Proceedings of the Standing Senate Committee on
Official Languages
Issue 10 - Evidence - Meeting of February 2, 2015
OTTAWA, Monday, February 2, 2015
The Standing Senate Committee on Official Languages met this day at 5:03 p.m. to continue its study of Bill S-205, An Act to amend the Official Languages Act (communications with and services to the public).
Senator Claudette Tardif (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I call this meeting of the Standing Senate Committee on Official Languages to order. My name is Claudette Tardif, and I am a senator from Alberta, as well as the chair of this committee.
I will ask the senators to introduce themselves, beginning with the senator to my left.
Senator Fortin-Duplessis: Suzanne Fortin-Duplessis from Quebec City.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator McIntyre: Paul McIntyre from New Brunswick.
Senator Maltais: Ghislain Maltais from Quebec.
Senator Charette-Poulin: Marie-Paule Charette-Poulin from northern Ontario.
Senator Chaput: Maria Chaput from Manitoba.
The Chair: Thank you. Today, we are studying Bill S-205, An Act to amend the Official Languages Act (communications with and services to the public), sponsored by Senator Maria Chaput. The purpose of today's meeting is to ascertain the opinion of legal experts on the bill.
We are pleased to have with us today the Honourable Michel Bastarache, a distinguished jurist and former Supreme Court justice from 1997 to 2008, when he presided over numerous cases involving the Canadian Charter of Rights and Freedoms as it applied to language rights.
Also joining us is Mark Power, a partner at Power Law. He practises constitutional law and has experience in minority language rights. Mr. Power teaches in the Faculty of Law at the University of Ottawa.
Lastly, we also have Allan Damer with us. He is the president of Fédération des associations de juristes d'expression française de common law inc., known as FAJEF. Mr. Damer hails from my home province of Alberta.
Welcome everyone. Mr. Bastarache will take the floor first, followed by Mr. Power and, then, Mr. Damer. After your presentations, the senators will ask you questions. Over to you, Mr. Bastarache.
Hon. Michel Bastarache, Q.C., former Justice of the Supreme Court of Canada, M. Bastarache Professional Corporation: Good afternoon. Thank you for inviting me to speak to the committee. Given the short amount of time we have, I don't intend to go through the amendments proposed in the bill and comment on them.
Mainly, I would like to underscore the importance of modernizing the act and regulations as they relate to services to the public. That modernization is necessary for several reasons: to bring the act into compliance with the constitutional obligations set out in the Charter, as interpreted by the Supreme Court of Canada; to meet the public's expectations more efficiently and effectively; and to fulfill its function, under Part VII of the Official Languages Act, of contributing to the preservation and development of official language minority communities.
I would like to begin by reminding you that the Charter dates back to 1982, and the Official Languages Act goes back to 1988.
In 1988, the government explained its intentions to implement constitutional rights. Since then, there have been 81 court decisions on the public's right to services from federal institutions. Obviously, those decisions have helped to clarify the scope of section 20 of the Charter and the relevant sections of the Official Languages Act and regulations. Many of those decisions led to the realization that the Official Languages Act was incompatible with the obligations under the Constitution.
An in-depth analysis of these decisions would have enabled lawmakers to make amendments that would avoid further court challenges and, above all, that would comply with the obligation to respect the Constitution, something they had already committed to doing in 1988. However, only a single amendment was made to the regulations with respect to services to the public.
The act was amended in 2005, with the addition of sections 41(2) and 41(3), requiring the government to take positive measures to support the development of linguistic minority communities in the provinces.
Section 77 was amended to clarify that the obligations set out under section 41 were henceforth subject to applications to the court for remedy. As far as services to the public were concerned, however, lawmakers were content to respond to the ruling in Doucet, in which the Federal Court rejected the argument regarding the service provided by the RCMP on Highway 104, in Nova Scotia. The court ruled that the demographic data for the area where the violation occurred could not be used to establish the existence of significant demand, and that such a determination had to take into account the number of travellers using the highway. With respect, the only way to establish the existence of significant demand is to use plain common sense.
In fact, consultations conducted at the time of the amendment led to the recommendation that the entire federal regulatory regime be reviewed in light of numerous court rulings. The recommendation was ignored, and the problem persists to this day, hence the need to address the issue in the bill currently before you.
What, then, is the problem that needs fixing? The first thing that has to be done is to correctly define the public entitled to receive services in order to establish the existence of significant demand. As we all know, the social and linguistic landscape has changed over the past 40 years. Immigration has changed Canada's makeup. The majority of immigrants have opted to live in English, thereby reducing the proportion, but not number, of francophones.
Rural minorities moved to urban areas, further reducing their numbers in the regions. The number of minority members marrying outside their community has increased, exacerbating the negative effects of the method used by the federal government to calculate significant demand, based on the language spoken most often at home. Conversely, the French-speaking minority has built a large network of educational, cultural, social and community institutions to enhance the vitality of official language communities.
The act sets out only a few discretionary factors that may be taken into account when determining the existence of significant demand and leaves it to the regulations to define a person's right and the mechanisms for implementing that right. The vitality of the community is mentioned in the act but, to date, has never been referred to in the regulations.
The regulations are highly technical and impartial. They are based on the needs of administrators, not the public's. They rely on demographic data but fail to take into account allophone immigrants who identify with the French- speaking community. Nor do they recognize the unique characteristics of exogamous families or those who, after completing immersion programs, choose to live primarily in French.
Section 20 does not state that only the linguistic minority has the right to services. Therefore, a broader definition is needed to satisfy the purpose of the Constitution Act, and there are several indications in the case law that a more flexible approach is warranted.
In the Pawley decision, the Supreme Court considered the definition of Metis and favoured the use of self- identifying, supported by the existence of desired ties to the community. The Beaulac case involved defining the language of the accused. The Supreme Court decided that the accused's choice had to be taken into account provided that the accused had the ability to communicate with their lawyer in the language chosen.
In Solski, the Supreme Court had to determine whether a student wanting to move to another province could continue his studies in the minority language. According to the court, it was necessary to disregard the objective factors and assess the student's educational experience and, above all, the existence of an affiliation with the official minority language community.
As you can see, the Supreme Court has always rejected the math-based approach. Even when it comes to education, in Mahé and Arsenault-Cameron, the court determined that sufficient numbers could not be established solely on the basis of enrolment. The number of persons who potentially could take advantage of the service had to be taken into account, at least, partly. In short, it was necessary to adopt a realistic approach while taking qualitative factors into consideration.
In this case, it is important to consider all French speakers outside Quebec who might wish to receive services in French. It is logical to assume that those who opt to be educated in French and to partake in cultural products in that language will want to receive federal services in French. Therefore, in establishing sufficient numbers, objective factors cannot be the only factors considered; community vitality is a factor that must also be given consideration.
As I said, the act provides for consideration of that factor, albeit not on a mandatory basis, which, nevertheless, speaks to its relevance. It is also important to keep in mind the importance of consulting the communities when determining needs and service relevance. That requirement is not unusual, either, given that the Supreme Court considered the obligation to hold consultations in Desrochers, which concerned the adequacy of federal services.
Another important assumption is the adequacy of services when the provinces provide services in the minority language. The federal government cannot provide less adequate services than the provinces, none of which are even bilingual, except one.
I will wrap up by saying that, in my opinion, the government must give an air of respectability to bilingualism across the country by offering services in both official languages in all provincial and territorial capitals. In addition — and this is in the bill — specific conditions have to be met before service can potentially be withdrawn.
Thank you for listening, and I would be happy to answer your questions in English or in French.
Mark Power, Partner, Power Law: You have in front of you a bilingual handout divided into a few tabbed sections. Obviously, seven minutes isn't enough time to go over all of it, but I would like to give you a brief overview of the content so that you may take a closer look later, should you like.
I have had the opportunity to hear what some of the witnesses who have appeared before the committee so far have had to say, and I was especially interested in the comments of Mr. Corbeil, from Statistics Canada, and of Mr. Tremblay, from the Treasury Board. I thought it would be a good idea to take a closer look at the true problems facing official language minority communities, particularly those outside Quebec.
With that in mind, I will build on Mr. Bastarache's presentation and endeavour to describe in greater detail the problem that needs fixing and the efforts of Senator Chaput, which, in my view, address a good bit of the problem.
The problem has to do with Statistics Canada's infamous Method 1, the basis the current regulations use to determine where to provide French-language services outside Quebec and English-language services in Quebec. In tab 2, you will find the relevant excerpt of the regulations, and on page 3, you will see the portion of the regulations referring to Method 1.
What exactly is Method 1? If you turn to tab 3, you will see a Statistics Canada publication from 1989. Not only does the title page need to be updated, but so too does the content.
In concrete terms, the problem is that Method 1 places too much emphasis on an individual's mother tongue and the language spoken most often at home.
And yet, since 1989, Statistics Canada has updated the census and incorporated new questions, not to mention the fact that, as Mr. Bastarache pointed out, the face of the francophonie has changed. Is this a theoretical problem or a real one? It is quite real.
Now, I invite you to take a look at tab 4. To illustrate the situation in very concrete terms, I have provided the case of the next witness, Mr. Damer, President of the Association des juristes d'expression française de common law, a leader within the francophone community of Alberta, as well as the Canada-wide French-speaking community. As it applies to his case, I provided the relevant excerpt of Method 1. I am on the first page of tab 4.
Mr. Damer, as you will, can speak both English and French. His mother tongue is English, and at home, he speaks English and French equally. The issue is that, under Method 1, the Government of Canada does not include him in its count. That makes no sense given that, in addition to his community involvement, his spouse is francophone, his children attended French-language schools in Alberta, and he has rights under the Charter. Something is wrong with that, and the really unfortunate part is Mr. Damer is not the only one in that boat.
If you look at the bottom of page 16, still in tab 4, you will see that 23,580 Canadians are in a similar position. They are not counted in the data that the Government of Canada collects in order to determine where it has to serve the public in French. Under the current regulations, the threshold is a minimum of 5,000 people, so 300, 400 or 500 people can make all the difference in the world when it comes to determining significant demand.
As I see it, the system has to change. And Senator Chaput's initiative is an excellent start. We have to move away from this outdated method, which focuses solely on the language spoken most often at home and the individual's mother tongue in order to take into account new realities, as Mr. Bastarache pointed out.
To make the best use of my time, I would just like to draw your attention to two other scenarios, which appear in tabs 5 and 6, and concern 80,000 and 70,000 Canadians, respectively, who are not counted either. At the very end, in tab 7, you will find the impact on Quebec.
Approximately 24,000 people outside Quebec are in the same boat as Mr. Damer; in Quebec, that figure is 255. That means the current regulatory regime is much more unfair to francophones outside Quebec, as compared with anglophones in Quebec.
Thank you for listening. I would, of course, be happy to answer any of your questions in either English or French.
The Chair: Thank you, Mr. Power.
Allan Damer, President, Fédération des associations de juristes d'expression française de common law inc.: Thank you, Madam Chair. Honourable senators, I would like to begin by telling you briefly who FAJEF is and what it does. FAJEF brings together seven associations of French-speaking jurists and works to promote access to justice in French in provinces with an English-speaking majority. Primarily a federation of lawyers, FAJEF works closely with its network of French-speaking jurist associations, national legal bodies and the Fédération des communautés francophones et acadienne du Canada. In fact, I should tell you that FAJEF is a member of the Fédération des communautés francophones et acadienne and that I am on the organization's board of directors.
I should also tell you that all four western provinces — British Columbia, Alberta, Saskatchewan and Manitoba — have their own association of French-speaking jurists, as do Ontario, New Brunswick and Nova Scotia. Our 7 associations represent some 1,500 jurists, and the number of French-speaking jurists continues to grow every year.
From the outset, FAJEF would like to state that it supports the proposed amendments in Bill S-205, An Act to amend the Official Languages Act (communications with and services to the public) for two main reasons. First, the proposed amendments are entirely consistent with the purpose of the Official Languages Act and Part VII. Second, the proposed amendments reflect the trends and changes in the French language among Canada's population. Allow me to explain.
The bill seeks to add the concept of the institutional vitality of the English or French minority population of the area served to the factors set out in section 32(2) of the Official Languages Act. FAJEF is of the view that the addition of that factor would create a better link between Part IV and Part VII, which seeks to advance English and French in Canadian society and enhance the vitality of English and French linguistic minority communities in Canada.
It is also FAJEF's view that, by enhancing the link between parts IV and VII of the Official Languages Act, the proposed amendments will help to better achieve key aspects of the act. They include supporting the development of English and French linguistic minority communities and, generally, advancing the equality of status and use of the English and French languages within Canadian society.
Moreover, FAJEF is also of the view that the proposed amendments are entirely consistent with the recent trends and changes in the French language among Canadians. FAJEF does not see the Official Languages Act as a static piece of legislation but, rather, one that adapts and changes with time.
For many years now, in Canada, French has been a language spoken not just by native French speakers, but also by many other people. Those people include students and graduates of French immersion programs, newcomers to the country who speak French as a second, or even third, language, and the children of exogamous couples who identify as bilingual.
Given Canada's French reality in 2015, Canada must be viewed as having a number of francophonies and French can no longer be considered a language belonging just to native French speakers. The number of francophones by choice is growing steadily.
In FAJEF's opinion, the notion of the number of persons able to communicate in the language of the English or French linguistic minority population of the area served represents a much more flexible and inclusive factor. It better reflects the new demo-linguistic reality, responding to it more effectively, while enhancing the vitality of French linguistic minority communities and fostering the use of French in Canadian society.
Just to put it in real terms, if having French as a native language were a mandatory requirement that the membership of our French-speaking jurist associations had to meet, we estimate that at least a quarter to a third of our members would be excluded. In some provinces, that would easily represent more than 60 per cent to 70 per cent of our members, in British Colombia, for example.
The last point FAJEF would like to make is that it does not have a presence in Quebec and, therefore, cannot speak to the political issues in that province or those affecting its English-speaking community. FAJEF, nevertheless, believes that the development and vitality of the French language outside Quebec should not hinge on the issues related to the English language in Quebec. In our view, if we are to be guided by the Supreme Court of Canada case law on language rights, the principle of real equality, rather than official equality, should underpin all official language decision making, given Canada's incredibly different French and English realities.
That concludes my opening remarks, honourable senators. I would now be happy to answer any questions you may have. Thank you.
The Chair: Thank you.
Senator Fortin-Duplessis: I would like to welcome you all. We are delighted to have the opportunity to hear what you have to say.
One of the things the bill before us seeks to do is modernize the Official Languages Act, a statute on which the Supreme Court has virtually conferred constitutional status.
Do you think a bill of this nature should, instead, come from the government?
Mr. Bastarache: Yes, I think so, precisely because it does more than just modernize the act. It also brings the act into alignment with constitutional obligations. Section 20 of the Charter does not state that federal services will be made available to a linguistic minority community when it has a sufficient number of members; it states that such services will be made available when there is a significant demand. And, as we all know, without an active offer, there can be no demand. Hence, it is the government's responsibility to offer service and then determine whether sufficient demand exists. If, however, the calculation method used is based just on the size of the minority community, the result will always fall below the normal thresholds necessary for the provision of services.
I'd like to take advantage of your question, if I may, to answer one that I am constantly asked. Isn't the terminology much too vague? Should the expression "sufficient numbers" be avoided? Is that why the federal regulations are inadequate?
The answer to those questions is twofold. The first part involves looking at precisely who the numbers are sufficient for. They should be sufficient for the public accessing the services. Today, however, the measure of "sufficient numbers" is intended to meet the needs of the federal government. From a public interest standpoint, what does "sufficient numbers" mean? It means that service quality, the active offer and community vitality were taken into account, given that the purpose of the act is to serve not just individuals, but also communities. From that perspective, then, what matters is whether the service is necessary or will contribute to the community's vitality. To my mind, the approach was wrong from the get-go.
The second part of the answer is that terms like these are necessary. It can't convincingly be argued that service will be provided when there are 3,000 or 5,000 people. That is what today's legislation is trying to do. What does that mean exactly? Does it mean that a community with 2,999 members is not entitled to receive services, but that once it gains just one more member, it will be? That's ridiculous.
Terms are always vague in these fields where an attempt is being made to establish social rights. I have some examples. Of course, there's the example of sufficient numbers in section 23 concerning education rights. The Supreme Court has repeatedly stated that a formula needed to be established to examine the potential. So there are no absolute figures.
In family law, it is said that assets accumulated during marriage must be distributed equitably. What does the term "equitably" mean in this case?
Subsection 24(2) of the Canadian Charter of Rights and Freedoms, which concerns the admissibility of evidence under the Constitution, states that evidence obtained illegally will still be admissible if it does not bring the administration of justice into disrepute. What does the term "disrepute" mean?
In the judicial review that is ultimately the most expanded portion of public law, it is clearly the role of courts to determine whether the government is adhering to the rule of law in its decisions. But what is the rule? It is that of a reasonable decision. Is the term "reasonable" more specific than the term "sufficient"? Criteria are clearly necessary, as arbitrary decisions shouldn't be made, but legislative purpose must also be taken into account when regulations are put in place.
Senator Fortin-Duplessis: Do you have anything to add, Mr. Power?
Mr. Power: I think that, in a perfect world, a government initiative would update the regulations, but it would more particularly update the Official Languages Act. However, as far as minorities go — and especially francophone minorities outside Quebec — what's important is for this to be done. Ultimately, it's not really important whether this is a government initiative or not, especially since, in our legal world, we are used to some sort of dialogue between the courts and Parliament. Mr. Bastarache highlighted the 80-odd decisions that have been rendered since the 1980s. It makes no difference whether we are talking about a government initiative or an initiative undertaken by Senator Chaput.
I would just add that it is normal for lawmakers to review legislation regularly, especially when it comes to official languages. In New Brunswick, for instance, the legislation clearly prescribes such a review, and that is covered in one of the clauses proposed in this bill. If this aspect of the bill was to receive royal assent at some point, the connection between the government in power and that regular review would be eliminated, so that the legislation would reflect the reality on the ground.
Senator Fortin-Duplessis: Mr. Damer, I have a specific question for you. What societal changes should be taken into consideration in this bill, which aims to modernize official languages? Can you give us some examples of societal changes?
Mr. Damer: Certainly. From eastern Canadians' point of view, western Canadians have less interest in or less appreciation for the other official language — French. However, in Alberta, I am hearing that there are not enough spaces for the children of people who want to enrol them in immersion schools. There are more applications for enrolment than there are available spaces.
On the other hand, since 1993, we have had francophone schools in Alberta for our children. My kids have been educated in French in Alberta. In order to develop their acquired knowledge, we would look for services across Canada — at national parks, airports, railway station, ferries, and so on. However, when I arrive somewhere and I am greeted with a, "Hello, bonjour," and I start speaking in French, only to be told that the person does not speak French, what kind of a message does that send to my children? Why learn French in Canada if the two official languages are not truly equal?
I am talking about linguistic demographic changes when it comes to anglophones' interest in French, when they would like to learn French because they understand its value. However, once the children have been educated in the language, if we seek out services across Canada and don't receive a quality service in one of the two official languages, I think the value of the work they have done to learn the language is reduced. I think that indicates a lack of respect for one of the official languages, and that is why those languages end up in a minority situation. Does this answer your question?
Senator Fortin-Duplessis: Thank you very much.
Mr. Bastarache: I would like to add a quick word about that. When we talk about changes in the configuration of the Canadian francophonie, we are constantly discussing figures. For instance, an immigrant from North Africa will normally speak Arabic and French, and not Arabic and English. The language spoken most often at home will be Arabic and not French. Those people don't count.
A francophone may emigrate from France to Canada and settle in an English province — Yukon or the Northwest Territories — and they are not allowed to attend French school. That person is a unilingual francophone, there is a French school in the area, but they are not allowed to attend it because the spaces are reserved for children who meet the definition set out in section 23. That is completely illogical.
The authorities must pay attention and realize that not only are demographic changes taking place, but mentalities and attitudes are also changing. I think this should be taken into account, especially when it comes to anglophones who no longer have the same approach, mentality or relationship they used to have when it comes to minority communities.
I'm from Moncton. If there was one place on earth you could see this difference, it would be Moncton. When I was young, we weren't allowed to speak French at city hall. We weren't allowed to use French in the building. Signs were posted only in English — and I am sure Senator McIntyre could testify to this. Mayor Jones was known for that attitude across Canada. Change needs time, but the government should encourage a change in attitudes, instead of adding more obstacles.
The Chair: Thank you, senator. Senator Maltais.
Senator Maltais: Thank you, Madam Chair. Welcome, gentlemen. Mr. Bastarache, you are known from coast to coast to coast for your support of French. Quebec recognized your contribution in 1981, and you also received an insignia of the Order of Canada. You have done an amazing job in your province of New Brunswick, and your work has been reflected in other provinces.
You talked about an expression that often rings in my ears, since I lived in Quebec when bills 63, 22, 101, 178 and 86 were passed. You know perfectly well that the Supreme Court, which forced us to amend bill 101, was unable to define the expression "sufficient number". You provided two versions of that. At the time, the Supreme Court did not see fit to include in its ruling a definition of sufficient number. I asked the Commissioner of Official Languages what he meant by those words, and he said outright that there was no definition. Why are we at this point today? Is there no other terminology in one of your versions? I would be very happy with that because the current terminology prevents people from using the legislation on protecting French in Canada and gives increased powers to officials who don't want to apply it. That's the inverted pyramid principle. Another definition will eventually have to be provided. This one has caused problems in Quebec, and I am realizing that it has also caused issues elsewhere, but that's not what I want to ask, Mr. Bastarache.
What do you think about the Quebec government's argument regarding the matter currently before the Supreme Court, which is supporting Yukon? I would like a prominent figure like you to enlighten me on this.
Mr. Bastarache: I would like to add something about the first question. You have to consider the time period when discussing the sufficient number. We had good intentions in 1988 and in 1991. We took into consideration what we knew based on the context of the era, but today we know that the population has changed, the francophonie has changed, as have the means of communication. If the federal government is able to provide more services thanks to modern technology, that means fewer resources than before are needed to reach far more people. So why is the government not making an effort to adjust? The Yukon case is a great source of concern for us because it is very important. When numbers are very low and assimilation exceeds 60 per cent in a community, ways have to be found not only to provide French education to people, under section 23, but to encourage individuals who can enrol to do so.
The local school board wanted to exercise its management authority to create a kindergarten or a junior kindergarten because, if children attend kindergarten in English, they are more likely to enrol in an English school than a French one, even though they are entitled to an education in French under the Charter. The Yukon government states that the board is not allowed to do this, as junior kindergarten is not considered education, and the Constitution covers the right to education. Based on this logic, the Constitution guaranties a maximum and not a minimum of rights. Therefore, it's illogical.
The Government of Quebec is worried by this issue. We wanted to enrol in that school a francophone from France and one from North Africa who came to Canada and spoke French, as this would not have bothered the school or destroyed anything. On the contrary, it would have increased the number. I don't think the Quebec government saw an issue with that. It rather had a problem with what it referred to as an "extension of management powers." I don't think that is an extension because, in the Mahé ruling, the Supreme Court stipulated that francophones had the exclusive right to manage issues that had an impact on language and culture. The creation of a kindergarten would have an impact on language and culture. Quebec felt that, if that power was granted outside Quebec, was it not also indirectly granted to Quebec school boards that could then enrol people who are ineligible under the Charter, but whose presence would not bother anyone, and all this would be part of management authority? Our representatives responded that the Supreme Court has already decided, in the Solski ruling, that powers must be assessed based on context, and that the Quebec context is not the same as that of Yukon. This means that they don't need to have the same exact latitude.
Senator Maltais: I totally agree with you when it comes to this — let's mind our own business. That's a good thing. Legislating on language issues is always a very delicate endeavour, and you know full well that this is the case in every one of our provinces. You also said that reviewing Bill S-205 would help identify communities where services could be provided in one of the two official languages. That completely defeats the purpose of bill 178. I don't know whether you are familiar with bill 178, but it's a hot potato. We definitely need to find a middle ground, without depriving francophones outside Quebec, so as not to disrupt the usual practice adopted since bills 178 and 85 were passed, provided that we, as government, mind our business. This comment was for Mr. Power.
Mr. Power: The starting point is that when the language of the majority is not threatened, it is reasonable to allow the minority to self-identify as much as possible. That is the link, I believe, with your previous question about the Yukon. In the Yukon, where English is not threatened, who decides who is a francophone? In my opinion, it should be the minority.
In Quebec, the dynamics are different. French needs to be protected. This is not the forum to call that into question. Has the bill which is before you managed to find that balance? It does so in two ways. I am looking at clause 5 of the bill. First of all, it points out that we will in future have to take into account the number of persons who are able to communicate in the language. That is of course very interesting for francophones outside of Quebec. That is one of the many criteria that must be taken into account. The bill also states that particular characteristics must be taken into account, as well as institutional vitality. You do not need a classical education to know that the results could be quite different in Quebec than in the rest of Canada.
The Chair: I thank Senator Maltais for these questions. I would however like to encourage him to focus more on Bill S-205.
Senator Maltais: My question is in fact related to it, because there is an impact. I have no problem at all with your comment, but the bill will have capital consequences.
Basically, the witness said that if Bill S-205 was passed as it stands, the federal government would be telling the provinces how to protect their minorities. Now, I assure you that such a thing would not be accepted at all in Quebec. With Bill 178, as Mr. Justice will remember very well, because of a judgment of a federal act which made part of Bill 101 invalid, we had to suspend both Charters of rights and freedoms. This measure was a unique case in the legislation of a Canadian Parliament.
Bill S-205 thus has important consequences, and we must remember that. We want Bill S-205 to pass without impinging on the rights of Quebeckers, or the rights of minorities outside Quebec. That is the formula we must devise together.
I was happy, Mr. Justice, that you gave us two comprehensive definitions of the term "sufficient numbers." You gave us an excellent starting point, and I thank you.
Mr. Bastarache: We must not lose sight of the fact, here, that it is not the law that is going to define the service, but the regulations. The law creates the legal framework. It indicates that we must take into account the particular characteristics of the communities.
It would be much more logical for the government to adopt a different method. I would be in favor of consulting communities, of looking at the various statistics and all of the other criteria in order to decide where services will be offered, and drawing up a list. It would be much simpler than sending public servants into the field, whose approaches, attitudes or aptitudes we do not know, in order to define everything with insufficient means.
Senator McIntyre: I thank the three witnesses for their presentations. I would first like to make an observation. It is true that since the Official Languages Act was passed in 1988, as you mentioned, Justice Bastarache, many court judgments have clarified the scope of the federal government's obligations. It is also true that during the past 20 years, Part IV of the Official Languages Act has not always taken into account the evolution of Canadian case law.
That said, Mr. Justice Bastarache and Mr. Power, I understand that you both wrote articles about Canadians' right to federal services in the official language of their choice. The article that was published, if I am not mistaken, in the Manitoba Law Journal, discusses the issue from a legal perspective and proposes that two principles be taken into account, in particular the offer of services and the sociological concept.
Can you tell us more about those two principles? You broached the subject earlier, Justice Bastarache, but could you tell us more about these two principles?
Mr. Bastarache: I do not remember exactly how we had approached the matter in the article. It comes back to what was I saying earlier, and I will simply give you an example. I do not know if you know Mr. Landry from the University of Moncton, who carries out studies on language. He is a sociologist and anthropologist. He did a very interesting study in Nova Scotia. He went to an area of the city of Halifax, I believe. In that place there is a service counter that provides general services to the public, as there now are in almost all of the provinces. They did nothing more than put out a very small sign that said "Service in French or in English." The figures may not be entirely accurate, but he observed that 7 or 8 per cent of francophones asked for service in French.
A few months later they put up big signs that said "French Wicket" and "English Wicket." The same people worked there, and the same services were being offered. All of a sudden, 35 per cent of francophones asked to be served in French. After a certain time, they asked a francophone from the community to offer service in French. The figure went up to 75 per cent.
This example illustrates the fact that when you want sufficient numbers, you have to take the means to get them. It is all well and good for the federal government to have public servants wondering whether there are sufficient numbers in Thunder Bay. That is not the way to determine the standard to offer services in a fair and equitable way. You have to think about the example from the University of Moncton, and ask yourself what the normal offer of services should be to reach the people who really want to avail themselves of service in French. I think that is the way to do it. Mr. Power will be able to speak to this more specifically.
Mr. Power: I do not know the article by heart, senator, but I will make three comments.
Senator McIntyre: The article is entitled "Au-delà des nombres: le droit du public canadien à des services fédéraux dans la langue officielle de son choix."
Mr. Power: Here are three examples of sociological changes which informed this article. The first involves changes at the provincial and even territorial levels. We were talking about Quebec, but let us look at what has been happening in Ontario.
Since 1989, there has been a law on services in French, which is becoming increasingly generous and is implemented more and more rigorously. As Mr. Bastarache pointed out, at the very least, it would be logical for the federal government to offer services where Queen's Park, the provincial government, has decided to offer them.
The second example would be that of the schools. If the governments of Manitoba and Saskatchewan think it is good to finance French-language schools in certain communities, the federal government should do at least as much and offer those services in the same communities. In that case, also, it is a matter of federal legislation governing services aligning with provincial realities.
A third example that may relate to certain other testimony is the following. If you look at the documents, Senator McIntyre, this time at tab 6, you can see the example of a francophone who is losing her French. On the first page, you see the example of a francophone who is losing her French but nevertheless, as best she can, wishes to transmit her language and culture to her children. She chooses, despite her assimilation, to register her children in French school.
One or two generations ago, in my mother's day, in northern Ontario, that was not possible. Today it is possible, because there are French-language schools there. How many people are in that situation? If you look at the bottom of the page, Senator McIntyre, you will see that there are some 70,000 people in that situation. That is a large number.
Senator Charette-Poulin: Thank you, Madam Chair. I would have a complementary question to the one put by Senator McIntyre, before I ask three of my own.
Justice Bastarache and Mr. Power, if I understood your replies correctly, as a government, we can choose to apply the Official Languages Act as an obligation, or apply it as a matter of pride.
Mr. Bastarache: Yes.
Senator Charette-Poulin: Finally, what Senator Chaput's bill is attempting to do, in amending the act, is to have people choose active offer as a matter of pride, rather than as an obligation.
This reminds me of the testimony of a witness regarding another matter, who asked us why we had to work so hard to offer services in French and in English on an equal basis throughout the country, when that is the very foundation of our country. I was very struck by that remark, and that is why I suddenly see the distinction between the fact of doing things as an obligation, and doing them as a matter of pride.
I would like to thank you, Justice Bastarache, because in your testimony, through your arguments, you allowed us to understand the full importance of Senator Chaput's bill. You allowed us to understand why this modernization is the Senate's responsibility, as this is the place where we can take a step back and take stock to see what is happening in the country. I am thinking, for example, of the socio-economic changes Mr. Damer spoke about; I am thinking of the changes Mr. Power spoke to us about. Your words have really allowed us to grasp the very essence of the bill.
In your preamble, you state that there is a fundamental problem to be solved, and that is the definition of the "rights holder." You reminded us that the Supreme Court of Canada has always rejected a mathematical approach.
We are currently in an environment where figures are more important than our values, our principles. How can you convince us that the mathematical approach is less important than the superior approach of seeing this as a matter of pride, and the implications of that pride?
Mr. Bastarache: The first part of my answer is that the mathematical approach is clearly unconstitutional. The Supreme Court has already decided that that is not the way to proceed, and that we need qualitative criteria. So we have to reject it, quite simply, because it is not acceptable.
The second thing is that it cannot reflect the demand. It cannot do so, because the offer has to precede the demand. Currently, we are working backwards, because we are trying to guess at the demand.
It is also important for the government, I think, to be consistent. In my opinion, there is an incredible gap between what the government says and what the government does. There is a contradiction between what the Department of Justice does, and what the Department of Canadian Heritage does.
I think that at Canadian Heritage, they try to consult communities, to determine their priority needs with them in order to help them. At the Department of Justice, I think they examine the legislation in order to determine the very least the government is obliged to do.
I read part of Mr. Tremblay's testimony. He does not want to say if what he does is good or bad. He said, "I do what I am told to do. If I am told to deal with the numbers, I deal with the numbers. If I know that something does not make sense, but that it is not serious, I am not the one who made the decision." That is what I understood from his testimony.
I think the same thing applies to the people at Statistics Canada. They are not acting out of ill-will. They say, "We were told to do things this way, and that is how we do them."
However, who is it who made the decision? Was it Parliament? But is Parliament not interested in having the law be valid constitutionally? But that is not enough. It should not only be valid, it should be effective.
My sense is that this should be completely apolitical, because there is already a law. All we want to do is adjust it so that it aligns with our constitutional obligations, and ensure that it is good in the sense that it will meet the needs of the population, to the extent that a government can do that. I think that all of governments, of any allegiance, would want their legislation to be effective.
Senator Charette-Poulin: My second question is for Mr. Power and Mr. Damer.
Mr. Damer, you noted that recently the newspapers have had a lot to say about Statistics Canada regarding the changes that were made to the research process in the census.
We heard a Statistics Canada representative, who explained that the variable of the first spoken official language, as well as other variables, such as the language that is regularly spoken at home or the language of work, allowed them to better understand current language dynamics. Mr. Damer and Mr. Power, you also referred to this earlier.
The census variable proposed by Bill S-205 is the capacity to communicate in the language. From a legal perspective, do you agree with the use of that variable, or would you prefer to see others?
Mr. Power: The bill does identify two variables, that of knowledge of the language, but also the particular characteristics of institutional vitality. I think that the nuance is important, because, to summarize, yes, objective measures have to be taken into account, but subjective factors have to be as well.
Regarding the first point, the objective factors and the numbers, we have to know who to count, when to count, and count correctly. The new questions that are now in the census provide much richer data than the ones that were in the census during the 1980s, when method 1 was created.
Concretely, what are we talking about? We are talking about the famous issue of the language of work. We are talking, especially, of the language that is spoken regularly at home — French, for instance — even if English is spoken more often, even if Arabic or another language is spoken more often. In my opinion, public servants, as Mr. Bastarache pointed out, should take the right people into account, and count the right people.
As to the second point, the more subjective aspect, we have to take into account the fact that, as economists would say, the offer creates its own demand. We have to consider that active offer, for example, will encourage a demand for services. Thus, when the federal government can make a choice, it should do so in favor of the minority, at least outside Quebec, in light of that principle.
Other factors must be taken into account as well, such as the minority itself asking for services in French, a factor that would necessarily be taken into account if this initiative passes.
Mr. Damer: I agree entirely with Mr. Power. I have nothing else to add.
Mr. Bastarache: I would like to understand what frightens the government in all of this. Is it dangerous to distance oneself from a number when attempting to determine whether or not to offer services in French in a village in Manitoba?
At this time, they have a number, period. If a village is over or under that threshold, it will receive service, or not. Why is it so complicated to go and meet the people in the community, to see whether there is a school, a cultural centre and a movie theatre, and then to say, "Well, there seems to be a real community here, whose members will avail themselves of services, because they use other things in French."?
I do not understand why that is threatening.
Senator Chaput: My next question is addressed to the three witnesses.
Does the Official Languages Act have any impact on provincial obligations to official language minority communities? Does Bill S-205 not, rather, affect federal institutions that must offer services everywhere in Canada?
Mr. Bastarache: You are absolutely correct. The federal Official Languages Act has absolutely no impact on provincial legislation or regulations, or on the decisions of the provinces regarding providing provincial services. It only impacts the federal government, federal public servants, and federal institutions.
Mr. Power: That necessarily has to be so, because of the division of powers; the federal Parliament must limit itself to its fields of jurisdiction, as do the provinces. I can only agree with what has been said.
Mr. Damer: I agree.
Senator Chaput: May I ask another question?
The Chair: Yes.
Senator Chaput: Mr. Bastarache, in your presentation you used, several times, the expression "significant demand." Is that term, significant demand, a problem for the courts that must interpret it?
Mr. Bastarache: The courts are very used to the use or the interpretation of such terms. As I mentioned earlier, this exists within the Charter itself. Several rights are not defined in the Charter. A method has been developed to arrive at an interpretation of those provisions.
Most often, the method involves a so-called contextual analysis. That is the term the court uses. There are three types of contexts. There is the legislative context, according to which we never try to interpret a word in a provision of a law without taking into account the other provisions of the legislation that deal with the same topic, because we are aiming for legislative consistency. We even take into account other laws that would apply to the same matter; that is the first context.
The second context is the social and political context. The purpose of the law is examined. What are we really trying to accomplish with this legislation? Do we want to change something? Do we want to add something? That is how we come to say that in the case of language laws, any interpretation must be liberal, "liberal" in the sense of "generous." In other words, when there is ambiguity, it is settled in favor of the person to be served, and not in favor of the government.
Finally, the last part of the background is what we might call "political logic." In other words, when we pass legislation, we are always thinking of changing something. It is often said that lawmakers do not talk for the sake of talking. Therefore, all the words used must have meaning, and their meaning must be consistent with the purpose of the legislation. That is why courts have become accustomed — especially in interpreting the Charter — to looking for the purpose of the legislation. That is why they often move away from what the English call "black letter law," where specific terms are used to go beyond that. This is how we have come to decide that, in section 23, when we say that francophones are entitled to institutions of the minority, "of" means "managed by them". The distinction is subtle, but in fact has a significant impact. They could have said "institutions for the minority." But it was not just "for" the minority; it was "of" the minority. That is how we interpret all those different pieces of legislation.
The Chair: Before we go to a second round, I have a question. I think you have already answered this question, but I will ask it anyway. Listening to you, I wonder how you can reconcile the examples you have described, in relation to the French-speaking people.
Mr. Power, you gave good examples of people who are not recognized by the current regulations. How can you reconcile those examples of people with the case law in the past 20 years? As you so rightly said, the ultimate purpose of language rights is the vitality of official language minority communities. It is providing services not only to individuals but also to communities.
Could Part IV, in its current form and with its restrictive approach, hold up in court?
Mr. Bastarache: Part IV has become outdated. It is outdated because it was developed at a time when the francophonie was not what it is today, at a time when there was no active offer of services. Time has passed and 1988 is far behind us. It is indeed now time to think about what we want to accomplish with section 20.
As you know, section 20 is vague, which means it is up to us to give it content. Generally, the content is provided through a legal framework taken from the Official Languages Act and the implementation mechanisms enshrined in federal law.
Mr. Power: In my view, the Federal Court has already determined that one of the sections of the regulations was unconstitutional, and we must expect that some sections of the legislation could also be declared invalid. In light of that fact — and, as Mr. Bastarache pointed out, also because things have changed — it seems to me that Parliament has two choices: either to let the courts intervene and, ultimately, decide in its place, or to take the initiative and dovetail the act and regulations with the reality, even if it means that we will go over it again in 20 years.
The second model, where the initiative comes from the government, is clearly preferable, because legal disputes, even when minorities win, take their toll on society. Money aside, it is taxing for people to be in confrontational situations. It seems to me that it is up to the government, whenever possible, to take the initiative to avoid this kind of conflict, and to modernize its regulations and legislation as required.
Senator Maltais: Thank you, Madam Chair. A wise man in the 19th century said that the French language in Canada was the most beautiful language spoken by so few people in such a large country.
In 2015, we still have the same challenge with the legal framework of a language. I just came back from Strasbourg where I spoke with people in education, and they gave me a striking example.
Throughout history, Alsace and Lorraine have changed sides more times than we have had hot dinners. They therefore have a culture that is half German, half French. In schools, both languages are accepted and spoken well without too much trouble.
You know full well that establishing a legal framework for a language is a Herculean task. I greatly admire provinces like New Brunswick, for example. New Brunswick did an outstanding job in making the province bilingual.
My question is for both Mr. Damer and Mr. Power. How is the Government of Ontario, which has some clout, after all, dealing with the French language? How is this government helping francophones?
Mr. Power: Senator Maltais, things have changed a great deal. I was born in Ottawa and raised in Toronto, but my French is okay in spite of that. That is partly because of the initiatives taken by my provincial government. Let's talk about services, since that is what we are interested in today. The French Language Services Act sets out specifically which Government of Ontario offices must provide their services in French, their quality, and where in the province, whether in the northwest, in the north or elsewhere.
Other provinces have taken similar initiatives. Alberta has done it through policy, not through legislation, and so has Manitoba. So things have changed a great deal, and I cannot stress enough how useful it would be for the federal government to do at least as much, if not more, so that it remains the leader, a role model, alongside Quebec, in terms of promoting French.
Mr. Bastarache: There might be a difference. I am not sure whether it is still the case today, but a few years ago, there were discussions among the legislative committees, the folks from the Department of Justice who draft the legislation, and community representatives.
There were significantly fewer disputes in court, because there was an agreement from the outset on what would get done. Francophones accepted the fact that the province was not going to automatically become bilingual and provide those services everywhere. They accepted the fact that this would take time and money, and they agreed on the priorities and the way forward.
The agreement was substantial because preparations to increase legal and public services needed to be made at the same time. That has always been important for Ontario. However, the federal government does not consult us on laws and regulations. That is how things are; they are just imposed on people with no basis in research.
Senator Maltais: I understand that there is no consultation, but the federal government is made up of MPs elected in each province. Every once in a while, the federal government consults with the provinces.
I think today's new technology should help circulate the information, especially since no one agrees on the expression "sufficient number". Today, with the help of a computer or the Internet, information can be sent to everyone quickly enough, and we should not go so far as to require that a person be bilingual in a community where no one else is.
What you said dovetails nicely with what the Statistics Canada officials have said in terms of this perhaps being a means of communication. If this helps provide information under French-language services, it should be good for francophone schools as well.
Mr. Bastarache: You can do many things with statistics. However, the problem today is that they have been forced to do things in a certain way. They are not being asked to try to improve the way. However, there is a review committee, which Mr. Tremblay mentioned. The government funds an entire committee to study the regulations, but not to change them.
Senator Maltais: Your Honour, with your experience, you know very well that regulations are a way to distort the legislation.
[English]
Senator Beyak: Thank you, gentlemen. This question doesn't relate to Bill S-205 so much as communications and services but maybe to a broader perspective some day for the committee to consider. It comes from Senator Maltais' question earlier. I'm trying to remember exactly how he worded it. Language is such a sensitive issue, and I wonder if a study has ever been done in Canada to see why language it is such a sensitive issue.
I worked from sea to sea in education with the Ontario Parent Council, and it's my observation that people don't understand each other at all. It is a beautiful language, a beautiful culture, and when we understand each other better, we're much more open to cooperating and making the beauty of the language known.
I just wondered if anyone has ever considered a study across Canada of why it's such a sensitive issue.
Mr. Bastarache: I did one in 1981 in New Brunswick that led to a riot.
Senator Beyak: I don't want that.
Mr. Bastarache: We had a committee going into various communities. We had a sociological analysis of the reasons why people would support or not support bilingualism and it was just awful. But things have changed, times have changed, and I'm sure we would get a different response now.
Before we had Heritage Canada, we had the secretary of state department, and I know they did at least two or three studies of that nature.
Mr. Damer: I was thinking of the question Senator Maltais had asked as well in this context. I don't know if Senator Tardif shares this thought, but I remember when our first-born, who is now 34, was born and we would speak French in public in Edmonton or the area, we would often get a fairly negative reaction around this.
I think that in the last 30 years there has been a huge leap — I would even call it quantum — in the attitude of society generally, taking Alberta as an example, which is often perceived as a red-neck hotbed, if you will. I think that the greater the general population is educated, there's a greater openness and tolerance and, in fact, an appreciation for the value of that.
I would just mention that one of the long-standing projects of our group, the seven associations of French-speaking lawyers, is to get the Official Languages Act changed so that judges at the Supreme Court of Canada, the highest court of the land, would be required to be bilingual. Many of my legal colleagues wonder why in the 21st century that is even a question anymore. Others will ask, "Then, Allan, does that mean I can never become a Supreme Court judge if I don't learn French?" And I say, "Yes, Joe, if that's your goal eventually, you should learn French. Your children are learning French; why haven't you taken the leap?"
I think there's a societal shift. This isn't really a legal perspective necessarily, more of a personal one. My thoughts and feelings are that in regard to the Alberta population generally, the number of people who are negative towards the French language, or any other language for that matter, is diminishing. That's my impression.
Senator Beyak: You made an interesting point. I thought perhaps there had been some work done on it.
I know in my area there was a big controversy back in the late 1980s and early 1990s because we were getting textbooks in both languages and didn't have any francophone students at that time. People wondered, not negatively or badly, whether we could use this money more wisely to promote people becoming familiar with French. It wasn't done out of malice or said in a nasty way; it was just determined that this was a lot of money, the textbooks were sitting in a box, so why wouldn't we use that money to make people want to learn French?
It started way back then. It was hard, as the chairman of the council, to bring people together who were English, francophone and Native representatives and have them just dialogue about it without getting upset or controversial with one another. It would be better to just all talk together.
I agree with you that it's better than it was 30 years ago for sure.
[Translation]
Senator Chaput: Most of my questions have been answered, but I would like to say, however, that the debate in our committee continues to fuel the understanding and respect of the French language that should prevail in our midst and across Canada. French is a minority language in Canada and it must be protected. It is the language of the majority in Quebec, but the language of the minority in Canada.
That being said, I would now like to ask Mr. Damer a question. In your view, is there a connection between the quality of service delivery in the language of the linguistic minority and the development and vitality of official language minority communities?
Mr. Damer: I think there is a very strong connection, as Mr. Bastarache has told us, if the offer is active and if there are potential clients. In terms of francophone schools, some have reservations that go as far back as their grandparents during whose time French was not allowed in places such as the Moncton City Hall. That could be the case in Alberta as well. The pride in speaking the language and the vitality of communities has to do with having an active offer, which is the government's responsibility, in my view.
Senator Charette-Poulin: I have a supplementary question for our three witnesses, which follows on the questions of Senator Beyak and Senator Chaput. If tomorrow morning the government were to ask you for suggestions to be able to ensure that Canadians are even more proud of the bilingual status of their country, what would you recommend?
Mr. Bastarache: I would first suggest that the visibility of bilingualism be increased. The federal government should highlight the fact that bilingualism exists in all the provincial capitals, everywhere the provinces made an effort and everywhere we can encourage people to use French-language services. If the services are easy to obtain and are not considered a favour, people will use them. It is important to ask the provinces to provide services as well. We must take advantage of everything that exists in French in the communities. I don't think we should just assume that the people who use community services will be asking for federal services; the people who are going to use federal services will be the ones asking for community services. I think it goes both ways.
One thing is certain: services must not be seen as a favour. When I was a young lawyer, a decision was made that people had the right to request a trial in French. It was not an absolute right, so it was up to the judge. It was funny because it was an amendment to the Evidence Act. People did not dare to request a trial in French, because they felt that they would inconvenience everyone. As a result, the government concluded that there was no demand for French- language services in court. Everyone was intimidated and the conclusion was that there was no demand!
Mr. Damer: I think the government must first establish a climate of trust in a situation like that. I have experienced similar situations with francophone clients. Once before the judge, when my client saw that all the parties in court were anglophone, he wanted to give up his trial in French because he did not want to inconvenience the judge. I did not let him do that by repeatedly telling him that it was his right. The francophone judge with whom we were dealing in that case welcomed my client and reassured him. Otherwise, I am sure he would have given up.
Unfortunately, services are being provided in a disrespectful environment. If I want to be served in French at the airport in Edmonton and my expectations are not met, I consider that as disrespectful of the official language. I could even think of worse things to say about that. I think the government must create a respectful climate for each of the two official languages so that people feel comfortable wherever they are.
Mr. Power: In my view, we must first maximize opportunities to use the language, which is the purpose of the bill to increase the number of federal offices that would provide services in French, to allow people to live in French. Second, we must maximize dialogue, be it online or in person, especially for young people. They must be able to go to Quebec or wherever French is spoken by large communities, and vice versa.
Senator Beyak was asking what makes language difficult. For one thing, language is much more than a means of communication; it is also a culture. Cultures are different, points of reference are different. The more cultures interact, the more language groups interact and the better they understand each other and accept the reality described by Mr. Bastarache earlier.
The Chair: Do senators have any other questions? Would our guests like to add anything else? No? Okay.
Mr. Bastarache, Mr. Power and Mr. Damer, let me thank you for accepting our invitation and for sharing your experience and expertise with us. Your testimony is crucial to the progress of this study.
(The committee adjourned.)