THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, April 30, 2018
The Standing Senate Committee on Official Languages met in public today at 5:00 p.m. to continue its study on Canadians’ views about modernizing the Official Languages Act, and in camera for consideration of a draft agenda (future business).
Senator René Cormier (Chair) in the chair.
[Translation]
The Chair: Good evening, my name is René Cormier, and I am a senator from New Brunswick. I am pleased to chair the meeting today. The Standing Senate Committee on Official Languages is continuing the third part of its study on the perspective of people who have lived through the evolution of the act.
We are pleased to welcome this evening Stéphanie Chouinard, assistant professor in the Department of Political Science at the Royal Military College of Canada. She is also a research associate with the Research Chair in Canadian Francophonie and Public Policies at the University of Ottawa. We would also like to welcome Martin Normand, a postdoctoral student with the Research Chair in Canadian Francophonie and Public Policies at the University of Ottawa.
Before I give the witnesses the floor, I shall invite the members of the committee to introduce themselves, starting on my left.
Senator Jaffer: Welcome. My name is Mobina Jaffer, and I am from British Columbia.
Senator Maltais: Good evening. Ghislain Maltais from Quebec. Welcome.
Senator Moncion: Good evening. Lucie Moncion from Ontario.
Senator Gagné: Raymonde Gagné from Manitoba.
Senator McIntyre: Paul McIntyre from New Brunswick.
Senator Smith: Larry Smith from Quebec.
The Chair: Thank you very much, dear colleagues. I would like to thank our witnesses for being here with us. Ms. Chouinard, you have the floor.
Stéphanie Chouinard, assistant professor, Department of Political Science, Royal Military College of Canada, as an individual: Mr. Chair, honourable senators, I would like to begin by thanking you for inviting me to discuss the modernization of the Official Languages Act with you. It’s truly an honour and a privilege for me to be here this evening and to participate in your study.
I am Stéphanie Chouinard, assistant professor in the Department of Political Science at the Royal Military College of Canada, where I teach political science in both official languages. The Royal Military College of Canada is the only post-secondary institution in the country that falls under the Official Languages Act. This means, therefore, that implementing the act is a daily part of my job, and I see successes and sometimes also difficulties and failures within my working environment.
Nevertheless, I am here this evening not to discuss the sometimes difficult relationship between the Canadian Forces and its language obligations, but rather to talk to you about the ways in which my research could inform an overhaul of the Official Languages Act. I would have several things to say about overhauling the Official Languages Act, both the wording of the act and its implementation, but I will limit myself to some specific remarks based on my research on the law and minorities.
I am a specialist in the field of language rights, and the major question that has driven my research in recent years is: how has the judiciary shown itself capable or incapable of addressing the grievances of minorities, particularly language minorities in Canada? To this end, I have extensively studied the jurisprudence associated with language rights in Canada and its effects on public policies. I have arrived at the conclusion that we are beginning to reach the limits of our interpretation of the language rights system in Canada, and this is true for both the Official Languages Act and the Charter. In other words, the wording of this legislation and how judges interpret it, as liberal and generous as their interpretation may be, can no longer meet the expectations of official language minorities in the country, expectations that lead to demands for community independence and empowerment, but which also represent a deep desire to participate in society.
While official language minority communities, especially francophone communities outside of Quebec, have actively turned to the courts in recent years to vindicate their rights, the Official Languages Act and its interpretation by the Federal Court have simply not delivered the goods. There are several reasons for this, in my opinion, but one of the main reasons is, on the one hand, the notorious reluctance of the Office of the Commissioner of Official Languages to initiate court proceedings since 1988, and on the other, the fact that the Federal Court is mandated to hear these cases. Therefore today I would like to ask for a review of the Office of the Commissioner of Official Languages’ mandate, as well as for the creation of an administrative tribunal to hear cases of non-compliance with the Official Languages Act. My speech will therefore focus especially on parts IX and X of the act.
As you probably know, the Office of the Commission of Official Languages has always lacked enforcement and sanctioning powers. When it was created in 1969, legislators imagined that the position of Commissioner of Official Languages would be an ombudsman, i.e. it would above all be persuasive in nature. The powers of the commissioner did not include any legal recourse in the first version of the act. Lawmakers partially addressed this in 1988. Bill C-72 still did not provide the commissioner with any power to issue orders, which means that the results of an investigation into a matter of non-compliance with the Official Languages Act could lead to complete inaction, but it nevertheless guaranteed that certain parts of the act would be legally enforceable. This enforceability was strengthened in 2005 with Bill S-3.
Since 1988, the Commissioner of Official Languages’ role as an ombudsman has been fortified by policing powers, so to speak. As for the Federal Court, it was granted power to sanction violations of the act. Although some sections of the Official Languages Act could then lead to legal action once a complaint was lodged with the Office of the Commissioner, this possibility was always considered a last resort. In 1988, the commissioner at the time, D’Iberville Fortier, was himself not very enthusiastic about going to court and using a discretionary power which was ill-defined in the act. This tradition has continued until today. Cases in which the Office of the Commissioner decided to initiate proceedings are rare, as it prefers to request intervenor status in cases brought before the Federal Court by individuals or civil society groups.
However, even in 1988, there were calls not only to make the Official Languages Act enforceable, but also to establish an administrative tribunal dedicated to language rights. This was especially true for the Fédération des francophones hors Québec, which is now called the Fédération des communautés francophones et acadienne du Canada, which is still calling for the creation of such a tribunal; if memory serves, it gave a presentation to this committee a few weeks ago. The reasons are simple enough. A tribunal would be easier for Canadians to access than the Federal Court. There would be more sanctions for direct violations of the act, rather than decisions about major legal principles, which is what usually happens in the Federal Court. In my opinion, this sort of amendment would give renewed meaning to the Official Languages Act, both for Canadians and for the political institutions that must comply with it. Canadians could finally obtain court orders for violations of the act, and institutions would have a tangible incentive to comply with official language requirements. By all accounts, this incentive appears to be missing in the current system, which, if you will forgive the expression, favours the carrot-and-stick approach, according to the numerous investigation reports from the Office of the Commissioner.
There is already a language framework elsewhere in the world, which has both a commissioner’s office and an administrative language tribunal. It is to be found in Wales. The two entities were created by the Welsh Language Measure, a law adopted by Cardiff in 2011, which was intended to replace the Welsh Language Board. The commissioner’s office was founded in 2012, and the tribunal was established in 2015.
I would like to encourage you to view this model as an example not to be followed, and let me explain why. The role of the Welsh Language Commissioner is to investigate but also to impose sanctions. The Commissioner, Meri Huws, is therefore both judge and party when she is required to investigate complaints made by Welsh citizens. The role of the tribunal is to hear appeals of decisions made by the commissioner. Individuals or groups sanctioned by the commissioner for non-compliance with the Welsh Language Measure can thus appeal this decision before the tribunal.
I would encourage you not to copy this example, which not only imposes two sets of responsibilities on the commissioner, which is the case now in Canada and is something the Office of the Commissioner already struggles with, but also fosters antagonism from some parts of civil society toward the position of the commissioner. The experience of Wales indicates that it would be wiser to let a tribunal issue sanctions following investigations by the commissioner. Thus, the Office of the Commissioner of Official Languages in Canada would keep its role as ombudsman and investigator. The power to issue sanctions would then be granted to the administrative tribunal established to hear cases on the various enforceable sections of the act.
The Federal Court could be a court of appeal for decisions made by the administrative tribunal. It goes without saying that the Office of the Commissioner’s mandate should also be reviewed, especially section 78 of the act, in order to specify when the Office of the Commissioner of Official Languages must initiate legal proceedings and present its evidence rather than leaving this decision up to the discretion of the commissioner, as is currently the case. Overhauling the Official Languages Act could therefore give new life to the investigative role of the Office of the Commissioner and require it to appear before the courts to ensure that the evidence and knowledge about official languages that it holds in its possession, and particularly as concerns recurrent complaints and systemic issues, can be used by this tribunal, whose creation I propose. Please note that in order to fulfil its new legal obligations, the Office of the Commissioner would require increased resources.
I will stop here. Thank you once again for the invitation. I will be happy to continue the discussion.
The Chair: Thank you very much, Ms. Chouinard.
Mr. Normand, you have the floor.
Martin Normand, postdoctoral student with the Research Chair in Canadian Francophonie and Public Policies at the University of Ottawa, as an individual: I would also like to thank you for giving me the opportunity to share with you my own comments on your process or approach to modernize the Official Languages Act. The only thing I would add to Senator Cormier’s introduction is that I am also affiliated with the Institut du savoir Montfort, which influences in a way my opinion and thoughts on the Official Languages Act. You will see how, for example, concerns about the health sector could echo some of my comments.
To my mind, the objective of any modernization of the Official Languages Act must be to increase federal institutions’ compliance with the obligations listed in the act. New, more substantial regulations would give concrete direction to federal institutions to help them commit to their obligations. At the moment, a large part of these language obligations still depend on political will. It would certainly be difficult to legislate political will, but hopefully a stronger act would increase the ability of official language minority communities to act in favour of their collective future. One tool that should be taken into consideration to strengthen the act is adding to the concept of effective representation. This concept is missing in the current act.
My speech is divided into three parts. First, I will define the concept of “effective representation” to explain why it could be added to the act. I will explain how effective representation could be added to parts IV and VII of the act. My starting point is a proposal to add to the purpose of the act. Currently, paragraph 2(b) stipulates that the purpose of the act is to “support the development of English and French linguistic minority communities.” I am suggesting that this paragraph be amended so that the act also provides for the necessary mechanisms for effective representation of official language minorities across the country.
Effective representation of minorities is a principle by which society ensures that the aspirations and needs of minorities are taken into consideration in the decision-making process. Effective representation is often evoked in the context of elections in democratic societies, in the sense that an electoral system can be set up to ensure balanced representation of the different components of society within elected assemblies. Canadian courts have already had to decide on issues of effective electoral representation. Effective representation goes beyond the electoral system, as indicated by international minority protection instruments. Some of the instruments stipulate that states are responsible for creating favourable conditions for minority participation in social, cultural and —
The Chair: Mr. Normand, excuse me for interrupting. Could I ask you to speak more slowly, so the interpreters can follow?
Mr. Normand: Yes, of course.
The Chair: Thank you.
Mr. Normand: The Lund Recommendations on the Effective Participation of National Minorities in Public Life are two-fold. The first deals with minority participation in managing public affairs. The second concerns independence in the management of certain local or internal affairs by minorities. By including effective representation as an objective of the act, we will be able to find new ways to ensure minority participation and independence.
Participation and independence do not constitute innovations in Canada’s language policy. They have already been implemented to varying degrees, whether through institutionalized consultation mechanisms or through the management of school boards. In this particular case, participation and independence should be included in the implementation of parts IV and VII to strengthen effective representation, which could be done through stronger regulations.
As for Part IV, I will limit myself to section 28 of the OLA, which states that federal institutions are responsible for adhering to the principle of active offer. The Treasury Board Secretariat’s Policy on Official Languages also stipulates that federal institutions must clearly indicate both visually and verbally that members of the public can communicate in French or in English and obtain services from a designated office in either of these languages. It also lists various ways of doing so. Active offer has been the subject of much debate and research in recent years. The Treasury Board Secretariat’s definition of the principle appears to be the lowest common denominator. Its definition has not followed the trend toward more dynamic definitions, such as a culturally appropriate offer of services in an environment that generates demand. It is also possible to imagine ways of firmly setting the notion of active offer within effective representation.
As for participation, the Office of the Commissioner of Official Languages stated even as early as 1978 that it would be a good idea to consult possible clients and to really take their views into consideration when determining the scope of services that the federal government can reasonably offer in the minority language.
After the report of the 1981 Special Joint Committee on Official Languages — your distant predecessor — Treasury Board announced a new directive that included active offer and entered into force on April 1, 1982. According to this directive, members of the official language minority population must be able to make their opinions known to the relevant departmental officers concerning the linguistic aspects of the services being offered. The Treasury Board therefore calls upon departments to implement feedback systems for all locations that provide services to the public, in order to allow the public to comment on the various linguistic aspects of the services being offered. In other words, departments were called upon to let language minorities comment on the quality and availability of government services. This suggestion could be taken up today so that users of public services in the minority language can define their needs and evaluate services in official consultation sessions.
This concept of active offer could go even further, in the event that federal institutions make excuses to justify their inability to offer services in the minority language. This is where independence comes into play. In its 1977 report, the Office of the Commissioner of Official Languages suggested that in such cases, the government might need to re-examine the location of its offices. The majority of French-language communities located in English-majority provinces have institutions that serve as community hubs. It went even further in its 1979 report, stating that a good number of federal services could be contracted out to non-governmental organization, which could allow the federal government to meet the needs of minorities more easily.
It could be said that at the time, the Office of the Commissioner was already proposing independent management of government services or the “by and for” principle, which means that government services intended for an official language minority community would be planned, offered and evaluated by institutions within this community.
In Part VII, section 41, the federal government is committed to fostering the expansion of official language communities, and since 2005 has been committed to taking positive measures to fulfil this commitment. It has already been noted on several occasions that this part of the act is poorly understood in the federal public service.
This is not something new, since even during the Legislative Committee’s analysis of Bill C-72, which became the Official Languages Act of 1988, several bodies, including the Office of the Commissioner, the Fédération des francophones hors Québec and Canadian Parents for French, noted the weaknesses in this part, which was not enforceable at the time. In addition, before the bill was adopted, several members of Parliament admitted that they did not understand the content of this part, and they doubted that it could be implemented. Rather than helping to clarify Part VII, the 2005 amendment seems to have complicated matters, as shown by the debates about defining or not the idea of positive measures, and the fact that this new legal instrument has never been successfully used.
Regulations for Part VII are now essential for ensuring that all of the commitments contained therein are implemented. These new regulations could also provide for effective representation. The idea of positive measures should be accompanied by an obligation for substantial consultation. This goes beyond a simple consultation meeting, as far as co-construction and joint evaluation of official language programs and policies. This obligation would be part of the objectives for participation that are required for effective representation. Furthermore, a lawyer, Serge Roussel, indicated that any generous interpretation of Part VII means that there is an obligation to consult, but also that federal institutions should take the concerns of the community into account and act on them using the prescribed positive measures.
Lastly, in keeping with other international minority protection instruments, the idea of positive measures could go even further and be included in the objectives concerning independence. A positive measure could be defined as having to provide official language minority communities with the tools necessary to define their own standards and the content of the rights to which they are entitled. In time, the government would recognize these communities’ capacity for self-determination, and they would become responsible for their own well-being.
Regulations clearly stipulating that “by and for” may be preferable for implementing positive measures and would allow communities to act in the areas that they consider priorities for their expansion, instead of having to comply with priorities defined elsewhere, particularly by the federal government itself.
The Chair: Thank you, Mr. Normand. We will begin the question period.
Senator Jaffer: I would like to thank you, Ms. Chouinard and Mr. Normand, for your evidence.
I am wondering about data collection concerning francophones outside of Quebec and francophiles. In my province, British Columbia, census data give an incomplete picture of rights holders under section 23 of the Canadian Charter of Rights and Freedoms. Let me give you an example. Only one question on the census determines whether a parent is eligible to send their child to a French-language school or to a school in their mother tongue. There are no questions about the language of education of parents or their children. In Vancouver, more than half of school-aged children are raised in a language other than English or French. That being said, the census gives only one language as a possible answer. Therefore, only one category is taken into account by Statistics Canada in the census. Furthermore, the wording of the mother tongue question discourages multiple answers. Therefore, several people have to indicate only one language, even if they have learned several.
What do you think about including an obligation for Statistics Canada in the Official Languages Act to enumerate those with education rights?
Ms. Chouinard: Thank you for your question. By all accounts, this is a problem that we are dealing with in British Columbia and in the other provinces, if I am not mistaken. In Newfoundland and Labrador, where I am from, and in St. John’s, citizens are facing the same problem. When the last French school was built, the number of rights holders under section 23 was incorrectly assessed, which means that the school is overpopulated and another one already needs to be built. The school was built only 10 years ago in St. John’s.
This is an important problem that Statistics Canada has already addressed. We had presented some options to Statistics Canada, including one to indicate more than one language for the answers to the question about the first language spoken at home. At the time, Statistics Canada decided not to amend the census form. This is a question that comes up frequently, since more and more minority newcomers who settle in our communities speak more than one language in their family environment. These answers are harmful to the vitality of our communities. When we don’t have correct numbers, we can’t assess the need for services. We have to work with Statistics Canada on this issue.
I would also encourage you to look at what is being done in Ontario with the inclusive definition of what we consider “a francophone.” This definition includes newcomers from outside of Canada, whose first language is not necessarily English or French, but who speak French as an official language at home. These numbers give a better picture of the extent of the communities and population who need to be provided with services.
I think that this would be an interesting avenue to explore with Statistics Canada, whether we can amend the Official Language Act to force Statistics Canada to obtain more specific numbers. This would help us better serve the population where numbers warrant, according to section 23. In my opinion, this would be an excellent idea.
Mr. Normand: We should be careful not to turn the Official Languages Act into a catch-all. There is a basis we can use for the census questions. I’m not an expert in statistics. I wouldn’t be able to tell you how Statistics Canada data deviates or not from the reality in the communities. As a starting point, I think that we should decide how we want to modernize the Official Languages Act.
Over time, it may be the case that certain measures aimed at ensuring better community vitality or better data could be inserted in other legislation apart from the Official Languages Act. There are surely laws that affect Statistics Canada where these types of questions could be added. We already know that we are experiencing numerous difficulties with fully implementing the Official Languages Act. If we constantly add requirements, there is no guarantee that they would be met, given the current state of affairs. We should remember that.
[English]
Senator Jaffer: I’m not anglophone or francophone. When I’m in B.C., I’m taken as anglophone because that’s the way it is. For me, answering you Mr. Normand, I care about growing the language. I care for my children to be able to go — which they weren’t allowed to — into a French-speaking school rather than an immersion school, because immersion is a lower standard than a French-speaking school.
I feel that should be the right of a parent. I know you’re saying not to add anything to the official languages, but I think the figures are misleading. For example, in my province, Syrian children who speak French come to the province and are put into an anglophone school because it’s easier. Especially if you’re not anglophone or francophone, the choice should be the parents’ as to where the child should go, not that of the authorities. I’m saying that if we’re going to grow French, we have to find ways to classify where children go.
The second thing is that in my province many people speak French, but it’s not reflected in the statistics. That’s very frustrating, because if it’s not reflected, you don’t get the resources. That’s what bothers me.
[Translation]
Mr. Normand: I completely agree with you. I’m not saying that we shouldn’t add anything to the Official Languages Act. First, we should agree on the objectives behind any modernization attempt, and then see if the proposals that we want to make align with this objective, to avoid creating a multi-headed monster that we can’t implement. This is what I want to caution against. It is certainly not my intention to minimize the concerns of parents who are unable to register their children in schools.
[English]
Ms. Chouinard: You’re striking an important note when you talk about the standard of the language being taught in immersion schools. I think we need to distinguish between the rights bearers that are objected to under section 23 of the Charter and then every other Canadian child who would like to have access to immersion schools. I know our system definitely has a number of caveats. We just need to be careful not to mix those two systems. Both of them have their place in Canadian society, but they also have very different objectives.
I’d like to think that there have been steps in the right direction with the new official languages action plan, with the substantial the amount of funding that was added to contribute to new French teachers outside of Quebec. Whether that amount will be enough, that’s a question we’ll get to talk about again in five years, I’m sure. But I think it’s really important to make that distinction.
I know that many of the immersion schools in Canada are already full, and it’s almost like a lottery system to be able to get your child into those systems. Clearly, there is a high demand that’s not being met at this point. Also, the standard within those schools should probably be looked at, but those children cannot be mixed up with the rights bearers under section 23, in my opinion.
[Translation]
Senator McIntyre: Thank you to our witnesses for their presentations. I understand that in the fall, both of you co-signed a letter along with seven other academic researchers in which you underscored the importance of improving the federal government’s leadership in terms of official languages. Did you receive any reactions after this letter was published? If yes, what were they?
Ms. Chouinard: My answer will be short: no. We were told that an action plan was being developed. This took a few months, but we received a response at the end of March this year.
Senator McIntyre: Was this letter published in newspapers?
Ms. Chouinard: Yes. As far as I am aware, none of the people who signed the letter received a direct response from the government.
Senator McIntyre: Was it published by Francopresse?
Ms. Chouinard: Yes, and in Le Droit.
Mr. Normand: The letter was picked up in a few forums, but I did not receive any feedback, nor did my colleague, Ms. Chouinard.
Senator McIntyre: Ms. Chouinard, in your presentation, you concentrate especially on parts IX and X of the Official Languages Act. Part X involves court proceedings. Do you think that all of these parts of the Official Languages Act should allow for legal remedies?
Ms. Chouinard: Yes, we could see about making all parts of the Official Languages Act enforceable.
Senator McIntyre: In other words, should there be more access to the courts to ensure compliance with the Official Languages Act?
Ms. Chouinard: It seems that 50 years later, good will only goes so far. Not only does the government’s good will only extend so far in terms of implementation, but the courts do not even mention the parts that are already enforceable. I am thinking of Part VII in particular, which has been enforceable for a number of years, and which has never been tried before the courts. There is still a long way to go.
Senator McIntyre: Part VIII concerns the appointment and powers of the commissioner. In your opinion, should we have a better appointment process for the position of commissioner? I am asking you because as you know, a lot has been written about the appointment process over the past year.
Ms. Chouinard: The appointment process for the Office of Commissioner of Official Languages, as for all parliamentary ombudsmen and officers, should be transparent. There should be no surprises. Canadians have the right to know how the process works and who the candidates are for these important positions. There should be a certain amount of transparency there, not just for the sake of transparency, but also so that the people who take up the position at the end of the process seem legitimate in the eyes of Canadians. This is crucial.
Senator McIntyre: It is important to strengthen the powers of the commissioner, especially to ensure that there is a better follow-up on the commissioner’s recommendations. Other organizations have proposed creating an administrative tribunal to free the commissioner from this double role as a promoter and enforcer of language rights. What do you think?
Ms. Chouinard: My presentation today is completely in line with the FCFA in this regard. This would free the Office of the Commissioner from this double mandate of being both judge and plaintiff in certain aspects of the commissioner’s job. It would also give the Official Languages Act a bit more bite, since this type of tribunal would be able to impose sanctions, which is currently impossible for the commissioner.
Senator Gagné: Thank you very much for your excellent presentations.
Ms. Chouinard, you said that the commissioner should be an ombudsman and that the administrative tribunal should issue sanctions. Who would be the prosecutor before an administrative tribunal?
Ms. Chouinard: In the best of worlds, it would be the commissioner.
Senator Gagné: It would be the commissioner.
Ms. Chouinard: Exactly, since it would be the commissioner who would have the evidence from the investigation. From my point of view, if section 78 of the act was amended, this evidence should be presented in cases heard by the tribunal.
Senator Gagné: Would other parties be able to bring their case before the tribunal?
Ms. Chouinard: Yes, absolutely.
Senator Gagné: Thank you.
Mr. Normand, the Supreme Court of Canada has ruled that section 23 is remedial in nature, and during his presentation last week, Gino LeBlanc alluded to the fact that the Official Languages Act, which has quasi-constitutional status, includes the concept of compensation.
How can we describe this in the context of the act? When you talked about including the whole idea of effective representation, I wondered whether it would be part of this concept of compensation. How can we ensure that this is implemented?
Mr. Normand: That’s an interesting way of looking at it. I think that effective representation could be seen as a way to act on the remedial nature that we generally indirectly associate with section 23, and that we could associate with the Official Languages Act, although I don’t think that it’s as clear at the moment that the act is considered to have a remedial nature. However, I think that in the minds of legislators, under Part VII, and in the amendments made to Part VII in 2005, there is certainly the objective of minority communities historically catching up with the majority.
The obligation to take positive measures for minority communities necessarily means that we must better support them in their development and expansion, because they have been wronged in the past. I think we can go that far. This way, I don’t think that it is up to the act to prescribe how to remedy the damage that was done to minority communities or problems with their expansion or development. I think it would be better, either through an obligation to hold consultations or regulations allowing for “by and for” management, to leave it up to communities to determine how the federal government could intervene or how it could delegate its powers to these communities in certain areas of development targeted by the communities themselves. The act should not prescribe legal remedies, but it should provide mechanisms to help communities determine on their own what the remedies should be.
Senator Gagné: For example, should the whole concept of the comprehensive development plan be included in the regulations?
Mr. Normand: The comprehensive development plan for each community? The comprehensive development plans stems from the idea of results-based management imposed by the federal government. There is a problem with making communities develop a comprehensive development plan to fulfil their government obligations, in my opinion, because the communities are responsible for complying with a framework established by the government. Instead, I would prefer a solution whereby the community comes together to decide and the government supports the decisions that the community makes.
A few years ago, I tried to evaluate how the first Action Plan for Official Languages had influenced community actions. What we concluded was that the comprehensive development plans that were submitted before the first Action Plan were very innovative, very creative. Those that were submitted after the first Action Plan basically repeated the categories of the Action Plan. The comprehensive plans might come back to this mindset if the federal government develops its own compensation scheme or its own way of determining how communities should develop.
Senator Gagné: Ms. Chouinard, would you like to add something?
Ms. Chouinard: No, I think that answered the question.
Senator Maltais: The French language is a language with its own special characteristics. It’s the language we speak the most, and our ancestors told us that it was in French that they got the least amount of work done. I come from Quebec. I have lived through five French language acts. When the Official Languages Act was created, everyone saw it as a victory. Francophones in Canada said: “We’re going to speak French at Air Canada, we’re going to speak French in different departments, we’re going to speak French in the army. Great!” Fifty years later, Air Canada, from Quebec to Ottawa, doesn’t speak a single word of French. Fifty years ago, they didn’t speak French, they were flying in a Caravelle. Today, we’ve gone backwards, the plane is even smaller. The Official Languages commissioners have all successively reprimanded Air Canada with powers that are almost useless. The powers of the Commissioner of Official Languages are like using a fly swatter on a moose. Air Canada doesn’t care at all.
The departments — as you said, Mr. Normand — do not have the necessary will. In order for francophones outside of Quebec to have basic services — I’m not talking about gold-standard services, but a bare minimum — there needs to be political will. Unfortunately, in every successive government there is none to be found. And if we don’t have this political will...
You will remember that when Bill 178 was passed in Quebec, we had to refer to two charters, the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. The Supreme Court came last, because the political will was there. At the time, we didn’t see it. Yes, we made accommodations, we added regulations to the act. We made it a catch-all, we put all that into the Official Languages Act. First of all, the Commissioner of Official Languages has virtually no power. The commissioner has the power to chat, talk, chide and give a slap on the wrist, but nothing else.
I’ll come back to my question. I asked the Commissioner of Official Languages if he wanted punitive powers. No, he has no interest. He has no need for that, that’s what he said, point-blank. But the administrative tribunal, if it is enforceable and well organized, and if its decisions cannot be overturned by another provincial tribunal, will be extremely valuable. However, the next court should be the Federal Court, because when we’re talking about languages, that is a federal concern. I don’t think that the provinces should be able to overturn a decision made by the tribunal. If this is the case, great! If not, we will need benchmarks, because provincial courts will say that the law is better served by a legal tribunal than an administrative tribunal. Am I stating things correctly, Ms. Chouinard?
Ms. Chouinard: I think you have a good idea of the type of wording found in the Official Languages Act. Since 1969, and even in the first version of the act, the wording was persuasive and not binding. Legislators gradually wanted to change things, but as you said, even today the powers of the Office of the Commissioner of Official Languages are still essentially used to lead investigations and make recommendations. It has no powers of enforcement. In a sense, this is the goal, if we create this administrative tribunal.
I am not a lawyer, but if I understand correctly, the appeals court for this administrative tribunal would not be the Supreme Court but the Federal Court. It would not come under provincial jurisdiction, but rather the Federal Court. If people want to appeal, they could go to the Supreme Court, but the case wouldn’t go directly to the Supreme Court from the administrative tribunal; there would be other steps between the two.
As for what you consider to be a lack of political will, there is a suggestion in the memorandum from the FCFA whereby more official languages powers would be granted to Treasury Board. This would be another way to ensure that a lack of political will is balanced by certain constraints.
Senator Maltais: How can Treasury Board influence the Official Languages Act?
Ms. Chouinard: In the implementation of the act.
Senator Maltais: How?
Ms. Chouinard: By implementing the official languages regulations within various departments. Beyond the wording of the act, there is a lot of work to be done to implement it within the different departments. Treasury Board could be useful there.
Senator Maltais: I completely agree with you here, but the main claims that we have heard here for some time now concern the amounts transferred to the provinces under the Official Languages Act, because this money is not earmarked for education. That’s at the heart of the claims that we have heard from almost everyone. And the federal government can’t intervene. When it transfers money to the provinces, the entire amount of money is transferred, and the province decides where to spend it. That’s the hiccup, since this money is not necessarily earmarked for education, schools and school boards.
Last week, the Association francophone des municipalités du Nouveau-Brunswick came to present its evidence. As ridiculous as it may seem, parts of New Brunswick receive federal health care services from an agency in Nova Scotia, where no one speaks a word of French. This shows you that the breakdown of payments is one thing; making the services provided by the departments bilingual is up to Treasury Board. I completely agree with you. But does the Treasury Board president have the will to impose this on all departments? All the Treasury Board presidents that I have known were willing. And yet —
Mr. Normand: I find this discussion interesting, but with respect, I am going to disagree a little bit with these proposals, for two reasons. First, as for Treasury Board, I think that we can be more ambitious than giving it new responsibilities. We could also create a brand new department which would take on official languages responsibilities instead of once again avoiding the issue by putting official languages in another big machine. We know this doesn’t work at Canadian Heritage. There are a lot of programs at Canadian Heritage, and we often have difficulty seeing how official languages stand out. I don’t think that it will be any easier if we move it to Treasury Board. We could be more ambitious.
When the first Action Plan for Official Languages was presented by Stéphane Dion, he was at the time Minister of Intergovernmental Affairs and was affiliated with the Privy Council Office. He was therefore able to be more prescriptive in the way that the Action Plan was developed and evaluated afterwards.
I would like to add something about the Office of the Commissioner of Official Languages. What I am afraid of with the proposal to create an administrative tribunal is that the commissioner would have even less credibility within the federal government. Because, regardless of the report that it will issue, an institution could choose to bring a case before the administrative tribunal instead of acting directly on the commissioner’s recommendations. I am afraid that moving some of the commissioner’s responsibilities elsewhere would consequently weaken the commissioner’s wiggle room even further. I agree with you that there are problems.
Senator Maltais: It remains that the commissioner has no power. There should be someone, somewhere, who does have power, and I think that an administrative tribunal has power. There are different kinds of administrative tribunals that make decisions in the federal government and in the provincial governments. If these decisions are appealed, it’s because they don’t suit everybody. At the very least, they make decisions, while the commissioner can only make complaints. Successive commissioners have been complaining about Air Canada for 50 years, and nothing has changed.
Mr. Normand: I would still tell you that in the first report of the Commissioner of Official Languages, he was already saying that there were problems associated with implementing the act. On that count, I agree with you completely. We need to consider both options here: either we shift certain responsibilities to an administrative tribunal, or we expand the powers of the Office of the Commissioner of Official Languages. It might be that the current office holder does not want to be given these powers, but that doesn’t mean that we can’t still be having this discussion.
Senator Moncion: I have a question of interpretation. Why doesn’t the Official Languages Act bother the population as a whole? Why is no one afraid of the Official Languages Act? Why do people often flout the provisions of the act? You’ll tell me that the act does not have enough teeth, et cetera. But this act has been around for a long time, which is why I ask: Why have we yet to see any court action under the Official Languages Act? Is there another department, another act within the government, that allows for litigation?
Ms. Chouinard: One of the problems is not only that, as you said, the act has no teeth, but, also that the commissioner has refused to go to court many times, even though he or she could have chosen to do so. The Office of the Commissioner of Official Languages, on many occasions, could have decided to go to court, but it decided not to. This is one of the traditions of the Office of the Commissioner of Official Languages since 1988; ever since it has had the power to go to court; it has decided not to go down that route. It's unfortunate.
I would have liked to have answered Senator Maltais on this point. We need to tell it like it is: the Office of the Commissioner of Official Languages, with all the investigations it has conducted, is a bit like Santa’s naughty list within the federal government where official languages are concerned. This information is not all being used for the good of Canadians when it comes to official languages. Little of this information is used to obtain sanctions when there are cases of violation of various sections of the act.
Senator Moncion: But you are telling us that it still has the power to do so, hasn’t it?
Ms. Chouinard: Yes, I am.
Senator Moncion: So it doesn’t do it.
Ms. Chouinard: Exactly.
Mr. Normand: I would add that a number of research reports and reports by the Commissioner of Official Languages have also shown us that the act is often misunderstood within the public service. This is not always a lack of political will, but a lack of understanding of the content of the act. If you ask public servants to explain what a positive measure is, in most cases they will ask you where the positive measures are written and what requires them to implement these measures. In my opinion, we have an important duty to educate the public service, whether it be through the Public Service Commission or another structure. We can find a way to promote better understanding of the obligations of federal institutions. In this regard, the government and the public service have failed in that, even today, the language obligations of all are far from well understood.
Senator Moncion: It’s actually a couldn’t-care-less attitude; if you try to call the Canada Revenue Agency, practically all the messages you hear are in English. You’d be lucky to come across a message in French.
Mr. Normand: I wouldn’t say that it's necessarily a couldn’t-care-less attitude. If the people looking after producing these messages don’t know they have linguistic obligations, they can’t implement them. I agree with you that couldn’t-care-less attitude might have something to do with it. Ignorance of these obligations has something to do with it as well.
Senator Moncion: When there is legislation, you can’t say “I didn’t know,” neither can federal government employees nor the general public.
Ms. Chouinard: If there is no penalty for non-compliance, we could be ignorant about it or adopt a couldn’t-care-less attitude about the client, but for the Canadian on the other end of the phone with the CRA, the result is unfortunately the same.
Mr. Normand: We aren’t going to solve the systemic problems by scolding the person at the reception counter. Let’s not make the person answering the phone a scapegoat for all the flaws in the system. This is why we must review everyone’s obligations and define them fully.
The Chair: The session is drawing to a close. I also have a question for you.
I believe you’ve compared various policies. Where governance is concerned, you talked earlier about the possibility/option of making Treasury Board the central agency. You gave some arguments for and against.
What is being done in other countries regarding this type of governance? Have you found information in your research that you could share with us regarding positive measures?
Ms. Chouinard: There may still be problems implementing the Official Languages Act, yet from a comparative perspective Canada sets the example to follow and not the other way around. For example, when Wales had a proposal for creating a language commissioner, it looked to the Canadian example. Obviously, Cardiff chose to do things some differently, but with respect to the power and the implementation of a language commissioner’s office, it took a very close look the Canadian example at the time.
The situation with Gaelic in Scotland more closely resembles that of Canadian Heritage. A department dealing with tourism, culture and Gaelic has a number of responsibilities, including the duty of promoting the Gaelic. Once again, the mandate is very narrow. In fact, a number of researchers in Scotland have looked to our Charter and have put together a proposal for section 23 to be included within the rights of Scots for Gaelic to be taught in schools.
Those are just a few examples. Canada is often the model of what to do and not the model of what not to do. We will still have to innovate if we want to do better.
The Chair: There’s still a lot of work to do. We’re almost finished. I will give Senator Jaffer and Senator McIntyre the floor. I’ll ask you to be very brief in your questions and answers so that we can wrap things up.
[English]
Senator Jaffer: My question is long, and perhaps you could provide the answer in writing.
When you say people’s rights, I understand; I know the law. I want to know this: In the era of the new Canada, who would you consider to come under the rights policy of getting French-language training or going to French schools?
Ms. Chouinard: I think every Canadian in Canada should have the right to learn both official languages.
Senator Jaffer: No, the way you said “rights.”
Ms. Chouinard: Sorry. Rights bearers?
Senator Jaffer: Yes.
Ms. Chouinard: I think there is still a space for homogenous community organizations.
Senator Jaffer: Define that for me. What do you mean by “rights” there? What’s the definition?
I don’t want to put you on the spot. Maybe you can reflect and send it to the clerk, because this is a very important thing. I don’t want to get into a match because we’ve run out of time. I’d like a definition from both of you on that. Send it to the clerk, please.
Ms. Chouinard: Yes, I’ll be happy to do that.
[Translation]
Senator McIntyre: Ms. Chouinard, last December you published an article on mandatory bilingualism for Supreme Court of Canada judges. In your opinion, why is the federal government reluctant to appoint bilingual judges to the Supreme Court?
Ms. Chouinard: Bilingual judges are being appointed. The government is reluctant to enshrine this mandate in the Supreme Court Act. The vast majority of Supreme Court judges in the last 20 years have had at least a passive knowledge of both official languages. The government’s reluctance is connected to the fact that knowledge of both official languages be mandatory. Currently, potential judges are being asked to self-identify. They are asked if they understand both official languages, but they are not tested on these abilities. That's the difference at this time.
The Chair: Ms. Chouinard, Mr. Normand, thank you very much for your presentations. Thank you especially for your very enlightening answers.
I would like to remind you that, as part of its study on the modernizing of the Official Languages Act, the Standing Senate Committee on Official Languages is continuing the third component of its study on the perspective of those who have witnessed the evolution of the act.
We have the honour of having with us today the Honourable Serge Joyal, PC, Senator. Senator Joyal was involved in a number of stages of the evolution of Canada’s linguistic regime and is able to testify about his parliamentary and legislative experience concerning the management of official languages. Since our witness knows the people around the table well, I will immediately give him the floor. Welcome aboard, Senator Joyal. You have the floor.
The Honourable Serge Joyal, PC.: I am deeply honoured to be able to share with you my personal experience of the Official Languages Act. As you said, I have been directly or indirectly involved in the application of the act for 50 years now, practically ever since it came into being.
I will remind honourable senators that in the 1960s, there was the Royal Commission on Bilingualism and Biculturalism, the Laurendeau-Dunton Commission. Some of you — the older among you, if I may say — will remember them. This commission found that Canada was going to hit a brick wall if it did not redefine its relationship with the francophone community.
In Quebec, there was already talk of separation. The Canadian government was not perceived as the government of all Quebecers or of francophones outside Quebec. One of the major recommendations of the Laurendeau-Dunton Commission’s famous blue pages — I am referring here about the preliminary report made public in 1965 — was to redefine Canada’s linguistic regime.
I was recruited by Jean Marchand, who was the Minister of Regional Economic Expansion at the time and whose mandate was to recruit new candidates for the next election. These candidates needed to be able to participate in parliamentary debate and to have professional training enabling them to be stakeholders in parliamentary debate and not just spokespeople for the concerns of their electoral districts.
Of course, since the debate in Quebec was centred on nationalism — you will recall that on July 24, 1967, General de Gaulle shouted “Vive le Québec libre” — there was an extremely powerful and flourishing movement to rally forces around the nationalist movement. I am part of the generation of Bernard Landry, Louise Harel, Claude Charron and all those who became ministers in Quebec in successive Parti Québécois governments. I was one of the few in my generation who did not share this approach. Jean Marchand made me responsible for recruiting young candidates who could participate in Canadian politics not only from a federal perspective, but also from a perspective of their own identity.
When the Official Languages Act was proposed and passed in 1969, it seemed to me that it would meet this objective of linguistic equality, meaning that francophones would be able to participate in managing Canadian affairs on a level playing field, have their voices heard, and assume every responsibility possible within the Canadian government. I draw your attention to the fact that back then, there wasn’t really any francophones among the ministers of finance or foreign affairs to speak of. There were ministerial portfolios to which francophones were never appointed. At best, a francophone could aspire to be Minister of Justice if he were a lawyer, or Postmaster General or Minister of Revenue, these being secondary positions in Cabinet. There were no francophone Ministers of Industry or Trade; it was not their preserve.
I remember taking part in a demonstration in 1962 at the Queen Elizabeth Hotel in Montreal. Here I’m looking at my colleague, Senator Smith. It was a demonstration to protest against a statement made by Donald Gordon, who was head of CN at the time. When asked why there were no francophones on the CN’s board of directors, he replied that he couldn’t find any who were competent to do the job. It was a pithy and unfair thing to say, but it depicted francophones as not being made for business and great responsibility.
Obviously, this perception of being marginalized was widespread not just in Quebec, but in other Canadian provinces as well. You know Canadian history well enough to know that in 1890, Manitoba passed an act allowing it to declare itself unilingual, contrary to the Manitoba Act of 1870, whose famous section 23 required Manitoba to pass acts in both official languages. You will also remember the language situation in the Northwest Territories in 1890 and Regulation 17 in Ontario in 1912. Canadian history is riddled with decisions that were perceived to be against the interests of the minority: Canada was a country with an English face, Quebec was a French-speaking enclave, while in the rest of the country, you had to keep a low profile.
Here I was recruiting candidates for member of Parliament positions. Some of these candidates were Francis Fox, Monique Bégin, Jacques Olivier — young MPs who would go on to become ministers — Yvon Pinard in Drummond, and Charles Lapointe in Charlevoix. They were young people fresh out of university, with degrees, and who were entering Canadian politics believing that they would be given recognition and have the same chance as others to take on federal responsibilities.
I declined to be a candidate in 1972. I was elected in 1974. An event two years later would be a milestone in the interpretation of the Official Languages Act. What I just described to you served to lead up to my explanation of why I got involved in this debate. In 1976, the then Minister of Transport, the Honourable Otto Lang, issued the NOTAM 18 Order prohibiting the use of French in cockpits. The Canadian Air Line Pilots Association had demonstrated to the minister that using French in cockpits was dangerous, because the pilots and the control tower would not understand each other and that passenger safety would be compromised. So, there was Regulation 17 in Ontario, and now this Order 18.
In the same vein, Air Canada, which was a Crown corporation at the time, decided that English would be the language of work in its maintenance shops. They issued a directive basically forcing people working for a federal agency to use only English in a sector that was promoted as an industry of the future. Aeronautics is still relevant today, as you can see. It is a very important industry and a growth area. French was therefore excluded from an industry of the future. I need not to point out Bombardier here. I see senators from Montreal, Senator Smith included, who know the company well. Francophones were therefore prohibited from using their language in a leading-edge and future-oriented industry.
Of course, when I read the Official Languages Act, I read section 2 stating very clearly that French has equal status and rights to English. So I thought we had an act and that it was going to be applied. The Department of Justice told me that the Official Languages Act was not, as it was said in English at the time, “enforceable in court.” In other words, you could not go to court to have a violation of the act recognized and obtain a decision to remedy the prejudice suffered due to a failure to comply with the act. So the act was not enforceable. The act was worth the paper it was printed on, meaning that it was an act of intent expressing a general objective, but not actually an objective for which a legal decision could be made if a Canadian citizen were to find that his or her language right was not respected.
I decided at that time to go to court as a plaintiff, to sue the Minister of Transport. You can read the court decisions in the cases of the Association des Gens de l'Air du Québec Inc. v. Lang, and Joyal v. Air Canada, where the Minister's Order and the Air Canada Directive were invalidated. These were two simultaneous cases before the Superior Court in Montreal. It was the Chief Justice, the Honourable Jules Deschênes, who decided to take on the responsibility of the case, since it was an extremely important matter of principle.
You will tell me that I was suing my own government. And yes, indeed, I was a Liberal Party of Canada MP. I was elected under the Liberal banner and I was suing my own government’s Minister of Transport and Air Canada, which was headed at the time by Claude Taylor. I’ve already mentioned Minister Otto Lang. Obviously, all of this needed to be paid for.
You don’t just sue Air Canada like that. When I contacted the Air Canada pilots affected by their employer’s directive, they told me that they would have liked to have been plaintiffs, but that they could not incur any financial liability should I lose because they had a mortgage, car payments, children enrolled in school, et cetera. They told me that they could not afford to lose a court case. So, they said that they would agree to be plaintiffs on the condition that I sign a letter in which I would indicate that I would assume financial liability. Then I asked other lawyers who worked with me, like Gino Castiglio and Michel Décary, how much this was going to cost. They told me that it would cost about $50,000.
In the meantime, Air Canada, which had hired lawyers from some of Montreal's largest firms, asked the judges for permission to travel as a fact-finding commission to Paris and Brussels to see how French was used in control towers in Paris and Brussels. When there is a fact-finding commission, the court as a whole travels. You have to pay for airline tickets, hotel rooms, stenographers, translators, lawyers, et cetera. The entire court hits the road. So you can imagine all the costs that this entailed.
When you add everything up, that increases the cost of financial liability considerably. Obviously, we were caught up in a national debate, since, of course, the media got a hold of the story. And to put pressure on the government, the union that I mentioned earlier decided to go on a national strike just one week before the opening of the Montreal Olympics. The opening ceremonies of the Olympic Games were held on July 17, 1976. The week before, there was a national strike. The country's airports were closed. Mr. Trudeau had to send a message to the nation that the government would not force the use of French at the expense of public safety. Their argument at the time was: “If they speak French, the plane will crash. Do you want them to speak French?” People said that it wasn’t worth it. Communication between the pilot and the control tower is a coded language. Therefore, no one chats in air communications. It is a limited, coded language.
Obviously, there was a national crisis. To get out of this situation, the government decided to appoint a commission of inquiry, the Julien Chouinard Commission. The government mandated this former judge to determine how both languages could be used in air communications. In Paris, communications during landing are in French; in Brussels, they are in French and Flemish; in China, they are in Chinese and English. English is the alternative language. The first language is always the one understood by the pilot and the control tower; that’s the safest language. The Commission investigated this. In the meantime, the court case started, witnesses were summoned, and the judgment delivered. Obviously, everything had a price tag.
We raised money through activities like selling buttons like this one: “Il y a du français dans l’air” (French is in the air). Back then, everyone in Quebec was wearing that button. We sold I don’t know how many millions of them, since this is how we scraped by to continue the court case. We also sold little items of all kinds. These were byproducts of a sort, because they galvanized public opinion. We had to counter the safety argument that instilled fear in everyone.
We won the judgment of first instance. I need not tell you that, politically, as a plaintiff, I went back to Parliament when the court was not sitting. Not everyone in the government was my friend back then. There was pressure for me to resign from caucus. Some of you have already been in politics, so you can imagine what the political landscape was then.
I learned two things from the experience. First, we can’t force a Canadian who feels that his or her language rights are not respected to be a hero. The country can’t work that way. The fundamental principles on which Canada is built cannot rest on the shoulders of one individual who takes on the responsibility to defend everyone else.
Second, I assumed the financial risk myself. I could afford to. Many people feel that their rights are not being respected, and justice should not be only for the rich. We need some way to support the legitimate action of people who decide to have their rights recognized in court. Some kind of program of financial support somewhere is necessary for a judgment ruling that the Official Languages Act was, as I said earlier in English, “enforceable in court.” In other words, if your rights are violated, you have the right to go before a judge. And you have the right to go before a judge, because it's a matter of public interest.
I didn’t go before a judge so I could speak French in the cockpit. I am not a pilot, I don’t work in a control tower and I’m not an Air Canada employee. I would use Air Canada services, and I’ll spare you the details of what happened when I would board an Air Canada aircraft. There was a price on my head. So we really had to make sure that in the future the act, which had been declared binding on the government, would be able to support a citizen who had a reasonable cause to go before the courts. That stuck with me.
There was a referendum in Quebec in 1980, and, of course, we were facing the deadline for the patriation of the Constitution and the Canadian Charter of Rights and Freedoms. Mr. Trudeau contacted me to ask me to co-chair, with Senator Hays, the Special Joint Senate and House of Commons Committee on the Constitution tasked with studying the patriation of the Constitution and the entrenchment of a charter of rights and freedoms. Of course, Mr. Trudeau kept me at a respectable distance, because I had sued his government and won.
So, I forced the government to review its approach to official languages. You could say that I was in the doghouse. The government had an extremely specific deadline, which was the revision of the wording of the Charter. When I met with Mr. Trudeau, I told him that something in the Charter seemed very important to me. First, language rights are very much part of the Charter and, second, there is a section in the Charter that recognizes that a citizen whose rights are not respected under the Charter, whether they be linguistic or otherwise, can take his or her case to court. He told me: “Let me check with the other people involved.” At the time, this was Ontario Premier Bill Davis and New Brunswick Premier Richard Hatfield. Mr. Hatfield — I am looking at Senator Poirier now — told me that he had no problem with that, since he wanted an officially bilingual province. Bill Davis, obviously, was not directly affected, so he said it was our problem and not his.
In the end, we had sections 16 to 23 of the Charter, which are language rights, and especially section 24, which recognizes that a citizen can go to court to obtain compliance with an order of the court that would protect his or her rights. We then had a Canadian Charter of Rights and Freedoms that clearly recognizes language rights and, of course, the ability to ask the court to order compliance of those rights.
In the meantime, it struck me that having an Official Languages Act that was now enforceable was not enough to keep the issue visible in Parliament. Let me explain. I had been vice-chair of the Public Accounts Committee of the House of Commons from 1974 to 1976, not because I was particularly engaged in the subject matter, but because I had a degree in Administrative Law. Naturally, the Public Accounts Committee was headed by a member of the official opposition, as is the case for the Senate National Finance Committee. I saw all the deputy ministers one by one who came to respond to the Auditor General’s report, who had to say why they hadn’t complied with standards of administration and who had to, within a certain timeframe, take corrective action.
This situation gave me the idea of a Joint Committee on Official Languages. I thought to myself that if there is a Commissioner of Official Languages report identifying the administration’s deficiencies every year, the day will come when the report will be presented, and it will make the front page. Then everything will go back to the anonymity enjoyed by the rest of the administration, and nobody will hear anything about it until the following year. On the other hand, with a Joint Committee on Official Languages, there would be a meeting every week, department officials would appear, and witnesses would come and explain why the legislation and the principle of linguistic equality are not respected not with regard to language of work, et cetera. So I thought that this would be a way of exerting pressure on the system. I moved a motion in the House of Commons, seconded by Senator De Bané and Senator Gauthier who were members of Parliament at the time, and we successfully convinced the government to carry it in 1981. This is how the Joint Committee on Official Languages was created. It was an initiative of parliamentarians and not a government bill.
And you know what happened after the patriation. Some of you will remember. I was appointed Secretary of State, and the problem of how to fund litigation against the government always stuck with me. In Quebec — and once again I’m looking at my colleague, Senator Smith, since he probably remembers the Blaikie case; it followed the passing of Bill 101 in Quebec, which did not respect the principle of section 133 of the Constitution, which stipulates that legislation must be passed in English and in French at the same time. You know that the Bar is currently suing the Quebec government on the same issue. So, Mr. Blaikie, a founding partner at the major law firm of Heenan Blaikie — not a country lawyer, with all due respect for him, but one of Montreal's most prominent lawyers — wanted to sue René Lévesque’s government on the basis of Bill 101 being unconstitutional. That was the first true lawsuit following the passing of Bill 101.
Obviously, Mr. Blaikie was confronted with the same question as I was: where to find the money to bankroll the whole affair? Like me, he was not directly affected by legislation passed only in English. So, he then spoke to his friend Don Johnston, Treasury Board President, to request funding from the federal government, which agreed to make funds available to Canadians in accordance with sections 133 and 93 of the Constitution.
There was a precedent that was created a few years before I became Secretary of State. So, what do you think I did? I told myself that if it was good for sections 93 and 133, it was also good for section 23.
[English]
What is good for the goose is good for the gander.
[Translation]
I sought cabinet approval to create the Court Challenges Program. If you wonder where that program comes from, you could say it is my fault. The Court Challenges Program — well, you are probably familiar with the results. I would have liked to be able to give you a copy of a text that I will be publishing later this year with other texts. It is entitled “The Francophonie and its Political Dimension.”
The results are quite incredible. From 1984 to 1992, there were 97 decisions involving language rights. Most were funded by the Court Challenges Program, such that all actions before the courts to obtain school management were funded by that program. In 1992, the government of the day wanted to abolish it, because there was enormous pressure from the provinces. The program was obviously a fly in the ointment. It forced the provinces to review their legislation and regulations.
I will not go into the details of the Forest case, in Manitoba. I think Senator Gagné must be familiar with it. The Forest case was simply about Mr. Forest deciding to challenge a municipal parking ticket that was written only in English. Four years later, it ended with a decision by the Supreme Court of Canada, which ruled that all legislation passed by Manitoba since 1890 was unconstitutional. Should I repeat that? I do not need to tell you the outcry that took place in the media at that time in Canada. In its decision, the Supreme Court gave Manitoba two years to translate all its legislation. There was not a single translator in Manitoba. I was Secretary of State, and translators from the federal public service had to be dispatched to rescue Manitoba because they only had two years to translate all the legislation. I will spare you the details, but that program was very strategic in supporting the development of language rights such as those put forward in sections 16 to 23.
The program was abolished in 1992, and the government that followed, that of Mr. Mulroney, committed in its red book to reinstate it. At that time, I was Chair of the Policy Commission of the Quebec Liberal Party. I contributed to the Red Book, which was the election platform at the time, and I prepared the section on reinstating the program.
The program was therefore reinstated and this is what happened. Let me cite some figures. After the program was reinstated in 1994, in the 12 years that followed, there were 51 court decisions. That is 51 plus 97.
The Court Challenges Program is the sinews of war. It is the buttons that are sold and the merchandise. Without that program, you condemn individuals to using money from their mortgage or their vacations to finance a cause that is one of principle and for which there will be no damages, because the law states as much. You therefore cannot say, “I suffered $20,000 in harm, so I am also claiming $20,000 in damages.” There are no damages, so the financing money is lost.
What I want to note is that, when this program was then abolished in 2007, when the decision was known and explained, I reread Part VII of the act. An amendment was passed in the Senate, put forward by Senator Gauthier, the infamous amendment of Part VII of the act. Do I need to remind you that that is the part requiring the federal government to take measures to promote language rights? Part VII seemed very important to me and, when the Montfort Hospital crisis broke out, I sent a letter to the government of the day, to Mr. Chrétien. I must note, Mr. Chair, for your research service at the Library of Parliament, that I am referring to the preface to the text I wrote in 2005.
I will read you the letter that I sent to the Government of Canada regarding the case of Montfort Hospital, because I felt that it was a regression in terms of recognized rights to access to health care services in either official language. I felt that the government could not let that precedent be set, because other governments in Canada could have taken advantage of it to reduce or abolish services.
So this is what I wrote to the Prime Minister of the day:
In the eyes of the country’s minorities and of the various provincial governments, the credibility of our government is at stake as an institution able to assume its responsibility to protect the rights and principles that define us and that form the foundations of Canadian society.
How can a national government refuse to intervene (in favour of Montfort before the Court of Appeal for Ontario), both to block actions by other governments that may be tempted to imitate Ontario and back out of past concessions, and to show the critics of the Canadian option that the federal government stands up when a minority is treated unfairly?
The principle of Montfort is so important in my eyes that I am writing this letter. I have contacted people at Montfort and have told them that this must go before the courts, that the Government of Canada must come to their rescue. I remember that, in 1976, the Commissioner of Official Languages intervened in the case, but to say at the time that I was wrong, that the Official Languages Act was purely declaratory, that its intention was great, but that it was ineffective to apply.
The Chair: Senator Joyal, what you say is fascinating, but we will soon run out of time.
Senator Joyal: I will quickly wind up. What I believe, Mr. Chair, based on my personal experience over all these years, is that the objectives of the act must be reviewed first. The Official Languages Act is an act that must have a remedial objective. There was linguistic discrimination against francophones in Canada for 100 years. Attempts were made to reduce the development of the French fact in Canada as much as possible. And during all those years, clearly, harm was done: people were assimilated, lost their language, stopped speaking it and stopped seeking services in French, because they did not want to be marginalized in a sea of English. In Quebec, we had the impression that anglophone society had to live on the margins of the rest of Quebec. It was not part of us. And that, in my opinion, goes against the spirit of Canada.
This is the list of my recommendations: first, that the objectives of the act, be redefined; second, that the financial assistance program be legalized, in other words, enshrined in the act, because we have seen the Court Challenges Program abolished twice in the last 20 years. That, in my opinion, is absolutely unacceptable. Look at what is happening in Quebec with the bar: it is required to mount a challenge to obtain equal recognition of the use of English in legislative work. If we think that it has all been resolved, that is not the case. In this case, as in many others, the adage applies: If at first you do not succeed, try, try again. It is absolutely important for the Court Challenges Program to be enshrined in law.
Thirdly, it is essential that the Commissioner of Official Languages have the right to turn to the courts. As I have said, we cannot always rely on the individual heroism of Canadians. The system must have an institutional response to alleged violations that are deemed to be serious at first glance — prima facie, as we say in law. It is absolutely essential that this position be institutionalized and that it can be possible to obtain damages. As I said earlier, there are currently no damages. It is done for eternal salvation. We can always think that eternal salvation will be better than on earth, but we cannot think that that is what will motivate people.
Then, it is absolutely essential for the remedial effort that must be made to reflect the pressure that minority communities must face over the next few years, given Canada’s diversity. It is absolutely important that the regulations for accessing services reflect the fact that it is not necessarily because your name is Gagnon or Tremblay that you are entitled to seek the service. If your name is Smith or Blow, and you speak French, you must be among those who are entitled to receive service in French, because there is a tautology in the system: people are funded to learn another language, but they are not counted among those seeking services. The left hand is taking away what the right hand is doing. It is completely irrational.
Finally, the entire issue of immigration is essential to maintaining the relative weight of minority communities. That applies just as much to Quebec as to all other minorities.
Now, Mr. Chair, I know that I have tested your patience. It is too bad that I cannot give you the text, because it is currently at press. It will be published by the McGill and Queen’s university presses this year, and it contains the essence of what I have said before you today.
Once again, I am very honoured to have had the opportunity to be heard by your committee. Thank you very much.
The Chair: Thank you very much, Senator. You have certainly piqued our interest in reading that text when it is published.
We will now go to the question period.
Senator Poirier: I have two brief questions that affect New Brunswick, which I represent. I would like to have your opinion. In your view, should the Official Languages Act recognize the distinct status of New Brunswick in terms of official languages? And, in your view, how would that benefit the Acadian communities?
Senator Joyal: I will give my answer in memory of Senator Robichaud and Senator Hatfield, as I had the opportunity to work with Mr. Hatfield when he was Premier of the province and I was Secretary of State, and at a time when, you may remember, the daily L’Évangéline had shut down due to a lack of funds.
Since the 1970s, New Brunswick has always been the province that made honest efforts to try to maintain that linguistic balance that, in my opinion, is a model for Canada. It is absolutely essential that that real bilingualism in New Brunswick be recognized in the Official Languages Act.
As you know, sections 16 to 22 of the Charter refer to New Brunswick, and subsequent amendments have even confirmed the bilingual status of New Brunswick. In my opinion, it is essential that this be done. If it is done in the context of what I am proposing as an amendment, that there be a remedial element underlying that equality, I believe that it would help francophone and anglophone communities in New Brunswick, as both experience a synergy with the other. I believe that it would be absolutely useful for them to receive the recognition and support of the act in the evolution that they will face.
Believe me, the text of the chapter that I wrote for the upcoming book is: “L’espace francophone et sa dimension politique: Des défis bien réels à l’horizon” (the Francophonie and its Political Dimension: very real challenges on the horizon). The challenges that I describe in that text equally affect New Brunswick and francophone communities in Ontario and Manitoba, or anglophone communities in Quebec or elsewhere in Canada. When I see what is happening in British Columbia, in the case of the Rose-des-vents school whose struggle before the courts has gone on for 10 years, and that the current government hesitates to open a francophone school that would be comparable in quality to an English school, it is a shame.
This objective must therefore be supported. The objective is not about the Rose-des-vents school; the objective is also how we see the country. If that view is not maintained in a real way in the act, we lose all cohesion, what brings us together, given the fact that we speak different languages, and our certainty that institutions operate in respect of who we are. If we let that conviction wane thin, if we let it wither away, the country will be condemned to face enormous pains.
Senator Poirier: In amending Part IV of the act, should the offer of public services in both official languages be made mandatory throughout New Brunswick?
Senator Joyal: In my opinion, yes, because it is a province that practises linguistic equality and bilingualism. It is the only province in Canada that is exemplary in its constitutional legislative recognition of equality. And, in my opinion, as I noted earlier, the Canadian government and the act must always maintain that remedial principle that in the past, for 100 years, life was not that way. It must be assured that the pressure that we face, as francophones, on social media, on the Internet, Netflix and all the rest, is not related to the fact that we live along with anglophones in Canada, but because we are now globalized. If we want to ensure that this francophone capacity is maintained, today’s changing conditions must be taken into consideration.
French is exposed to marginalization, as is Italian, German, Dutch or Danish, because there is obviously one language that occupies all communication space. Business on Amazon is done in English and look at how that business operates now. It is no longer a business of proximity, but a business that is done on the computer and that is done in English.
It is essential that the federal government use every opportunity at its disposal to support the principle of equality in New Brunswick, which remains exemplary, in my opinion. I say that as well for successive governments in New Brunswick. It has nothing to do with political stripes; it is truly a fundamental identity of what New Brunswick is. We need an exemplary province and, thank God, in my opinion, New Brunswick’s actions and sense of responsibility are significant, because its impact has repercussions across the country. That is how I see your question.
Senator Maltais: Senator Joyal, you have done extraordinary work, including the role you played in developing the Official Languages Act, the protections under which 150 Canadians have availed themselves in conflicts over language.
At that time, those particular individuals were protected in Canada, but in Quebec, it was the community at large that had to be protected. It was a somewhat different context to the Loi pour promouvoir la langue française in Quebec, also known as Bill 63, the Loi sur la langue officielle, Bill 22, and the Charter of the French Language, Bill 101. Need I remind you that Bill 101 was enacted in Quebec prior to the Canadian Charter of Rights and Freedoms and patriation? After patriation, certain persons from various communities used the Charter as grounds to gut Bill 101, and what came out the other end, in 1986, was Bill 178, the Loi modifiant la Charte de la langue française. Things were far from easy back then, and I believe it is the only time in Canadian history that the notwithstanding clause was invoked in the case of both charters.
Senator Joyal: The notwithstanding clause that Mr. Bourassa invoked in the Meech Lake negotiations.
Senator Maltais: All that to say that the French language in Canada, as you so aptly described, hinges on political will. Where there is no political will, there is no use consulting for days and weeks on end; the policy framework must be rooted in legislation that stands up in court, that the courts can rely on, as custodians of the French language. Am I not right?
Senator Joyal: In bygone days, it was language that was the defender of the faith, so to speak; you will recall that 19th century turn of phrase. In practising Catholicism, not only were you saving your soul, you were saving your language, since Catholicism found its expression in, and was mainly practised by, francophones. Therefore, if you were Anglican or Protestant, you spoke English. There was, in essence, a schism in Canadian society that divided French speakers and English speakers.
Perhaps one day I will write my memoirs; suffice to say that, in primary school, the nuns would instruct us to avoid walking past the homes of Protestants on our way to school, and to cross the road. On the street where I lived, there were two houses in which English-speaking Protestants lived. It was anathema, you see.
The notion that our national identity was protected by our faith was self-evident. Today, as you know, one can unquestionably practise one's faith — and section 2 of the Canadian Charter of Rights and Freedoms is evidence of this, as are the numerous Supreme Court decisions on the matter. But it is now the courts that are the defenders of our rights.
Canada is based on two founding principles, the second of which is the rule of law. What is the rule of law, if not an affirmation of the law as our protector. But who interprets the law? It is the courts. Without access, as I stressed earlier, to programs that fund legal action—the purpose of which is to hold government to account for its constitutional duty to protect all Canadians — we may as well be back in 1976. In other words, at the mercy of a toothless, albeit well meaning, law.
Senator Gagné: Thank you for your historical account, Senator. It was both interesting and edifying, and a trip down memory lane.
Senator Joyal: You were certainly there, in Forest's day and age, as we say.
Senator Gagné: Yes, indeed, in the days of Forest, Bilodeau, Mr. Léo Robert, the chairperson at the time, who got death threats. There was tremendous tension around issues of language. It is important to be able to tell the stories, I feel, since it was such a difficult and trying time for the official language communities, especially francophone minority ones.
I agree with Senator Maltais, there is a systemic problem. Our leaders are not resolute, as they should be, when it comes to enforcement. There should be no doubt in anybody's mind that the law is there to be enforced, period.
You also alluded to the restorative nature of this law. But how is this borne out? How can we make good on these restorative aspirations? If this was partially the intention of this legislation, do you think that it should be applied asymmetrically?
Senator Joyal: Yes, I certainly do, because the status of our language communities varies considerably from one province to another. Earlier, Senator Poirier spoke of New Brunswick, a province I personally admire, and worked alongside, at a time when I tasked with making decisions to support the francophone community of New Brunswick, as well as the anglophone community.
Managing the level of risk is akin to the role played by insurances companies, if you will permit me the analogy. This level varies from one insurance policy to the next. If you insure a house, the insurer will factor in what the house made from, whether the construction materials are fire retardant, and its proximity to a fire hydrant. A lot of factors are taken into account. Minority official language communities are located in different regions, each developed to a varying degree.
Consider what happened in Ontario with Bill 117. Senator Moncion has doubtless read it. Under this legislation, Ottawa's bilingual status was officially recognized, and a proposal was made to build a French language tertiary institution. It was a different time altogether — and forgive my choice of words — when I tussled with Bill Davis over the bilingual status of the national capital. We eventually got there, and the sky did not fall in when the legislation passed. On the contrary, it was a step in the right direction, and a necessary one at that. Franco-Ontarians now have things quite differently from the francophone community in Vancouver, which is still fighting to this day to get a primary school with comparable services to English language primary schools.
What I just said borders on caricaturesque. On the one hand, you have a province, Ontario, which is making headway; on the other, a province characterized by squabbling and mean-spiritedness. It is certainly not a have-not province, that much is certain. It cannot claim to lack the money to fund such a school. The Supreme Court has been unequivocal in affirming that constitutional obligations cannot be shirked on the basis of budget cuts — because that would just be too easy. Some might argue that cutbacks are needed, and that language rights are no exception. But the court has been very clear on this, and on multiple occasions.
When it comes to political will, one has to take into account how developed a community is, and the extent to which it is vulnerable to assimilation, and pressures like those vary from province to province. There is no getting around that fact; there is no consistency. A number of you were once politicians. You know that everything depends on the government of the day.
The fact of the matter is, we are still a minority. I am a minority in Canada, and I said as much in the Senate when the nominee for the position of Official Languages Commissioner appeared before the committee. The commissioner represents me, represents you, and also represents Senator Smith in Quebec. The commissioner is your avenue of recourse in having your constitutional rights upheld in Quebec.
This fact is inescapable and, once again, I come back to what Senator Maltais said: the law is our defender. Therefore, the law must be as complete as possible, and serve as a check and balance to hold weak-kneed governments to account. I believe, as a person in the minority, that the rule of law and lady justice are our salvation; contingent, of course, on having the financial means to access them. Because, as I said, not everyone has $200,000 stashed in the top drawer of their dresser to fight for collective rights. The individual has little to gain from such an exercise.
When I sued Air Canada, as I mentioned, practically speaking, I got nothing out of it, barring the knowledge that I was fighting for an ideal, for the nation, and for the very constitutional foundation upon which this country was built in the wake of the agreement reached in 1867 by George-Étienne Cartier and John A. Macdonald. The objective was for the two communities to live side by side, and agree upon mutually beneficial goals for their common development. That with the idea out of which Canada was born. And so, we must safeguard the trust we have placed in each other. And if we truly wish to preserve this trust, the law of the land must stand in the way of governments that waver or falter in their political conviction or, worse still, remain indifferent.
Senator McIntyre: Senator Joyal, you clearly possess a wealth of parliamentary and legislative experience when it comes to official languages. I understand that, as member of Parliament, and as a senator, you have been steadfast, staunch advocate of official languages and language rights. We commend you! We salute you! I admire you, and your fellow committee members admire you, for your achievements.
Now, the issue at hand is the implementation of the Official Languages Act. I think that is where the problem lies. What tools are lacking to properly enforce the Official Languages Act? For example, do the powers invested in the Treasury Board need strengthening? I am asking this question because the vast majority of witnesses who testified before this committee are calling for the responsibility for the implementation of the act to be placed in the hands of a government agency. Moreover, several witnesses have suggested that these powers be invested in the President of the Treasury Board, including responsibility for the implementation of Part VII. I know that you have played an important role as regards Part VII of the Official Languages Act.
Senator Joyal: Please mind what I am about to say: I am looking at you, Senator, because I used to sit where Senator Poirier now sits on the Senate Standing Committee on Legal and Constitutional Affairs. Those bills, sponsored by Senator Gauthier, were referred time and time again to us, with each new parliamentary session, and died on the Order Paper every time — and I say this with the greatest of respect to the government of the day, a Liberal government, I might add. The government did not want Part VII amended, that much was obvious. Things dragged on and on, and the bill died on the Order Paper. Then there was prorogation, the bill was reintroduced, and so on and so forth. Obviously, the government had its eye on the clock, and the powers that be said to themselves, “hmm, let us bide our time and see how many months Senator Gauthier has left? When he is gone, the problem will go with him, as if by a stroke of magic.”
The whole strategy was centred on Senator Gautier, and as time marched on, so too did Senator Gautier — into retirement — upon turning 75. At that precise moment, the Senate Standing Committee on Legal and Constitutional Affairs set about clause-by-clause consideration of the bill. Then, the leader of the government in the Senate deemed the bill not a priority, and the bill ended up dying on the Order Paper. I rose, as did others, to contend that an undertaking had been given that the bill would be reported back to the chamber, and voted upon. Now, I can tell you that we did in fact vote on Senator Gautier's bill, against the wishes of the government. On the day of the vote, Senator Gautier was sitting in the visitor's gallery.
To respond to your question, I believe that laws must be crafted to reflect the political will. Obviously, political will is, and will always be, the domain of politicians. At the end of the day, the President of the Treasury Board will always be the one to report back to the House. Therefore, the machinery of government that supports the political apparatus must be optimally structured; they must run a tight ship, lest the spectre of “budgetary constraints” become a pretext invoked willy-nilly, at any given moment. I do not want to guess as to what the political climate will be in a year or two. There may be calls to pay down the deficit, and it will be claimed that the President of the Treasury Board is the one with the axe who can put programs on the chopping block. He will want to demonstrate that he is above suspicion and beyond reproach. Were he to be the one wielding the axe, and official languages was put on the chopping block, I would want to be sure that the axe had not been sharpened, and that the blade was dull.
There needs to be an institutionalized accountability framework such that were the President of the Treasury Board — or whichever political authority in whom this power were invested — decided to wield that axe, and cut off an arm here, and a leg there, thereby whittling away the gains made over time... that we could go before the courts and say, “you are not meeting your constitutional obligations”. So that we, so that parents, can demand access to a high school of comparable quality to what is available to the other official language community.
I cannot overstate the importance of not placing all our chips on a precarious, uncertain bet. That risk needs to be contained, as a simple matter of good stewardship. I turn again to my good friend, Senator Smith. When you do business, manage a company, and invest in an attractive business venture, since it is your bailiwick, you try to gauge that risk, because you are managing money that belongs to your shareholders. Senator Moncion could speak to this with more eloquence than me. If you place the ultimate authority in the hands of the President of the Treasury Board, in times of budget cuts and fiscal restraint, you better be sure that your head it is not already on the henchman's chopping block. I lived through the 1993 budget cuts, and I remember all too well the remarks I made at the time. You have to go about this very strategically. I can tell you, having been part of the system now for several years, what looks to be your salvation may, in actual fact, be your damnation.
It must be ensured that Part VII is written in such a way that it reiterates the principles from the Court of Appeal for Ontario in the Montfort case. In other words, the worst thing that can happen is the status quo, but we cannot take a step back. If we do that, we fundamentally contradict the remedial nature of the support that the act represents to communities. Be very careful. We need to be strategic. That is why the principles have been very clearly stated by the courts in jurisprudence, and we need to draw inspiration from them to define how to approach the response to the situation.
Senator Mégie: Senator Joyal, it is fascinating and exciting to listen to you. You used the term “remedial”. I tried to see, in the objectives of ensuring respect for French, supporting the development of francophone communities and clarifying powers and obligations, how that could be called remedial. Does another objective need to be added, or does a term need to be found in the wording of our objectives that can support the idea of a remedy?
Senator Joyal: Without a doubt, an objective needs to be added to the preamble of the act.
When this came before the Supreme Court in 1984, the court asked itself how to address the Canadian Charter of Rights and Freedoms. It used the approach that it had developed for the rest of the Constitution. What was that approach? It was an approach based on the fact that the Constitution was not carved in stone, but that it can evolve in its interpretation.
The court gave the example of the famous decision in Edwards, which recognized that women could be appointed to the Senate, in 1929, and that, in the word “person” in section 24 of the Constitution, any person who meets the conditions can be appointed to the Senate. For sure, in 1867, the expression “any person” only referred to men. But in 1929, were women also considered persons under the law? They had had the right to vote since 1917, since the reform of the Military Service Act. The right to vote was first given to the spouses, sisters and daughters of people involved in the conflict and who were serving their country. According to the reasoning, if the man gave his life, the woman of the house assumed just as much risk as him because, if he lost his life, she would be responsible for the family. So, it was felt that the risk was comparable for both the man and the woman, and that women served their country just as much as their husbands in the armed forces, because they had been excluded from the armed forces. In Montreal, at the beginning of the war, women came together and wanted to serve in the army. They called themselves soldiers, but the army did not want them. I will not go into the arguments, but it is a fascinating story to read.
So, at the end of the war, women had the right to vote. The question at the time was this: if women are entitled to vote, how can they be prevented from being legislators? There was an incongruity in the situation, and the court ordered that the definition of the word “person” could not be applied as it was in 1867, as the social reality had evolved.
This objective of constitutional interpretation must be set out in the text of the preamble. The Supreme Court used this expression, and it had no political impact: “liberal and purposive”. Those were the words of Chief Justice Dickson, as he then was, the first to interpret the Charter. So, an open mind was needed. That is what “liberal” meant, and “purposive” referred to the objective to be met. What is the objective of this act? To be able to state the objectives, we must be able to say that a situation has been experienced that we do not want to experience again, and that we are responsible for that situation. The consequences must be faced related to the fact that minorities have faced discrimination, and that they may still face it today.
I think, in particular, of the situation of anglophone communities in rural areas of Quebec. This is a situation that I know personally. If you are in Stanstead, you have a newspaper and you try to support your English language community, as they used to say when I was a student, you “go around in circles”.
The preamble must absolutely express this recognition of our origins, without assuming that everyone is equal at the outset. Situations vary from one community to another. In my opinion, the act must have this flexibility of interpretation and must be written in black and white.
Remember that you are a minority like me. You are like all Canadians, in the end. You are protected by this provision and by the judge who will be called upon to interpret it. You must have sufficient legal bases to argue your case. The act will be 50 years old in 2019. With that historic perspective, I believe that the time has come for this.
Senator Moncion: I will be brief. Earlier, you talked about Bill 117 in Ontario. That law was slow in coming. It should have existed long ago. However, the needed progress was made.
Senator Joyal: Look at the objectives in the preamble of the Official Languages Act. The second-to-last paragraph states the following: “is committed to enhancing the bilingual character of the National Capital Region”. That statement has been in the text for a long time. It was slow in coming.
Senator Moncion: Yes.
Senator Joyal: A situation like that did not hurt anyone. We need to be able to rely on texts that are not simply, as I have noted, declarations of very generous intentions, but that, in fact, go unheeded. In the meantime, people experience this situation every day.
Senator Moncion: That leads me to ask your opinion. These infamous court battles are not numerous. You said there were 97 cases and that, a bit later, there were 51. However, there have always been fears associated with court battles regarding language, particularly the French language. There is talk of prejudice associated with the French language and our rights that have been infringed. We, too, could need to be reconciled with what happened all over, from coast to coast.
I really like the comment you made when you said that we do not want to regress from the status quo. However, even the status quo is regression. We do not lose what we have gained, but we do not advance any further.
Senator Joyal: That is what I meant by what I said earlier.
Senator Moncion: I would like to hear your comments on the fears associated with prejudices and all the negative effects associated with judgments that can be made in favour of the francophone community and that enrage the anglophone community.
Senator Joyal: Anglophones experience it in Quebec too. I do not think that either minority community experiences different situations. They also experience a form of ostracism.
Once again, I do not want to cite my own example, but do not think that I only received letters of congratulation when I took Air Canada to court. They wanted to kick me out of caucus. I received messages by the back door that I would never be in Cabinet, that my career ambitions were over, that I had no place in the Liberal Party. I understand them perfectly, but that did not change my personal opinions on the matter. Any person who challenges a situation before a court, for a certain time, risks being ostracized, marginalized and stigmatized, with lasting consequences. Maybe we become wiser with time. I am 73 years old and I wonder if I did the right thing in 1976. I answer that question by saying that I go to bed today with a clear conscience. I did what I could do, modestly, and I had the means to do it.
Not everyone is as stubborn. Not everyone has such thick skin. Some people feel marginalized in their environment. I believe that the community has a role to play in that sense.
If you are in Saint-Boniface, Manitoba and you take the Government of Manitoba or the City of Winnipeg to court, I believe that the community, your community, could support you. We need to be told “go for it”. The pat on the back is important sometimes, even if it is not much.
You are senators, you intervene on issues. I am certain that you sometimes go to your office, you look at the computer and you see someone telling you: “I saw you last night, you were good, do not give up.” We do not know who those people are, but they help you feel that you are not alone on earth or on a desert island. Very often, they are people who are totally unknown and who encourage you to continue by anonymously expressing their psychological and social support to you. Communities must develop that empathy for those who do battle and who, for a certain time, will suffer the consequences. We do not want there to be financial consequences.
When we have a linguistic debate, it is not just for francophones. We must see the type of dynamic we are engaged in in Canada. Our country will see more and more minorities. If we do not develop this philosophy of respect for diversity, we are again slaves to the syndrome of what I call “the Corn Flakes box”: you cannot see it in French; turn it to the other side and you will not see it either. If you think that Canada is engaged in a process in which there will not be more cultural diversity, I do not know what country you are living in or what planet you are on.
The debate that we are having, as linguistic minorities, is in the context of the fundamental principles that define this country. It is not me who said that, but the Supreme Court in the reference on secession. It stated that one of the founding principles of Canada is the protection of minorities. It was not speaking only about anglophone or francophone minorities, but all minorities. The debate we are having, and the responsibility that we have as linguistic minorities definitively include the principles that make Canada the country that it is and where there is social peace.
I have taken part in linguistic debates for 50 years, and no one has kicked me or slapped me. I have been yelled at from the galleries, but I have never been physically attacked. It is a democratic debate, and we take part in it, as I have noted, because we are deeply attached to what is Canada’s nature. I refer you again to the decision by the Supreme Court in the reference regarding the Senate. In that reference, the Supreme Court clearly stated that the Senate was structured to reflect the presence of regional interests and minorities. That was in 2014 in the reference regarding the Senate. That idea is in the very nature, the genetic imprint, the DNA of our national institutions. That is what must be sold. We must be proud to fight for that idea because, in my opinion, it is profoundly Canadian.
The Chair: Senator, I will challenge you to answer the following question in 30 seconds. You were in government, you are a senator, and the Official Languages Act will be 50 years old in 2019; what would be most useful to allow the Government of Canada to modernize the act?
Senator Joyal: Make specific recommendations regarding amendments and ask the Senate to require that the government respond within three months, in time for us to be able to make the amendments to the act and strengthen the act in 2019. That is my greatest wish after 50 years of respecting minority language rights in Canada.
The Chair: On that note, Senator Joyal, thank you very much for your appearance and your testimony.
That concludes our meeting. Thank you, honourable senators.
(The committee adjourned.)