THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, September 26, 2022
The Standing Senate Committee on Official Languages met with videoconference this day at 4 p.m. [ET] to examine the subject matter of Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts.
Senator René Cormier (Chair) in the chair.
[Translation]
The Chair: I am René Cormier, a senator from New Brunswick and Chair of the Standing Senate Committee on Official Languages.
I now invite my colleagues to introduce themselves.
Senator Moncion: Lucie Moncion, a senator from Ontario.
Senator Mégie: Marie-Françoise Mégie, a senator from Quebec.
Senator Clement: Bernadette Clement, a senator from Ontario.
Senator Gagné: Raymonde Gagné, a senator from Manitoba.
The Chair: Thank you, honourable senators.
I would like to welcome all of you, and viewers across the country who may be watching. I’d like to point out that I’m taking part in this meeting from within the unceded traditional territory of the Algonquin Anishinaabe Nation.
[English]
Today we continue our study on the subject matter of Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts. This is a pre-study of the bill before it will be sent to the Senate by the House of Commons. We held three meetings on this topic in June.
[Translation]
Today, for the first part of our meeting, with a focus on Part 2, which enacts the Use of French in Federally Regulated Private Businesses Act, we welcome by video conference Mr. David Robitaille, Full Professor, Civil Law Section, Faculty of Law at the University of Ottawa, and from the Canadian Bankers Association, Mr. Eric Prud’homme, Director, Quebec Region, and Mr. Charles Docherty, Assistant General Counsel.
Welcome to the committee, and thank you for being with us.
We will now hear from the witnesses. Mr. Robitaille, the floor is yours.
David Robitaille, Full Professor, Civil Law Section, Faculty of Law, University of Ottawa, as an individual: Thank you, Mr. Chair. Good afternoon, everyone.
I’d like to recognize the federal government’s efforts to recognize language rights within private businesses that are under federal jurisdiction in Quebec and the rest of Canada. Federally regulated private businesses are businesses whose main activities fall under Parliament’s jurisdiction under the Constitution Act, 1867.
More specifically, Bill C-13 fills a legal void in Quebec and in regions with a strong francophone presence. In Quebec, there are approximately 180,000 francophone employees of federally regulated businesses for whom the right to work and be supervised in French is recognized.
The bill also fills a legal void in business relations between federally regulated private businesses in Quebec and their customers. A legal void means that, based on current jurisprudence and the majority position, according to authors or constitutional experts, workers at federally regulated private businesses in Quebec do not have the recognized right to work in French, and customers have no language rights to interact in French with those businesses.
Constitutional or legal experts have offered some analysis and theorized that the Charter of the French Language could potentially apply to federally regulated private businesses in some conditions; however, that requires the interpretation and application of certain constitutional principles or mechanisms whose application and reasoning is quite specialized and complex.
The courts have found that federally regulated businesses, like provincially regulated businesses, are not enclaves. In other words, they must, in some conditions, respect laws established or enacted by the other level of government. However, the impact of laws from one level of government cannot be excessive, overly restrictive or overly onerous. That’s the constitutional impediment test for businesses regulated by the other level of government.
The problem with this approach and the theory of applying the Charter of the French Language to federally regulated businesses in Quebec is that it can’t be done in one fell swoop or systematically. In each case, it’s necessary to ask whether each provision that recognizes a right or imposes an obligation has excessive or overly onerous consequences that would create a constitutional impediment. That isn’t necessarily an effective approach. It can be costly for workers and their union who seek to defend the right to work in French, and does not provide much legal predictability. That’s why Bill C-13 fills a legal void and may ensure greater legal predictability.
The Chair: Thank you, Mr. Robitaille.
Mr. Prud’homme, you have the floor.
Eric Prud’homme, Director, Quebec Region, Canadian Bankers Association: Good afternoon. My name is Eric Prud’homme, and I am the Director of the Quebec Region at the Canadian Bankers Association, or CBA for short.
With me today is my colleague Charles Docherty, Assistant General Counsel at the CBA. We appreciate the opportunity to appear before the committee today to discuss Bill C-13.
The CBA is the voice of more than 60 domestic and foreign banks operating in Canada and their 280,000 employees, and provides governments and other stakeholders with a centralized contact on matters relating to banking in Canada. The CBA advocates for public policies that contribute to a sound, thriving banking system that helps Canadians achieve their financial goals and accelerates a thriving national economy. The association also promotes financial literacy to help Canadians make informed financial decisions and, ultimately, improve their financial resilience.
Banks take seriously the fundamental importance of Canada’s two official languages, working diligently to offer services to their customers in their language of choice. Banks also recognize the importance of being able to use French as a working language in Canadian workplaces located in predominantly French-speaking populations.
In the spring of 2021, we spoke with a panel of experts, appointed by the Honourable Mélanie Joly, the former federal Minister of Economic Development and Official Languages, to amend the Official Languages Act. The expert panel was tasked at that time with making recommendations to the minister on amendments to the Official Languages Act, which would include new obligations for federally regulated businesses, including banks, to further protect the use of the French language in francophone communities across the country.
Feedback provided by the expert panel was positive, and the group commended bank-led efforts to provide services in French in Quebec and in other provinces with considerable French-speaking populations. We were pleased to respond to the questions that members of the panel raised at that time and hope today’s appearance will be equally informative for the members of this committee.
Banks have a long-standing commitment to meeting the language preferences of their customers. Canada’s largest banks already offer personalized customer service in French in and outside Quebec where there is a strong francophone presence, including in parts of New Brunswick, Manitoba and eastern Ontario, where there is market demand. Customers across Canada have access to customer service in French through call centres, online banking services and mobile banking applications. These banks provide documentation in either French or English based on customer profile preferences. Further, documents can be printed from these banks’ websites in the customer’s preferred language.
[English]
Employees at Canada’s largest banks can work in French both inside and outside Quebec where there is a strong francophone presence. These bank employees can often choose their preferred language of communication, French or English, for HR communications, including basic benefit communications, HR policies, performance reviews, pension plans and other business-related communications. These employees can also contact HR departments and ask questions in both official languages, and workplace issues are addressed in either English or French, depending on the employee’s preferred language. Some banks also have specific language policies that support their commitment to diversity and inclusion, and others have documented language-related procedures, for example, for their HR communications with employees.
Many banks also offer professional language training to help their employees communicate in both French and English, and banks also support self-directed learning in English, French and other languages. This is an example of a culture of continuous learning and development at individual banks in Canada.
Before concluding our remarks, I will also note that several banks have, for many years, complied on a voluntary basis with the Quebec Charter of the French Language.
We look forward to being part of further consultations about the bill as, among other matters, the application of the legislation to regions outside Quebec and matters related to implementation are further considered. We would be pleased to answer your questions. Thank you.
[Translation]
The Chair: Thank you very much, Mr. Prud’homme. We will now proceed with our question period. I invite the senators present to ask their questions.
Senator Moncion: My first question is for Mr. Robitaille. I’d like to discuss the role of the Commissioner of Official Languages with respect to federally regulated private businesses. What’s your view on the measures put in place for the due diligence defence? Could you discuss the need to implement rules that would be even clearer in this area to support employees working in federally regulated businesses in Quebec?
Mr. Robitaille: Let me know, senator, if I answer your question, because I’m not sure I understood all the subtleties you may have referred to. In my opinion, it’s important for the Commissioner of Official Languages to have the powers to ensure compliance with the law. That would ensure people had a certain level of access to justice in relation to language rights instead of having to turn to the courts, which is what must be done now to have Quebec’s Charter of the French Language apply to federally regulated businesses.
In the context of the new federal law under consideration, giving powers to the commissioner seems to promote access to justice for workers. The commissioner will also be able to refer more legally complex files to the Canada Industrial Relations Board under the act. Accordingly, I think the powers currently given to the commissioner are very good and seem to be complete, but I’m not sure I understood the scope of your question.
Senator Moncion: I’ll go a bit further in discussing Bill C-13 and the issue of defining mechanisms for collaboration between the Commissioner of Official Languages and the Office québécois de la langue française, or between the Canada Industrial Relations Board and the Office québécois de la langue française. Could you discuss the need to implement these much talked about collaborative mechanisms?
Mr. Robitaille: I understand your question, senator. I think it’s essential through the lens of cooperative federalism. Of course, when Parliament and the provincial legislatures — or the federal and provincial governments — have overlapping jurisdictions, as is the case, with the environment, languages and the protection of language rights.... I think it’s important for government authorities to work together and adopt joint processes to be more effective.
Yes, it’s very important, in my opinion, for the Commissioner of Official Languages to have that authority. I also think that the minister responsible for applying the act has that authority set out in the act. The proposed new act will continue to raise constitutional and legal questions. On the one hand — this isn’t a criticism, because governments often do it — we don’t really know the details yet of the language rights being recognized. There are important principles set out in the act, but regulations will govern them and define them in more detail. That’s still to come. Will the federal act grant workers at federally regulated businesses in Quebec rights that are similar or equivalent in scope to what is set out in the Charter of the French Language? We don’t know yet. I think the key, as you’ve said, is in collaboration and cooperation between governments to try to have a system that is equivalent, not one that varies depending on where someone works.
Senator Moncion: Thank you very much. Do I still have time?
The Chair: It’ll have to wait until the second round.
Senator Mégie: My question is for Mr. Prud’homme. How many banks have voluntarily adopted the obligation to comply with the Charter of the French Language in Quebec? Do you have an idea of how many banks are considering doing so if Bill C-13 is passed?
Mr. Prud’homme: Is the first part of your question in relation to the Charter of the French language?
Senator Mégie: Yes.
Mr. Prud’homme: Most large banks have voluntarily applied the main principles of the Charter of the French Language for a number of years now. It’s all been voluntary.
Senator Mégie: I heard you mention a strong francophone presence in reference to banks that offer services in the regions. What is a “strong francophone presence”? Is there a percentage?
Mr. Prud’homme: That’s interesting because your other witness, Mr. Robitaille, raised the issue in talking about the main principles. One of the main principles referred to in Bill C-13 is the concept of a strong francophone presence. For that reason, we’d be interested in reading the regulations to understand how that principle will translate in the future regulations. For now, I can say that, in regions where the market warrants, that is, where demographic data provide a good indication as to the existence of a strong francophone presence, banks offer services in French outside Quebec. This includes areas of New Brunswick, Manitoba and eastern Ontario.
Senator Mégie: Thank you. I have another question. Once businesses that weren’t previously subject to the Charter of the French Language come under the charter, do you think that could lead some businesses in the banking sector to leave Quebec, or is that just rumours?
Mr. Prud’homme: I can’t speak for other businesses, but, in the banking industry, there’s long been considerable sensitivity to Canada’s two official languages. Our members have a long-term relationship with their clients, and that relationship is based on trust. Services have always been offered in English and French; preference is given to the language of choice of consumers — the bank’s clients. For the banking industry, services have always been offered in English and French, and we will continue to offer those services, of course.
Senator Mégie: Thank you.
Senator Gagné: Welcome to the witnesses. I’ll begin with a question for Mr. Prud’homme to follow up on Senator Mégie’s question. From your answers, I see that the banking system has finally managed to offer the vast majority of services in both official languages. When the act is passed, if it is — and I believe it will be — there will also be an obligation to serve regions with a strong francophone presence. I’ve asked myself this question. Are there any regions that you’re not yet serving and that would be identified as regions with a strong francophone presence? If so, could that present challenges in terms of human resource recruitment?
Mr. Prud’homme: First, the CBA isn’t involved in operations. However, I can say that our members are extremely competitive. Being able to offer services in French in some regions may be a competitive advantage, of course. That’s the first thing.
It’s also important to understand how things work. When a client deals with a bank and opens an account, the client first indicates their preferred language for dealing with the financial institution. In doing so, the client can automatically use the financial institution’s online banking platform, seven days a week, 24 hours a day. They can also use their smartphone or tablet.
There are also telephone banking services. Keep in mind that they are also available. Of course, there are in-branch services. Consumers make some major decisions and they tend to want to do that in person. Teams of mobile bank employees may also travel if an appointment is made in advance under some circumstances. As a result, services are offered in French across Canada.
Senator Gagné: Do you know whether your members receive many complaints about services in English or French, whether it be English in Quebec or French outside Quebec? Is that a problem?
Mr. Prud’homme: I’m not aware of that situation. The issue of language of service has never been an issue because banks are good corporate citizens. As I also explained, they’re in competition with one another, so they want to be sure to offer the best services in both official languages, and that’s what they do. In my experience, that’s not an issue for the banking industry.
Senator Gagné: Thank you.
Mr. Robitaille, I’d like to hear more about what will happen after the bill is passed in terms of the making of regulations. In your opinion, how could that fill a certain legal void?
Mr. Robitaille: Obviously, I don’t want to speculate on the government’s intentions. However, if we compare the Charter of the French Language and Part 2 of the bill, we can see that the Charter of the French Language provides much more detail regarding the language of business and the language of work. Certainly, regulations will provide more details about the protections that the bill and the federal regime will grant workers wanting to work in French and consumers wanting to be served in French. In particular, there are powers in the bill that allow the government to create exemptions for certain businesses. To determine the scope of the rights that are recognized, we’ll have to wait for the regulations. They’ll basically complement the bill. That’s often how it works; more and more, lawmakers set out the main objectives in the act, but the details are set out in regulations, even in the provinces.
I did notice one thing. I don’t know whether the regulations are expected to cover this or not. Proposed sections 9 and 11 of the new act don’t seem to mention hiring. They address employees: An employee cannot be treated adversely in any aspects of their work because they do not have sufficient knowledge of a language other than French, unless it is objectively required. The Charter of the French Language not only provides for this, but also imposes it at the hiring stage. In reading the bill, I don’t think I saw this obligation for hiring. It may be an oversight, or maybe it will be covered in regulations. It’s an area where there still seems to be somewhat of a void right now.
Senator Clement: Thank you to the witnesses. I’d like to continue in the same vein in relation to the definition of a “region with a strong francophone presence.” I’m from Cornwall, in eastern Ontario, and people ask me what that term means. Are we in that type of region? There are provincial and federal definitions, and there can be confusion in the various communities.
Mr. Robitaille, could you talk more about the regulations? What type of criteria should be used to define a strong francophone presence, and who should be consulted in developing those regulations?
Mr. Prud’homme, you talked about market demand. I’d like to know how banks determine market demand. What exactly is it based on?
Mr. Robitaille: You ask a very good question, and I’ll answer to the best of my knowledge. My colleagues, Mr. Labelle Eastaugh, Mr. Larocque and Ms. Cardinal, are experts on language rights and could answer the second part of your question better than I could.
As for criteria, an analogy could be drawn with section 23 of the Canadian Charter of Rights and Freedoms, which recognizes minority language educational rights. Of course, that’s different. In terms of criteria, it will be up to the government to determine the best formula, but it could include the number and type of businesses that exist in a province, and the number of francophone workers outside Quebec.
For instance, how many francophone workers are there in a given region? For consumers, it’s about everyone, so I imagine it will take into account statistics concerning the population and the number of people whose mother tongue is French or who use French regularly in their daily lives.
There are different variables that can come into play, but I imagine that the government experts will be able to determine the best formula.
Senator Clement: Thank you.
Mr. Prud’homme: I explained the various methods for conducting banking transactions: the online platform via computer, smartphone or tablet; telephone banking; and even mobile teams. Nearly 80% of Canadians do their banking on a computer, tablet or smartphone. Now, what’s left in the branches? According to our latest statistics, 10% of people conduct transactions at a bank branch.
To come back to your question, as I mentioned, I would say that, in terms of the “banking industry,” particular attention will obviously be paid to the criteria for determining what constitutes a strong francophone presence. In 2021, when we spoke with the experts, that was one of the questions we asked, to try to better understand what was meant by the concept of “strong francophone presence.” That’s the first thing.
As well, in the banking industry, every bank is in competition. Every bank makes business decisions about where it will set up geographically. Then, it looks at demographic data. The bank examines market demand, namely the people who come in and request services in French at a branch. That can be one tool, but it’s not the only way or a magic formula. These are decisions. As you noted, qualified bilingual staff must also be found.
Senator Clement: What would the cost impact on the banks be? Are you already doing what needs to be done?
Mr. Prud’homme: First, new regulations mean that, even if services are already offered in French, there’s a new law and new regulations dictate certain specific criteria. These need to be assessed to conduct an impact study. Staff need to be trained, computer systems changed and adjustments made. All that is still a challenge.
A transition period is needed to properly understand and apply the legislation. That’s very important for the banking industry, which consists of very large businesses. There needs to be a transitional period, and that period is important. This can’t all be done overnight because things need to be done right in order to serve the interests of consumers.
Senator Clement: Thank you very much.
Senator Mockler: Thank you to the witnesses. I’d like to thank you for your leadership in relation to the official languages bill. It’s important for you to take part in the debate so Canadians across our great country are protected, both anglophones and francophones, and all other Canadians. I have two questions. I’d like to hear your comments on what you’d like to see.
In your experience, should the findings of the expert panel on language of work and services in federally regulated private businesses be made public to lend them greater credibility?
Mr. Robitaille: Are you asking all the witnesses or someone in particular?
The Chair: It’s for everyone.
Mr. Robitaille: Can you remind us what the findings were? I’m not sure I understand the question.
Senator Mockler: Were the findings shared with the committee?
The Chair: You want to know whether the findings in the expert panel’s report should be made public? That’s the question, Mr. Robitaille.
Mr. Robitaille: I’m sorry, but I’m not the best person to answer that question. I can’t give you an answer. Maybe Mr. Prud’homme could answer; I don’t know.
Mr. Prud’homme: In truth, I’m happy to share with you our experience, in terms of what the banks have done in relation to client services for consumers, and I can also tell you that bank employees have the opportunity to work in the language of their choice. However, I’m not the right person to comment on what the government should do in that respect.
Senator Mockler: Obviously, the positions of federal, provincial and municipal authorities are heard in the debate about federal institutions. Do you see possible contradictions between the language regime applicable to federal institutions and what applies to federally regulated private businesses? Do they seem to be two different jurisdictions?
Mr. Robitaille: Again, senator, I think professors Labelle Eastaugh, Cardinal and Larocque are undoubtedly more qualified than I am to answer your question. My expertise is related more to the various areas of jurisdictional interaction and cooperative federalism, if I can put it that way, than jurisdictional conflicts and language rights more specifically. Maybe my colleagues can provide a better answer than I can later in the meeting. I’m sorry.
The Chair: Mr. Prud’homme, would you like to comment?
Mr. Prud’homme: No, I have no comment on that question.
The Chair: Okay, thank you. Before proceeding with the second round, I’ll ask a few questions. First, Mr. Robitaille, I read with interest the article that you published in 2013 and the one from 2014, before Bill 96 and Bill C-13 existed. I’d like to know whether you could share your opinion and dig deeper into how the situation has evolved, particularly if we consider what is being said. There’s obviously talk of the choice between two areas of jurisdiction, of the way in which those choices are made and of the cohabitation between two language regimes.
Mr. Robitaille: Thank you for your question, Mr. Chair. First, our study was from 2012-13, as you mentioned. Now that Parliament plans to legislate under its jurisdiction by recognizing the language rights of workers in federally regulated businesses, the issue will inevitably be brought before the courts and they will need to decide. The issue will be raised assuming that the federal regulations and the act do not offer protection as broad as the Charter of the French Language does. That’s one of the assumptions, but we’re not certain that’s exactly what will happen.
If that’s how it happens, there may be people who will suggest that the Charter of the French Language could apply to federally regulated businesses as a complement to the protection afforded by the federal act and regulations.
However, as I said earlier, the question that will come up each time is this: Does the section or provision of the Charter of the French Language that people want to apply to a federally regulated business hinder that business’s labour relations? That would raise legal debates for some time.
On the other hand — because it’s already been seen with other acts and could probably be argued — the courts could say that the new federal legislation is a complete code intended to establish complete and comprehensive rights and obligations that are recognized for workers in federally regulated businesses and for consumers in their dealings with those businesses.
If it’s a complete code, it could be considered as the only regime applicable to federally regulated businesses in terms of language. That’s a possible interpretation by the courts. I can’t say for sure, but that interpretation has been seen in other areas. It’s been seen in the past, for example, when consideration was given, in the Bank Act, to adopting a complete consumer protection code that would replace those of the provinces.
We know that the Supreme Court has already found that those provincial consumer protection laws can apply to the banks. When Parliament adopts a complete code, the courts will sometimes interpret it as the only regime that applies. That’s a possibility. However, as I said to the senator, it would certainly be preferable if government agreements were reached to ensure more predictability. In fact, the courts are adamant that governments must cooperate as much as possible.
The Chair: I have a question for clarification purposes. You referred to a constitutional impediment, but could you give us some examples to help us understand what that means?
Mr. Robitaille: In short — and let me know if this is too technical from a legal standpoint — when it comes to the environment, for example, it was found that provincial laws that regulate the actual operation of federal infrastructure are generally deemed to be a constitutional impediment. This includes laws regarding the location of a pipeline, the location of an airport, how it functions, its security and its operation.
That was found by the courts to apply in general. It’s provincial or municipal standards that seek to mitigate the risks of federal activities, such as a bylaw requiring that a federally regulated business have a municipal permit to carry on its activities or meet certain requirements, such as providing information and the like.
However, there’s not much flexibility. I’d say that, since our study a few years after Canadian Western Bank v. Alberta — the ins and outs of that decision were not yet known, nor was its reach over time.... I think it’s safe to say that, since Canadian Western Bank v. Alberta, the balance has been restored somewhat.
The courts made clear what they meant by “constitutional impediment.” I’d say today that, for the study published in 2012, there’s a chance that trying to apply the Charter of the French language to federally regulated businesses could be considered a constitutional impediment, particularly when major obligations in the area of labour relations are being imposed and when interference in the management of a business is taking place.
The entire issue of francization, for example, under the Charter of the French Language is quite detailed. There are fairly significant obligations. It’s a long process. I can’t speak about the substance, but it could be considered to be an impediment because it’s relatively detailed and goes quite far in terms of the management of a business.
That study was done because, at the time, a certain legal void was sensed in terms of protecting workers in Quebec and their right to work in their language. That’s why I said in the beginning that the federal bill fills that void and has the potential to ensure more long-term predictability in the rights of workers.
The Chair: Thank you very much.
Mr. Prud’homme, I also have a question for you. During your presentation, you were quite compelling when discussing banks’ ability to offer services in both official languages.
You also said that most banks had agreed to be subject to the Charter of the French Language. However, what is the atmosphere like inside banks at the moment, since there are two language regimes? Banks can make some choices, but I’d like to hear your comments on that cohabitation of language regimes, which may or may not present challenges for you.
What’s your opinion?
Mr. Prud’homme: I may provide some clarification. Banks voluntarily comply with — or voluntarily apply — the Charter of the French Language. That’s been the case for most banks for many years. That’s the first thing.
There are two main principles in the banks, and I’ve already mentioned them.
The first principle is ensuring that consumers can be served in the language of their choice, whether in Quebec or outside Quebec, taking into account the nuances I mentioned regarding areas outside Quebec. The second main principle is the opportunity for employees to work in the language of their choice in Quebec and outside Quebec, with some adjustments.
Those are two main principles included in Bill C-13.
What’s interesting, and Mr. Robitaille mentioned it, is that Bill C-13 refers to an agreement between the federal and Quebec governments. Of course, we’d like to know the content of that agreement, because it would help us have a better understanding.
The fact remains that, from a legislative and regulatory standpoint, what’s always important is flexibility. In Bill C-13, I see one example that seems positive. If there’s ever confusion or a misinterpretation of certain provisions of Bill C-13, a compliance agreement can be reached to potentially correct that misinterpretation or incorrect application, which is new law.
I’d say that flexibility is what’s important.
The Chair: You used the word “confusion,” and that made me wonder. Would there not be a risk of confusion for consumers who wanted to file a complaint but who did not necessarily know which language regime a given bank fell under?
In your opinion, is there or isn’t there a possible issue for consumers, for Canadians, who want to file a complaint, but who don’t know which language regime is at play?
Mr. Prud’homme: I’ll talk about what I know, the current situation in the banking industry.
Any form of complaint about services offered by banks goes through each bank’s standard complaint process. Ultimately, the complaint will make its way to the bank ombudsman or an external ombudsman.
If there were language complaints, they would go through a standard process. The Canadian Bankers Association ensures that it provides information to help consumers with complaints. There’s a page on our website that explains what to do when a customer has a dispute with a bank. I’d add that questions from the general public are even answered by phone to ensure that people know how to deal with a bank and better understand the banking industry.
We are there to help consumers because we’re in a long-term relationship with them.
The Chair: Thank you for your answer. We’ll proceed with the second round of questions now.
Senator Moncion: I’d like to come back to your comments on the complaint process at banks.
Is it true that such complaints are not directed to the Commissioner of Official Languages, but are instead dealt with through an internal process at the bank that is regulated elsewhere?
Mr. Prud’homme: Yes, that’s what’s in place right now. The complaint process is part of a process within the banking industry.
Senator Moncion: Given that you’ve told us that no complaints are filed under the Official Languages Act, if we wanted access to that information, we’d need to go through the processes already in place with the groups designated to handle those complaints?
Mr. Prud’homme: I want to be sure I understand. My understanding is that, as of now, the Official Languages Act doesn’t apply to the private sector. Is that right? That means that a new system related to official languages will only be put in place once Bill C-13 is passed, and the Commissioner of Official Languages would then play a role in the private sector.
I’m talking about the current situation. When an individual files a complaint, for example concerning language or level of service, it must be done through the process currently in place at the banks.
First, the branch is advised, the person dealt with on a regular basis; then, the complaint or report of dissatisfaction goes up the chain.
Senator Moncion: That’s fine, but do we agree that it’s a process that’s parallel to the one that exists under the Official Languages Act?
Mr. Prud’homme: Yes, but Bill C-13 would introduce a new process.
Senator Moncion: That brings me to my second question. When you were talking about francophones outside Quebec, you mentioned several times the concept of strong demand, saying something like “where there is demand” or “with strong demand.”
How do you adjust that definition for anglophones in Quebec? You talk about large percentages. How do you define large percentages in Quebec? How do you serve your francophone clients outside Montreal if there’s no strong demand?
Mr. Prud’homme: First, services are offered in English and French, at the consumer’s request. It’s not an issue. Banks are in competition with one another, so they’ll ensure that they offer the best services in the language of the consumer’s choice, in order to remain competitive and appealing to clients.
However, I must say that, as an association, we’re not involved in operations and we don’t interfere in our members’ business choices. However, I can say that services are offered in English and French, or French and English since you were referring to Quebec.
Senator Moncion: Thank you.
Senator Mégie: My question is for both witnesses. It may be relevant to both of you. It’s a short question.
For federally regulated private businesses that will be subject to the new obligations set out in Bill C-13, will the size of the business be taken into account? I realize that businesses in the banking industry are large. Will any consideration be given to the size of businesses? For example, businesses with fewer than 100 employees won’t be subject to the law, or something like that. Do you have that information?
Mr. Robitaille: Thank you for your question, senator.
I believe the answer is yes, since Parliament included a provision in the bill — and I was trying to find it while you were asking the question — that states that the government can set specific terms for applying the law based on a threshold related to the number of employees. The government will be able to answer that question, but the bill already contains some terms that may differ based on the size of the business. The Charter of the French Language does that, so it’s reasonable to assume that the bill will too, since Parliament more or less included the idea in the bill.
Senator Mégie: Thank you.
The Chair: My question is a follow-up to the one Senator Moncion asked, and it has to do with anglophones in Quebec. Do you think Bill C-13 will limit banks in Quebec in offering services in English to anglophone residents of the province? In your opinion, does this issue present a challenge?
Mr. Prud’homme: Again, I come back to the basics. Our members are competing against each other. It’s essential for banks, and it always has been, to ensure that services are offered in both official languages. I assure you that that’s the case in Quebec.
The Chair: Okay. You don’t see any problems in that respect, then. Mr. Robitaille, do you wish to comment?
Mr. Robitaille: I don’t see any difficulties in that respect either. Parliament has already provided for that situation by indicating in the legislation that it does not prevent federally regulated businesses from serving their clients in languages other than French. The bill therefore does not reduce the scope of language rights enjoyed by anglophones in Quebec.
The Chair: Honourable senators, do you have any other questions? We had planned more time for this group of witnesses.
Senator Gagné: I’d like to follow up on Senator Cormier’s question. For all intents and purposes, this bill pertains more to the language of work for employees in Quebec. I’m not necessarily referring to client service, but rather to the language of work. If I understand correctly, the vast majority of banks voluntarily comply with the Charter of the French Language.
Mr. Robitaille, would there be any risk in other business lines? I know that there are exceptions, and no one could be fired. However, could it create some discomfort or confusion? I’d like to hear your thoughts on that.
Mr. Robitaille: It’s also a matter of communication, and that goes beyond the legal aspect. Senator Cormier referred to this earlier. It’s communication with consumers or people who have rights under the law.
For consumers, for example, knowing what organization to complain to requires that the public be educated and that information be shared. There may be some confusion for Canadians. The legal system is not always easy to understand.
A member of the public’s first reflex is often to turn to municipal elected officials. People who want to file a complaint may have the reflex of going to their municipal elected officials, hence the importance of ensuring proper communication and good public education when it comes to the law. Confusion is somewhat inherent to rights, and it’s the job of lawyers and the legal system to clarify those issues.
If there’s good communication, Canadians will understand the scope of their language rights. For details on the scope of the bill, particularly Part 2, people will need to wait for the regulations to be adopted before they can make decisions on the scope of the protection afforded.
Senator Gagné: Thank you.
Senator Mockler: My question is for both witnesses. We often hear about administration of the Official Languages Act and the role of the Minister of Canadian Heritage, the minister responsible for the application and promotion of the rights under the new Use of French in Businesses Act.
In your experience, should this responsibility be given to another minister? What would you recommend if you had the authority to make decisions on the administration of the Official Languages Act?
Mr. Robitaille: It’s hard to answer that question, senator. The person identified in the bill, whom you mentioned, seems to be the best person to assume responsibility for the application of the act. As with any act, the designated minister is responsible for the subject or purpose of the act. In that respect, I see no particular difficulties.
The Chair: Mr. Prud’homme, would you like to respond to the question?
Mr. Prud’homme: No, I have no comment. Applying this to the private sector is new. I have no comment.
Senator Mockler: The discussion about administration brings to mind my experience when I was responsible for official languages in New Brunswick. My question is again for both witnesses.
During round tables, some people said that maybe the Privy Council should have that responsibility or the Treasury Board. Do you have an opinion on that? In your opinion, should the Use of French in Private Businesses Act be the exclusive responsibility of Canadian Heritage?
Mr. Robitaille: I have no specific recommendations in that respect. The issue is outside my expertise. In general, ministers responsible for the application of acts are those whose mandates cover that issue. Since this act confers language rights and its main purpose is to recognize those rights, I believe that things were set out in the right way.
Senator Mockler: Thank you.
Senator Clement: My question is for Mr. Robitaille. When you answered Senator Gagné’s last question, you referred to municipal elected officials. I’d like to steer the conversation in a slightly different direction. In examining the bill, I see a lot of references to provincial and territorial governments, but fewer references to municipal governments.
Do you have any comments on that? I’m talking about the importance of a municipal government in all sectors covered by this act.
Mr. Robitaille: I also teach municipal law.
Senator Clement: Yes, I know.
Mr. Robitaille: In general, municipalities are increasingly important in the lives of Canadians when it comes to a range of issues. However, the lack of references to municipalities in the bill is understandable in that Part 2 is essentially, even exclusively, focused on recognizing rights and imposing obligations in relation to federally regulated private businesses. The lack of references to municipalities is not striking in that respect.
There are language rights that are recognized in Quebec. There are municipalities with bilingual city status, but that falls under another type of language regime, one where provinces are generally recognized as having jurisdiction.
As for Bill C-13, it’s not surprising that municipalities are not mentioned, since the bill does not seem to affect them directly.
Senator Clement: Except maybe for francophone immigration?
Mr. Robitaille: Yes, that’s the case in regions like the Outaouais and Montreal, which are two major centres for immigration in Quebec. There again, federally regulated private businesses in those two regions will be responsible for applying Bill C-13 within their own businesses. When it comes to remedies, if there are disputes, the Commissioner of Official Languages or the Canada Industrial Relations Board will be able to deal with the matter.
I see no particular role for municipalities in relation to this bill.
Senator Clement: For that part, specifically.
Mr. Robitaille: Yes, Part 2.
Senator Clement: Thank you.
The Chair: Thank you very much. Since there are no further questions, I’d like to thank our witnesses today, Mr. Robitaille, Mr. Prud’homme and your colleague. Although we didn’t have the opportunity to hear from Mr. Charles Docherty, I also want to thank him.
Thank you for being here. Your comments and thoughts are useful to our pre-study and will certainly inform the study of the bill when it arrives from the House of Commons.
We will now suspend the meeting to bring in our next panel of witnesses.
Honourable senators, for the second part of the meeting, joining us are academics who know Bill C-13 very well and can comment on various parts of it.
For our benefit, we welcome Ms. Linda Cardinal, Associate Vice-Rector of Research at the Université de l’Ontario français; Mr. François Larocque, Professor and Research Chair on Language Rights, Faculty of Law, Common Law Section at the University of Ottawa; and Mr. Érik Labelle Eastaugh, Associate Professor and Director, International Observatory on Language Rights at the Université de Moncton.
Again, thank you for being with us. I’ll give Ms. Cardinal the floor first.
Linda Cardinal, Associate Vice-Rector of Research, Université de l’Ontario français, as an individual: Mr. Chair and members of the Standing Senate Committee on Official Languages, it’s truly an honour to appear before you this evening. Thank you for inviting me to present my analysis of Bill C-13.
In a few minutes, I’d like to focus on a few points, including the fact that no law is perfect and a perfect law should not be expected. A law can never completely reconcile our conflicting opinions, to paraphrase Machiavelli. As I pointed out in an article I wrote this summer for the daily Acadie Nouvelle, along with my colleagues Michel Doucet and Rémi Léger, we must stop treating Bill C-13 like a “general store.” I say that so we don’t lose sight of the purpose of the bill, which is to ensure modernization, the survival of official languages, substantive equality and promotion of the French language.
I’d also like to note that it’s public servants who will implement the bill. They must be given realistic objectives in order to do their job. They will be responsible for developing regulations, tools and programs to apply the various provisions of the legislation.
That brings me to my three recommendations for your consideration. As you will see, these recommendations are not intended to amend the bill. In fact, I urge you to pass the bill without delay. What interests me are the next steps. I’d like to discuss those next steps with you, and, obviously, I encourage you to fully support the passage of this bill.
First, I recommend that the Prime Minister’s Office create a committee on official languages and the francophone community, which would be tasked with implementing a consultation mechanism for ministers responsible for official languages and the francophone community, providing clear guidelines to these individuals with regard to federal-provincial agreements, and reviewing the process for appointing bilingual individuals to senior management positions.
As you can see, my recommendations echo debates that have somewhat shifted the discussion on official languages away from the main objective.
Second, I recommend that the federal government implement a francophone immigration program separate from other immigration programs. The spaces allocated to this program would be included in the Immigration Levels Plan, and the program should be included in future policy. Bill C-13 includes a specific provision on immigration, and I think it is very important to immediately propose measures to ensure its implementation.
Third, I recommend that the Prime Minister mandate the Minister of Official Languages, Ginette Petitpas Taylor, to prepare a specific action plan to promote the French language in the public service.
As you can see, my recommendations are of an administrative nature and are not intended to amend Bill C-13. We must not forget that Part VII of the Official Languages Act, which was adopted in 1988, was not actually implemented until 2003, as part of the first official languages action plan. We waited 15 years for the first action plan for official languages.
We now have the opportunity to take a giant step forward for official languages and the francophone community thanks to Bill C-13. The teams are ready to work. You have an opportunity. It’s time to be generous. Thank you very much.
The Chair: Thank you very much, Ms. Cardinal.
Mr. Larocque, you now have the floor.
François Larocque, Professor and Research Chair on Language Rights, Faculty of Law, Common Law Section, University of Ottawa, as an individual: Mr. Chair, Madam Deputy Chair, honourable senators, thank you very much for this invitation. It’s a privilege for me to share this forum with my colleagues and friends, professors Linda Cardinal and Érik Labelle Eastaugh.
We’re here to discuss the subject matter of Bill C-13. As noted by Ms. Cardinal, I must emphasize that, in my opinion, this is a very good bill that proposes important, even necessary, reforms to modernize the Official Languages Act.
I commend the leadership of the two ministers of official languages who dealt with this file. They did so with skill, putting together a serious and ambitious bill, based on a premise that we can no longer ignore, and that forces us to do things right.
French is declining everywhere, even in Quebec. That’s why I think, unlike my colleague, that more time must be taken to see whether we can make improvements, do some fine tuning and tighten things up.
I support the submissions from the Fédération des communautés francophones et acadienne du Canada, or FCFA, which proposed six detailed amendments that I won’t repeat, except for one related to the implementation of the bill. Like the FCFA, I believe that Canadian Heritage can continue to play a role in the development of the government-wide strategy, but I think that the implementation and coordination of its implementation should be conferred solely on the Treasury Board, for the entire act, not just parts IV, V and VI, as is currently set out in Bill C-13.
I also think that the power to subdelegate obligations should be limited, or even prohibited, and that the Treasury Board should assume responsibility. It has levers available to it to ensure compliance with the Official Languages Act.
Implementation has been the Achilles heel of the Official Languages Act for 50 years, and now is the time to bolt things down.
I’ll present three quick arguments, and they’ll please my colleague Ms. Cardinal. They’re related to section 55 of the Constitution Act, 1982. I’d like to note here my admiration for senators Dalphond and Carignan, who have been raising this issue in the Senate since 1990, namely the issue of chronic non-compliance with section 55 of the Constitution Act, 1982, the adoption of a truly bilingual Constitution for Canada.
I love the proposal by Senator Dalphond to add a provision to Bill C-13 that would require that the Minister of Justice — or possibly the Minister of Intergovernmental Affairs — make every effort possible to enter into the discussions required under section 55, and requiring a periodic report to Parliament on the progress in implementing and adopting the French version of the constitutional texts.
The third thing again ties in with the position of my colleague, Professor Linda Cardinal — she and I have long been working on the application of the Official Languages Act during a crisis or a national emergency, such as the pandemic. I am very happy that Bill C-13, as compared with Bill C-32, includes a reference in the preamble clearly noting that the Official Languages Act applies in an emergency.
However, I think that it should go further and that two conditions should be added to the body of the act, including one stating that the obligation should be implemented in Canada’s emergency plans. Currently, there is no mention of official languages in Canada’s emergency plans. That obligation would fall on the Minister of Public Safety, specifically, ensuring that Canada’s emergency plans take into account the Official Languages Act. Second, it must be possible — as the Minister of Health did at the outset of the pandemic — to prohibit the suspension of obligations related to bilingual communications and signage. The act allows for certain things, so the application of these provisions must not be repealed or suspended during a national crisis.
Finally, my last recommendation is based on what the Fédération des juristes d’expression française wisely proposed. It has to do with section 16 of the Official Languages Act, namely access to justice in French and the duty of bilingualism in the federal judiciary. Kudos for finally removing the exemption for the Supreme Court of Canada. However, the bill should go a bit further, as was wisely suggested, to ensure greater consistency in the appointment of federal judges all over the country and to prevent those appointments from being concentrated in urban areas. This would allow for the proper application of the Official Languages Act, section 530 of the Criminal Code and the new provisions of the Divorce Act. In fact, that act now grants the right to a divorce in an individual’s official language of choice, across Canada. We therefore need bilingual judges.
This would require some awareness on the part of the Minister of Justice, as well as an analysis of where bilingual judges are appointed in Canada, to ensure that the language rights of all Canadians within the legal system are fully respected.
The Chair: I need your help, Mr. Labelle, because I don’t really know how to pronounce your name and I don’t want to commit a faux pas. Please tell me how to pronounce your name.
Mr. Labelle Eastaugh, thank you for being with us. You have the floor.
Érik Labelle Eastaugh, Associate Professor and Director, International Observatory on Language Rights, Université de Moncton, as an individual: Thank you, Mr. Chair. There’s no problem; it’s an English name, but even when I lived in England — and I lived there for four years — no one knew how to pronounce my name correctly.
I thank the members of the committee for the invitation to appear before you today. I share the opinion of my colleagues that Bill C-13 generally represents major progress toward the achievement of substantive equality between English and French, because it corrects several failings and gaps in the current legislation.
Since my speaking time is limited, forgive me if I focus on the points that the bill does not address quite as well.
I’d just like to mention two points in particular, and I hope we’ll have a very fruitful discussion. First, I want to talk about the issue of immigration, which has already been raised, and second, I want to discuss the mechanics for implementing Part VII, which is one of my favourite topics, on which I have published several articles.
To begin with, I’m absolutely thrilled that Bill C-13 addresses the issue immigration. In my opinion, that’s one of the most important issues, if not the most important, for the future of the francophone community in Canada in 2022. It’s a topic that has been unfairly neglected by the government and Parliament in past versions of the Official Languages Act.
To understand the importance of this issue, it’s important to take a step back and put the issue of immigration back into a broader historical context. Since 1867, and even before, the result of Canadian immigration policy, and often its express intent, has been to gradually marginalize francophones and reduce their political weight in Canada.
Here’s an example that you’re surely familiar with: In 1870, when Manitoba was created, 50% of the province’s population was francophone. That’s one of the reasons why Manitoba was created as an officially bilingual province. However, 20 years later, francophones made up only 10% of the population owing to massive immigration from anglophone regions. Today, francophones account for less than 4% of the province’s population.
Immigration is therefore a major issue that goes way back. The fact that immigration has gradually increased the inequalities between francophones and anglophones has been a major trend in Canadian history. The passage of the Official Languages Act in 1969 and the Charter in 1982 really did nothing to change that strong trend.
Despite the Charter, the federal government felt free to adopt immigration policies concerning the number and type of immigrants, which have directly increased the inequalities between anglophones and francophones across the country. There’s a small exception when it comes to Quebec, because the federal government signed an administrative agreement with Quebec giving the province more control over immigration. Quebec has therefore been more able to preserve the demographic weight of francophones, but that has not been the case in the rest of Canada.
In my opinion, it’s about time for the Official Languages Act to set things right, and I’m pleased that the issue is being addressed. Nevertheless, I stand behind the amendments proposed by the FCFA — mentioned earlier by Mr. Larocque — because the measure currently included in Bill C-13 does not do enough. It is too vague and does not impose a strict target; in short, it doesn’t go far enough. The federal government should be required to adopt the measures needed to increase the demographic weight of francophones across the country.
For 150 years, we’ve had an immigration policy and a demographic policy that favour anglophones. It’s about time for a policy that favours francophones, at least for a while.
My second point is related to the mechanics of implementing Part VII. Your committee has shown a lot of interest in Part VII over the years, so I don’t need to explain the importance of that part of the act. As you know, obviously, the Achilles heel of Part VII has always been its general nature. The lack of precision in the wording of the act has, in the past, given federal institutions a lot of flexibility and, in some cases, hasn’t given enough precision for them to know what to do.
In my opinion, the recent Federal Court of Appeal decision in FFCB, which I had the privilege of taking part in as a lawyer representing the Association des juristes d’expression française du Nouveau-Brunswick, significantly improved things in this respect.
The court set out a clear and binding framework that must be followed by all federal institutions. In general, the amendments that Bill C-13 makes to Part VII continue in that direction. They seek to make Part VII clearer and more binding, but I have one concern. One aspect of the amendments I believe, represents a step back, not forward.
In the case between the Fédération des francophones de la Colombie-Britannique, the FFCB, and Employment and Social Development Canada, the Federal Court of Appeal stated that Part VII imposes an obligation on federal institutions to not hinder, an obligation that they must respect at all times, and that federal institutions must act to offset or mitigate any negative effect that may arise in relation to their studies, and consultations with, communities. However, Bill C-13, at new paragraph 41(7)(b) only imposes an obligation to “consider” — and I quote — “the possibilities for mitigating,” not eliminating the negative effects of a potential decision by a federal institution.
In my opinion, that is less of an obligation than what is set out in the Federal Court of Appeal decision, and it gives federal institutions greater discretion as compared with how the law currently stands. It is very important to amend that provision to at least make it consistent with the obligation as set forth by the Federal Court of Appeal.
On that note, thank you very much.
The Chair: I thank all three of you for your comments, which clearly show the enriching contribution of academic thought and research. We’re very happy to discuss Bill C-13 with you this evening.
Senator Gagné: Welcome to the witnesses.
I’m very happy to have you here. It’s always a pleasure to hear from you.
I’ll begin with Ms. Cardinal.
Your brief contains no proposed amendments to Bill C-13, but instead contains recommendations concerning administrative measures to be applied after the bill is passed.
I’d like to address two questions. The first is related to the Treasury Board and the other is related to language provisions. Then, I’ll ask your colleagues to provide comments.
In your recommendations, you refer to the creation of a cabinet committee on official languages and the francophone community, which would be responsible for, and I quote:
. . . a consultation mechanism for ministers responsible for official languages and the francophone community, providing clear guidelines to these individuals with regard to federal-provincial agreements....
You do not recommend amending Bill C-13 to specify the obligation to adopt language provisions. Why not?
Ms. Cardinal: Thank you very much, senator, for those questions. It also gives me the opportunity to respond to my colleague.
I look at the bill from the standpoint of public policy, not just from a legal standpoint. As I’ve said, a law can’t include everything.
I don’t know whether you noticed, but there are a lot of issues surrounding official languages in the media in recent months. Each time, Parliament is asked to almost redraft the bill and add elements, when a lot of those issues can be dealt with administratively. That’s why I didn’t propose any amendments to the bill, even though all kinds of things can be proposed to improve it. Things have already been proposed and improved.
From an administrative standpoint, public servants need to be given recommendations they can work with. If everything continues to be expanded and changed, the bill won’t be realistic and will no longer be reasonable. The more we expand, the more we wait. I think the very passage of the bill is at stake.
It’s quite something to see the recommendation to transfer everything to the Treasury Board being hammered, but do you realize how unrealistic that recommendation is? Can you imagine how that would delay the implementation of the bill? You can appreciate that the Treasury Board does not deliver programs, in other words, our colleague.... I’m of the same school as our colleague David Savoie. He said it very well at the summit in August.
David Savoie’s opinion is worth a lot in my eyes. He has vast experience and is very familiar with how Treasury Board works. Regardless, our students are taught that the Treasury Board does not deliver programs. The Treasury Board cannot have authority over other departments’ programs and policies. The Treasury Board checks and monitors the administrative requirements of other departments. Transferring this type of authority to the Treasury Board would clearly delay the implementation of Bill C-13. You know the public service. You know that institutions have incredible inertia. All this will do is fuel the natural resistance of an organization that has always had difficulty embracing change.
That’s why my recommendations are administrative in nature. What’s more, the coordination mechanism proposed in the bill is very useful and very appropriate as a means of coordination and a governance mechanism. I would involve the Department of Industry in that a s well, because the bill includes a provision stating that French is a scientific language. However, that department is not included in the coordinating mechanism. That’s what I’d do, but all departments that have official languages responsibilities and are impacted by this bill would need to be included. That’s how collaboration would be achieved to implement the bill. Under the action plan, deadlines, timetables, objectives and measurable targets will be set. What lacks most in official languages is sound implementation, targets and indicators.
Treasury Board is not the only one that can do that. All departments can.
Again, I don’t recommend including specific provisions for official languages in federal-provincial agreements because this impacts the very mechanisms of federalism. I feel that it’s an administrative issue. The Prime Minister must show leadership in official languages and give very clear responsibilities to the ministers to ensure respect for official languages in federal-provincial agreements.
It’s difficult. That’s clear from the Ministers’ Council on the Canadian Francophonie. Progress is often measured in baby steps. In an ideal world, I’d like to implement very clear obligations. However, they wouldn’t be respected. What do we do, then? Send the prime ministers to prison? Of course not, that’s not possible.
I hope I’ve answered your questions.
Senator Gagné: I’d like to hear Mr. Larocque’s comments on Ms. Cardinal’s recommendations in relation to the Treasury Board and the issue of language provisions.
Mr. Larocque: Ms. Cardinal and I have talked about this. We already know we don’t agree on the topic.
Allow me to present the opposite argument. I think lessons must absolutely be learned from jurisprudence and court decisions. Communities are spending thousands of dollars going before the courts. It takes time, money and resources that would be better used elsewhere — in the communities themselves. However, those legal disputes are needed because the law has never been clear on this issue and there were not enough parameters to guide public servants in their efforts to apply the act.
The best I can do is, like the FCFA, recommend amendments in relation to coordination by the Treasury Board and state the importance of language provisions. The FCFA went as far as to provide the wording that could best govern the discretion of public servants. Those are parameters that draw directly on the lessons learned from jurisprudence and that adhere to what the courts have said. The courts must be listened to because, otherwise, the next time a case goes before the courts, they’ll tell us again that they’ve already answered these questions.
In the dialogue between the courts and Parliament, it’s now Parliament’s turn to listen. It must implement the recommendations made by the courts of law.
There absolutely have to be parameters around discretion. As for language provisions, we need to know who does what. When powers are delegated to a third party on behalf of a federal institution, for example, it must be possible to recognize who is a third party and what latitude they have. Jurisprudence gives us some answers, and they should be included in the bill. That’s what the FCFA recommends.
As for the possibility of Treasury Board coordinating the implementation of the act, I don’t at all share my colleague’s cynicism about the agency’s ability to do so. In the bill, Treasury Board is already tasked with ensuring the implementation and coordination of certain parts of the act. What I recommend is that Treasury Board be given that responsibility for the entire act, to ensure some consistency and to take advantage of the levers of power available to Treasury Board. As for the horizontal application of the act by one department that is at the same hierarchical level as another department, 50 years of experience has shown us that that simply doesn’t work.
The Chair: Thank you for your answers.
Senator Moncion: I quite liked Ms. Cardinal’s general store comment. Senator Cormier and I had a quick conversation this afternoon about the fact that a lot of requests were submitted by all the groups. There are things that are similar, others that overlap and others that are completely different. Making sense of it all is difficult, and I’m trying to find a common link that will help us advance this bill.
You said that what has been put forward was simple and that we could work with it, and that’s the angle from which I want to examine the issue further. You recommend only administrative measures that will depend on the will of governments. Why is the bill without any amendments enough to stop the tendency governments have shown for the past 50 years of being soft on official languages?
Ms. Cardinal: Thank you for this opportunity to speak again, senator. It allows me to continue a dialogue with my colleague François Larocque. He is looking at the bill from a legal standpoint, whereas I am looking at it from the standpoint of public policy administration. Those viewpoints are not incompatible, but I believe that my viewpoint is more reasonable than the legal viewpoint in this case.
It’s not cynical to say what I said. It’s not cynicism, and I’m not at all someone who tends to be cynical. What I absolutely don’t want to see happen in official languages is for things to function in silos. What the FCFA and others are proposing is in fact a silo approach. That is the worst thing in government because government already works in silos way too much on crosscutting issues.
This is about intersectionality, but we now have the possibility of a more horizontal collaborative governance model involving the various departments that are responsible for official languages: Canadian Heritage, Treasury Board, Justice, Labour and Safety. We must give ourselves the tools needed to continue that collaboration between departments.
Our language regime operates on the basis of compromise, plus language rights. Today, the concept of substantive equality is being added to improve the representation of language in Canada, not only as a compromise, but also as a fundamental feature of Canadian society. We must strive to advance the equality of English and French in Canada. With the concept of substantive equality, we have a tool to successfully advance things in a very concrete manner. That is our link, senator. That’s what must guide us in our understanding of the bill.
As I said earlier, there’s no perfect law. The last one wasn’t, but it had very good objectives. The problem was implementation. If we transfer all the responsibility to Treasury Board, we are again setting the stage for poor implementation. That’s the issue. We want to work pragmatically and practically. It’s not the members of Parliament or the legal experts who will be implementing this bill; its the public servants. They need to be able to work as a team.
We know there are places where efforts hit a roadblock in some departments. We must be able to unblock things through funding, programs and tools. That’s why I like the idea of developing a francophone-only immigration program to unblock things through administrative measures. That could further advance official languages in the public service.
The main ingredient is always political will. It’s true that jurisprudence teaches us a lot, but there’s one thing that stands out: Without political will, matters will always end up before the courts. I want to bring together the ingredients for success, namely political will. That’s why I recommend creating a cabinet committee. That way, the issue of official languages becomes the concern of cabinet, not just of one department.
The idea is that all official languages stakeholders need to be around the table to advance the file. It won’t be advanced simply because the responsibility has been passed on to someone else, on the assumption that they’ll have more power. It’s not Treasury Board’s job to deliver programs. It’s not really known what power it might have. However, by working with other entities, everyone does their part. That would be much easier for official languages.
That’s why I’m making administrative recommendations: I want to prepare for the future. You talked about the general store. I want to be sure that the bill is not treated like a general store. Putting everything in the bill strips it of its normative force. In the current political context, the passage of this bill is being jeopardized.
Senator Moncion: Could I hear from Mr. Larocque, or would Mr. Labelle Eastaugh have comments as well?
Mr. Larocque: Érik, I’ll let you answer first, and then I’ll add some comments.
Mr. Labelle Eastaugh: I just want to say that I’m ambivalent on the issue of Treasury Board’s role. I understand the reflex behind the FCFA’s proposal. The idea is to have one department that has the power to compel the departments that are ultimately responsible for implementing or not implementing, as the case may be. That would simplify things for those who are looking to highlight the problems associated with implementation. There would be mechanisms in place to more quickly correct problems, at least in theory.
At the same time, I appreciate the considerations cited by Ms. Cardinal, namely that this approach could disrupt the functioning of the public service right now. As far as the internal culture of the public service is concerned, would this approach meet with the buy-in needed for a new system of this nature to work? I’m not an expert on public administration, so I can’t say, but they’re considerations that seem plausible to me.
Mr. Larocque: I’d like to add to that. The same thing has been done for 50 years. Leadership in this area falls on Canadian Heritage. I’m not at all trying to detract from its expertise in official languages matters, and I don’t want to take away the role it could play and should continue to play in developing the government-wide strategy. That said, when it’s time to do the work on the ground, I think other things need to be tried.
For 50 years, the Achilles heel has been implementation. Treasury Board has mechanisms and levers available that another department simply doesn’t have. Experience shows that it doesn’t work. Why not try something else? I think the proposal by the FCFA makes sense.
I note that Bill C-13 already confers the implementation of part of the Official Languages Act on Treasury Board. Since it’s already been deemed important, necessary or desirable to confer the implementation of certain parts of the act on Treasury Board, the FCFA’s idea makes sense. We’re proposing that the bill go further and, in fact, expand the Treasury Board’s stewardship to the entire act, not just some parts, in the hope that lessons can be learned from past experiences. Senator Moncion, I’m very aware of what you’re saying about the general store. I find it to be a very good and powerful image.
It reflects the national appetite for this reform. We haven’t had any reform since 1988, so the opportunity to review the Official Languages Act and to address issues doesn’t come up every week. So for that reason, I think it’s important to have a broad, even crosscutting, view of an act that implements an essential characteristic of our country, official bilingualism, which is in our Constitution. The act that will implement that characteristic should, and must, be detailed, to ensure that things are done right and to prevent the decline of the francophone community, as statistics continue to demonstrate.
The trend needs to be reversed. For that to happen, certain details need to be codified. I have no training in policy and I certainly don’t have Mr. Savoie’s experience, but as a legal expert, I would think that clear direction is needed in the act, so that public servants can apply the provisions appropriately and the courts can interpret them properly. Let’s take this opportunity, even though it may seem difficult.
The Chair: Thank you very much.
Senator Moncion: I have other questions for the second or third round.
Senator Mégie: My question is for Ms. Cardinal. You talked about the many failures in terms of francophone immigration. You made the following recommendation, and I quote: “that the federal government implement a francophone immigration program separate from other immigration programs.” In your opinion, how would the creation of a separate program be better than the current program if, for example, regional quotas were added and they took into account the needs of those regions? Do you believe that there would be added value in that respect?
Ms. Cardinal: Thank you, senator, for asking me another question and not always asking about the same issue. There will be an opportunity to speak more about Treasury Board. I proposed a separate immigration program. We have immigration programs that sprinkle in francophones. Just in post-secondary education, the problems are clear when it comes to foreign students, and it’s hard to meet targets.
A plan has just been released, and it gives priority to francophones in the Express Entry program. However, the idea is not just to give francophones priority in the program, but also to have some consistency in programs. From an administrative standpoint, that consistency would be relevant to what is proposed in the bill. The government must adopt a policy with clear objectives. There are targets floating around out there: There’s the government’s target of 4%, and there’s the FCFA’s target of 20%. I think there could have been a compromise of 11% or 12%, and that would have been very good. There could be pilot projects in cities.
One of the things that’s lacking is indicators, but in terms of immigration, the indicators or success factors aren’t known. It would be important to have pilot projects in certain cities, such as Ottawa, Moncton, Saint Boniface and Sudbury. In those cities, despite the national target, ambitious targets are being set in certain regions to see how things progress.
Currently, I have a francophone immigration observatory project that I’d love to have funded by the Canadian government, with the help of a Canada-wide team. The purpose would be to monitor the integration and inclusion of immigrants, and to ensure that the right buttons are being pushed to increase and achieve the targets. In one community, there are health services, recognition of prior learning, recognition of diplomas, and so forth. How is that working in one setting, and what is contributing to the success factors? The targets can be Canada-wide, with very ambitious targets for some regions, and the various indicators would be closely monitored to clearly identify what’s working and what’s not.
To echo Érik’s comments about the francophone program, Canada has a history of discriminating against francophone immigration, particularly outside Quebec. The idea behind immigration was that francophones would go to Quebec and anglophones would go outside Quebec. Suddenly, in 2001, the Commissioner of Official Languages at the time, Dyane Adam, saw that a discriminatory aspect was at work. She asked that official languages be recognized in immigration and that more focus be given to francophone immigration. That had benefits, and there’s an entire administrative infrastructure for immigration, but that infrastructure needs data and support. It’s also important to know what works and what doesn’t.
That’s why a program needs consistency, making it possible to properly monitor immigration and to develop programs that are run “by and for” francophones. The old action plan clearly said that immigration must be managed by and for francophones, but that’s not really what happens. Now, there will be the opportunity to do that with a separate francophone program. I don’t know whether that answers your questions, but that’s the direction this policy should take, in my view.
The Chair: Mr. Labelle Eastaugh, would you like to comment on this question?
Mr. Labelle Eastaugh: I find that Linda’s comments make perfect sense. The essential element of a successful francophone immigration policy is administration, and I think there’s still a lot of work to do in that respect. The question is whether or not to call it a “separate francophone immigration program.” The problem is related in part to the issue of proportions. Each year, Canada admits a certain number of immigrants, and the proportion in which those immigrants will be categorized as francophones is determined for administrative purposes.
It can’t be a separate program in that sense; it’s an issue that must be thought out in a broader immigration policy. That doesn’t mean that mechanisms and systems can’t be put in place to better study and achieve francophone immigration objectives, given the particular challenges that come up.
Senator Mégie: I have another question for Ms. Cardinal. It’s still the same debate, but I’ll ask the question in a different way. You said that work should not be done in silos and that responsibility for implementation should not be given to a single department. We’ve heard various arguments from all of you. I think the arguments on both sides, Mr. Larocque’s and yours, are solid. How can it all be sorted out?
When we give a lot of departments.... I’ll use plain language: If we ask everyone to do something, no one does it. Ultimately, is there a risk that all the different departments that are supposed to implement the Official Languages Act will not show proper accountability?
Ms. Cardinal: Yes. There’s an important issue in terms of accountability, but I think that the difference from what I heard earlier is that I’m not ready to blame Canadian Heritage for all the problems of non-implementation of the Official Languages Act. Again, our colleague Donald Savoie said it well: It’s a mistake to say that all the problems with the act stem from shortcomings on the part of Canadian Heritage.
When people say that work needs to be done on the ground, Canadian Heritage is the one on the ground. Canadian Heritage is the one in the field, not Treasury Board. It’s employees at Canadian Heritage who work with community groups and all the stakeholders and partners, and who create the committees. I don’t see how it can seriously be said that Canadian Heritage is not in the field. I see no recent studies saying that Canadian Heritage is not doing the implementation work.
I hear anecdotes here and there, but I see no serious research that would lead me to say that A plus B clearly shows that Canadian Heritage can’t do this work. Canadian Heritage has the task of coordinating. That is the department others are accountable to, and it should be, along with Treasury Board, among others. The Department of Justice also has responsibilities related to official languages. Everyone has to be accountable on their end, and Canadian Heritage has to coordinate the work. It can be improved, but to go as far as to transfer the main responsibility, as is being requested....
In 2001, when all the measures were transferred to the Privy Council for a while, that shook things up quite a bit in the public administration. Things happened, and an action plan was developed. Moments like that are precisely that, moments. Afterwards, the public service resumed its work and has to be able to continue doing its work. Since the 2000s, an effort has been made in the public service with respect to official languages: the promotion of collaborative work, interdepartmental work and coordination. I’m ready to give that type of work a chance again, because it’s absolutely essential to the achievement of the objectives of the Official Languages Act, particularly because people tend to work in silos and will not necessarily accept the authority of the Treasury Board either.
The Chair: Thank you.
Senator Bellemare: I have a question for Mr. François Larocque. I’d like to ask you about a topic that you’re very familiar with. This strays a bit from the subjects we’ve just discussed. My question is related to the lack of a fully bilingual Constitution in this country. You also brought a case before the Superior Court of Quebec, along with former Senator Joyal, to force the federal Justice Department to act in that respect.
As you know, on March 29 of this year, the Senate adopted a motion calling on the government to consider, in the context of the review of the Official Languages Act, the addition of a requirement to submit, every 12 months, a report detailing the efforts made to comply with section 55 of the Constitution Act, 1982. What’s your view on that motion? We know your opinion on the matter, but how could the bill be used to create some willingness to have the Constitution Act, 1982, translated?
Mr. Larocque: Thank you so much for your question. Obviously, it affects us all. Professor Cardinal and I have been working together on this issue for years. We’ve published a book, we’ve organized symposia, and we’ve given presentations at conferences together, including in the summer and the spring. It’s an important issue.
Isn’t it incredible that there’s a mandatory provision in Canada’s Constitution that requires, in very clear language, that a French version of the constitutional texts be passed as soon as possible and that those documents have existed since 1990 but have never been passed? Obviously, for that to happen, federal, provincial and territorial stakeholders must meet to validate the work done by jurilinguists in the 1990s to produce the French version. I’m referring to the much-talked-about Constitutional Drafting Committee.
In passing, I’d like to mention my colleague, Professor Alain-François Bisson, who was part of that drafting committee in the 1980s and 1990s. He passed away this week. He was one of the last living people who were on that drafting committee. I’d like to highlight his enormous contribution to this issue and the important issue of section 55.
The motion Senator Dalphond introduced in the Senate is brilliant. This is a golden opportunity to add the language proposed by the senator to the act, under Part VII, for example. That would mean adding an obligation that the Minister of Justice, the Minister of Intergovernmental Affairs, or another designated person, enter into discussions with provincial and territorial counterparts to finally complete the work of repatriating the Constitution.
The Constitution is still not repatriated as long as it has not been passed in both official languages of the Constitution. It states, in sections 55 and 56, that the Constitution Act, 1982, and its texts will be equally authoritative in both official languages once they are enacted. As we speak, only the English version of the founding document of 1867 is authoritative.
Many other constitutional texts listed in the Schedule to the Constitution Act, 1982, are authoritative in English only. That’s unacceptable, and that’s what the authors of the repatriation understood. That’s what section 55 was intended to correct. After so many years of inaction, Bill C-13 is a golden opportunity to finally start moving in the right direction and resolve this issue once and for all.
Senator Bellemare: Do you think that it can reasonably be done in a period... The motion calls for a report on efforts to be submitted every 12 months. Do you think that work can be accomplished in a reasonable time frame and without necessarily reopening the constitutional debate?
Mr. Larocque: With respect to the issue here, it’s not a matter of reopening the Constitution. It’s absolutely not about renegotiating the constitutional agreement reached in 1981 and 1982. That’s not the issue. It’s an exercise of revising and proofreading the texts. Does the French version prepared by the drafting committee faithfully render the existing English versions that are authoritative? That is the exercise we are talking about, and making that clear is imperative.
With that in mind, if everyone can agree on the purpose of the exercise, I think it can be done fairly quickly. All the stakeholders just need to be at the table and do the work together, line by line, word by word, if necessary, to validate and find the best words to faithfully render the existing English text in French. That’s what needs to be done. It can be done quickly. An annual report is not unreasonable. On the contrary, I think it’s a good time frame.
Senator Bellemare: Emphasizing the fact that it will not reopen the Constitution may encourage that process.
Mr. Larocque: That might relieve some anxiety.
Senator Clement: Good evening, and thank you to the witnesses. I’d like to ask a question of Mr. Labelle Eastaugh and Mr. Larocque on francophone immigration policies. It’s well and good to talk about those policies, which help address the decline in the francophone community, but they must be done correctly. Integration efforts have to help those francophones with the settlement process, so they can become francophone Canadians. That’s not a guarantee without proper integration and settlement. We know that the settlement process takes place in communities and municipalities.
In your opinion, should the act be more specific on the issue of consulting with municipalities, and more specific on the issue of immigration targets and quotas? The question is for both of you.
Ms. Cardinal, I won’t talk about Treasury Board since others have done so. I’m curious to hear your thoughts on francophone universities, the role they play in francophone immigration and the role of the federal government.
Mr. Labelle Eastaugh: Thank you very much for your question, senator. For the question about consultation with local communities, I fully agree that such consultation is important to the success of a potential policy. However, it’s not just municipalities that are important players; community associations also do very important work in seeking out and welcoming immigrants, helping them integrate, providing supports and so forth.
The question is this: Should the act impose these types of obligations on the federal government? I would tend to say no, because I see them as steps that any government would take to implement its policy successfully. In fact, as long as clear targets and objectives are set — and I’ll come back to the targets in a moment — I think we can trust the government to implement measures or administrative systems to help obtain the information and create the structures that are needed.
Trying to put too much detail in the act is not necessarily a good thing because an act is not very flexible and is hard to amend. An obligation to consult is already included elsewhere in Part VII, and any actions taken in relation to immigration would be subject to the general obligations under Part VII.
I believe that the act already meets these needs. As I said at the start, I think the act should be more precise in terms of targets and objectives. Right now, if I’m not mistaken, the act simply says that the government must adopt a policy that contributes to the vitality of communities. That’s far too vague. I don’t know what exactly “vitality” means, and no one does. If the goal is to increase the demographic weight of the group or increase the proportion of francophone immigrants each year for administrative purposes, that needs to be clearly stated.
General targets like that can be set out in an act, because the same flexibility is not necessarily needed in terms of targets. Although flexibility is important in terms of means, there should be no hesitation to set general objectives in the act itself, particularly when dealing — as Ms. Cardinal indicated — with a history of discrimination in that policy area. It’s clear that, in general, the federal government will be somewhat hesitant to set objectives that communities will consider to be aggressive enough. If we want to encourage the government to take that action, Parliament must send a very clear message.
Mr. Larocque: I don’t have much to add to Mr. Labelle Eastaugh’s answer, except to say that, yes, a law can be precise. It’s reasonable to lay it out and, in particular, to be clear about the intention of such a policy.
The intent, as Mr. Labelle Eastaugh said, is to enhance the vitality of the community, but the target should clearly aim to resolve the decline we’ve seen the last few years and increase the demographic weight of francophones. It’s reasonable to be precise and certainly to require that the minister be precise in the policy. I refer to the recommendation by the FCFA on this point in its latest document on the issue, and I support it.
You said — and you’re absolutely right — that it’s one thing to have an aggressive and ambitious francophone immigration policy, but the fact remains that it needs to happen. Communities need to be ready to welcome people. Comprehensive intergovernmental agreements are needed at the federal, provincial, territorial and municipal levels to ensure that new francophone immigrants receive appropriate settlement support when they arrive and have access to adequate services in response to that community growth.
An intergovernmental response is therefore needed. Immigration is an area of jurisdiction shared by the levels of government, so I think that’s how it should be done, with precision and ambition.
Senator Clement: Thank you.
The Chair: Thank you.
Ms. Cardinal: Senator, you asked me to talk about universities in relation to immigration, is that right?
Senator Clement: Yes.
Ms. Cardinal: I think you’ve heard about the problem with visas for international francophone students. There’s discrimination not only in Quebec, but also across the country, particularly at the Université de l’Ontario français. In fact, across the country, French-speaking African students who submit visa applications to come study in our universities are systematically rejected, or almost, at a rate of 90%.
We were told that African students were being rejected because of algorithms in the system. If that’s the case, the algorithms are developed by humans who incorrectly programmed the system to automatically reject French-speaking African students.
That inconsistency between the immigration policy and the concerning status of the francophone community stems from the fact that African students, in particular, are rejected on the assumption that they’ll want to settle in Canada. They need to show they have the money required to come to Canada, but they must not give the impression that they might want to become Canadian citizens.
In the francophone minority community, our priority is immigration, including foreign students, although the action plan will likely be the same. We want these people to come live in our communities because we understand that immigration is key to the future of francophone communities. Francophone immigration in minority communities, even in small numbers, always makes a big difference in those communities. It keeps children in schools, it creates jobs and it generates services.
All that to say, what immigration contributes to the vitality of the francophone community is absolutely essential, but we also can’t just adopt a utilitarian approach to immigrants. Humanism is needed in our approach. There are huge inconsistencies between immigration policies and policies for ensuring the sustainability of the francophone community, and they are unfair.
The situation provokes anger because it’s as though the government is saying one thing and doing another. We want immigrants, but not you, particularly if you’re students. We don’t want you because you want to settle in Canada. We don’t want you studying in our universities, but we want immigrants are wanted. What’s wrong with that picture? Try to figure that one out. There’s something of a performative contradiction that doesn’t hold water, and it was criticized last year. Nevertheless, this summer, it started over.
At the Université de l’Ontario français, the start date for our cohorts had to be moved to next semester because the students were waiting on visa approvals. They have to jump through hoops; they have to show they don’t want to settle in Canada. We want immigrants. Our universities are incredible levers for recruiting francophone immigrants, and we’re not allowed to use those levers and become hubs for francophone immigration.
The Université de Moncton depends greatly on francophone student immigration. The pandemic had a disastrous effect on the Université de Hearst, because the institution lost its international students. The University of Ottawa saw its percentage of francophone students increase, thanks to international students. Francophone international students play an important role in what is referred to as francophone immigration, and they’re not allowed to play that role.
I hope I’ve answered your question.
Senator Clement: Yes, thank you.
Senator Mockler: I’m happy to hear your comments, which clearly show the importance of Bill C-13. Minister Petitpas Taylor made a comment that appeared in Acadie nouvelle on July 22, 2022. Loosely translated, it reads as follows:
We want to be certain that Treasury Board, which will somewhat be the central agency in Bill C-13, is responsible for analyzing the government’s decisions to determine their consequences on linguistic minorities, in federal-provincial agreements, for example.
In my experience, and I agree with you, there must certainly be political will or the work will be done in silos. To have political will, there sometimes needs to be a general store. It’s simple. That’s how to manage the needs of our communities and raise awareness about those needs. It’s important that Bill C-13 be administered in coordination with the Prime Minister’s Office, the Privy Council, Canadian Heritage and Treasury Board.
I’d like the witnesses to share their comments on that.
Ms. Cardinal: I think we all somewhat agree that we’re just getting there in a different way. Minister Petitpas Taylor is making a sales pitch to try to appease different actors who are resistant to the bill, like the FCFA, but that’s not what the bill says.
The bill clearly says that Treasury Board will be required to establish policies to give effect to certain parts of the act, to monitor and audit federal institutions for their compliance with policies, and so forth. Treasury Board is being given the responsibilities associated with the exercise of its powers and the performance of its duties and functions. The Department of Justice has its powers and duties concerning official languages, as does Canadian Heritage. These departments have always had responsibilities for official languages. Why would everything suddenly be taken away and given to a central agency? It’s not realistic; it doesn’t make sense.
However, I feel that what’s missing — and it comes back to political will — is my recommendation. How is it that there’s no official languages committee at the Prime Minister’s Office, or a committee on the francophone community? That’s the most important central agency in the government; what happens in the Prime Minister’s Office is very important.
You should read Donald Savoie’s excellent book on democracy in Canada. It’s an extraordinary book. It may be long, but it reads like a novel. Mr. Savoie is an authority on the topic, and he did a great job of dissecting the machinery of government.
I wonder why there’s no official languages committee at the Prime Minister’s Office, where the Privy Council, Treasury Board and all the important players come to the table to think strategically about the act’s implementation. Why is there no mechanism for consulting with the ministers who have responsibilities related to official languages? That needs to happen at the Prime Minister’s Office. The rest is implementation.
Putting all our eggs in one basket for implementation — I’m trying to find another way to say it. From the standpoint of public administration, understanding the machinery of government, I think that public servants need to be given the opportunity to work together on this file and tell the Prime Minister that he needs to show political will.
That’s the best message you can send to the Prime Minister about this bill: “Mr. Prime Minister, create the means to exercise your political will. Set up a committee on official languages and the francophone community truly focused on substantive equality. Set up your mechanism for consulting with ministers. Give clear instructions to your ministers responsible for federal agreements. Review your process for appointing bilingual individuals.” These are all questions that were discussed over the summer, and while all that was being discussed, the bill’s passage became a more distant possibility.
Pass it and give us the means to properly implement it.
The Chair: I don’t want to cut you off, but we are running out of time. We still have time, but I’ll ask that you be briefer in your responses, if you don’t mind.
Mr. Larocque: At the risk of repeating myself, I’ll take the opposite position. Following up on what Senator Mockler said about the possible role of the Prime Minister’s Office or the Privy Council, I would say, why not? Clearly, this has to be done during the development of a government-wide strategy, when it’s time to develop a vision.
However, I’ll draw a distinction, like the FCFA did in its proposal, with the government-wide development of the implementation strategy. Implementation — and this is what I suggest, like the FCFA — would be given solely to Treasury Board. However, in developing the policy, the Prime Minister must absolutely assume a leadership role. That’s less the case for implementation, because as we know, governments change and sometimes priorities change. Implementation should be predictable and guided by a clear act.
What the FCFA is asking is not for a general store of options and permutations. Rather, it is calling for the things set out in the government’s white paper. What all parties unanimously agreed to, or what had very broad support, are clear and realistic proposals, at least from a legal standpoint, to counterbalance the policy. It needs to be legally clear.
Senator Mockler: I have one comment. In New Brunswick, when the Official Languages Act was modernized in 2002, there was quite a change in the mechanism when the premier’s office became directly involved.
The Chair: Thank you for that comment, which will certainly resonate in more than just Ottawa.
I’d like to take this opportunity to ask you two questions. I’m surprised by Ms. Cardinal’s optimism and her view that the bill should be passed as soon as possible. We’ve heard from different witnesses that it’s time for the bill to be passed.
At the same time, a bill must contain the right words and language to give clear enough instruction to the federal machinery regarding the act’s implementation. I’d like to hear from you on certain terms that are used. For example, with respect to positive measures, new subsections 41(5) and 41(7) state that measures must be put in place that federal institutions consider appropriate. Here’s another example: With respect to the role of government-wide coordination being given to the Minister of Canadian Heritage, new subsection 2.1(2) uses the expression “promote and encourage.”
My question is for Ms. Cardinal, in particular. Clearly, the bill must be passed. Isn’t it essential to clarify and strengthen the language regarding certain aspects — and I’m thinking, in particular, of Part VII and positive measures — in order for implementation to have as much force as possible? I have a second question about consultations with communities. First, I’d like to hear from you about strengthening the language used in various parts of the act, language that some would argue should be strengthened.
Ms. Cardinal: I, too, could make all kinds of recommendations. However, I chose not to recommend that the bill be amended. It began with Bill C-32; it was amended and became Bill C-13 after the election. We’re now in a political situation that I believe puts the bill in a vulnerable position because we still don’t know whether it will be passed. The minister says it will be passed in December, but we don’t know what will happen. I haven’t heard the Conservatives or NDP say that the bill will pass without a hitch. I’ve seen a lot of political games being played around the bill.
This is what I will tell you: Make all the recommendations you want, but be careful and think strategically. The longer it takes to pass this bill, the higher the price francophones pay. When you can’t move forward, you aren’t treading water. Even when you’re treading water, you’re falling behind. This is an imperative.
At the same time, Senator Cormier, you work with words and I’m glad to see your interest in the topic.
The term “positive measures” may be a bit convoluted. The definition of “positive measures” is already better than it was. There wasn’t much before. Remember that, once the bill is passed, it won’t be implemented overnight. Tools will need to be prepared. The action plan will come out in March, but the act won’t have been implemented by March. Public servants will still be working on it. Everybody will have to review their programs to figure out how to implement the act. That means another year or two of work will be needed before the act is really implemented.
You can argue that, since we need to deal with this situation, we should make sure that everything is locked down and clear. That’s up to you, if you feel it’s essential to do so. Personally, I’m able to live with what’s in the bill now because it needs to be passed. I do, nevertheless, feel that the bill is in a vulnerable position.
To get back to Treasury Board, I haven’t seen any studies that show that it’s been so great at handling official languages over the last 50 years. On the contrary, Treasury Board has often been the poor relative in terms of official languages.
Mr. Larocque: I’ll answer your question, Senator Cormier, on the proposed language. Very humbly, I would say that the expression “positive measures that it considers appropriate” is insufficient. The intent of Parliament must be conveyed more clearly, as is the case earlier on, specifically in subsections 41(1), 41(2) and 41(3). I believe that they recognize the perilous situation facing the French language. Accordingly, positive measures can’t be the ones that are considered appropriate; they must be the ones that are needed to implement Parliament’s intent in relation to official languages and the francophone minority community.
I’d replace the word “appropriate” with “necessary,” meaning the measures that are suitable for achieving the objective. In my opinion, that would give better direction.
Mr. Labelle Eastaugh: On the same point, I’m a bit leery about that change. The old provision was vague. However, we have a Federal Court of Appeal decision that provides a reasonable interpretation of the provision such that it has a concrete and binding effect. It’s an ongoing obligation to take positive measures, and it applies in all contexts.
The new wording is synonymous with greater discretion for federal institutions. In legal jargon, the term “considers” refers to the ability to exercise discretion. Federal institutions are being given the power to determine what’s appropriate themselves, not simply to implement an obligation set by Parliament. That expression concerns me a bit.
The Chair: My other question is about consultations with communities. The infamous list and general store also stem from the fact that there’s a real concern in communities about the bill, from what we are hearing. The government must ensure consultation with communities at all stages of implementation.
I’m digressing, but I want to mention Bill C-11, which deals with broadcasting. I don’t know whether you’re aware of the importance of community consultations in that bill, but the bill addresses that aspect in great detail. I’m drawing a parallel between the two bills. How, in your view, does Bill C-13 provide enough detail and clarity on the issue of community consultations, to give communities reassurance regarding how they’ll be consulted, not only after decisions, but also during the development process? What can you tell us about this? We are hearing that the issue of consultations is a concern for communities. Mr. Larocque?
Mr. Larocque: Senator Cormier, your example of the Broadcasting Act is excellent. I think it’s the model to follow. A much more detailed list is needed in order to know what “consult communities” means. Once again, I support the FCFA’s recommendation on this matter. I think the legislation needs to be as detailed as possible to indicate what constitutes real consultation. It means meeting with people, listening to their opinion, considering it and taking action. Significant community consultation is needed, and there’s a way to include that in the act.
Senator Moncion: My question if for Mr. Larocque and Mr. Labelle Eastaugh.
The bill does not include any obligation to include language provisions in federal and provincial agreements. The government claims that it’s a constitutional issue. Could you comment on the constitutionality of that obligation of language provisions in the Official Languages Act, and could you propose other options to a legislative amendment, given the government’s current position?
Mr. Labelle Eastaugh: The issue is quite complicated and was raised in the Fédération des francophones de la Colombie-Britannique case. The Supreme Court may hear the case, so the law may change.
First, I’m not convinced that it’s a constitutional question in the sense that you’ve indicated. The federal government is free to decide whether or not to enter into an agreement with a province and free to decide whether or not to contribute to funds, to joint programs or to programs co-funded with the provinces. It’s free to impose funding conditions, as it has done for many decades.
The federal government is therefore free to say, “Listen, you’re not obliged to take our money, but if you want our money, you have to respect the following guidelines.” I’m talking about guidelines like those in the Canada Health Act, for example.
It’s true that there are constitutional limits to what the federal government can do with its spending authority; it cannot regulate issues that are under provincial jurisdiction.
However, generally speaking, at least to date, the courts have not interpreted conditions included in a funding agreement as a form of regulation. I’m not convinced, then, that there would be a constitutional impediment that would prevent the federal government from requiring this type of language provision in its agreements with the provinces.
Senator Moncion: Excellent. Thank you very much.
Mr. Larocque: I entirely agree with Mr. Labelle. As someone who works on the file in question, he’s really the best person to answer.
I don’t necessarily see a constitutional impediment either. It’s bordering on contract law. These are agreements that the federal government can enter into with its counterparts.
As such, the act can govern contractual actions by the government. Moreover, the FCFA made recommendations about the obligation to include language provisions and to define their content and minimum requirements, and that is something you include in an act. It’s entirely acceptable in an act, particularly with respect to such an important authority as money going to communities.
Senator Gagné: We heard from the Quebec Community Groups Network, or QCGN, in June. In their brief, they pointed out that the asymmetry in Part VII could stifle federal support granted to English-speaking Quebecers.
Can you tell me whether you think the bill helps reconcile the principles of equality of status and use of both official languages and of substantive equality? In your opinion, does it give priority to either of these two principles?
Ms. Cardinal: From a political standpoint, I believe the QCGN’s reaction to the bill was exaggerated. It’s clear that, for anglophones in Quebec, any asymmetry confirmed in legislation is a problem. The QCGN acknowledged that the act can be applied asymmetrically, except that, every time there’s been funding for francophone minorities, there had to be some for anglophones.
That goes a long way, even in the desire to always adopt a very symmetrical approach. Personally, I’ve always been of the opinion that anglophones in Quebec and francophones outside Quebec should not be placed on equal footing from an administrative standpoint, of course, but also from a legal standpoint. The bill is clear: French is the language that is threatened. Obviously, there are Indigenous languages, but English is not a threatened language, whereas French is a vulnerable language in the anglophone context.
However, if we look at the bill, it remains subordinate to the principle of formal equality. The principle of substantive equality applies in some cases, and that’s one of the principles for interpreting language rights that’s included in the bill. Of course, it’s the principle of formal equality first and foremost that guides the application of the act. In other words, most of the act puts anglophones and francophones on the same footing. Official language minority institutions are protected, not just francophone community institutions in Canada, but there are a certain number of elements that are related to the francophone community in Canada, including immigration.
The bill also states that French is the language of diplomatic relations; there’s a desire to promote French as a scientific language. That should in no way be a problem for the QCGN, because the bill is supporting French in areas where it has lagged behind, areas where French is clearly a threatened language. For that reason, I find the reaction to be disproportionate given the objective of the act.
Mr. Labelle Eastaugh: I’d like to jump in, because I’m finishing a study that will soon be published in the McGill Law Journal. It’s about the relationship between the Canadian Charter of Rights and Freedoms and Bill 101, which is partly related to this issue of asymmetry.
The short answer is that I share Ms. Cardinal’s opinion. I think the principle of substantive equality means that measures should be adopted based on the needs of each community. It’s fine that French is the majority language in Quebec — and it’s comparable to English in Ontario in that respect — but it nonetheless remains vulnerable. It’s more vulnerable than English even in Quebec. That’s why it makes perfect sense to adopt an asymmetrical approach even when it comes to Quebec in certain respects, to reflect the vulnerability of French.
That doesn’t mean that the guiding value isn't equality. It simply recognizes that equality, in concrete terms, in practical terms on the ground, requires asymmetry in measures adopted by the government, and that’s recognized in all fields.
Mr. Larocque: I agree with my two colleagues.
The Chair: Very good. Thank you very much.
Thank you, Ms. Cardinal, Mr. Larocque and Mr. Labelle. Thank you very much for your comments. I also thank my fellow senators for their very relevant questions. We undoubtedly have much food for thought as we continue our pre-study and, particularly, as we eagerly await for Bill C-13 to be sent to the committee so can we study it in depth. Thank you very much.
On that note, I want to wish everyone a good evening. See you next time.
(The committee adjourned.)