Mr. Speaker, I am pleased to address Bill S-3, a bill to amend the Official Languages Act.
My riding of Provencher, which is in southeastern Manitoba, has the largest francophone population in rural western Canada. It comprises about 15% of the population with communities such as Ste. Anne, La Broquerie, Ste. Pierre, Ste. Malo, Ste. Agathe, Ste. Adolphe, Otterburne, Lorette, Pine Falls, Powerview, St. George and Île-des-Chaînes, to mention some of them. The French language is thriving in Manitoba and, in particular, in my riding.
I would like to comment briefly on a May 1998 report written by provincial judge Richard Chartier on the operation of the province's French language services policy in Manitoba. The report was commissioned by the Manitoba Progressive Conservative government while I was the attorney general and our government committed to implementing that report. I am pleased to see that the implementation continues.
Judge Chartier's report is aptly titled, “Above All, Common Sense”. It focuses on making bilingual services more readily accessible in designated areas of the province, including my area of the province. Judge Chartier's key recommendation was that community service centres be established to serve as outlets for government services. He said that the province could better meet the objectives of our French language service policy by making sure that our services in French were actively offered in those regions where our francophone population is concentrated.
In his report he wrote that it was important to try to find practical solutions that could be applied immediately, above all, solutions that made use of common sense. While the report does not have a direct application to Bill S-3, I believe we can learn from the principles contained in that report.
The major purpose of Bill S-3 is to make the commitment set out in part VII of the Official Languages Act binding on the government. Section 41 of the Official Languages Act commits the federal government 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.
The government has failed on both of those counts.
In 2004 the Federal Court of Appeal stated that “section 41 is declaratory of a commitment and that it 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. In other words, the bill would make it clear that if the government does not live up to its obligations under part VII of the Official Languages Act it can be taken to court and forced to fulfill those obligations.
As a general principle, I am supportive of legislation that holds ministers accountable to their commitments. However there remain concerns with the bill as drafted. The first concern with Bill S-3 in fact centres around section 41.
Provincial governments have complained in the past that this section of the Official Languages Act infringes on their jurisdiction. The Bloc Québécois made the same argument the last time this bill came before the House.
My concern is that making section 41 justiciable, that is allowing it to be subject to 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 or outside the constitutional jurisdiction of the federal government. This concern was raised in committee in 2002 by the minister of justice at the time.
My colleague from Stormont—Dundas—South Glengarry has committed to working with the members on the Standing Committee on Official Languages to amend the bill, perhaps by adding a section that expressly respects the provinces and limits the federal government to its own jurisdiction assigned to it in the Constitution so that it fulfills section 41 of the act within its constitutional mandate.
The 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 those commitments. As a result, unless the bill is amended, it could result in a wave of court actions and the loss of parliamentary control over the nature, extent and, indeed, 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--
Bill S-3 would change the wording of section 43 to clarify that the heritage minister “shall take appropriate measures” instead of “shall take measures that the Minister considers appropriate”. While it removes the minister's discretion when it comes to the general goal, the bill still leaves sections (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 were dissatisfied with the minister's performance when it comes to her or his very general objective, they could take the matter to court regardless of whether the minister takes any or all of the specific measures listed.
Now it seems totally backward to me to make the general obligation legally enforceable and the specific ones up to the discretion of the minister. This act needs to be clarified in that respect and give both the minister a clear direction and give the court a clear framework for deciding whether or not the minister is fulfilling his or her obligations.
I hope we can make suitable amendments to the bill in committee to make it more effective in meeting its goals. I will support the bill in principle and 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 do want to say that if we approach this issue in a common sense way, the way that Judge Chartier did in Manitoba with his report, I think that we can continue to work together as two linguistic groups in this country, French and English, to ensure that the constitutional responsibilities that our governments have are carried out.