Mr. Speaker, first I want to congratulate the author of this bill, Senator Gauthier, now retired. I also want to thank my hon. colleague opposite, who represents the riding next to mine, for defending this cause in the House.
The major purpose of the bill is to make the commitments set out in part VII of the Official Languages Act binding on the government. The way the act is worded now, the fulfillment of the objectives in part VII is left up to the discretion of the government. The bill before us today would allow the courts to enforce the implementation of part VII.
I can understand why Senator Gauthier felt this bill was necessary. Section 41 of the Official Languages Act commits the federal government to:
(a) enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development; and
b) fostering the full recognition and use of both English and French in Canadian society.
The government has failed dismally on both counts.
In 2004, the Federal Court of Appeal stated that:
Section 41 is declaratory of a commitment and does not create any right or duty that could at this point be enforced by the courts, by any procedure whatsoever.
In other words, the court ruled that section 41 of the Official Languages Act was a broad statement of principle and not an actual legal obligation. The court went on to say:
The debate over section 41 must be conducted in Parliament, not in the courts.
Bill S-3 addresses this ruling in two ways. First, it would add subsections requiring all federal institutions to take “positive measures...for the ongoing and effective advancement and implementation” of section 41.
Second, it would add part VII of the Official Languages Act to a list of specific sections of the act that are justiciable which is contained in section 77.
Simply put, this bill would clearly establish that, if the government does not carry out its duties under part VII of the Official Languages Act, it can be taken to court and forced to do so.
Simply put, the bill would make it clear that if the government does not live up to the obligations under part VII of the Official Languages Act it could be taken to court and forced to fulfill these obligations.
As a general principle I am very supportive of legislation that removes wiggle room for ministers and holds them to their commitments. However I am afraid the bill might not be drafted in the best way to achieve that goal.
My first concern with Bill S-3 involves section 41. Provincial governments have complained in the past that this section of the Official Languages Act infringes on their jurisdiction. The Bloc Québécois members made the same argument the last time the bill came before the House and I expect them to raise the same objection this time around.
My concern is that making section 41 justiciable, allowing it to be the subject of court action would clear the way for court challenges that might result in section 41 and the rest of part VII of the Official Languages Act being struck down on the grounds that it was ultra vires, outside the jurisdiction of the federal Parliament.
This concern was raised in committee in 2002 by the Minister of Justice at that time. To prevent this from happening I would like to work with my colleagues in the Standing Committee on Official Languages to amend the bill, perhaps by adding a section that explicitly respects the provinces and limits the federal government to its own jurisdiction in the way it fulfills section 41 of the act.
My second concern involves another section of the Official Languages Act that is affected by the bill, section 43. While Bill S-3 seeks to make the government's commitment under part VII of the Official Languages Act more enforceable, it does not clarify the scope of these commitments. As a result I fear that unless the bill is amended, it could result in a wave of court actions and the loss of parliamentary control over the nature and extent of the cost of the government's official languages program.
Section 43 currently states:
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...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--
Bill S-3 would change the wording of section 43 to clarify that the heritage minister “shall take appropriate measures to advance the equality of status and use of English and French in Canadian society”. However while it removes the minister's discretion when it comes to that general goal, it still leaves subsections (a) through (d), the list of specific measures totally up to the discretion of the minister.
What that means is that the minister does not have to do any of the specific things listed in section 43, but if someone is unsatisfied with the minister's performance when it comes to a very general objective, the person could take the matter to court regardless of whether the minister takes any or all of the specific measures listed.
This bill is supposed to reinforce implementation of the government's commitments under part VII of the Official Languages Act. However, with regard to section 43, only the most general provisions would be binding, while the specific obligations identified in that section would remain discretionary.
To me, this is completely backwards. It would be much more logical to leave the first part of section 43 discretionary and make the specific measures binding. The legislation would then give clear direction to the minister, and a specific legal framework by which the courts could determine if the minister was carrying out his duties or not.
This bill is supposed to make the government's commitment under part VII of the Official Languages Act more enforceable. However, in the case of section 43, only the most general provisions would be mandatory while the specific obligations in that section would remain discretionary. That seems totally backwards to me.
It would make far more sense to have the first part of section 43 discretionary and make the specific measures mandatory. That way the act would give the minister clear direction and it would give the courts a clear framework for deciding whether or not the minister was fulfilling his or her obligations.
In other words, it would better if we could change the last part of section 43 to say “the minister must” instead of “the minister may” take measures to enhance the vitality of official language minority communities, encourage and support the learning of English and French, and so on, while leaving the more general part as a statement of principles. That would make it much easier to implement the act.
This is something my hon. colleague from Lanark—Carleton suggested the last time the bill was before us. I think it is a shame that Senator Gauthier did not see fit to make these changes before making another attempt to get the bill through Parliament.
I hope we can make suitable amendments to the bill in committee to make it more effective in meeting the goals.
I will support this bill in principle. I will encourage my colleagues on this side of the House to do likewise, although they will be free to vote as they see fit since this is an item of private members' business. I think the intention of the bill is something that many members would consider to be reasonable and worthwhile.
I will agree in principle with this bill and I invite my Conservative colleagues to do the same. I believe that a good many members consider the intention of this bill to be reasonable and valid.
Having said that, I am afraid some of the bill's specific provisions may be seriously flawed in the ways I have described. I hope to work with all members in committee to improve the bill and perhaps to make it achieve its goals more effectively.
I look forward to hearing from witnesses, looking into the wording of the bill, bringing it back to the House and if necessary, amending it and sending it back to the Senate. It would be a shame to rush this legislation through, only to find that it had the opposite of its intended use.