Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 23 - Evidence
OTTAWA, Wednesday, September 28, 2005
The Standing Committee on Legal and Constitutional Affairs met this day at 4:00 p.m. to study the petitions tabled during the third session of the 37th Parliament, calling on the Senate to declare the City of Ottawa, Canada's Capital, a bilingual city and consider the merits of amending Section 16 of the Constitution Act, 1867.
The Honourable Lise Bacon (Chairman) in the Chair.
[Translation]
The Chairman: I call this meeting to order: Today's agenda begins with the business of the committee, followed by petitions tabled during the third session of the 37th Parliament calling on the Senate to declare Ottawa, Canada's Capital, a bilingual city and consider the merits of amending Section 16 of the Constitution Act, 1867.
You have all received a copy of the invitation from the Commission de l'éthique des sciences et technologies du Québec. Next October 13, the Commission will hold a public forum in Montreal to debate the ethical issues arising out of biometrics. Some of you might want to be at the forum; please let us know and we may then send two committee members, one from the opposition and one from the government, to attend. In our budget, we have set aside some money for this type of activity.
I am just saying this to remind you. We can inform other members as they arrive.
[English]
The issue of non-derogation clauses has been discussed here before. For various reasons, this committee did not produce a report or conclusions on the question. The subject matter is one of importance to Aboriginal senators and the Aboriginal population of Canada. We should consider the option of bringing back the issue this fall. This committee primarily deals with legislation, so it could be difficult to find enough time to immerse ourselves in complex subjects such as non-derogation clauses. Last spring, this committee was authorized to examine and report on non- derogation clauses. A budget of $14,000 was provided for that purpose.
I am in your hands but I would like to recommend that a subcommittee be created to do an in-depth study. Perhaps three members from the government side and two from the opposition side would be sufficient. That is one option to consider. Members of the committee could elect a chair and deputy chair to proceed with the study. I have discussed this with both leaders. On our side there is no problem. On the opposition side, Senator Kinsella told me this afternoon that they will meet tomorrow to discuss their representation. I wanted to let senators know how we have proceeded and to ensure that we have not forgotten Senator Sibbeston, to whom this is of prime importance.
[Translation]
On the agenda for October the 19th meeting is bill S-9, an Act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and Criminal Record Act. Minister Graham has agreed to appear before the committee, so we can begin our study of Bill S-9 after the break.
We will meet again tomorrow to study the same issue on today's agenda and I would like us to sit in camera. I feel we would be more comfortable in our discussions that way.
Are there any comments or suggestions?
Senator Joyal: As far as the agenda is concerned, that is, committee business, Madam Chairman, I may be getting ahead of myself here, but as you know, the Minister of Justice announced...
The Chairman: I was just getting to that.
[English]
The Chairman: Minister Irwin Cotler wants one Supreme Court Justice but he will await submissions before making up his list of candidates.
[Translation]
He says here that he wants to hear from groups and individuals who will —
[English]
— written submissions to the Department of Justice by September 20, 2005. He said he will take suggestions into account in crafting a secret list of five to eight candidates. He will present to a nine-member advisory committee that will include a position in government MPs, regional representatives and a retired judge. The committee will vet candidates and provide a confidential short list of three candidates to Minister Cotler. The Prime Minister has pledged to choose from that list. There are no senators on the special advisory committee and I know you want to address this situation, Senator Joyal.
Senator Joyal: I want to address it because it is a fundamental and institutional issue. The role is devolved to the House of Commons by the Minister of Justice outside the consideration of the definition of Parliament. Section 17 of the Constitution states, ``There shall be one Parliament for Canada consisting of the Queen, an Upper House styled the Senate, and the House of Commons.''
In his proposal, the Minister of Justice has excluded the Senate from the consultation process.
[Translation]
The Chairman: You realize that the NDP did not agree to senators sitting on that committee.
[English]
Senator Joyal: Perhaps the NDP or other party might have been satisfied with the proposal, but I do not know and I do not want to single out any one party. I am concerned because the Standing Senate Committee on Legal and Constitutional Affairs has developed the expertise among its members to address such an issue as considering the capacity of learned lawyers in Canada to be considered by the Prime Minister as potential candidates for a seat on the Supreme Court of Canada. Yet, we are barred from expressing an opinion.
That speaks to the fundamental role of the Senate, which is to apply sober second thought to the decisions of the other place that might be taken without due consideration of their long-term impacts. The Legal committee has shown professionalism in addressing difficult issues in the past. I do not have to remind you, Madame Chair, how our committee considered Bill C-38 last summer in a most objective manner. That was a testimony to the objectivity of the committee and the impartiality of the chair. There is no question that if this committee pledged to sit in camera, it could maintain the confidentiality of its deliberations and make a proper recommendation to the Minister of Justice. He would handle our recommendation in the same way as the other recommendation. I strongly urge senators around the table to think about that to determine the kind of action we might take on this matter.
I trust, Madam Chairman, with your expertise and your experience in leading this committee, you will be able to convey the concerns of this committee to the Minister of Justice in the proper form.
The Chairman: I will. Are there any other comments?
Senator Mercer: I agree with my colleagues. I am concerned about the precedent that this proposal sets. It is the institutional issue that is of concern. Frankly, I was happy with the way Supreme Court judges were appointed before anybody started talking about this area of review. We have never had any major problem in our past, and the system we had worked well.
However, somebody has chosen to make one of the few decisions that are made to subject the positions to a review of sorts.
If there is to be a review of sorts and it is to involve the Parliament of Canada, then that review must involve the Senate. I suspect that the Senate would defer to this committee because of the nature of this committee.
As always, the defence I use in this committee is that I have the luxury of not being a lawyer. I also wonder what our options are, other than to express our displeasure to the minister. If the minister says, ``Fine, I note your displeasure but I proceed as is,'' my concern is that this deal has been struck to accommodate the political factors in the other place, which is reality. I understand. However, the reality is still that there are two Houses in this Parliament. To ignore one to placate one or two of the opposition parties is wrong. At some future date, hopefully soon, there will be a majority government in the other place. I do not know how we go back. I do not know if you can put the toothpaste back in the jar.
The Chairman: Do you feel I should write a letter to the minister in the name of the committee and let him know how we feel about it?
Senator Ringuette: Yes, we all share this major concern. The means to express that as a committee I think is with a letter to the minister expressing the committee's concern and our major disappointment that the Senate as an institution, and as one of Parliament's institutions, is not part of the process.
The Chairman: I should go ahead and do that.
Senator Joyal: I would express not only the concern that the Senate has not been integrated into the advisory process, but that we request to be on the same basis as the committee that he has been putting together. Under the strict basis of confidentiality, we request with the list of potential candidates, which will be from five to eight, according to the conditions of the committee, and the fact that the committee in the other place will even have an opportunity to add one more candidate to the list that the Minister of Justice puts together, that we would have exactly the same mandate, which is to recommend to him among the candidates the one we consider best.
We want to hear the minister. Having heard the minister and having deliberated among ourselves, we come to some conclusions. I do not see why we would not request the minister to treat us exactly the same way that he treats the representatives of the party in the other place.
The Chairman: Is it unanimous?
Senator Rivest: Yes.
Senator Sibbeston: I take it to be an advisory committee to make a recommendation to the minister. I imagine that all the people that are brought forth will generally be competent, proficient, skilled and highly respected.
Do you see us having a process where we would question and look into the backgrounds of all these people?
The Chairman: No.
Senator Sibbeston: Is it not that kind of a thorough investigation, such as in the United States?
The Chairman: No: If we have a list, we will go through it and make our own recommendations. That is what I understood from what Senator Joyal told us.
Senator Joyal: There is no question as to the way I read the proposal that the Minister of Justice has been making public that there will be questioning of the various candidates in the way that they proceed with the candidates in the United States. In fact, in the United States, they do not proceed with questioning among a selected list of candidates. They question only the one that the president has proposed.
In other words, we are involved in a different process from that of the United States. We are involved in a process of selecting the candidates that will be put for consideration through the Minister of Justice to the Prime Minister. There is no direct interface between the candidates and the members of the advisory committee that the Minister of Justice proposes. It is essentially on the basis of the documentation provided and on the basis of the testimony that the Minister of Justice would give about the various candidates, and questions that members can ask the Minister of Justice in the presentation of the various candidates through their biographical notes, through their past professional experience or community experience and so on, questions that one may want to ask in determining which among the five or eight candidates are the best three. That is essentially the process.
Senator Sibbeston: I appreciate that it is a difficult process. It is much like the selection of a Governor General. Millions of people in our country are eligible. How do we eventually come up with one person, such as the lady who was chosen, who appears to be qualified and able to do the job? It is a difficult process. While I appreciate there is an interest in being involved in the process, to take it away completely from the Minister of Justice and have some involvement, I recognize it is a difficult and challenging task that we would undertake.
The Chairman: I agree with you. We will go ahead with the letter. We will wait until tomorrow to see what we have as an answer from our request to the opposition. Then, we will see how we can go ahead as soon as we can to create a subcommittee working on an in-depth study.
[Translation]
As for the public forum which will be held on Montreal by the Commission de l'éthique de la science et de la technologie du Québec next October 13, it may be a good idea for a member of the opposition and a member of the government to attend.
Now, let us come back to the petition, which was tabled during the third session of the 37th Parliament, calling on the Senate to declare the City of Ottawa, Canada's capital, a bilingual city and consider the merits of amending Section 15 of the Constitution Act, 1867.
On this subject, it is our pleasure to welcome today's witnesses, Mr. Peter Annis and François Landry, from the law firm Vincent Dagenais Gibson, as well as Mr. Marc Cousineau, from the law firm Nelligan O'Brien Payne.
Marc Cousineau, Lawyer, Nelligan O'Brien Payne, as an individual: Madam Chairman, thank you for welcoming us here today. We intend to convince you that the federal government has the constitutional responsibility, and I would add the ethical responsibility, to become involved in this movement to pass a bill which would declare Ottawa, the Capital of Canada, a bilingual city.
We are here because of the great disappointment we felt following the decision of the government of Ontario, when it adopted its new legislation on the City of Ottawa, because it offered an empty shell masquerading as the City of Ottawa's language policy.
In the documents we gave you, you have a copy of the provincial act which basically says that the City of Ottawa must have a policy on bilingualism, but that its content and scope are to be determined by the local government.
Under this act, the municipality has the right to determine the language status of the city. In our opinion, this is not only unconstitutional, but it is ultra vires in terms of the powers of the government of Ontario.
You rightly mentioned that section 16 of the Constitution Act, 1867, stipulates that Ottawa is the capital of Canada. But generally speaking, municipalities are provincial creatures and the Supreme Court has always ruled that the provinces can do what they want with their municipalities. A province can abolish a municipality, merge it or make it bigger.
I am asking a rhetorical question. Under this broad general principle, could the province of Ontario abolish the City of Ottawa? The answer is no because the 1867 Constitution clearly states that Ottawa is the capital of Canada, and by virtue of the same Constitution, the city has a special status as compared to other Canadian cities.
This means that Ottawa, as the capital, must reflect the nature of the country. As it now stands, Ottawa's language policy does not reflect the nature of the country. We are very aware that the policy itself is very good and we are not questioning it. However, what we are questioning is the refusal of the federal and provincial governments to intervene in order to consolidate Ottawa's linguistic status, which should reflect the fact that it is the capital of the country.
As far as jurisprudence is concerned, you may remember that I taught it for many years. There was the Munro decision of 1966. The case basically dealt with Ottawa, Canada's capital, and the creation of the National Capital Commission. It dealt with the expropriation of Ontario lands.
The case went up to the Supreme Court, and it was argued that lands, as with municipalities, belong to the provinces and that the federal government did not have the right to infringe on provincial powers as far as lands are concerned. But the Supreme Court rejected that argument. It said that when an issue of national interest was involved, the federal government did have jurisdiction, which was the case of the National Capital Region, because it involved an issue of national interest.
The jurisprudence of the Supreme Court of Canada is very clear. Another ruling, the Mercure decision, stated expressly that any linguistic decision was a decision of national interest. So if you look at its status and its nature, you can argue that the city of Ottawa still retains its status as national capital. You could also say that it has a hybrid status because sewers and roads fall under provincial jurisdiction.
But when questions of national interest are involved, it is the federal government which assumes responsibility. So if Ottawa is to truly play its role, all Canadians, including francophones, must be able to come to Ottawa and recognize the face of their country there.
If you want to see the face of Ottawa, just walk down Sparks Street. We sincerely believe that the federal and provincial governments should allow the municipality to play a leadership role and become truly bilingual.
I am going to tell you a true story. During the last municipal elections, Terry Kilrea, who ran against mayor Bob Chiarelli, got 35 per cent of the votes, and he ran on a single issue: anti-bilingualism in Ottawa. I could name other future candidates for the next municipal elections who also share this point of view, but I think that you know who they are just as well as I do.
Do we have to wait for someone else to be elected mayor or for the municipal council to abolish Ottawa's bilingual status? The only thing the provincial legislation states is that there has to be a policy. This bilingualism policy could state that there has to be a bilingual person at the counter and that an automated telephone system answers calls when this person is on break.
If ever that happens, I promise you that this matter would become an issue of national interest. It could even grow into a national language crisis. Everyone wants to avoid a language crisis, and I certainly hope that that is a thing of the past. However, we are still stuck with the issue of Ottawa's bilingual status.
Constitutionally, the federal government has this responsibility, and it has always been there. We are now trying to get the government to shoulder its responsibility and adopt a bill to make Ottawa officially bilingual. This is not a hypothetical scenario; it might really happen and we are acknowledging this, while trying to prevent it from happening.
I will now give the floor to Mr. Annis who will give you another perspective on this issue. In addition to being a constitutional expert, he also has a solid background in litigation. He will talk about the possibility of court action to achieve what lawmakers might refuse to do.
[English]
Peter Annis, Lawyer, Vincent Dagenais Gibson, As an Individual: Thank you, members of the committee, for inviting us to come and speak with you today. Mr. Cousineau is correct. We both share the same objectives but my perspective is a little different, in the sense that when I approached this problem, I was looking more from the perspective of what a lawyer can do to bring a constitutional action to have Ottawa declared officially bilingual. I was looking at not so much the federal government but the Government of Ontario, which is of more interest to me.
As you know, going off to court is kind of the last resort. If you look at my bio, I am a mediator. I try to get people to settle things at this point in my career. However, the reality is that in the end, after you have looked at all the different ways to get something done, the only avenue that is really available is to go to court.
I think everyone here knows the story. There was unification of the City of Ottawa. Glen Shortliffe, Minister of Municipal Affairs, recommended that Ottawa have this official bilingual status. Unfortunately, the Harris government did not take it up.
We raised this issue with certain people at a certain time, that maybe we should look at initiating a court proceeding. It was suggested that, no, the McGuinty Liberals were on their way; they had made promises and if we waited, the matter would be resolved.
I share the opinion with Professor Cousineau that Bill 163 does not do anything. In fact, it is a great disappointment for persons who were hoping that maybe Ottawa would have that status. When you look at it, really the power to determine whether Ottawa should have a bilingual status rests with Toronto; it rests with Ontario. Ottawa exercises delegated powers from the Ontario legislature. It is up to Ontario to do something.
In any event, when we began to look at this, we saw that we did not want to fit this into the usual sections 91 and 92 division-of-power situation in the sense of what is a provincial power as opposed to what is a federal power. We looked at section 16, which was a virgin piece of legislation — never been interpreted anywhere — a short provision that says that Ottawa will be the site for the Parliament. We said surely, as lawyers, we know that you can imply a lot of things into some words, and what comes from the status of being a national capital.
When you look at the 1867 constitutional agreement, you really see an agreement between the provinces whereby the provinces agreed to give Ontario probably the major benefit that flows out of the federation as one item, and that is to have the capital within its borders. Anyone looking at it realistically would think any province would say, ``I would like to bargain to have the capital within my boundaries.''
All you have to do is compare Ottawa to Kingston, Pembroke and Hawkesbury. There is only one difference, and that is the national capital. Tremendous advantage is given to the Government of Ontario by having the capital within its boundary.
Are there any obligations with those tremendous advantages? We say yes. Obviously, there is a clear obligation. It is implied, but anyone you ask would say, ``Yes, there is an obligation. You as a province must not do things that will frustrate the federation from achieving its objectives for the national capital.''
In other words, it is a positive obligation on Ontario to avoid frustrating Ottawa from achieving its objectives as a national capital. We say that obligation is implied.
If you get to that stage, if the court would look at that and say, yes, it makes sense that an implied obligation flows out of the arrangement, then you get into a different analysis. You move to the next level of question, and that is, are issues of official languages of critical importance for the attainment of the objectives of a national capital? You can understand that we could make strong arguments that official languages are of critical importance.
We have looked at official languages up to this point primarily from the perspective of minority languages, but when you look at official languages in the City of Ottawa, you see it is really a national issue. It is as much an issue for the Province of Quebec as it is for anyone else. We have a national capital. We invite people to come here from across the country to live and reside here in Ottawa, and the idea is that they will work in our federal institutions, and the surrounding environment should be welcoming. Most people know that when you come from Quebec, most people who come from Quebec choose to live in Gatineau. Why do they choose to live in Gatineau? They do not feel that Ottawa is a welcoming city for them.
All these obligations flow out of that. When you look at the critical importance to the federal government of official languages, the next step is, has Ontario done anything to frustrate the federal government from achieving its objectives? If you look at the objectives, and they are nicely set out in things like the Official Languages Act, you will see that Ottawa is supposed to reflect the bilingual and bicultural nature of our country. It is clear that Ottawa has done nothing. In fact, Ottawa frustrates the federal government from achieving its objectives of having that type of city, which should be bilingual, bicultural and welcoming to all Canadians.
The concept is that there is a totally new provision that nobody has looked at before, which makes it fun for lawyers. I do not have to worry about what Alberta, Quebec or Gatineau has to say. When you come down to it, this is Ontario. Ontario has a special status because it has the national capital within its boundaries. We now deal with Ontario's special status of having the national capital within its boundaries and see whether any obligation flows out of the special status.
On a straight contract basis I can make this argument going home. Suppose this was basically a joint venture and a whole bunch of companies came together and said, ``We will run this together, and we need to set up an operation, but one of the three companies will have to run the operation. We will give it to company A.''
It turns out company A takes tremendous advantages out of having that. Then company A says, ``I will not do something,'' and the other companies say, ``Hang on here. We gave you this for the purpose of you being able to achieve our purposes of having the headquarters there.'' I think any court would say that there is an implied term that you have to operate the head office in such a way that it would help the joint venture achieve its objectives. Certainly, it seems to me, you sail through in contract.
Is there any reason it should not apply constitutionally? I cannot think of any, because as I said, it is a virgin position and a virgin piece of legislation. Nobody has looked at it before. When you come down to it, there are other factors that lawyers would bring into it. They would say, we will impose an obligation on Ontario. Is it a heavy obligation to make Ottawa officially bilingual? We all know we are not asking them to change. What we ask them to do is a matter of respect. It is a matter of the status of a language. The languages should be respected as having equal status, to give leadership to our communities, to say, yes, this reflects our country.
What is the obligation on Ontario? There is no obligation at all. There is no burden on Ontario to do this. It is a political burden for some people, but it is not a real burden when you look at it. When you look at the cost, and the advantages, et cetera, and you go through all those criteria the way we would look at in a normal case, you can make a strong case that section 16 of the 1867 law carries with it that implied burden. The burden is that Ontario not frustrate the federal government in its objectives for Ottawa, and it is so doing. That is how I look at it as a lawyer.
Now we are at this process and coming before this committee. The federal government should show some leadership. It should say certain things. Bill 163 should not go by without this committee saying something about it. Anyone who looks at it could ask, Does Bill 163 respond to the need for having Ottawa officially bilingual? Obviously it does not. I think this committee should say something about that.
As for our litigation, in the end someone will have to take this matter to court. I do not see it unfolding anywhere else.
What worries me is that there is a window of opportunity here. The window of opportunity was opened by the amalgamation of Ottawa. It gave rise to the issue. The amalgamation opened the issue, and it is there now. It is closing slowly. I think the Liberals thought they closed it with Bill 163, but that was smoke and mirrors. They did not close anything. They did not touch it. However, it will close in time. The matter will go on. It has a short shelf-life. To a certain extent, if there is not to be some kind of legislative action somewhere, I think we have to sail off to the courts and see what we can to.
The recommendation that I would like from this committee is that if there are not legislative developments somewhere, that the federal government consider subventioning a court process, to a certain extent. I do not think we asked for all of it, and most of us are prepared to work without our fees, but the disbursements are high. We would like to see the disbursements, or something along that line, paid for. There is a program to pay for this. We actually put in a request through the Court Challenges Program of Canada. They do not have enough money or something along that line, so they indicated they would not support this.
I am not sure people understand the approach we are talking about. In addition, we would tie these arguments together. The thing I was talking about is not unlinked to all the points that Professor Cousineau makes. They all come together. If we cannot get the federal government to act under its powers under the BNA Act, let us focus on section 16. Bring all this to bear on section 16 and take a run at a fresh provision and see what we can do.
The arguments make sense to me. The nice thing is that when I talk to people about this and I say, ``Do you see any problem with Ottawa being officially bilingual,'' I do not get a lot of resistance. When I talk to people, I tell them the story about Canada. People do not know about the whole bilingual trade-off at the beginning. As you know, at the beginning, the Province of Quebec adopted an officially bilingual status in return for the federal government being officially bilingual. That was the original deal. The provinces got away scot-free. In the end, Manitoba became officially bilingual, but at the beginning, the concept was the federal government and Quebec would be officially bilingual. Ontario, New Brunswick, Nova Scotia and the rest of them got away without any matter. We know that Quebec has resisted bilingualism since that time, but the reality is that they have an officially bilingual legislature. Their statutes have to be published in both languages, and you are allowed to plead in that province in both official languages, so they do have official language status there.
To a certain extent, that is the background. Ontario did not have those obligations imposed on it. Ontario gets the Crown jewel of federalism and walks away scot-free. I am anglophone. My dad was a farmer from Toronto and my mother is from Western Canada, but somehow they got me to look at this from someone else's perspective. I see Ottawa as a wonderful city that has tremendous accomplishments. We have two groups of people in this city who have developed tremendous respect for each other. I do not know how many people realize how hard it is for two different cultures and languages to develop respect for the other group. That is an incredible achievement, and Ottawa has done that. It is a special and unique town.
I do not think the people of Ottawa have any problem with Ottawa being officially bilingual. We are not asking for any change at city hall. It is a concept of respect for each other. It is like when you have a good marriage but you do not tell each other that you love each other. It is the symbolic thing that is important to make things work. As an anglophone Canadian, I believe it is important that we have mutual respect. It is a fundamental characteristic of the country, and Ottawa has to show respect on this issue. I feel strongly about this personally as well.
One recommendation is that you take a good look at Bill 163 and not let it slip by without saying something, because it does not do a thing. Second, you might encourage the federal government to support this type of initiative, even if the government will not adopt legislation.
[Translation]
The Chairman: Mr. Cousineau invoked the national interest doctrine as a legal means for the federal government to designate Ottawa as officially bilingual. The Supreme Court has used this doctrine with great caution — in any case, it seems to me that the court is relying on that argument less and less. We know that municipalities are provincial creatures and not federal ones. When you read that the federal government should impose bilingualism on municipal services by arguing that the national interest is at stake, do you not think that goes a little far? I think that if you open this door, it will be difficult to close. Do you not think that this is a Pandora's box which is full of surprises?
Mr. Cousineau: If we were opening a new door, I would agree with you, but the door has already been opened in the Monroe decision. When the National Capital Commission was created, there is no doubt that the federal government infringed on provincial powers. The court was very clear, and the decision is contained in the documents we gave you. Our legal experts and judges often speak at length to make a point, but this particular decision was very brief and clear. It is clear that this would not normally apply to other cities, but exclusively to Ottawa. There is nothing new in this, it has already been done. You are not opening new doors, you are simply going through one that has already been opened.
This issue does not affect other cities, but only Ottawa. I do not see how you could use this decision, which applied to Ottawa, and apply it to Moncton, Sudbury or Saint-Boniface, because those towns, as beautiful as they may be, are not the capital city. Those other towns are not mentioned in the Constitution Act of 1867. Only Ottawa is the capital.
The oldest principle in law is that legislators do not say anything if they do not want to say it. We presume that our legislators are wise people. Let us also presume that, when Ottawa was designated as our capital, it simply meant that the capital was one point on the map.
I would like to draw a comparison with Belgium. When people talk about models for linguistic regimes, they always refer to two countries: Canada and Belgium. I personally prefer Canada's model over Belgium's. In Belgium, the language issue was settled by drawing a line; when you cross this line, you forget your language and culture and everything happens in the other language. But the exception in Belgium is Brussels. I could confirm this, but I think that section 35 of the Constitutional Act states that since Brussels is the capital, any language issue affecting Brussels must be settled by the federal government.
Brussels is located in the Flemish region, but is 90 per cent Walloon, or francophone. The city is a little strange because, in a way, if you followed the Belgian municipal model, everything should happen in Flemish, because it is on Flemish territory, but Brussels is the capital, and Belgians were wise enough to realize that both their Flemish and Walloon citizens have the right to feel at home in the capital. We are simply asking the same thing for Canada's capital.
I agree with your point of view on the issue of national interest, but we are dealing with a very particular situation since we are exclusively referring to the capital. We are not referring to, for instance, agriculture or the fishery when we talk about the national interest. I agree with you that when we talk about things which are not expressly included in the Constitution, as opposed to the city of Ottawa, the courts are very reluctant to intervene by granting the federal government powers.
However, first of all, Ottawa is already our capital; second, the Supreme Court has already made a ruling; third, to paraphrase what Mr. Annis said, it is just common sense. I do not think that any tribunal or Canadian would object to going ahead with this proposal.
The Chairman: Under section 11.1, the city must adopt a policy relating to the use of English and French as far as municipal administration and services are concerned. Despite this fact, since 2001, I understand, based on what you have said, that there has been no improvement. Is that so?
Mr. Cousineau: The policy itself was in place in the city of Ottawa before the merger even took place. What basically happened is that the city of Ottawa policy was applied to the new merged municipality. I think that the policy works fairly well. The issue we want to bring to your attention today is not as much the content of the policy, which seems to be working fairly well, but the constitutional status of the policy. However, it would be too easy for some people to empty the policy of its meaning and turn it into an empty shell. Elected municipal representatives should not have the right to determine the status and the face of Canada's capital. I feel that this is inconceivable in terms of the constitutional image of our country.
[English]
Senator Mercer: Generally speaking, I favour this concept. I take some exception with the statement by our first witness that Mr. Kilrea received 35 per cent of the vote with an anti-bilingualism platform. Having been around Ottawa for a number years, I suggest that he received 35 per cent of the vote not because of his stance on bilingualism but rather because Mr. Chiarelli had been in office for three years. Any reasonably credible candidate would have received 35 per cent of the vote. If he had gotten more than 35 per cent, we may have a problem. I do not recall his stance on bilingualism being the main issue at the time. I do not think that argument works in your favour.
Mr. Annis, I was confused as you were presenting to us. I was not sure whether you were telling us we did or did not have the constitutional authority to proceed. Your first statement was that this issue was an Ontario problem because the cities are a product of the provinces, and that it is only complicated by the fact that there is only one city mentioned in the Constitution of the country.
Mr. Annis: That is a good question. I think that the federal government can adopt legislation to fill the field.
I am not sure how far you can go as a federal government, so I am not totally clear on that point. Certainly, the federal government can try to do something in this field. At the level of the public administration of a city in a province, there are issues there. I recognize that.
Whether or not the federal government tries to occupy the field, then certainly it is open for us to argue that there is this positive obligation on the government of Ontario. That is a good question.
Senator Mercer: I have run a number of elections at various levels.
Senator Rivest: Have you won any?
Senator Mercer: I have won most. I sit here thinking about the political point of view: the advantages and the disadvantages for the government to take this stand and to declare Ottawa a bilingual city.
It would be popular in the eastern part of the city and perhaps a good deal of the southern part of the city. It would become less so the further west you move from the city because of the nature of the distribution of the francophone population in Ottawa, and even less so in what is rural Ottawa. That is where there is an amalgamation of all the smaller towns and villages around Ottawa.
I wish we had proceeded with this when our colleague, Senator Gauthier, started this process then. The political liabilities and risks were not as high as perhaps they are now. We may have a timing issue.
Mr. Annis: The window is closing, yes.
Senator Mercer: Yes, I do not think that any of us from any side want to stick our political necks out there. While I support the idea, I would have to think about what the risks are politically.
Mr. Annis: Professor Cousineau wants to reply, but I will say something in response as well.
[Translation]
Mr. Cousineau: The linguistic face of Ottawa has greatly changed. A month ago, it was announced that a new French high school was being opened in the western part of the city. Carleton Place used to be so anglophone that no francophone even dared move there, but it now has its own French school. So people are realizing that the demographics of Ottawa are changing.
Should political issues gain the upper hand over issues of national interest? I do not think so. Here is another question: if both parties agreed, where is the political risk? In fact, if everyone agrees that Ottawa should reflect the true nature of Canada, who loses, politically?
However, if the federal government refused to go in that direction, I would bet that the situation could degenerate into a national linguistic crisis. In my opinion, such a crisis would be much more dangerous than losing one or two seats in the western part of the city of Ottawa.
[English]
Mr. Annis: I stress that the obligation imposed on Ontario is to a certain extent a reflection of the tremendous benefits that the province obtains from having the capital within its boundaries. In other words, you cannot take all this and not expect to have some obligations that flow out of it. You have to make arguments that are common sense.
Look at Ottawa, Kingston, Pembroke and Hawkesbury. What do you really think is the difference? Anybody who thinks about it would say, yes, if there is anything out of federalism to go back and fight for, it was to have the capital. I guess they could not see what it would have meant to be a capital in the future. Everything is built around this national capital. It is a tremendous gift, a tremendous advantage.
The political way you sell this is, it makes no sense that you can take all those advantages and not expect to have some obligations. The only obligation we ask of you is not to frustrate the federal government when it tries to achieve certain objectives for its national capital as a national capital. That is all we ask you to do. Do not frustrate them. Do not get in their way.
It is not something that costs you a lot of money. It is not as though we will increase your tax burden or something like that. All we say is that we recognize that these two languages in these special circumstances have that status. It is a symbolic statement of mutual respect. It is important to give a flavour and a sense to what the city is supposed to be like. It is supposed to rejoice in having two languages and two cultures.
Senator Mercer: I disagree with you. I firmly believe this should have been done a long time ago. I think that Ontario has reneged on the responsibility, and not just the McGinty government, but the Davis government, the Rae government, the Peterson government, and other governments in between that I may have missed in chronological order.
I think your statement about the benefit of a national capital to a province is not lost on us. It seems to be lost on the Premier of Ontario because of his constant comments about what he considers a deficit of Ontario's contribution financially to the federal treasury. He forgets that the people who live in Ottawa did not like him.
Mr. Annis: I find most people forget the advantages of having a national capital within your boundaries. It is amazing. They just ignore it.
Senator Mercer: The problem is, you are right. Political issues should not trump national interest issues. However, you have to remember that the decisions around national interest issues are made by politicians, and that makes it political. That is why my earlier question raises the issue of timing. I think that is the issue.
[Translation]
Senator Rivest: It goes without saying that Canada is a country based on linguistic duality; that is unequivocal. However, invoking the argument of national interest gives rise to a certain number of legal issues.
When the Constitution was patriated, Ottawa could have decided on amending section 16, and that would have solved the problem. But there were no doubt other considerations at the time.
Of course, it is the federal government's responsibility. But apart from that fact, have the provinces shown any kind of interest for the bilingual status of Ottawa?
Mr. Cousineau: We always took a local approach to the issue. It is as if we left it up to Franco-Ontarians to turn Ottawa into a city which would reflect the true nature of our country. Unfortunately, when the initiative comes from the city of Ottawa, there is no unanimity, as Senator Mercer pointed out.
As far as the issue raised by Senator Mercer is concerned, I would like to specify that Mr. Annis and I do not disagree. To be frank, I do not care whether a law designating Ottawa as officially bilingual comes from the federal or provincial government. But it is possible that we will end up before the courts. And if that happens, we will push both levels of government until one or the other fulfils its obligations.
For my part, I believe that this is a matter of federal jurisdiction; Mr. Annis, for his part, believes that this is a matter of provincial jurisdiction. But we both agree on the fact that someone has to take on this issue.
Senator Rivest: It is rather strange to note that while you are asking the Senate, the House of Commons or the federal government to decree something by virtue of each of these institutions' respective powers, in the name of the national interest, that the rest of the country seems indifferent or insensitive to the matter.
In my opinion, the other premiers should be brought on board to bring pressure to hear on their Ontario colleagues. It would be a good starting point, because it has not been done yet.
Mr. Cousineau: If you give me a generous expense account, I will go across Canada. But it is not up to me personally to wage this battle throughout the country.
Senator Rivest: It is up to the federal government to make the other provincial premiers aware of the situation, if it is truly convinced that this is the right thing to do, because there is also a political dimension relating to provincial jurisdiction, which arises out of this matter.
This position is just as valid for the Senate and the House of Commons, if they were to take the initiative, since the other leaders in Canada have been left aside, and if this is truly an issue of national interest which also concerns the premier of British Columbia, of Quebec and of the other provinces.
My second point is as follows. Section 16 states that the federal seat of government is in Ottawa. Do you believe that the situation would be different, or more simple from a legal point of view, if the national capital were a federal district?
Mr. Cousineau: We discussed that possibility, but that is not the issue. If we were dealing with the Outaouais region, which includes Ottawa, Gatineau and the capital, the answer would be yes. But that is not what the Constitution Act says; the Constitution refers to the city of Ottawa.
Senator Rivest: This brings me to my next question which is more legal in nature. If we were to amend section 16 to say that the city of Ottawa is the seat of the Canadian government and that it is also a bilingual city, would we need the unanimous support of all provinces and the federal government, or the 7/50 formula? Unless I am mistaken, section 43 does not apply in this case.
Mr. Annis: I cannot answer that question.
Mr. Cousineau: It would be the 7/50 formula. However, we are not asking for the Constitution to be amended.
Senator Rivest: I understand. But this is my problem: I do not see how you can reach the objective everyone agrees to unless you bring the other provinces on board. After all, this is the capital of every region in Canada. Several provinces, including New Brunswick, would surely be interested in supporting this initiative, so how should we proceed? There is an implied solidarity among the provinces.
By proceeding with the national interest theory, you are entering into an area involving jurisdictions. Take for example the Monroe decision, which we are all familiar with. If you extend the ruling to language in order to justify making Ottawa a bilingual city, just because it is the capital, many people would be afraid that Quebec would invoke the same argument to extend the scope of the National Capital Act, namely, to give it a linguistic dimension which would be in contradiction with Bill 101. You would therefore risk losing a good part of the public opinion in Quebec because of that principle.
The courts can make certain rulings, but they are sometimes unpredictable. However, in my opinion, this is indeed an issue of national interest — but not in the meaning of the Monroe decision — but rather politically, and I do not think that it is possible to designate Ottawa officially bilingual unless all Canadian stakeholders are involved.
Second, once Ottawa has been declared officially bilingual, that would be meaningless unless legislation were passed to define what services are to be provided in French. Otherwise, you could end up with an empty shell like Bill 163. Who in the City of Ottawa will define what these services are? Will the federal government determine whether Ottawa must provide municipal services based on the criteria it will choose, that is, when numbers warrant? This provision already exists in the Canadian Constitution.
From the moment you ask for legislation designating Ottawa a bilingual city, you have to involve the rest of Canada, because this is an issue of national scope. But even if the federal government simply took the initiative to declare Ottawa officially bilingual, by overriding Ontario's powers on the pretext that this is a matter of national interest, Ottawa would have to pass legislation on official languages to determine in a detailed manner precisely which services are to be offered. Yet the federal government cannot require more from the city of Ottawa than it requires of itself under federal legislation when it comes to providing services in French where numbers warrant.
From the moment we decide that Ottawa is a bilingual city, everyone will be glad, not the least of all myself, but it will not amount to much. Who will decide on the specific nature of language services and requirements? This was done, for instance, in New Brunswick when the province adopted its own legislation on bilingualism. Everyone knows what is at stake, but who is going to tell the city of Ottawa what to do? Will it be the federal government? If that is the case, you might as well create a federal district subject to the Official Languages Act.
Mr. Annis: You asked three or four questions. First, you have to understand that our argument is based on section 16 and not on sections 91 or 92. We do not want to amend or adopt an amendment to section 16. In our opinion, we just need to interpret what is already there.
The issue is whether there is an implicit obligation contained in section 16 by virtue of the fact that Ottawa is the capital. As it now stands, this does not mean imposing something on the other provinces, but rather determining what Ontario's obligations are under section 16. I do not know if you understand this aspect of my argument.
Senator Rivest: I do not understand. Ontario has this obligation, so it is the Government of Ontario which will define legislation on official languages, on bilingualism, which would apply, correct?
Mr. Annis: Ontario already has that power. And if Ontario wishes to pass legislation designating Ottawa as officially bilingual, it has the absolute right to do so. After all, Ottawa is located in Ontario.
Senator Rivest: Well, then, why does Ontario not want to do that?
Mr. Annis: We are talking about the public administration of a province. This is what makes matters more complicated. We are not dealing with a federal administration, but with a provincial administration. The government of Ontario has absolute power in this area. That is why we are saying that if you look at section 16, and if you look at the fact that the national capital is located in Ontario, it means that Ontario has certain obligations. And one of these obligations is that Ontario should not stand in the way of the federal government as it tries to reach its objectives as far as the national capital is concerned.
This issue does not apply to Alberta, Quebec or any other province with the exception of Ontario, which has this obligation under the Constitution. That is the first point that needs to be understood clearly in order to avoid political problems of this nature.
The second point is as follows: Was there an attempt to define the content of this act? I do not think that this was the objective sought.
Ontario has always opted to work in accordance with a strategy and on a step-by-step basis. In the legal world, we have seen this at work, when Ontario implemented a rather effective bilingual system, by adopting a gradual approach, without raising any suspicions.
Suddenly, in 1985, the province adopted an act declaring that French and English were the official languages of the Ontario courts. The province had already done things in Ottawa. As Marc said, it was not perfect. Nevertheless, there was a system established in an attempt to meet requirements.
Senator Rivest: Just as they did in the educational sector.
Mr. Annis: That is right. What is missing here, is the symbolic official declaration that the two official languages are French and English.
Senator Rivest: I agree that the government should do this, but I do not see how it could so without talking about it. I am hoping that the other provinces in Canada would be interested in supporting such action. The federal government would be much stronger. Would you not agree?
Mr. Cousineau: I will answer your question in what is perhaps a negative way. Do you not think that British Columbia or Alberta would oppose this? What reasons would these provinces have to oppose either the federal government or Ontario coming out and saying that Ottawa was officially a bilingual city?
Senator Rivest: Canada's fundamental characteristic is duality.
Mr. Cousineau: I think that everybody would agree with that.
Senator Rivest: I cannot conceive of any political leader in British Columbia, Quebec or elsewhere, being opposed to Canada's capital being bilingual. No, it must be an ardent fighter and say yes, Canada's capital must be bilingual. It is the responsibility of all Canadian premiers to support that. They must do this and, in doing so, the federal government will be able to take legal or political action depending on which path it wants to take. It is unconceivable that linguistic duality not receive more support. It is not conceivable that we ask the city of Ottawa to take action by itself. The capital of Canada should be a bilingual city.
Mr. Cousineau: We share your optimism. You are right. In one sense, the fundamental questions have been dealt with and all seem to be in agreement with the fact that Canada is a bilingual country with two linguistic groups sharing the same territory to develop their cultures.
Senator Rivest: Had the Meech Lake Accord been adopted, the Constitution of Canada stipulates that linguistic duality constitutes a fundamental characteristic. This was an interpretation clause of the Constitution, and so we could have used it through section 16. Those people who torpedoed the Meech Lake agreement should have to pay the price today!
Mr. Cousineau: The pragmatism of the Canadian linguistic system is well viewed on the international scene. Through the federal government, I had the pleasure of being invited to Sri Lanka to talk about Canada's linguistic system. Sri Lanka is emerging from a 20-year civilian war, its economy is in shambles and 75,000 people have died. The basic problem is that there are two ethnic groups with two languages and the dominant group, following independence, made its language the only national language and has completely excluded the Tamils. Everyone agrees that this is the reason behind the civil war.
They agreed that, in order to end the conflict, they had to find a model that was applicable and useful for them. They went to Switzerland and Belgium and discovered that the Canadian model was the best in the world as far as linguistic duality was concerned. We should be proud of this.
Instead of talking about bilingualism as a national problem, we should talk about it as a source of great national pride. No other country in the world has been as successful as we have been.
Sri Lanka really appreciated the pragmatism of the Canadian policy. We are not asking all our RCMP members in British Columbia to be bilingual. That is not our approach to bilingualism. This same pragmatism would prevail for the City of Ottawa.
Senator Rivest: I would like to go back to the issue of seven provinces and 50 per cent of the population in terms of a solid, clear, engaging and binding constitutional commitment for Ontario. You do not even need the government of Ontario to do this. I am convinced that you could find seven provinces representing 50 per cent of the population, with the consent of the federal government, thereby forcing Ontario to make a bilingual city.
Mr. Cousineau: I do not think that Ontario would be against this.
Senator Joyal: I am going to do some advertising as well by reminding you that, had the Victoria Charter been adopted, Ontario would be officially bilingual as well as Newfoundland, New Brunswick and British Columbia. So if you want to rewrite history, you have to include all of the possible options that had been put on the table.
It seems to me that there are two possible avenues in your proposition; one is political, the other is legal. With the political option, there is the interpretation clause provided for in section 16 that the Government of Canada could use and which, to my knowledge, has already been done but never made public. It seems to me that the Justice Canada has a study on the impact or scope of section 16. The issue of bilingualism in Ottawa is not a new one. This is a recurring theme, somewhat like other aspects denoting linguistic equality. This issue has never been really resolved. It is true that there is some kind of ambiguity that prevails with respect to the Canadian government's power to legislate on the status of Ottawa. Just as there is some type of ambiguity regarding Ontario's authority to legislate on the status of Ottawa as a national capital.
There are several ways to deal with this ambiguity. The Canadian government could easily refer the matter to the Supreme Court of Canada, asking that it interpret section 16 and ascertain the scope of the power given to the Government of Canada to legislate on the nature of the capital city, Ottawa, under the Constitution and also under the National Capital Act. This could be part of the same reference since the Supreme Court has already ruled on the constitutionality of the National Capital Act. The Supreme Court unanimously confirmed that the Canadian government was quite justified in legislating for the national capital in matters that fall primarily under provincial jurisdiction, namely, the right to expropriate a green belt around Ottawa in order to provide for its beautification. This was not based on issues of civil law but rather on issues of appearance, regarding what a national capital should look like in order to be a source of pride and a symbol for all Canadians and foreigners.
The Supreme Court concluded that the Canadian government did have this power. The government could, if necessary, send a reference to the Supreme Court to ascertain the scope of its authority.
[English]
To take the approach that Mr. Annis proposes, the Ontario government could make a reference to its Court of Appeal, according to its own power. This reference could be made to determine the scope of its power in determining the status of Ottawa and establishing, as you said, the obligation that you contend that the Ontario government has under the fact that the City of Ottawa is mentioned in the Constitution, and the extent of its obligation.
They could do that as well, which would, to a point, clear the legal cloud over federal government jurisdiction or the provincial government responsibility in relation to Ottawa. That is one avenue.
There is another avenue, the political avenue that Senator Rivest has proposed that there is a clear amendment or addition to section 16 that would establish clearly within the constitutional framework the nature of the national capital insofar as equality of languages is concerned.
Of course, there is the third avenue, which is a clear litigation. Bring forward in the court the interpretation through a litigation coming from private citizens if neither of the two governments, either provincial or federal, wants to take any initiative, on the basis that the question has been settled with Bill 163.
These are the various avenues. It is up to us to consider what is the most appropriate avenue, or the feasibility of any of those avenues as available options.
Is it realistic to think that either of the two governments will send a reference to their respective supreme courts or courts of appeal? To raise the question is probably to get the answer.
Is it realistic to think that in the short term the federal government will initiate a clear amendment to section 16 if, as you stated and as Senator Rivest has concurred with, that we are under 7/50? Even 7/50, I could contend it might be even a matter of the exclusive jurisdiction of the federal government because it pertains to the Government of Canada, the seat of the Government of Canada. According to section 44, which you know as well as I do, it says quite clearly that:
...Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.
Someone could contend that this pertained to the executive government of Canada. It is the seat of the Government of Canada and per se it is within the exclusive competence of Parliament, which is the two chambers and the Queen.
That, too, could be a contention that, to me, is reasonable to investigate. However, it does not give a definite answer, because in the case of a doubt that the federal Parliament has the exclusive jurisdiction, it is better to go in the safest route, which is 7/50, because then you are sure nobody will contest it. There, too, is an option.
Then there is the option of the private citizens contesting Bill 163, as Mr. Annis has proposed. However, if you contest Bill 163, you will come to one conclusion. The Province of Ontario has a constitutional responsibility to make sure that the nature of the city where the national capital is determined in the Constitution meets 133 and section 16 of the Constitution. As I understand it, you will contest section 163 on that basis, that the Province of Ontario, because it benefits from having the capital, cannot just close its eyes and say it is up to you to do it.
It does not, on the other hand, achieve full constitutional protection because it would establish a formal obligation to legislate. To establish a formal obligation to legislate, to me, it has to be written in the Constitution. Therefore, you would come to interpret section 16. You would come back to section 16.
The only way you can assure the guarantee that the nature of the capital is protected in terms of languages — because I understand it is what you are looking for, constitutional protection —
[Translation]
Mr. Cousineau: Either a federal or provincial act, not necessarily an amendment to the Constitution, providing that there is a specific act that clearly states that Ottawa is bilingual.
Senator Joyal: In my opinion, that does not satisfy your short term objective. An act is an act; Parliament can amend legislation, change it, repeal it. That is what you do not like about section 163. The city of Ottawa could decide, tomorrow morning, that its linguistic policy on the use of English and French means publishing municipal council notices in French, and that is all. It could be that, and nobody could go to court to say: ``You are not assuming your responsibilities,'' because the status of languages is not specified in section 163, as I understand it. Indeed, in section two, we read:
[English]
The scope and content of the policy adopted under subsection (1) shall be as determined by the city.
The city can decide to do more or less; and can decide to do the minimum, according to what you say, depending on how the composition of the city council and the municipal parties change and vary and so forth. The sociology of the City of Ottawa has changed through the years.
In other words, if you want to achieve the constitutional protection that you are looking at, you will have to interpret section 16. You cannot go outside section 16 to get the full statement over the constitutional protection of the equality of languages that you want to achieve. I do not see how you could avoid looking only for a legislative interpretation within the competence of the Government of Ontario, because the Government of Ontario can decide any time to abolish that legislation. The proof is that 20 years from now, it can reorganize the City of Ottawa and, in that context, amend that legislation and nobody could complain because it has exercised the full legislative competence in relation to municipal affairs.
[Translation]
Mr. Cousineau: We agree that we are talking about levels of protection here. At the bottom rung of the ladder, you would have a policy such as the one that exists at the City of Ottawa, a decree — it is not even a decree, it is a municipal bylaw, it is simply a policy. Then, as we climb up the rungs, we have a provincial law, a federal law and then, at the top of the ladder, constitutional protection. We all agree that that is the ideal.
We have seen that it is becoming increasingly more difficult, if not impossible, to amend the Canadian Constitution. We saw this during the last two attempts made; mention was made of the Meech Lake Accord, and we could also mention the Charlottetown agreement, unless we are dealing with just one province, as was the case in Quebec and Newfoundland, with the issue of school management.
If it were possible to amend the Constitution easily, should we be looking at something that is impossible or should we be looking at something that is more modest, something that affords us some protection that is not as concrete and permanent as a constitutional amendment maybe, but which, in a federal context, for instance, becomes just about impossible to change? Let us say that the federal government were to decide tomorrow to pass legislation unanimously, at the House of Commons and at the Senate, stating that Ottawa is a bilingual city. The content of this act could be similar to the Official Languages Act. Who, in the future, could opt out of this legislation?
One concrete measure would be in place and we know that, once it is in place and well established, particularly if it deals with language issues in Canada, it is almost impossible to rescind it. We agree that, if it is not constitutional, it is not as solid. Nevertheless, I would be satisfied with a federal act.
Senator Rivest: On that issue, as far as services to be provided are concerned, even if there is a federal law, these services would be municipal or provincial.
Mr. Cousineau: All commissions established by the federal government are subject to the Official Languages Act. If you are in such a commission, and there is a law empowering the commission, the commission must operate in both languages. The municipality, in order to establish services, would be subject to the principles of the Official Languages Act, but the responsibility for administering bilingualism would be up to the municipality, just as it is up to the federal commissions.
[English]
Mr. Annis: I concur with what Senator Joyal said that, given all the realities, et cetera, we must work with what is there now. The nice thing about a contractual term is that until it is interpreted, until someone has actually taken a run at it, you do not know what it means. You can give it an expression that is not there in the words, and we do it all the time.
If the federal government were to adopt a piece of legislation saying Ottawa is officially bilingual, and what are the ramifications, we would be back in court. There would be two ways to look at it. You would say this is a section 91 power, or you could come at it from the other side and say, ``No, by the terms of section 16, an obligation already exists on Ontario to do certain things.'' You could try to approach it that way from that side.
What I am looking at here, and what I suggested we try to do here, is to work in the old British way, to a certain extent. You take a bite of something and you just deal with the facts that are in front of you. That is all you deal with. You wait for the next case to come along if you want to expand it.
As far as I am concerned, I am looking at the issue of whether Ottawa should be designated as officially bilingual in French and English, as Mr. Shortliffe said. That is the thing I would be after; nothing else. Let us start there and work that out.
I would try to convince the court that there are some things they have to do. The first thing is to amend section 16 but, in effect, interpret it to have a certain meaning so the words are there. The words would include something along the line of a proviso that the Province of Ontario must not take any measure to frustrate or impede the federal government from achieving its critical objectives in respect of Ottawa as the federal capital. Those words are there already. They are there because of all the circumstances. It is an implied term.
You have nothing in writing, but when you fire someone there is a term in your contract that says you have to give him or her reasonable notice. Where did that come from? It is an implied term, from all the circumstances.
The approach is that it is already there. You do not have to amend anything. Nobody has ever interpreted this before, so let us look at what it really means in the full context of having a capital. That is the first thing.
We only pick off the piece we want to pick off. We are not trying to establish a federal regime on Ottawa. I am not going there. We say, in the circumstances, that the declaration that Mr. Shortliffe requested is one of the critical objectives. It is a clear and easy one to deal with. We say the declaration is of such importance, the status is of such importance, because it is a matter of respect, and one that basically has an impact on the whole piece of legislation. It has that high level. It is an easy one to see. I do not want to talk about the greys. This is black and white, as far as I am concerned.
You go into court and you get the court to recognize that Ontario must have some obligation. Then the question is to ask them to define it, and what the criteria are. They will set out certain things as yes, and certain things as no. It is a bite at a time. That is how we do it.
The concept of Mr. Shortliffe's declaration is an easy bite. It does not cost anything. It does not cost any money. It is no big deal. Say this, for crying out loud: ``You love me: no or yes?'' That is what it comes down to. It is not a big deal.
[Translation]
Senator Rivest: As in our federal system, can a level of government — say, the federal government — establish administrative or legislative obligations applicable to other levels of government, be it the provincial government or the municipal government? I take section 133 as an example. In Quebec, our courts of justice and official publications do not have a choice, because the Constitution requires that they be bilingual. But how can a federal statute establish administrative obligations, obligations of service imposed on a different level of government?
[English]
Mr. Annis: This is not a section 91, section 92 debate that applies to all provinces. It is more like a section 133 debate. What do you see in a section 133 debate? You see the province of Quebec having specific constitutional obligations imposed on it with the federal government. It does not fall into section 91, section 92; it is its own regime.
Section 16 is the exact same. There is only one national capital. What does it mean to be a national capital? Someone should sit down and say: Are there any obligations that flow? Ontario refuses to look at Ottawa any differently from Waterloo or Hamilton. As far as they are concerned, Bill 163 is the closest they would come to say Ottawa is a little different.
My position is that Ontario has a special status by having the capital within its borders. Therefore, Ottawa must have a special status. They have obligations that flow out of it. Let us have a look and see what they say.
My common-sense side says that you cannot take all the benefits of having a national capital without having some obligations. We are not asking a lot: Just do not frustrate the federal government from achieving the objects that it has for the national capital.
It is part of an agreement amongst all the provinces. We gave this to you. The only thing we ask you to do is basically not frustrate the federal government in doing this. We are saying that if the federal government says that you should at least make the declaration at that level, it does not cost anything: pay. That cannot be such an obligation. That is something imposed on you in having the capital. It is already there in section 16. You will not have to amend anything. It is there.
Until you interpret and find what that meaning is, we do not know what it is.
[Translation]
Senator Joyal: You are referring to the Shortliffe report.
[English]
Do you have a copy of the part of the report that deals with Ottawa? Of course, it deal with many other cities in Ontario. Can we look into the documents that you have sent us today?
[Translation]
Mr. Landry: The Shortliffe report was very lengthy so we could not print all of it. You have here the recommendations and the table of contents. We can send you the report.
[English]
Senator Joyal: I do not think, Madam Chair, that we need the whole report. The important thing is the explanation of the recommendation; in other words, the chapters and the reasoning of Mr. Glen Shortliffe.
Mr. Landry: In tab one of the book of authorities you will find the recommendations of the Shortliffe report, and also the table of contents, which highlights all the sections of the Shortliffe report. All the recommendations are there, and the recommendation on Ottawa is found on page 38.
Senator Joyal: It is recommendation four. I read the reasoning of the two paragraphs that precede recommendation four, which are the basis for Mr. Shortliffe's conclusion. For the record, Madam Chairman, we should mention that Mr. Glen Shortliffe was the previous Clerk of the Privy Council of Canada for the Canadian government.
I would like to read the two paragraphs, Madam Chair, with your authorization:
One of the most important issues raised during the public consultation process was the question of bilingualism. As noted earlier, more than 15% of the population of the new City will be francophone. Ottawa is also unique among cities in this province and country in that it is the capital of Canada.
Our nation has two official languages. Our national government, centered in Ottawa, operates by law in two official languages. The national capital must be reflective of the character of the country as a whole and must recognize the presence in its population of a significant minority of francophones. In consequence:
Recommendation 4: I recommend that the enabling legislation establish and designate the City of Ottawa as officially bilingual in French and English.
That is page 38 of the report.
The Chairman: It is page two in the document presented.
Senator Joyal: It is your contention that the national capital is a city that has a unique character where both English and French meet, and that the city should reflect that. That is essentially your contention. Your contention is that because of that, the Ontario government has a responsibility to legislate to ensure that when it deals with the character of the city it clearly states, as Mr. Shortliffe mentioned, that Ottawa should be officially bilingual. Essentially, that is your contention. On that basis, you think that you could go to court on Bill 163 and raise a constitutional argument about the validity of section 11.1 of the Ottawa —
Mr. Annis: In fairness, I do not need Bill 163 because the obligation is in section 16; and Bill 163 does not meet that obligation. I would use Bill 163 to show that the bill does not meet the obligation but the obligation is there. I would start with the principle that you cannot frustrate the federal government in achieving its goals for the national capital. I would start in the way that lawyers do in some black area where you could not debate it; if they tried to cut off the power or to block the roads to Parliament. Are you saying they can do that? No, they cannot do that. Obviously, they cannot do anything to frustrate the operation of Parliament. Parliament can adopt laws it has to adopt but it is that kind of argument. I would move into the language area and declare it to be of critical national importance. Then I would get down to the fundamental criteria that the court would apply to that critical importance and the nature of the beast that we are dealing with. In terms of getting your foot in the door, the easiest element to use is the failure to declare the city officially bilingual, because there is no disadvantage or cost to Ontario. Getting these principles applied in a way that the court would have to apply them is important. They would set up criteria to determine whether it is a matter of critical importance to the federal government, because all things would not be of critical importance to the federal government. In other words, general principles would be set up, such as not to frustrate and to determine critical importance. Then, you would apply it to the fact situation and say yes, language is of critical importance to the federal government because language is all about national unity, if one of the major objectives of the federation is to maintain national unity. We know that it is a part of one of our most important objectives, which is why it is not a local issue but a national issue.
You develop those criteria. My sense is that we have a good chance of accomplishing this. The difficulty is that it is a long way to go to force a province to do something but we would pick off pieces as we go forward. We would seek different declarations, such as Ontario has achieved tremendous advantages from having the national capital within its borders. That is an embarrassing declaration, in a sense, because I do not think many people have ever reflected on that point.
Even if you did not win, you could obtain enough declarations or points that people would look at it in a new way. That is what going to court does — it shakes everyone up and makes them look at the issue anew. Perhaps it would provide enough impetus for the Liberals to move forward and adopt it rather than go through all of that process.
[Translation]
Senator Ringuette: You mentioned the implications of the national capital being located in the province of Ontario. They are huge. I started looking at the economic implications of this — out of interest in another file — solely within the federal public service. The public service payroll for the national capital region is $25 billion per year, and that does not include all the jobs paid for lay the Canadian government on Parliament Hill. There are 308 members of Parliament and 105 senators. Five thousand employees work on Parliament Hill alone.
That does not include lobbyists, product and material suppliers and independent businesses. That also does not include the federal government's investments in capital and services for the city of Ottawa — and to a certain extent Gatineau — through the National Capital Commission for things such as water, sewers, buildings, et cetera.
I come from a city in New Brunswick that is bilingual and relatively poor, and I am therefore tempted to go even further and say why not move the national capital to New Brunswick? At least that province would grant the national capital some recognition. That would also apply at the economic level.
If we look at this from a political perspective, I would be tempted to respond to Senator Rivest by saying that Meech does not correspond to today's needs. Meech simply acknowledged the presence of francophones here and there throughout the country. We would not be any further ahead with Meech today. In fact, a well-known individual interpreted certain clauses as being meaningless.
Senator Rivest: Duality is a fundamental characteristic. That is an interpretive clause that would have been helpful in interpreting clause 16 in a manner that is consistent with our witnesses' concerns. That was my point.
Mr. Cousineau: The courts have also stated that.
Senator Ringuette: When I look at this, I say to myself that to date, there have been no political leaders, regardless of their political party, at the provincial and national levels, who have had the requisite courage and vision to move this country forward, as well as the national capital region.
Solitude, in terms of Quebec, western Canada or the Maritimes, is more than a phenomenon. I am convinced of the importance of people being able to recognize themselves within their capital. You raised this earlier when you spoke about Sparks Street. Yet the National Capital Commission is responsible for applying the Official Languages Act within its jurisdiction, which includes Sparks Street. It is not doing this. We have a lot of work to do.
I agree with Mr. Annis when he says that the solution lies in interpreting clause 16. I hope you will pursue this. If I can assist you in any way whatsoever, it will be a pleasure. I think we need to send out some signals and act now.
[English]
Senator Joyal: It is not totally clear whether, in your opinion, under section 16 the federal government has competence over languages for the national capital region. If I understand your reasoning, Ontario has a constitutional responsibility because it inherited the seat of the national capital.
[Translation]
Mr. Cousineau: If the federal government wants to intervene, it has the jurisdiction to do so. Ontario has already opted to intervene. If we were on an unmarked map, I think the federal government would have that jurisdiction. It is not an obstacle. I am not contradicting Mr. Annis. This is a hybrid city with both provincial and national capital characteristics. When Ontario intervenes, it has to take into consideration the fact that Ottawa is the nation's capital. The federal government could intervene directly when you consider the true nature of the city of Ottawa. Both scenarios could unfold because this is a grey area that has not been fully explored. Both cases could be argued in court. The province has the authority to act but it must fulfil its national interest obligations with regard to Ottawa.
Mr. Annis: There is another way of approaching the problem. What you are saying only applies to one province.
Senator Joyal: Your proposed interpretation is primarily predicated on sections 16 and 133 of the Charter. That is essentially what you are arguing. Were the Canadian government to adopt an amendment under section 44, the Senate would introduce and adopt a constitutional resolution, which would then be sent to the other place. The resolution would propose amending section 16 of the Constitution by adding that ``Ottawa is a bilingual city''. Such an amendment would put the ball in the camp of those who are against such a change, and who would seek to contest the Canadian government's capacity to amend section 16. Alternatively, the Canadian government could use the introductory clause in section 91 to simply adopt legislation as it did in the case of the National Capital Act. It would be a matter of adopting a simple piece of legislation in which the government would state that, in order to meet the constitutionally defined objectives of peace, order and good government, Ottawa is henceforth a bilingual city. Given that the Supreme Court has already unanimously stated that the National Capital Act is entirely constitutional, the government could simply avail itself of its general power to legislate on matters pertaining to the national capital in order to introduce legislation.
You explain this clearly on page 7 of your brief when you state that ``The Supreme Court held unanimously that legislation designed to establish a region consisting of the seat of the Government of Canada ``clearly goes beyond local or provincial interests and is the concern of Canada as a whole''. Furthermore, ``the development, conservation and improvement of the National Capital Region'' in accordance with a coherent plan ``in order that the nature and character of the seat of the Government of Canada may be in accordance with its national significance, constitute a matter of national interest.''
We are talking about the look and feel of the national capital; the impression that people get when they come to Ottawa. You are arguing that legislating on the use and profile of both official languages in the national capital is consistent with the nature, image and character of Ottawa. I am simply trying to get a grasp of all of the avenues which are open to us.
If you go to the courts, how do you intend to prove that the Government of Canada has not fulfilled its responsibility to the national capital? Given that sections 133 and 16 invest the government with the responsibility of ensuring that the national capital reflects Canada's linguistic duality, not only in federal institutions, but in the capital as a whole, as a city; how are you going to show that the Canadian government has not lived up to its responsibilities?
Mr. Cousineau: This is something which Mr. Annis has already clearly explained. We would firstly seek a declaration stating that Bill 163 is unconstitutional, because it basically delegates matters of national interest to the municipalities; matters which are of federal jurisdiction, or of provincial jurisdiction, if the province is prepared to respect the specificity of Ottawa's role. We would, therefore, probably begin our challenge by questioning the constitutionality of Bill 163.
The Chairman: Again in the name of national interest?
Mr. Cousineau: Yes.
Senator Joyal: The problem with Bill 163 is that it focuses on the responsibilities of the provincial government. Even if the court were to conclude that Bill 163 is unconstitutional, it would not automatically follow that legislating on official languages is a matter of federal responsibility.
Mr. Cousineau: That would not be necessary. This way, the province would have to act to ensure that any legislation concerning Ottawa reflect the nature of the city, the fact that it is the national capital. By adopting Bill 163, Ontario would have to define provisions regarding Ottawa's linguistic duality, as opposed to simply delegating the matter to the municipality.
Senator Joyal: Your logic is that, while we cannot force the government of Ontario to legislate, should it do so, the legislation would have to reflect the nature of the national capital. We could have forced the introduction of legislation. We could have gone to the courts to seek a simple declaration on the nature of the national capital, and more specifically, its linguistic reality. Fortunately for us, such a move will not be required because we have Bill 163.
Mr. Annis: I would now like to raise another aspect, which we have not yet addressed. The languages acts are a little special because the Supreme Court held that they designate affirmative duties; in other words, there is an obligation to act. This very unique situation stems from Canada's linguistic rights, and adds weight to our argument. If an obligation can be identified, that ought to be sufficient grounds for requiring the government to act.
One uses all possible arguments when initiating proceedings. Mr. Cousineau will focus on the federal aspect, while I will base my arguments on the interpretation of section 16 as a contract.
The beauty of section 16 is that the Supreme Court has to approach it as if it were a contract. It is straightforward, it is not a matter of determining which areas are of federal jurisdiction. That complicates matters. The scope of the problem is far-reaching. The words are already there in black and white. It is a matter of interpretation. The problem is clearly defined.
Does it carry implications for other provinces? No, it only affects Ontario. Will Ontario be forced to declare itself a bilingual province? No, only Ottawa will be bilingual. Will the process be frustrating for Ontario? If the Parliament does its work correctly, then I do not believe that it will. If the national capital manages to achieve its objective, there will be no reason for Ontario to experience frustration. It is fairly straightforward.
Can additional language matters be included? This is something which could give rise to frustration. Are language rights special? Yes, language rights entail affirmative duties, and therefore something has to be done.
It is not a matter of overhauling the whole federal approach to the matter; we are seeking to act in a defined and limited area, and to do so without causing too many problems.
Senator Rivest: In reality, what you are proposing is very much limited to section 16. I believe that is an argument which could help you, and help the cause in which we all believe.
I need you to provide me with some information. Is the government of Ontario completely opposed to going beyond Bill 163?
Mr. Cousineau: The answer is straightforward. The government of Ontario spoke out in favour of Bill 163 even though the community was asking for a great deal more. It stuck with Bill 163 and defended it by saying that it was simply doing what it had been bid.
Senator Rivest: The matter is closed.
Mr. Cousineau: For the moment, I believe so.
Senator Rivest: The other avenue is that of legal process.
Mr. Cousineau: That is something which I would like to see the federal government do. Why should Mr. Cousineau, Mr. Annis and Mr. Landry go to court to defend Canada? We do not have the money to undertake such proceedings; but it would not cost the federal government a red cent.
Senator Rivest: Senator Joyal mentioned that the constitutional avenue could be challenged, and I would argue that so too could the legislative avenue. If the government of Ontario does not want to go beyond Bill 163, then the federal act, which you could use to support your case around section 16, could well be challenged by the government of Ontario. If that happened, we would find ourselves before the courts.
Mr. Cousineau: I am not convinced that Ontario would challenge it. I think that Ontario would be happy not to have to dispose of the matter.
Senator Rivest: That is bringing us into political territory.
Mr. Cousineau: The question of official languages is always political. We are here because we think that you can do something. We are asking that you do something.
The Chairman: We have heard your messages loud and clear. You have seen for yourself the interest that members of the committee have in this subject. Thank you for coming along and making such an instructive contribution.
Tomorrow morning, we will meet in camera at 10:45 a.m. to determine how to approach the matter.
The committee is adjourned.