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.