others, have not respected, to a large extent, the Official Languages Act. With time, the attitude of some departments and federal institutions has become simply arrogant. In fact, year after year numerous departments and agencies present annual reports that systematically violate the Official Languages Act. Worse still, they get away with tabling plans of action that announce future disregard for this legislation.

What is the government doing to respect the Official Languages Act? Clearly, too little. In reality, this legislation is constantly ignored by numerous departments and federal institutions. This obviously encourages them to continue in their “who cares” attitude when it comes to respecting the Official Languages Act.

If the government does nothing, it is because, apparently, the legislation has no teeth. Since it is just a statement of good intentions, part VII would not, in its current form, permit delinquent institutions to be forced to comply with the legislation, since it is not enforceable.

That is the main reason we are now debating the amendment to this part of the legislation: so that it has teeth; in short, so that it is binding instead of simply declaratory. The intention is no doubt laudable.

However, I am wondering about various points. First, the objective of Bill S-4 is to make part VII of the Official Languages Act enforceable. The problem is that part VII purports to broaden the scope of the legislation to include all Canadians, and that is precisely why this part has not been enforceable since its enactment in 1988. That is precisely why this part received special treatment when it was drafted. There was a huge outcry from the provinces, who refused to agree to such interference in provincial jurisdictions.

This historic refusal remains our response today.

Moreover, is it not too soon to table this bill? I know that the Standing Committee on Official Languages plans to work on Part VII of the act over the coming weeks. And the Minister of Justice will be the witness at the committee's hearing on Tuesday. The last report of the committee on this subject, an interim report to boot, was tabled, I believe, during the 35th Parliament.

We have discussed Part VII of the Official Languages Act in the House of Commons for a long time without ever arriving at any satisfactory conclusions. I do not think there have been satisfactory answers to all the questions in either House of Parliament.

It makes me wonder why the legislative process is being rushed for this bill when there are still so many questions.

Here are some of them. What is the effective scope of this proposed legislative amendment? Why, according to Senator Gauthier, has every justice minister, without exception, interpreted Part VII as declaratory? Why did the previous justice minister refuse to make it enforceable? Can a province go to the courts on the constitutionality of Part VII of the act? Is this justified? Is it legitimate? There are diverging opinions on this. Is there not already a range of possibilities for enhancing the vitality of linguistic minority communities? Does the government implement or use them? Do they work?

I believe the real problem is due to the fact that there is no real desire on the part of the federal government, nor has there been since the early days of the Official Languages Act. This led the Commissioner of Official Languages to say that the government had a significant leadership problem when it came to the official languages.

I am tempted to say that those are the facts. When the government cannot manage to enforce legislation that has existed for 35 years, legislation it says is at the heart of the country's identity—

[The Acting Speaker (Mrs. Hinton)]

Order. The time provided for the consideration of private members' business has now expired and the order is dropped to the bottom of the order of precedence on the order paper.

A motion to adjourn the House under Standing Order 38 deemed to have been moved.

[Serge Cardin, Bloc, Sherbrooke, QC]

Madam Speaker, the expansion of the landfill site in Coventry, Vermont, which threatens, obviously, the drinking water supply from Lake Memphrémagog, involves two countries. As a result, the public is entitled to the support of the Minister of Foreign Affairs.

Last Monday, the minister told me that the Vermont authorities had assured us that comments by Quebec will receive the same consideration as the ones made by Vermont. This is not necessarily very reassuring, since in Vermont, on the one hand, people will earn significant additional income from the operation of this expanded this landfill site, while on the opposite side of the border in Quebec, there is a significant risk of groundwater contamination, thereby threatening the drinking water supply.

The minister also told us that the Memphrémagog RCM and the City of Sherbrooke are involved in the process and are considering asking for party status, and that they would be entitled to full privileges, including the right to appeal once the decision is made.

The minister also told us that we will be able to present our position to the appropriate American tribunals. If this is not sufficient or if we do not have the opportunity to properly present our case, obviously, we can appeal to the International Joint Commission, but only as a last resort.

Meanwhile, the minister's officials are content to gather information, act as observers and let the people in the area muddle though on their own. They also say they will intervene if this does not work and that they would be ready, at that point, to approach the International Joint Commission.

That is not what people expect. All the steps taken by the people in the area and the stakeholders from the Memphrémagog RCM and the City of Sherbrooke are very costly. They expect the minister to do his share, in view of the foreign aspects of the situation.

Here is my first question. Will the minister provide financial aid for all these proceedings between the two countries, and also assist the community, the City of Sherbrooke and the Memphrémagog RCM? In addition, all of the interventions by these people require a lot of expertise. Will the minister provide them with technical support?

The situation of Sherbrooke and the Memphrémagog RCM involves a great many actions. It is a situation that could be described as a test case. Is the minister aware of all the similar situations that exist all along Canada's and Quebec's borders? If so, will he take action to prevent this happening again?

If the International Joint Commission were to intervene, it could, under the Boundary Waters Act, establish a clear and precise policy covering landfill sites near waters and rivers used for human consumption.

I would like to have some answers from the Minister of Foreign Affairs.

[Dan McTeague, Liberal, Parliamentary Secretary to the Minister of Foreign Affairs]

Madam Speaker, we listened carefully to the member's speech. This is the second time he has asked about this and I know there are concerns. According to the member there is a problem; we know this because it has been raised many times by the Liberal members for Compton—Stanstead and Brome—Missisquoi.

The government is very much interested in this matter. Hon. members must understand that we are following the different steps in this situation; we must follow the necessary process.

There are two things. The situation at the Coventry landfill site remains a Vermont decision and the hon. member fully understands that. Indeed, his colleagues from Compton—Stanstead and Brome—Missisquoi have already been to Vermont with people from the area to meet with authorities from the State of Vermont and representatives from associations responsible for the process, such as Vermont Solid Waste Management Program. The State of Vermont process is known as the Act 250 Process.

I want to point out to the hon. member that if it were truly a question of assistance—he talked about financial assistance—first, I must indicate that those knowledgeable about the environment, experts who have things to say about the drinking water situation, can easily come to the assistance of the agencies. People are currently coming forward with their knowledge. We also know the position of the Government of Quebec.

However, it needs to be made clear—and the hon. member is well aware of this—that going before the International Joint Commission is a last resort. We must start at the beginning of the process, not at the end. We fully understand what is happening and what the representatives of Vermont think about expanding the landfill site. However it is important to realize that there are steps we must follow.

It should be obvious to anyone here that what the hon. member is asking for is not just that we go to the international joint commission, which, as we have told the member on many occasions, is actually at the end of the process, he is now asking for some money. What else will he be asking for?

The reality is that we stand four square behind the constituents who have a legitimate concern about potable drinkable water, about water that is not in any way damaged by the proposal made in Vermont.

This is not the first time, and it will not be the last, as the member aptly indicated. The minister stated on April 19 that:

Vermont officials have assured us that the comments made by Quebec will receive the same consideration as the ones made in Vermont.

This is true. but the minister also said:

—the...regional county municipality has been involved in the process and is considering asking for party status.

He went on to say that there were other steps. There is the Environmental Protection Agency and there is also the government of Vermont.

There are things we need to do. This matter will not be resolved today, and a decision has not yet been made. Although I understand the member's concern, we are still assessing the problem raised by the members for Compton—Stanstead and Brome—Missisquoi.

[Serge Cardin, Bloc, Sherbrooke, QC]

Madam Speaker, my colleague makes frequent reference to the members for Compton—Stanstead and Brome—Missisquoi and I understand his concern about getting them re-elected in the region. But that is not what is important. It is the population that is important.

The situation we are experiencing in the Magog and Sherbrooke region involves two countries. It is wrong to say that the International Joint Commission is only involved at the end of the process. Under the Boundary Waters Treaty, actions can be initiated when there are real concerns relating to the environment, of course, when these involve boundary waters.

At this point in time, I believe the government ought to be wanting to intervene. Where the environment is concerned, it is not enough to count on the good faith of the parties, particularly outside parties. The Minister of Foreign Affairs must therefore step in promptly and take some concrete action.

[Dan McTeague, Liberal, Pickering—Ajax—Uxbridge, ON]

Madam Speaker, I referred to the member for Compton—Stanstead merely because that member is involved, along with others. The member is aware, of course, that we are concerned with the future and the interests of everybody, not just the people in the region, but also those of the federal government.

The Government of Canada and Environment Canada have obtained certain technical documents and are in the process of analyzing their content. We also have other information we have to reconcile. We have been given information on the tendering process as well. This would make it possible for our department and others to form a common front, not just for the people living in that area, but also for the government, which would have the authority to go over the files and ensure that their contents are based on something both countries would find workable at the end of the day.

We need to have a water policy on which both sides can agree and on which we understand each other's obligations.

[The Acting Speaker (Mrs. Hinton)]

The motion to adjourn the House is now deemed to have been adopted. Accordingly, the House stands adjourned until tomorrow at 10 a.m., pursuant to Standing Order 24(1).

(The House adjourned at 6.41 p.m.)