Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 26 - Evidence
OTTAWA, Thursday, February 21, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-32, to amend the Official Languages Act (fostering of English and French), met this day at 10:50 a.m. to give consideration to the bill; and to give consideration to a draft budget.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we will start with the consideration of our draft budget for the fiscal year ending March 31, 2003. This budget has to be presented to the Internal Economy Committee by the end of the week.
As you can see, our committee is asking for a budget of $16,870 this year, which is an increase from last year's budget of approximately $12,000. The unexpected length of our sittings and the number of witnesses we heard last year, caused us to spend quite a bit more than we normally do on meals. Therefore, we thought we should build in a cushion in the event that the same thing happens this year.
Is there any discussion of the budget?
Senator Beaudoin: Having regard to our previous budgets, I have no hesitation in accepting this budget as put forward. The fact that it is a very low amount is an example that other committees may choose to follow.
The Chairman: I constantly point out to the members of the Internal Economy Committee that we present almost the lowest budget of any committee and we have the lowest expenditures of any committee. Yet, we pass more legislation than any other committee.
Senator Bryden: I move the adoption of the budget.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: I will sign this budget and present it immediately to Internal Economy.
We will now continue our consideration of Bill S-32, to amend the Official Languages Act (fostering of English and French). We will begin our deliberations this morning with Ms Dyane Adam, the Commissioner of Official Languages. Her presentation will be followed by that of the officials from the Department of Justice.
Welcome to our committee.
[Translation]
Ms Dyane Adam, Commissioner, Office of the Commissioner of Official Languages: Honourable Senators, thank you for giving me this opportunity to outline my position on Bill S-32. I applaud this proposal put forward by Senator Jean-Robert Gauthier. As I mentioned in my last annual report and in several other publications issued by my Office, Part VII of the Official Languages Act should be amended to ensure that the federal government meets its commitments with regard to the advancement of English and French.
As some of you know, I come from a minority community myself, having grown up in Casselman. You will understand that given my Franco-Ontarian roots, I was very touched when I read the speech that Senator Gauthier gave on February 6 in this very room. He made an emotional appeal to all of you, asking that you alert your colleagues to the urgent need for action in this area.
I do not need to remind you that many of us who come from official language minority communities fear the outcome of the next census. I have come today to deliver a message and to confirm the urgency of the situation.
Bill S-32 addresses the need to translate into action the formal commitment made by the government in 1988 and to clarify the scope of section 41 of Part VII of the Act. At that time, the Honourable Lucien Bouchard, then Secretary of State, appeared before the Senate committee charged with studying the new legislation, stating that adding Part VII, and section 41 in particular, created an obligation for the federal government to take action.
In August 1994, the government of the day adopted a departmental accountability framework, the first strategy aimed at implementing Part VII to be adopted by the federal government since the Official Languages Act was enacted in 1988.
[English]
Therefore, 27 federal institutions were designated and asked to develop a multi-year action plan in consultation with official language minority communities. The officials heading these institutions are required to report annually to the Minister of Canadian Heritage on the preceding year's results. The minister then provides this information to Parliament.
We have noted a lack of progress in this regard, despite the commitments made and the mechanisms introduced. Ambiguity surrounding the scope of section 41 is certainly largely to blame. Would stronger leadership have made for a less ambiguous and more satisfactory application leading to better results?
In its Throne Speech on January 30, 2001, the government renewed its commitment to assist the development of official language minority communities. This was the most important reference to official languages made in a Throne Speech in 15 years. A few months later, on April 25, 2001, Prime Minister Jean Chrétien assigned responsibility for official language issues to the Honourable Stéphane Dion, President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs. In carrying out his mandate, Mr. Dion will have to develop a policy framework to strengthen the official language program. Like Canada's official language minority communities, I am looking forward to this much needed policy framework. We still have a long way to go before reaching the point where we can say that we are living up to our commitments under Part VII.
[Translation]
The Standing Joint Committee on Official Languages has turned its attention to various problems associated with section 41 of Part VII of the Official Languages Act, asking the following question:
Does section 41 in fact constitute a statement of intent, or does it create an obligation for the federal government to take action? If it does create this obligation, how do we determine the government's purview in this regard, and to what extent can the courts intervene to ensure the government fully meets this obligation?
Ambiguity and confusion usually go hand in hand with stasis and uncertainty. The federal administration does not know what is expected of it; it must therefore be sent a clear message. There are various possible avenues to explore as we seek a solution: political, regulatory, legal and legislative measures.
At the political level, the government could elect to state clearly and firmly its intention of recognizing the binding nature of its commitment under Part VII. Obviously, the drawback to this approach is that we would be left to the will of the government of the day. At the regulatory level, the government could decide to adopt an effective regulatory framework for the implementation of Part VII. This avenue is certainly worth exploring.
The Office of the Commissioner of Official Languages has taken legal action in respect of the Official Languages Act and the Contraventions Act. However, the Federal Court found that it did not have the judicial authority to rule on the scope of section 41 of the Act, since section 77 of the Act, which deals with remedies, does not specify that an application for a remedy may be made in respect of an obligation under section 41. The government could refer the case to the Supreme Court of Canada for a clear, precise legal interpretation. The disadvantage of such an option is that it would be a lengthy and costly process.
Finally, there is a solution for which Senator Gauthier has opted in introducing Bill S-32 and that is the legislative option. Of course, enacting laws falls within the purview of parliamentarians. Regardless of how the government proceeds to remedy the situation, I would remind you once again of how urgent it is to take action. The future of our official language communities and of country's linguistic duality depend on this happening.
[English]
Furthermore, I should like to propose draft amendments that would have the effect of enhancing Bill S-32. I propose that two clauses be added to the current text of section 41, and we will probably add a third clause. The purpose of these subsections would be to stipulate the binding nature of the commitments set out by being more explicit as to the obligation of federal institutions in this regard, and to provide for regulation-making authority so as to guarantee that an appropriate system is put in place to implement the Official Languages Act.
The current wording of section 41 would be retained, but a second, third and probably fourth subsection would be added at the end. The fourth proposed subsection is not in the text that has been provided to you, but it will be distributed to you now.
The first subsection would read as follows:
(2) Federal institutions shall ensure that concrete steps are taken to fulfil this commitment.
The next subsection would read:
(3) The Governor in Council may make regulations prescribing the manner in which federal institutions are to carry out the obligations to which they are subject under this Part.
In the text before you we had suggested an amendment to subsection 77(1), but we were made aware that it might be difficult to do for technical purposes. However, where there is a will, there is a way, so in the alternative we are proposing that the following additional subsection be added:
(4) Any person who has made a complaint to the Commissioner in respect of a duty under this Part, may apply to the Court for a remedy pursuant to the provisions of Part X.
[Translation]
When he appeared before you on February 6, Senator Gauthier informed you that he had written to some government ministers and received their comments in this regard. I would like to respond to some of the concerns voiced. The concern they have about this bill is that it might increase the ``litigiousness'' of Part VII. Senator Gauthier also mentioned that the President of the Queen's Privy Council for Canada and Minister responsible for official languages issues, the Honourable Stéphane Dion, recently informed him that he also had concerns in this regard. The Minister of Canadian Heritage expressed a similar opinion in a letter to Senator Gauthier dated November 2001.
I believe Canadians and official language minorities in Canada will not opt for legal remedies if governments and legislators adopt a proactive approach. By demonstrating leadership and basing their actions on precedents, governments and legislators could avoid court challenges.
Like Senator Gauthier, I do not believe that official language communities are likely to engage in frivolous court challenges, given their limited financial means. Great sums of money, not to mention great energy and patience, are needed to embark on such undertakings. However, legal remedy may become necessary, even unavoidable, when there is no other choice. It is important to look at the facts when it comes to remedies applied for under the Official Languages Act since it was amended in 1988.
It should be noted that most court remedy applied for under the Official Languages Act aims to address the failure to comply with obligations clearly set out in the Act, either in Part IV respecting communications with and services to the public, Part V, on language of work , or in section 91 respecting staffing.
The adoption of this provision has not resulted in a flood of remedy applications. The eight court challenges put forward by the Office of the Commissioner of Official Languages related to systemic problems resulting from failure to comply with the obligations set out in Part IV on services to the public. Prominent cases involving services provided to the traveling public include those of VIA Rail and Air Canada.
It should also be mentioned that since 1988, 26 remedy applications have been filed by the complainants themselves and of this number, 80 per cent were made by federal public servants in respect of Part V and VI and section 91. Therefore, the concern that too many court challenges will be launched is not borne out by the facts.
I understand that one of the federal government's chief concerns is the cost associated with full implementation of these obligations. Furthermore, some government members wonder whether official language minority communities might not be able to use section 41 to demand that institutions or services be introduced.
I do not believe that we should fear abuse in this regard. The government would be able to use its regulation-making authority to delimit its obligations, in consultation with official language minority communities. It should be noted that these communities are ready to cooperate with the federal government. They are only waiting for a signal from the government to start working together.
As Senator Rivest pointed out:
It will not be up to the courts to decide, for example, whether the Department of Canadian Heritage should allocate $10 million or $15 million. Such amounts would be set by governments.
[English]
In conclusion, I commend Senator Gauthier for his unfailing dedication to the cause of official languages in Canada. His commitment and determination are unrivalled. He enjoys a solid reputation with both his parliamentary colleagues and the official language communities across the country.
The bill Senator Gauthier has put forward, along with the amendments I am proposing to section 41, would make it possible to clarify the scope of Part VII. We are both striving for a better interpretation of the act, one that would enhance the vitality of minority communities and support and assist their development.
I also think this is an ideal occasion for the government to act on its renewed commitment to support the development of official languages communities as was proclaimed in the last Throne Speech.
In closing, I should like to point out that the Standing Joint Committee on Official Languages is currently examining the challenges involved in implementing Part VII of the act and looking at possible regulatory measures that could address the current administrative vacuum. I intend to continue to offer the committee my full cooperation as it works to achieve this fundamental objective.
[Translation]
I will be pleased to answer any questions you may have and to hear your comments.
Senator Beaudoin: I have a basic question for you. Senator Gauthier's amendment relates to sections 16(1) and 16(3) of the Constitution Act, which provide for the equality of status of English and French. Would you like some regulatory authority to come into play as well?
Ms Adam: Yes.
Senator Beaudoin: This is the second time that we have dealt with this. I find that quite interesting. What if we had both, that is, what if Senator Gauthier's amendment were adopted along with the amendment calling for the Governor in Council to have regulation-making authority? That alone would be something. Then, I would agree with you that it is a good idea.
However, you go one step further. A different remedy is provided for in the additional proposed amendment to section 41(1):
Any person who has made a complaint to the Commissioner in respect of a duty under this Part may apply to the Court for a remedy [...]
I have nothing against court challenges. Generally speaking, court rulings have the advantage of being clear, and more importantly, binding on the parties. When the court speaks, its decision is binding. Would we be talking about the same thing here? In addition to regulation-making authority, there would also be the option of seeking a court remedy. Is that what you would like?
Ms Adam: Yes.
Senator Beaudoin: That would stir things us. How would you like section 41(2) to read?
Ms Adam: It would read as follows:
Federal institutions shall ensure that concrete steps are taken to fulfill this commitment.
I stress the word ``concrete'' to clarify the obligation on their part to take action.
Senator Beaudoin: One day, the courts will either prove me right or wrong. My initial position on this issue is that section 41 is already binding, regardless of whether it is in fact amended. How are institutions to be kept informed then of the federal government's actions, given that they report to the federal government. How will this all work?
I would prefer to see the federal government subject to legislative provisions or to regulations because then, it would be obliged to take action. How can public servants force an institution to take action? Should this not be spelled out clearly in the act?
Ms Johanne Tremblay, Director, Legal Services, Office of the Commissioner of Official Languages: Indeed, the purpose of the second paragraph is to impose on federal institutions the obligation to take action. The obligation is clarified. As you noted, section 41 as it is now drafted is binding and in effect imposes certain obligations. However, not everyone interprets this provision the same way. A certain amount of ambiguity prevails. The addition of this paragraph gives section 41 more clarity. The obligation of the federal government is clearly stated. The third paragraph provides the government with the opportunity to prescribe the manner in which these obligations shall be carried out. Pursuant to the fourth paragraph, if certain institutions fail to take any action or, for example, if they do not comply with the regulatory provisions, a person may file a complaint with the Commissioner or apply to the court for a remedy.
Senator Beaudoin: That would be possible?
Ms Tremblay: Yes, pursuant to the Official Languages Act.
Ms Adam: This is also true for other parts of the Act where both legislative provisions and regulations apply. The possibility of applying for a remedy also exists. The aim is to strengthen and clarify Part VII. We at the Office of the Commissioner of Official Languages have always maintained, just as you do, that Part VII is binding.
Senator Beaudoin: Not everyone shares this opinion.
Ms Adam: Hence our reason for being here today.
Senator Beaudoin: We read through the various court rulings and note that judges are confining themselves to the evidence presented. It is impossible to give a ruling more weight than it actually has. Proposing amendments is, in my view, a sound move. We need an amendment to stipulate that the provision is binding, a second to stipulate that action is warranted and a third to emphasize the need for immediate action.
[English]
The Chairman: As a follow-up to what Senator Beaudoin was saying, your second proposed amendment reads:
Federal institutions shall ensure that concrete steps are taken to fulfil this commitment.
What meaning has ``concrete steps'' in law? I do not think it has a meaning.
Ms Adam: I understand ``concrete steps'' to mean ``positive measures.'' It is meant to impose an obligation to act. Perhaps the wording could be refined. The wording in French is probably better.
The Chairman: Yes, it is.
Ms Adam: Perhaps we did not check as closely as we should have the quality of the translation.
Senator Fraser: In your proposed amendment (3), the Governor in Council ``may make'' regulations. Why not use the words ``shall make''? My fear is that if this all comes down to regulations the government could continue the status quo by never getting around to making the regulations.
My second question has to do with my shaky command of the French language. In English, proposed amendment (2) says: ``Federal institutions shall ensure that concrete steps are taken.'' In French it says ``Il incombe aux institutions fédérales.'' Is ``incombe'' as imperative as ``shall take''? I did not think it was. Am I wrong?
Ms Adam: That is very interesting. We have not coordinated the texts, which we normally should do. The Department of Justice is better skilled at that than us because they prepare legislation regularly. You are quite right. It is very important that the two versions have the same implication.
Senator Fraser: Which would be stronger, ``shall take'' or ``incombe''?
Ms Adam: ``Shall.''
[Translation]
Senator Fraser: The French reads: ``Il incombe aux institutions fédérales,'' while the English text says ``Federal institutions shall ensure.'' In my opinion, ``shall ensure'' is stronger.
Senator Rivest: The expression ``il incombe'' merely assigns responsibility.
Senator Fraser: That does it for the second paragraph. Let us move on now to paragraph 3 which contains the expression ``may make regulations,'' not ``shall make regulations.''
[English]
Ms Tremblay: In the English version, I think the best wording would be ``take measures.'' There is already an obligation on the Minister of Canadian Heritage to take measures. With section 41(2), we want to impose that obligation for all institutions, not only this minister.
With regard to regulatory power, it is usually drafted in this manner. It is a discretionary power for the Governor in Council to adopt regulations. To my knowledge, in interpretation sometimes a ``peut'' means a ``doit.'' There was a similar provision in Part IV. It was drafted with ``peut'' and there was a lot of pressure for the Governor in Council to adopt regulations with respect to Part IV to make it applicable. Those regulations were adopted for the application of Part IV.
Senator Fraser: Was there a court ruling on that or was it political pressure?
Ms Tremblay: No. They took their responsibilities and adopted regulations with respect to Part IV. If we have a specific provision in Part VII, the ``may'' would be considered as a ``shall,'' in my opinion. We could do further analysis on that.
Senator Fraser: You certainly know more about it than I.
Ms Adam: Your concern may be well based. Although there was regulation developed concerning Part IV, the government could also develop a regulation concerning language of work. They did not. Therefore, the ``may'' did not translate into ``shall'' in that case. It was left to the Governor in Council then.
[Translation]
Senator Rivest: Let me clarify the issue of possibly seeking a court remedy. Given the way the proposed amendment is drafted, there is no obligation to get results, hence the difficulty in knowing how far this could go.
For example, Calgary's francophone project is aimed at providing support to the francophone community in that city and indeed throughout Alberta. This initiative includes a drop-in centre for seniors, activities for young people, a performance hall and so forth. Could people go to court over the fact that the federal government, in an effort to comply with section 41, has purchased land?
You state in your brief that people will not necessarily resort to this course of action, because court challenges can be a costly undertaking. You also mentioned the regulatory aspect. I realize that regulations would be very useful, but regulations would not provide the federal government with a means of shirking its responsibilities. Budget cuts are a fact of life. Could someone go to court to challenge a budget cut?
Senator Joyal: Yes.
Senator Rivest: In your brief, you applaud Senator Gauthier on his initiative. You point to the need to clear up any ambiguity and to make the commitments set out binding. However, there are also political overtones to this debate.
Ms Adam: We need to find the appropriate model and framework to achieve the stated objective. As I see it, the goal is to ensure the survival of our official language minority communities and to enhance their vitality. This process involves many stakeholders, including the communities themselves.
The regulations arising from Part VII would give the government an opportunity to clearly state its obligations and to frame administrative action. This is extremely important at this point in time. They would also make is possible to take into account a wide range of situations associated with enhancing the vitality and assisting in the development of communities. The nature of these various communities varies widely within Canada and indeed within the same province. Regulations could provide for a more targeted type of action.
As legislators, you have a responsibility to decide what, if any, is the appropriate legislative or regulatory action to be taken.
Senator Gauthier: I agree with you that section 41, as amended by Bill S-32, lacks some punch. You have proposed new wording and set out clearly the nature of an institution and the authority it wields.
I modeled myself on the New Brunswick legislation, but I did not use this particular wording. I was told that I was about to shake things up enough as it was. If this wording allows for a better interpretation of the provision, so much the better!
In your presentation, you alluded to the ambiguity of the existing provision and to its interpretation. I submit to you that this interpretation restricts your role as Commissioner of Official Languages.
The act stipulates that you have the power to conduct inquiries. Your authority extends to the advancement of English and French. I could cite the relevant section for you, but I think you know the act better than I do. You have the authority to conduct inquiries and to take steps to ensure the advancement of official language communities. You have the authority to intervene in certain matters.
I am not totally convinced that the scope of section 77 is limited. This particular provision allows any person to seek a court remedy. In my opinion, section 77(5) gives you considerably more latitude than your predecessors have enjoyed since 1988. Do you feel somewhat restricted as to the actions you can take in light of the minimalist, declaratory interpretation of section 41, and of the fact that this provision merely sets outs some pious wishes, instead of being binding in nature?
In my opinion, this goes against the ruling made in 1988 when the act was passed, setting out certain obligations which the government was required to fulfil. Does this restrict your investigative powers?
Ms Adam: First, we need to look at the number of complaints received in respect of Part VII of the act. The Office of the Commissioner of Official Languages has received very few complaints. Most likely this is due to the ambiguity to which you alluded. How is it possible to define the obligations of a given department under Part VII? That is a more difficult task. We have received a few complaints, and in some cases, we determined that without question, the party in question had failed to uphold the spirit and letter of Part VII.
I will defer to the person on my right who is an expert on Part VII. He can tell you a little more about goings on at the Commissioner's Office since 1988 when Part VII came into force. I will turn the floor over to him.
Mr. Jean-Claude Le Blanc, Director, Government Policy Analysis and Liaison, Office of the Commissioner of Official Languages: One has to realize, on examining the nature of these obligations and aims set out in section 41, that in terms of the objective of serving members of the public in the language of their choice, there are varying complexities and nuances to this issue.
If you will allow me to oversimplify matters, a sign is either unilingual, or bilingual; a public servant answers the telephone is either one language or the other, or else provides service in both languages. This calls for a judgement of a relatively simple situation.
One can wonder, for example, if the federal government and the Department of Canadian Heritage, perhaps because of its legal mandate, have done enough to meet the stated commitments. This is the kind of question that must be raised to ensure that section 23 of the Charter, which provides for the right to instruction in the minority language, be fully upheld everywhere in the country. Has the federal government done everything it possibly can to comply with this provision?
The issue is very complex and does not lend itself to the same type of implementing regulations as institutional bilingualism. Therefore, considerable thought must be given to how one can frame the spirit, parameters, implementation terms and management systems required so that each federal institution, incapable when taken alone of achieving the stated aims of section 41, can contribute to the process based on its mandate, programs, resources and sphere of influence.
Ms Adam: To answer Senator Gauthier's question, our investigative power is restricted, firstly because of the ambiguity and the federal government's interpretation of the provision and secondly, because there is no clearly defined framework to guide the actions of departments and agencies subject to this part of the act.
Senator Gauthier: In 1991, Michel Bastarache wrote on opinion of Part VII. Would it be possible to share this opinion with committee members? If so, I think it would be very useful to circulate this document. Mr. Bastarache is most knowledgeable, having examined this problem. I looked to his opinion for inspiration. I was interested in this issue even before then, but Mr. Bastarache gave a boost to my cause. I would like committee members to familiarize themselves with his opinion. I only have the French version, so perhaps you may want to have it translated.
[English]
The Chairman: If you read it into the record, it will be.
Senator Fraser: It is an entire legal opinion.
The Chairman: How long is the legal opinion? Are you going to read it?
Senator Gauthier: I do not think it is a legal opinion.
[Translation]
Senator Gauthier: It is more of an opinion.
Ms Adam: Just to clarify, a group of legal experts, one of whom was Mr. Bastarache, was asked to issue an opinion in 1991. The request came from the Commissioner's Office. The opinion to which Senator Gauthier is referring has already been tabled to the Standing Joint Committee on Official Languages and surely has been translated already.
[English]
The Chairman: In that case, rather than you reading it, Senator Gauthier, we will get copies of it and circulate it to all members of the committee.
Senator Gauthier: Can I give you the title of the document?
The Chairman: Yes.
[Translation]
Senator Gauthier: The document is entitled in French ``La portée juridique de la Partie VII de la Loi sur les langues officielles.'' It was penned by Michel Bastarache and Andréa Ouellet.
Senator Joyal: First off, Ms Adam, I wish to convey to you my appreciation and the satisfaction I felt personally when you intervened in the matter of the Association des juristes d'interprétation française, which led the Blais decision by the Federal Court of Appeal in March of 2001. As you probably know, the President of the Treasury Board, Ms Lucienne Robillard, yesterday announced that a new policy had been approved, one which would prevent situations like the one which occurred in 1996 when an agreement respecting federal lands was signed with the Ontario government and the provisions of the Official Languages Act were violated. The situation would have been very different had this new policy been in force.
As my colleagues already know, Ms Lucienne Robillard, President of the Treasury Board yesterday announced a new policy governing the creation of new agencies or the transfer of responsibilities. In such instances, the federal government shall ensure that the obligations set out in the act will be met by the new agencies responsible for service delivery.
Had Ms Adam not stepped in to support the Association des juristes and had Justice Blais not found in favour of the application, it is doubtful that this new policy would have been introduced.
Accordingly, I maintain that court decisions are critical to the policy enforcement process. I believe it was your predecessor Mr. Goldbloom who, five years ago, warned the government of the danger. It took the courts ordering the government to take note of the act to come to some sort of resolution. I want to thank you for your efforts in this regard, even though it was the Blais ruling that brought us to this point today.
At this time, I would like to use a civil law concept. I am sure that will please Senator Beaudoin. On reading section 41, we note that it sets out an obligation of means, not an obligation to achieve results. Practically speaking, the government has an obligation to take steps to support the development of official language minority communities in Canada and to promote the advancement of French in Canada.
Let us focus momentarily on official language minority communities. The government is committed to taking action, but not committed to achieving results. It cannot be held responsible for results because practically speaking, when the results of the latest census are known — and we do not expect these results to be positive — the rate of assimilation will continue to be high. In some recent speeches, Minister Stéphane Dion referred to the census figures in almost apocalyptic terms.
There is a very real need for the government to review its actions, in light of the its own statistics. In my opinion, the census will bring to light the obligation on the part of the federal government to take action. From a practical standpoint, what the government is endeavouring to do is to take more than just political action, since official language minorities have no political clout.
For example, when this bill comes back to the Senate, it will not be adopted by the francophone majority, since there is no such majority in the Senate. The bill will be passed by a majority principally comprised of anglophone senators. If these anglophone senators have any reservations about the actions the federal government must take, they will not lend their support to this bill. Therefore, it is important to spell out clearly the legal nature of the obligation assigned to the federal government under section 41.
[English]
My second question is about the judgment of Judge Blais. Paragraph 91 of the judgment reads as follows:
[Translation]
It bears mentioning, however, that in De Vina, the Federal Court of Appeal held that recourse under section 18(1) of the Federal Court Act is possible in instances where there have been violations of the Official Languages Act other than those provided for in section 77(1). I will not revisit the case in point, except to say that the complaining party chose to avail himself only of the recourse available under section 78.
Having said this, would it not be possible to get the courts to provide a binding interpretation of section 41 as it relates to sections 77 and 78? Should we not take steps to examine the nature of the legal obligation set out in section 41 and to prepare for legal action pursuant to section 18? That is more or less the advice being given to us by Justice Blais, although he is not rejecting the other argument outright, noting that it might be deemed admissible if based on section 41.
Politics being what they are, it is unclear as to how the federal government will respond to Senator Gauthier's bill. In my opinion, the Heritage Minister's letter that you quoted as well as the reactions of the minister responsible for support programs for francophone minorities appear to indicate that they harbour some reservations about the proposed legislation.
As you undoubtedly know, the general attitude that seems to prevail among many political leaders is this: ``We do not like what we are doing, but the courts have given us no choice in the matter.'' I could give you examples of Charter rulings where the courts ordered governments to take certain steps. Legislation has even been adopted bearing the title ``... to give effect to a decision of the Supreme Court in the matter of...'' I will spare you the full title of this act.
Governments seem to have washed their hands of showing political leadership on this issue. In my view, it is vitally important that section 41 remain a key component of the survival of minorities, be it anglophone minorities in Quebec or francophone minorities elsewhere in Canada.
Ms Adam: As Commissioner of Official Languages, I think we need to convince lawmakers to uphold the spirit and letter of the act. Since the Commissioner's role is to promote and exert influence, it is rare for the Office to use only one means of action. If the government chooses not to take legal action, then other avenues should be explored.
Parliamentarians would be well advised to show leadership on this issue. In my first annual report since taking up my duties, I was critical of the fact that some ground had been lost in the area of linguistic rights as a result of certain decisions. A lack of political and administrative leadership was pegged as the cause.
In my view, it is critically important to restore this leadership on the official languages issue. Obviously, resorting to legal action is one possible option.
As Senator Joyal noted, Justice Blais has pointed us in the right direction with the federal legislation. If no progress is made on either the legislative or regulatory front in so far as Part VII is concerned, we can always consider this option.
Ms Tremblay: I would like to come back to your initial question on the nature of the obligation, that is on whether the government is under the obligation to take action, or the obligation to achieve results. As I see it, the proposed amendment, given that wording of section 41 remains as is, contains the words ``is committed to enhancing the vitality and [...] supporting and assisting their development.'' This is not as strong as ``shall ensure.'' The obligation to ensure is certainly clearer than an obligation of means.
Therefore, we can say that section 41 imposes an obligation of means, but the obligation is one that can be measured. In fact, the courts may be called upon to ascertain whether federal institutions have met the obligation, based on the effort to enhance the vitality of linguistic minority communities. The extent to which this objective has been achieved can be assessed based on an obligation of means.
You also wondered whether the possibility of seeking legal redress under the Federal Court Act could be examined. Ms Adam mentioned that this was one possible option that could have been explored as a means of dealing with contraventions. However, we opted for seeking remedy under our own act and the court provided some clarification.
Recourse of this nature must be associated with a factual situation identified by the commissioner and arising from a complaint filed or an investigation conducted. In such an instance, the commissioner will have determined that a given institution has failed to fulfil the commitments set out in section 41 and has no intention of taking steps to meet said commitments. In cases such as this, it might be possible to explore recourse to certain legal avenues pursuant to the Federal Court Act.
Senator Joyal: I think the census results will provide us with the necessary sociological data to establish the need for more direct action in the case of certain communities, based on the rate of assimilation. There is no question that you intervene only when a party has failed to uphold its obligation. In my opinion, the census results will provide a framework for evaluating the federal government's obligation of means.
[English]
Senator Bryden: I will be as brief as possible. As I listened to the discussion throughout this study, I wondered whether we needed to start by looking to basic statutory interpretation of what is intended by the sections.
In my opinion, it is clear that the intention of the legislators in Parts IV and V was to create imperative positions and obligatory rights. The enforcement section provides that they were to be enforced at law.
If you read the terminology used in those four and compare it to the terminology used in Part VII, it seems very clear that the intention of the legislators in Part VII, particularly if you read the act as a whole, is that Part VII is to be rather more declaratory of intention and enabling as far as the powers and the obligations of government are concerned.
If that is reasonably correct, is the intention of Senator Gauthier's amendment to section 41, plus the amendments that you are proposing, basically to make the intent of Part VII comparable to that of Part IV and Part V, which makes it obligatory and enforceable at law?
Ms Adam: The purpose is to clarify the intent. It is my understanding that Part VII is currently imperative. Amendment has become necessary because there are different points of view on this issue. I am not legally trained, but if different language is used to clarify the position of the legislators as between the different parts, it may be that the object is more difficult to quantify, et cetera. I do not agree that different language is used because it is declaratory or indicative. It may be because the nature of Part VII makes it more difficult. This is why we need to consider language that will reduce this ambiguity.
Mr. LeBlanc: The purpose of the Charter in 1982 with regard to educational rights was to ensure that people can convey their language and culture to their children in circumstances that allow that to happen. The bilingualism and biculturalism commission envisaged bilingual districts, the idea being to create an environment where people who were a minority in their province could receive full support for their language — could enjoy government services and culture in their language as well as being able to work in their own language.
I believe, therefore, that the intent of Part VII was not conceived without taking into consideration what had been achieved until then, the success we had, and the need for additional measures, so that federal government programs would have that kind of effect. Of course, it remains general in nature, and the idea that it could be more precise in its scope is important at this stage.
Senator Bryden: I agree absolutely with what the witness has just said. However, I draw a different conclusion. Part VII talks about things that are obligatory and mandatory. In Part VI, the Government of Canada is committed to ensuring, and the Government of Canada has a duty to ensure. That wording is very clear and precise.
In the same act, on the next page, the wording is quite different, and I believe that is done purposely. The words used are ``the Government of Canada is committed to enhancing the vitality of the English language,'' rather than ``ensuring.''
Section 43(1) states:
The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to advance the quality and status...
It then goes go on to list the following: enhance the vitality...; encourage and support...; foster an acceptance...; encourage and assist...; and so on.
The language is dramatically different. By making the amendment that Senator Gauthier is proposing, and with, as he would say, the ``teeth'' that you propose be added to it with your two amendments, we will have turned Part VII into an enforceable obligation, as is the case in Part V and Part VI. Is that a fair statement?
Ms Adam: It would definitely make it clear that it is not declaratory but imperative. As I mentioned, the legislator's intent in 1988, when asked, the then Secretary of State, Lucien Bouchard noted that Part VII, section 41 in particular, created an obligation for the federal government to take action.
It is up to you to decide, but the amendments we are proposing and Bill S-32 would certainly clarify the situation. It would also be in line with the jurisprudence on the interpretation of linguistic rights in Canada.
As Senator Beaudoin said, legislation does not talk to say nothing and linguistic rights should be interpreted in a purposeful manner. This intervention is in line with the jurisprudence.
Senator Bryden: It will not be surprising to Senator Beaudoin that I would not always agree. I disagree that this is a clarification of rights that are here. This amendment, and your proposed amendments, will dramatically change the obligations of the Government of Canada. I am not saying that it should not be done, but I do not think that we are doing the legislators or any community in Canada a service by saying, with all due respect, that we are merely clarifying that which is already there. The obligations are not there. The ``goodwill'' is there, to use the political term, and the intention is there.
I come from New Brunswick. I am a unilingual anglophone from the only officially bilingual province in the country. We have protections for minority institutions and so on. In living through that and working with it, it is quite clear that, if Senator Rivest's cultural centre in Calgary is created under Part VII, then, in my opinion, the minority group in Saskatoon would have a right to launch an action saying that they have the same right because there is a commitment not just to enhancing but ensuring that these types of institutions appear. That is a considerable undertaking that has significant implications.
As I say, I have lived through this. I am part of it. I was Deputy Minister of Justice when some of this was happening. It has been very good for New Brunswick. Acadians are very proud of their institution and they are still pressing to have them advanced.
However, I do not want this to go by saying, as happened yesterday with the other group who appeared before us, that all we were doing was clarifying what is already there. In my opinion, and our opinions can differ, it is a significant change.
Mr. Le Blanc: I understand, senator, why you have come to that conclusion. I personally believe that we are trying to make the intent more explicit. The choice of words may have been related less to the beginning of the sentence than to the end because the Government of Canada cannot guarantee full vitality of minority official language communities.
In French, the wording goes even further because it is the word ``épanouissement.'' In the dictionary it means full development of every component of a person and a community, which is even more challenging, and all of them being fully balanced and in harmony.
It is inconceivable that we could deliver that result tomorrow morning on this planet. Therefore, I suppose that is the reason those words were chosen.
Senator Bryden: Thank you for that. I did want to put that on the record because it is clear to me that what you are suggesting would make quite a dramatic difference.
The Chairman: I detect some confusion here, Ms Adam. Senator Gauthier has presented a legislative option to come to a result with which everyone here agrees. You are not supporting his legislative option. You say that you want to maintain the current wording of section 41 and then add three more clauses. Am I correct?
Ms Adam: Yes. It is not that I do not support the bill.
The Chairman: We would all support the end result of Senator Gauthier's proposal.
Ms Adam: The ``intent'' is a different way of wording it.
The Chairman: Am I correct in saying that you are not supporting, per se, his amendment? You would prefer your own four clauses.
Ms Adam: I would humbly suggest these amendments.
The Chairman: Thank you. You do not think that the wording that Senator Gauthier has used in this bill would provide enough clarity for your purposes; is that correct?
Ms Adam: Yes, that is basically what I thought.
The Chairman: Would your preferred approach be to use the regulatory approach that you presented to us? The government could decide to adopt an effective regulatory framework; is that what you are suggesting?
Ms Adam: We are suggesting both are appropriate. They are not mutually exclusive. I think that they are complimentary. Perhaps Senator Gauthier would give us his reaction to those. It is not that we are against something; it is just that we are trying to improve it, make it complimentary, or add to it. I do not see it as being necessarily opposite in meaning.
The Chairman: Thank you for your attendance here this morning.
Senators, since this portion of the meeting has gone on far longer than I had anticipated and at least two members of the committee have obligations to attend elsewhere, would it be agreeable to hear the witnesses from the department on another day?
Hon. Senators: Agreed.
The committee adjourned.