THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, October 3, 2022
The Standing Senate Committee on Official Languages met with videoconference this day at 4:32 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: Good afternoon, I am René Cormier, senator from New Brunswick and current Chair of the Standing Senate Committee on Official Languages.
I now invite my colleagues to introduce themselves.
Senator Gagné: Raymonde Gagné, Manitoba.
Senator Mégie: Marie-Françoise Mégie, Quebec.
Senator Bellemare: Diane Bellemare, Quebec.
Senator Moncion: Lucie Moncion, Ontario.
Senator Dagenais: Jean-Guy Dagenais, Quebec.
Senator Loffreda: Tony Loffreda, Quebec.
The Chair: Welcome and thank you, senators. I also wish to welcome the viewers across the country who may be watching.
[English]
I would like to point out that I am taking part in this meeting from within the unceded traditional territory of the Algonquin Anishinaabe Nation.
Today, we continue our study of 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. The proposed short title for this bill is An Act for the Substantive Equality of Canada’s Official Languages.
[Translation]
Our first witness today, appearing via video conference, is Mr. Daniel Boivin, President of the Fédération des associations de juristes d’expression française de common law.
Welcome to the committee. We will listen to your testimony first and then go to a period of questions and answers with the senators.
The floor is yours, Mr. Boivin.
Daniel Boivin, President, Fédération des associations de juristes d’expression française de common law: Thank you very much, members of the committee. Thank you for allowing me to appear and express the concerns of the Fédération des associations de juristes d’expression française de common law, or FAJEF, regarding the appointment of bilingual judges to provincial superior and appellate courts and for the opportunity that the updating of the Official Languages Act affords to entrench certain principles in the new act.
FAJEF is familiar with your committee’s work as I have had the honour of testifying before you several times. FAJEF is the federative body of all associations of lawyers who work directly with the Canadian public across the country. I am therefore speaking on behalf of many French-speaking lawyers, but especially on behalf of francophone citizens seeking legal services and access to justice.
We have appeared before parliamentary committees many times, often with regard to the appointment of bilingual judges, which, once again, is the topic I am here to discuss with you.
The last time FAJEF appeared before a parliamentary committee, the issue was the appointment of bilingual judges to the Supreme Court of Canada and amendments to section 16 respecting the right to be heard before the Supreme Court by a panel that understands French.
It is still a priority for the lawyer network that litigants be able to appear in the Supreme Court before a panel that understands them in the language of their choice, but my remarks today will focus more on the lower courts. However, I would not want that to be interpreted as downplaying the importance of the amendment of section 16, concerning which we have previously made submissions.
Since FAJEF’s last appearance, when we discussed the Supreme Court of Canada, our lawyer network has reminded us that we must also address this issue as it pertains to the lower courts. Problems always arise. Although this isn’t the first time FAJEF has come to address the appointment of bilingual judges to federally appointed courts, it is once again the issue I must raise.
The amendments that FAJEF proposes naturally include the changes I just mentioned to the section respecting the Supreme Court of Canada, as well as the inclusion, again in section 16, of an obligation for the federal government to ensure that the federal courts can discharge their duty with respect to the right of litigants to be heard in the official language of their choice.
FAJEF respectfully submits that the act should also set forth a duty for the government to consider the importance of equal access to justice in both official languages in the context of appointments to superior courts.
Furthermore, there should be an obligation for candidates for judicial positions on those courts to indicate their linguistic capacity and an obligation set forth in the act for the Office of the Commissioner for Federal Judicial Affairs Canada to verify the linguistic capacity of candidates who self-identify as bilingual.
Lastly, there should be an obligation for the government, through the Commissioner for Federal Judicial Affairs, to provide language training for judges appointed by the federal government to ensure they maintain their language skills.
Despite the progress and the community’s general acceptance of the need for bilingual appointments to superior and appellate courts, such appointments are, once again, in short supply. In the Manitoba Court of Appeal, for example, the three judges who can hear cases in French could well stop doing so at any time because one of the three has just announced that he will be retiring and the other two sit in a supernumerary capacity and could therefore stop hearing cases on very short notice.
In the Superior Court of Manitoba, from where the next appellate court judges may likely be drawn, most cases tried in French are presided over by only two judges; the other bilingual judges are less capable of hearing cases in French, either because they are supernumerary or because they perform administrative duties.
In the very important field of family law, the family division has no bilingual judges, as a result of which, even in a court that operates very well and needs judges who are capable of hearing cases in French as in the courts of Manitoba, we’re facing a shortage of judges and significant problems.
Another problem that we have all across the country is that some judges who were appointed as bilingual judges when they began sitting don’t have, or over time have lost, a degree of comfort sufficient to hear cases in French. The francophone population wants services in French. The era when people didn’t want to disturb the courts by speaking in French is rapidly coming to a close. The new generation wants services in French, and Canadian law faculties have qualified French-speaking lawyers who are entirely capable of providing high-quality service to francophones. Unfortunately, a shortage of judges means there are still barriers to access to justice.
Gone are the days when we could consider setting quotas of francophone judges on every superior court. The practice of appointing a bilingual judge to replace another bilingual judge will never solve the problem because there’s already a shortage of such judges. We will never have better access if we merely replace judges who are already sitting.
The appropriate number of bilingual appointments must be determined on the basis of a specific analysis of each region according to its needs, not based on a predetermined quota. If the bilingual judges in one province perform administrative duties or are less available to hear cases, the number of bilingual judges assigned to each region should be adjusted. For example, there might be a specific need in a particular field, such as family law.
The reform of the Official Languages Act is an extraordinary opportunity to establish an obligation for the federal government to analyze needs specifically and to make the correct number of appointments based on a specific need. That’s a duty that should be set forth in the act.
I would like to take a few minutes to discuss the actual bilingual capacity of certain judges. The unfortunate reality for francophone and bilingual litigants across the country is that the actual linguistic capacity of bilingual judges must always be considered before evidence is adduced. The evidence in many trials is complex and technical, and the essential role of a trial judge is to determine whether the evidence is credible. Judges require a very high level of comprehension.
There was a time when judges who had only basic bilingual capacity, conversation-level ability, for example, were appointed and occupied bilingual positions. Those judges very soon reached the limit of their ability and could even refuse to hear cases following certain complex trials. The renewal of the Official Languages Act is a golden opportunity to add two obligations to ensure that this situation does not reoccur: to require candidates to state their level of linguistic capacity and to establish in the act that the government has a duty to verify judges’ actual linguistic capacity. That could have a very significant impact.
Lastly, francophone judges should have the opportunity to maintain their linguistic capacity, even if that means taking more ongoing training than their unilingual colleagues. The French courses offered by the Office of the Commissioner for Federal Judicial Affairs are outstanding, but an obligation for the government to continue providing such training should be entrenched in the act so that judges can continue providing service to the public in French at an acceptable level.
The Chair: Thank you very much for that presentation, Mr. Boivin. We will now proceed to the period of questions and answers.
Senator Gagné: Mr. Boivin, thank you for your presentation this afternoon. The following questions occur to me: What is the role of the Office of the Commissioner for Federal Judicial Affairs in improving the bilingual capacity of judges, and how can that institution technically support the objectives you’re trying to achieve through your proposed amendments to Bill C-13?
Mr. Boivin: The office is very much interested in helping the francophone community, but we must ensure that certain obligations are entrenched in the act so that every successive government provides the office with adequate resources to verify that the committees across the country are sufficiently aware of the language obligations that must be met to educate judges once they’ve been appointed. That’s the most important obligation for actually testing linguistic capacity.
The judges may be outstanding jurists, but if one judge self-identifies as bilingual but isn’t bilingual enough to hear complex cases, that’s a very complicated situation for the parties appearing before the courts. The office is in an ideal position to test that capacity.
Senator Gagné: Is recruiting candidates for judicial positions a challenge?
Mr. Boivin: It’s definitely a challenge. FAJEF has offered to work with the office to identify the reason for those challenges. The bilingual legal community is very small. It’s lawyers are highly capable but very busy. Are they less inclined to seek judicial office because of their workloads or practices?
If those kinds of barriers are in the way, we have to identify them and change the process for taking them into account, even if it means that the process may not be exactly the same for francophone candidates in the linguistic majorities. For the sake of fairness, it’s common to have slightly different processes in order to accommodate the specific circumstances of certain groups.
Senator Gagné: Going back to the role of the Office of the Commissioner for Federal Judicial Affairs, under the proposed changes, litigants, to all intents and purposes, would clearly have a right to be heard in their language. Does the office need those obligations to be entrenched in the act so it can meet its obligations under the Official Languages Act and the bill, if it’s passed?
Mr. Boivin: That’s no longer the office’s responsibility once judges are appointed to the court administration. The office can provide resources and ensure that judicial appointees have an adequate level of French, but after the appointments are made, the administration is more in the hands of the chief judges. That has to be taken into consideration. As regards appointments, there must be enough of them for the chief judge of each court then to have the number they need.
Senator Gagné: All right. I see that the last action plan outlined a significant investment in the Access to Justice in Both Official Languages Support Fund. Can you tell us more about the Access to Justice Support Fund, and do you have any comments or suggestions on the subject for the next action plan?
Mr. Boivin: Thank you for that excellent question.
The action plan has restored the lawyer network to life. After its core funding was granted under the last action plan, many FAJEF members rose from the ashes after years of essentially existing without being able to provide services to the public.
All the FAJEF members who are supported by that fund can very accurately gauge the needs of every community. Consequently, the fund won’t help fund the education or appointment of judges — or, in any case, shouldn’t be used for that purpose — but it has helped the community assess its needs and cooperate with the Department of Justice and the Office of the Commissioner for Federal Judicial Affairs, for example, to adjust services to the public’s actual needs.
Senator Gagné: Thank you.
Senator Loffreda: Thank you for being with us this evening, Mr. Boivin.
In the brief it submitted to our committee in November 2018 in the course of our proceedings on the modernization of the Official Languages Act, the Fédération des associations de juristes d’expression française de common law provided a long list of recommendations regarding the justice sector.
At first glance, my impression is that your suggestions were well received by the government, but what do you think was the biggest omission? Is there something urgent that you would like us to include in an amendment to the bill, for example?
Mr. Boivin: The main omission was precisely the issue I’m putting before you, the fact we passed over. FAJEF — and I took responsibility for this in the submissions we made in 2018 — and the government generally speaking didn’t take into consideration issues concerning the trial and appellate courts. It’s important to ensure that we always pay special attention and ensure that we have enough bilingual judges.
I think we thought the problem had been solved, but needs became even greater during the pandemic years, and even since 2018. The hearing problems are glaring, as a result of which the evolving situation since our last submission led us to make additional submissions. What we’re presenting to you today wasn’t originally in our plans.
Senator Loffreda: Thank you.
Senator Mégie: Mr. Boivin, thank you for being with us today to discuss the issues associated with the appointment of bilingual judges.
After all the steps you’ve taken with your group, do you have any idea why the government didn’t want to include the obligation to appoint bilingual judges in the bill?
Mr. Boivin: I’m afraid it probably felt unjustifiably comfortable at the thought that appointing bilingual judges was enough, that it was the solution to the problem and that everyone had accepted it. Like the problem I described, for example, in Manitoba, which could suddenly find itself with very little linguistic capacity — and linguistic capacity can very easily collapse — these are matters that haven’t received enough attention in recent years.
Consequently, certain principles need to be entrenched. The issue of appointing bilingual judges should receive some of the attention that’s given to other sectors under the Official Languages Act, particularly Part VI, and an effort must be made to guarantee original steps are taken to ensure that linguistic capacity survives.
Earlier I mentioned that a different review process could be established for the francophonie, one that would encourage people to stand as candidates and that would be different from the process applicable to the linguistic majority.
Senator Mégie: Precisely as a result of the lack of resources you refer to, wouldn’t there be a concern that the issue of the demographic weight of the communities might be noted and that authorities might say, “This community needs a bilingual judge on its superior court,” as opposed to another region where the demographic weight might be lower?
Mr. Boivin: You’re right, and that’s precisely the kind of problem situation we want to solve by requiring authorities to consider the needs of the community rather than demographic weight and number of cases per year.
Over the years, many chief judges have said, “We don’t need bilingual judges because there aren’t enough French cases.” Perhaps there aren’t enough because litigants aren’t confident that the judicial system can hear them properly in French.
Consequently, this mechanism is the way we can ensure that the community has adequate resources… The Official Languages Act is an absolutely extraordinary mechanism that can be used to do something like that.
Senator Moncion: Thank you for your testimony, Mr. Boivin.
-I have a question about what you’re asking to entrench in the act. Wouldn’t there be another way to get what you want, as it were, without necessarily seeking changes to Bill C-13? In other words, instead of entrenching your demands in the act, could we go the regulatory route with a range of regulations that would frame the position that’s already set forth in the act respecting bilingual judges?
Mr. Boivin: All mechanisms are good. The beauty of the Official Languages Act is that it establishes general principles; it’s a quasi-constitutional statute that requires interpretation to give life and afford protections to linguistic minorities.
Regulations tend to be more specific. I’m concerned that regulations might ultimately establish regional quotas, maximum numbers of judges, funding for education and numbers of training days that judges could be allowed. Regulations tend to be much more mathematical and specific, whereas, in a quasi-constitutional act, the legislator establishes an important principle that will take on various dimensions depending on time and circumstances.
That’s why I said earlier that the Official Languages Act is an extraordinary instrument for protecting the principle that we want to put forward.
Senator Moncion: You’re asking that linguistic capacities be enshrined in the act, but that poses a problem when it comes to assessing capacity, and then you mention language maintenance. That’s why I think this is a strange place to put what you want in the act. I understand your point of view, but I think this may not be the best place, and it may not be something the government will even want to consider.
That’s why I’m trying to see whether there are alternatives that could meet the needs, especially in consultation with francophone groups. I also don’t want to wind up seeking amendments that are rejected because they’re amendments that could be made elsewhere.
I’d like to hear what you have to say on that. I understand your point of view, but embedding it in the Official Languages Act is a complicated matter.
Mr. Boivin: What I want is an obligation for the government to guarantee protection of this linguistic capacity and the way that’s done. It’s absolutely appropriate to include that obligation in regulations and to adjust it in accordance with circumstances and consequences.
The more general principle, which is that we should always pay particular attention to general linguistic capacity, is consistent with what appears in the other parts of the Official Languages Act that provide, for example, that the government must support the capacity to provide services in French to a community. So that’s how we clearly see this principle fitting in and being incorporated in the logic of the Official Languages Act.
Once this very high-level principle is set down in an act that has quasi-constitutional status, the manner in which that linguistic obligation is tested and measured may be established in agreements and regulations, in the same way as the regulations made under the Official Languages Act set forth all the more mechanical ways in which the major principles laid down in the act are implemented.
Senator Moncion: Thank you.
Senator Dagenais: Thank you, Mr. Boivin. For your information, before I entered the Senate, I sat on the Superior Court judicial nominating committee for three years. I was assigned to the committee that recommended judges for the Est-du-Québec district. When we analyzed a candidate file in committee, for example, in the judicial district of Abitibi-Témiscamingue, which borders on Ontario, we obviously considered whether the judge had bilingual skills. So we made recommendations. Just for your information, perhaps nominating committees should also take that into consideration.
Now, if we assess the situation, how many more bilingual judges than we have now would it take to guarantee that francophones outside Quebec have access to justice? Do you think budgetary considerations are the reason why the government systematically refuses to commit to correcting the situation. This hurts francophones across the country. I remember that some of the witnesses we heard this past spring said that money might be a factor delaying the application of certain provisions of Bill C-13. I’d like to hear what you have to say on that subject.
Mr. Boivin: There has always been talk about delays in the appointment of judges over the years because budgets allocated for the appointment of judges in general aren’t unlimited. We often hear of more practical objections to the appointment of more judges in certain regions on the grounds that there’s no room, there’s no money, and the quotas have been met.
We want to move away from this mechanism of quotas, money and limits by means of the new obligations we would like to see set forth in the Official Languages Act. There has to be a more accurate way to measure the needs of a certain community so we can stop thinking that there has always been a certain number of judges in that community or judicial district and so the needs of the francophone community can be met by that number of judges. This doesn’t work. Sometimes you need more judges than the number normally assigned to meet the specific needs of a community.
FAJEF has no accurate data or information on this financial mechanism. However, we must move away from that mechanism, which only takes dollar amounts into account.
Senator Dagenais: In the submissions you previously made to the present government, you discussed the need to appoint enough bilingual judges. Do you think the government or the legal community, including lawyers, are opposed to the idea of evaluating judicial candidates on their language skills?
Mr. Boivin: A host of problems and factors are involved at various levels in recruiting candidates. The number of positions is limited. There’s the attitude of certain courts and management, which see no particular need for more bilingual judges given the number of cases. So there are a host of reasons for the difficult situation in which we now find ourselves. We need to find new ways to solve the problem.
Senator Dagenais: Thank you, Mr. Boivin.
Senator Bellemare: Mr. Boivin, thank you very much for being with us. I’m going to ask you my question from a Quebec perspective. I don’t know the answer to my question, and that’s why I’m putting it to you.
Are all judges in Quebec bilingual? They speak French, but are they all bilingual? Can they speak English?
Mr. Boivin: My understanding is that not all judges in Quebec are bilingual.
Senator Bellemare: Do you think they all speak French? Can they be unilingual anglophones?
Mr. Boivin: Your question is more for an organization other than FAJEF. We’re more concerned with the francophone community outside Quebec. I have to rely on my understanding as a lawyer, and my understanding is that all the judges of the Superior Court of Quebec speak French but not necessarily English.
Senator Bellemare: You’re proposing that language skills be added to the bill, and you refer to degrees of proficiency in both official languages. By that I assume you mean degrees of proficiency within specific frames of reference. Do you have a particular frame of reference in mind, an international one perhaps?
Mr. Boivin: The public service has very specific frameworks for assessing language proficiency. The federal government can determine a degree of language proficiency in highly technical and sophisticated fields. If we applied that evaluation matrix to judicial appointments, rather than merely rely on the goodwill of judges who claim to be bilingual and who state in their candidate file that they’re capable of hearing cases in the non-majority language, that would be a good start.
The office of the commissioner has conducted that analysis since we first addressed the problem of judges’ linguistic capacity. It’s part of an exercise that isn’t currently protected by the act. We would like to ensure that the special attention that is given to a very specific linguistic capacity doesn’t disappear for fiscal or philosophical reasons.
Senator Bellemare: If I correctly understand your request, judges would be assessed somewhat like senior public service officials and the commissioner’s office would provide the necessary training to reach that level of proficiency.
Mr. Boivin: To be appointed, candidates should be required to meet a fairly high threshold because they’ll start hearing cases in French as soon as they’re appointed to those bilingual positions. Consequently, they must have an adequate level of proficiency. In one of the problem situations we hear about, when judges in certain regions aren’t proficient in legal French, which is highly technical, they don’t have that comfort level. Consequently, the training we’re seeking is continuing training so judges can maintain and keep improving their proficiency, but on a basis that should be adequate ab initio to ensure that no problems arise with the community while the judges are in training.
Senator Bellemare: Are we talking about both written and oral proficiency?
Mr. Boivin: Absolutely. Judges are required to assess the credibility of evidence. They require acute hearing and a quick understanding of the subtleties of evidence that, in many instances, is presented to them very quickly. It’s one thing to be able to read a book at a comfortable speed or write a text at an appropriate pace, but quite another to be able to understand instantaneously the subtleties of the language of a witness or a piece of documentary evidence.
Senator Bellemare: Thank you very much, Mr. Boivin.
The Chair: Before we move on to other questions, I’m going to ask you a few of my own.
At this stage in our preliminary study, some of us are trying to distinguish between what the bill should contain and what belongs in the regulations and administrative measures. The act obviously addresses the issue of justice in Part III, but we’re also discussing Part VII; as you mentioned, that’s a strategic development sector that’s identified.
Do you think that Part VII, as currently worded, is specific enough to embrace the issues you’ve discussed since we started? Are there any elements of Part VII that should be clarified, or do you think Part VII is sufficient as it stands?
Mr. Boivin: As is the case in certain areas, such as the use of French in the public service and services to the public, as well as Part VII, some major principles must be enshrined in the act, including the principle that we must ensure that justice can truly be rendered in the language of the minority. This is a major principle that should be set forth in black and white in the act. We shouldn’t have to rely solely on Part VII. This obligation currently falls to the federal courts, but the federal government’s very important duty to administer the country’s justice system relies on the appointment of judges. However, that’s not discussed in the current matrix, and that’s why this major principle should be recognized.
As I said earlier, the major principle that we should pay particular attention to language needs in the federally appointed courts, such as the provincial superior and appellate courts, should be specifically recognized. That could obviously be done by regulation.
The Chair: In the brief you submitted to the House of Commons Standing Committee on Official Languages in June of this year, you said that Bill C-13 wouldn’t result in substantive equality before the courts for francophone minority litigants because it doesn’t require the federal government to take the necessary concrete steps that would increase the very small number of bilingual judges on trial and appellate courts, and I quote, “. . . whose judges are appointed by the federal government.”
I’d like to hear what you have to say on the principle of substantive equality. That principle appears in section 3 of Bill C-13. How does that section support that your objectives?
Mr. Boivin: Once again, we could rely on broader principles, but the Official Languages Act would grant an additional power by acknowledging the need for enough appointments. This is something that could be overlooked. We wouldn’t want to be forced to file a suit contesting the appointments system under either Part VII or section 3. It should be entrenched so it automatically becomes part of the work done by the Minister of Justice in appointing judges, with all the resources available to the minister to assist him in that process.
The Chair: Thank you very much. I’ll be back later with more questions, but, for the moment, I yield the floor to Senator Moncion.
Senator Moncion: My question relates to one of the comments you made about superior court judges, comparing them to provincial court judges. Sometimes when I listen to your comments, I get the impression — and I understand that you aren’t confusing them — that there’s confusion between the needs of the provincial courts and those of the superior courts. It seems to me that, in the way it has drafted the act, the government is trying to do its duty to ensure superior court judges are bilingual. That’s what I’m having a little trouble understanding in some of the comments you’re making, when you discuss the needs of litigants who must be heard in their language, that is to say in French.
Not all cases are heard by the superior courts. So I’d like to hear what else you have to say on the subject because I’m a bit confused.
Mr. Boivin: There are several levels of courts and each court has its jurisdiction. The provinces appoint judges to the provincial courts, but those courts have limited jurisdiction. On the civil side, for example, you have small claims courts, which are provincial courts. Provincial courts hear some criminal cases and some family law cases, while the superior courts of each province deal with more serious problems, money problems, where there are no limits for the general divisions. Superior courts and provincial courts share family law responsibilities, and superior courts of course can rule in divorce cases.
The federal government appoints judges to the superior courts in each province and must therefore pay special attention to the needs of those courts. The federal government will thus appoint judges to the courts of the provinces and must consider the needs of each of those provinces. All the associations of French-language common law lawyers speak a very similar language before provincial legislative committees regarding judicial appointments to provincial courts. However, this represents only a very small part of the whole justice system in each province.
The Chair: Is that fine, Senator Moncion?
Senator Moncion: Yes, thank you.
Senator Dagenais: I have a final question, Mr. Boivin. Can you tell us to what extent francophones give in and agree to trials in English in certain communities outside Quebec? Can you also give us an idea of the delays that may result when francophones demand that their cases be heard in French? We already know there are delays in the courts. Do francophones cause delays when they say they want to plead their case in French, not English?
Mr. Boivin: Absolutely, senator. Consider a jurisdiction where only one judge can hear cases in French. If that judge presides over a long murder trial, for example, it’s often something very practical.
There are long criminal trials that take up a lot of judicial time. During that time, a judge can’t do anything but preside over the trial. Consequently, all civil and family law trials are put on hold. If the trial takes six months, that’s six months that are added to the waiting list for all French-language trials that must eventually be heard by the same judicial officer.
If there’s a lot of activity in a particular field, and if the court is busy with a lot of criminal trials in a given district, that means that many people, anglophones and francophones, have to wait, but they’ll have to wait even more because they’re all waiting in the same line for the same judge who speaks French.
People in those circumstances want their problems solved. If told they’ll have to wait to be heard in French, but that it might take a year and a half longer than on the English side, a lot of people will say they’d rather go to the linguistic majority side so they can solve their problem sooner. However, they don’t necessarily have an accurate idea of the consequences of being heard by a judicial officer who doesn’t understand their language.
The fact that people have to speak a language that isn’t their own in the extremely intimidating environment of the courts or to speak through interpreters makes matters difficult for them. Lawyers have enormous respect for interpreters, but it’s impossible for them to provide a spontaneous interpretation of the evidence and submissions with the same linguistic accuracy as if the lawyer were addressing the judge directly.
Senator Dagenais: Thank you very much.
Senator Bellemare: I have a question for you, Mr. Boivin. We’re discussing an act that will amend the Official Languages Act. I’m touching on another topic, but I wanted to get your opinion. Do you think we should add to this act an obligation to translate the Constitution Act, 1982, as was supposed to be done? An obligation to establish that in this bill?
Mr. Boivin: Senator, it’s somewhat peculiar that our Constitution Act doesn’t yet exist in French, so yes, absolutely.
Senator Bellemare: Thank you for your answer.
The Chair: I will conclude with a question on the Court Challenges Program, Mr. Boivin. Should Bill C-13 provide that funding for the Court Challenges Program is mandatory? I also have a subquestion: Should that apply to cases of national significance that are brought to clarify or assert constitutional or quasi-constitutional rights? Would there be any reason to clarify the obligations associated with regulatory implementation of that program? I’d like to hear what you have to say on that.
Mr. Boivin: The Court Challenges Program is an essential tool in the evolution of the legal matrix that will dictate our actions both in language law and with respect to other obligations provided for under the Constitution.
Consequently, funding should definitely be guaranteed for language cases under the Official Languages Act. Without that funding, we wouldn’t have been able to advance language rights. Minority communities wouldn’t have the resources to plead cases of national significance before the courts. Care should be taken in defining the parameters of the Court Challenges Program. We must ensure that those parameters aren’t defined such that, only if it’s a case that will define Canadian law forever, that takes on proportions of enormous legal value… It mustn’t be just those major cases that receive funding because there are many more minor factors that can advance justice. Consider, for example, the cases we see before the courts: The Supreme Court will soon be hearing a case on the authority of the courts in a certain province to appoint or assign bilingual judges to certain cases.
If the parameters are defined, we must ensure that we don’t define them in such a way that they limit the scope of the program. Should those parameters be described in regulations? The program is well managed. I haven’t heard of any objections in the community to the way the program is currently managed. So I don’t see any urgent need, but if definitions are required, if there’s a willingness to provide better guidance for users, to make the program clear for everyone, so it’s not done through a policy that might not be known, but rather via transparent regulations, then that would be desirable.
The Chair: Thank you, Mr. Boivin. I now want to give the floor to my colleague from New Brunswick, Senator Mockler, who also wants to ask questions. The floor is yours, Senator Mockler.
Senator Mockler: Mr. Boivin, thank you very much for your comments. I have a few questions I would like to ask for the sake of greater accuracy and clarity. Based on your experience, do you think that section 16 of the Official Languages Act guarantees that all future judges appointed to the Supreme Court of Canada will be required to be bilingual?
Mr. Boivin: No, what it guarantees is that francophone litigants may be heard by a panel of judges who speak French, but that might potentially be a smaller group, not the entire bench of that court. In practical terms, it would still be much better for the government to appoint bilingual judges so that cases in French and English can be heard by the nine Judges of the court. It would be preferable if FAJEF could get its ultimate wish, which is that the act provides for an obligation to appoint bilingual judges rather than an obligation that the panel that hears the case comprise judges who understand the litigant’s language.
Senator Mockler: You discussed this earlier in answering one of the senators: As a result of a lack of funding to resolve the matter, that is to say to appoint judges, do you think a framework should be established for appointing judges since this has been going on for 50 years. Since we’ve experienced it, and will also experience it in the future, should a framework be established by legislation for the appointment of superior court judges to provincial and territorial appellate courts?
Mr. Boivin: We’d have to ensure that a cumbersome legislative process doesn’t bring appointments to a halt. However, administrative realities such as budget issues shouldn’t be barriers to the appointment of an adequate number of judges to provide linguistic capacity. That’s why having a broader guiding principle, such as the one concerning the obligation to ensure that justice can be rendered in both official languages in every provincial jurisdiction… That obligation would afford the flexibility to adapt the system and administrative matrix, including budget issues, to the specific situation of each judicial region or district.
Senator Mockler: So you’re saying you have reservations about legislation?
Mr. Boivin: As any lawyer will tell you, “Show me the act and I’ll tell you if I agree with it.” I wouldn’t want a statutory obligation to establish additional barriers to the appointment of bilingual judges.
However, a legislative framework that promotes greater bilingualism would obviously be favourable.
The Chair: Mr. Boivin, thank you for the time you’ve spent with us and for your informative answers, which will help us conclude our preliminary study and also assist us in our consideration of Bill C-13.
Colleagues, we will suspend for a few moments so our next witnesses can take their places. Thank you once again, Mr. Boivin, and good evening.
Senators, we have some eminent jurists in this second panel of witnesses. First, by video conference, we have a former judge of the Supreme Court of Canada, the Honourable Michel Bastarache. Welcome, Mr. Bastarache. We also have Benoît Pelletier, Distinguished Professor in the Civil Law Section of the Faculty of Law at the University of Ottawa. It is a pleasure to have you with us here in the Senate.
Welcome to you both, and thank you very much for accepting our invitation to share with us your thoughts on Bill C-13.
We are ready to hear your opening remarks, which will be followed by a period of questions and answers. We will begin with Mr. Bastarache. The floor is yours.
Hon. Michel Bastarache, former Judge of the Supreme Court of Canada, as an individual: Good evening and thank you for your invitation. As you know, many consultations were held before this bill was drafted, and I believe the government has considered the concerns of those who spoke out on the matter.
We had the opportunity to react to a white paper and to the bill itself, and the House of Commons and Senate committees heard a large number of submissions. I believe you have taken note of the amendments that were proposed.
The reason I say this is that I think the government already has a very clear idea of the position Canadians have adopted on this bill. Even though it’s said that all bills can be improved, it’s impossible to satisfy everyone.
What we have, in my view, is a bill that will remarkably improve the official languages situation in Canada, and, at this stage, we should focus solely on the truly decisive issues.
We have been waiting for a new act for a very long time. We can talk till we’re blue in the face if we want perfection in every area. The fundamental issue is ultimately the one that comes up most often, and that is the issue of system management. Many people have claimed that the Department of Canadian Heritage has failed to exercise the required supervision in an effective manner.
However, I’m not convinced the problem is structural. For example, the Department of Justice has definitely not adequately represented the object or subject matter of Part VII of the act, but it clearly can’t transfer what used to be its responsibility to another entity. What’s necessary are a clear policy, clear mandates, strict supervision and quick government intervention when abuses occur.
In my view, all departments and agencies have a duty to be competent and efficient. It is impossible for an act to provide for every contingency. As you mentioned earlier, an act should not be confused with its regulations. Consequently, many matters must be clarified, but the government should be left to develop its regulations rather than expand the act’s framework unexpectedly. Nor should anyone think there shouldn’t be more room for discretionary powers; the act, regulations, directives, discretion, all form a whole, an ensemble that must be coherent and the basis of which must be clearly formulated.
I believe the Commissioner of Official Languages has conducted an excellent analysis of the issue and is right to emphasize that it is essential that the government ensure effective coordination of government services and that it designate, as leader of the reform, a central institution that has the authority and recognition that would enable it to supervise effectively the work of the entire public service and its agencies.
Governance is definitely the issue central to the regime that is put in place. The second issue of concern to me is the special attention that must be paid to the language of work and the government’s capacity to achieve the objective of substantive equality between the two official languages in services.
The last point on which I would like to say a few words concerns the obligations that follow from Part VII of the act. With respect to governance, the Commissioner of Official Languages and certain other stakeholders have proposed to eliminate the overlap of responsibilities between the Treasury Board and Canadian Heritage by assigning the Treasury Board responsibility for the general development and coordination of the principles of the programs for implementing the entire act, and not solely subsection 41(5).
The Treasury Board is already responsible for language of work and language training. I personally believe that several of the problems are related to this responsibility. I find it unacceptable to continue to fill bilingual positions with people who don’t have the required training, but who promise to take courses in order to do so. What it means is that in real life, the francophone population will end up with lower quality services and many people will decide to simply request services in English, whether because of delays, or simply the poor quality of service.
Most francophones have already come to the realization that it takes longer to get service in French and that it often amounts to nothing more than accommodation.
I could mention many examples of my own encounters. Of course it’s clearly in conflict with the policy on the substantive equality of the official languages. The example clearly illustrates that simply entrusting governance of the system to the Treasury Board would guarantee nothing. What’s needed is an assurance that governance decisions reflect a clear commitment by the government and effective monitoring.
In connection with that is the need to have consultations with the official language communities to evaluate services, together with accountability provisions.
As for the designation of bilingual positions, in addition to the need to appoint people who are already capable of serving the public, the priority should be on service to the public, meaning clients.
The Commissioner of Official Languages discussed travellers’ rights and compliance with the active offer principle. Here again, it’s not enough to say that there is an active offer of service obligation, because it must also be properly understood within the system and properly executed by federal institutions.
The commissioner also raised the issue of designated bilingual regions by pointing out that there was no coordination between the designation of public servants to bilingual positions and the fact that they were often required to work in unilingual regions. All of the witnesses commenting on the language issue and the language of work issue reported numerous implementation problems.
As for Part VII, everyone knows how difficult it was to make it work under the current act. A constitutional amendment was required. It’s essential that the new act should be able to play its full role. The Minister of Canadian Heritage needs to leverage the federal provincial agreements, in particular to promote the vitality of official language minority communities. Among other things, he needs to check how the funds paid to the provinces were in fact actually used.
Adopting policies is never enough. It’s also essential to spell out how objectives are to be met, and to specify that the government should always stand firm. Any measure that has a negative impact should be studied and reviewed unless it can be truly justified.
I will end by pointing out that implementation is closely bound up with expanding the powers of the Commissioner of Official Languages. The commissioner has suggested a number of changes to the compliance obligations and the field of application for monetary penalties. I believe that the government should study these matters closely. If the commissioner is unable to ensure that the act is enforced properly from the front lines, it will be extremely difficult to do so after the reports to Parliament and to the official languages committee have been received.
The Chair: Thank you very much, Mr. Bastarache.
Benoît Pelletier, Distinguished Professor, Civil Law Section, Faculty of Law, University of Ottawa, as an individual: Thank you for inviting me, honourable senators, and my best regards to Mr. Bastarache, for whom I have the highest regard.
I was asked to focus on the proposed adoption of the Use of French in Federally Regulated Private Businesses Act. I’d be happy to expand my thoughts and our conversation to other subjects involved in the bill, if you wish, but I should mention that my presentation is essentially on the Use of French in Federally Regulated Private Businesses Act.
I would prefer to begin by talking about something like quasi-federal private businesses. The expression “federally regulated private businesses” implies that this means exclusive federal authority but that’s not the case. The principle to the effect that federal statutes can apply to quasi-federal private businesses would have to be accepted. I know that the expressions “federally regulated private businesses” and “federal jurisdiction” are well established and found in jurisprudence. I personally hesitate to use the expression though, and would prefer “quasi-federal private businesses.”
The bill is consistent with the spirit of subsection 16(3) of the Canadian Charter of Rights and Freedoms. This subsection implies that it is possible to promote the advancement of status and use for the French and English languages of Canada by means of statutes enacted by the Canadian Parliament and provincial legislators. It gives a very generous interpretation of the equality of the two official languages. Not only is it very generous in spirit, but it is also enshrined in the Constitution.
I should mention that the Canadian Parliament’s authority with respect to a number of quasi-federal private businesses, like banks, airports, and airline, railway and telecommunications companies is well established in law. This means that in principle, the Canadian Parliament has legislative authority over quasi-federal private businesses.
The proposal before us leads me to wonder about two aspects of federal jurisdiction, namely federal authority with respect to language, and federal authority with respect to labour relations. To properly understand the reasons for this, these two aspects need to be distinguished from one another.
Federal jurisdiction with respect to language is an ancillary jurisdiction, as is provincial jurisdiction with respect to language. Mr. Bastarache can correct me if I’m wrong, but one can even say that there are two aspects to language, by which I mean a federal aspect and a provincial one. Federal jurisdiction over language appears to me to be indisputable.
Federal jurisdiction over labour relations in quasi-federal private businesses is also indisputable, and well-established in case law.
Can provincial statutes apply to quasi-federal private businesses? The answer is yes. Later on, during the round of questions, I will be able to provide details about the possibility that provincial statutes could also be applicable to some of the activities of quasi-federal private businesses. Bill 101 and the whole debate surrounding Quebec and Ottawa on this issue will be included in this discussion.
Of course, if there were a conflict, federal paramountcy would apply, and the federal statute would prevail.
The Chair: Thank you very much. That will give us somewhat more time for discussion.
We will now move on to the round of questions, beginning with Senator Loffreda, followed by Senator Moncion. Please state to whom your question is being addressed.
Senator Loffreda: I’d like to thank the witnesses for being here today. My question is for both witnesses.
In the House of Commons committee, Ms. Janice Naymark raised a very interesting point with respect to Quebec’s Charter of the French Language in Bill C-13. She suggested that this reference blurs the boundary between the spheres of federal and provincial jurisdiction. Her view was that by including references to Quebec’s Charter of the French language in the Official Languages Act, the federal government would be indirectly supporting Quebec’s Bill 96 and implicitly legitimizing it. Do you agree with Ms. Neymark? The assumption is that the federal government is concerned about Bill 96 and its compliance with our Constitution. Are we on a slippery slope?
Mr. Bastarache: I am personally opposed to a reference to a provincial act in a federal act. I believe that the federal language regime is very different from the provincial regime. The role of the Commissioner of Official Languages is very different from the role of the Office de la langue française. I would not want to see federal institutions subjected to investigations by the Office de la langue française with respect to their compliance with obligations stemming from Quebec statutes that have not been adopted by the federal Parliament. My view is that federally regulated companies should be governed by a federal regime.
As my colleague mentioned, some provincial statutes may apply, but not in a field of that kind. It would have to be in areas that are more material, such as environmental and other similar legislation. People should not be confused. The Quebec Official Language Act, with respect to languages other than French, is more a statute on non-discrimination. It is not an act pertaining to the promotion of English, whereas the federal act promotes minority languages.
When the very purpose of each of the acts is not the same or not compatible, I can’t see the point of it. If the government agrees with certain provisions of the Quebec act, it merely needs to adopt these provisions itself.
Mr. Pelletier: I must say that I completely disagree with those comments. Indeed, one of the reasons why I disagree is because I’m in favour of some reference to the application of the Charter of the French Language, including in a federal act.
But would mentioning the Charter of the French Language make the act legitimate? The answer is yes. There is indeed a change of some kind in the federal government’s philosophy with its support for this bill. On the one hand, more effort is being made to address the growing vulnerability of French in Canada; and there is in addition an effort to give due regard to the distinctiveness of Quebec.
At the same time, sensitivity is shown to French-speaking communities in other Canadian provinces and territories, because they are minority communities. I’m in favour of this change in philosophy. The bill does not say that the Charter of the French Language would apply to quasi-federal private businesses. It says that they can decide whether the Charter of the French Language applies to them.
On another note, there is a possible area for Quebec-Ottawa collaboration to which I would like to return later, if you wish, but in my opinion, Quebec has committed — I’m calling things as I see them — a strategic mistake on this issue. It should have caught the ball and run with it and made an overture to the Government of Canada, rather than publicly oppose it, and tried to negotiate an Ottawa-Quebec collaborative agreement to provide a more harmonious application of the federal act and, hypothetically, the Charter of the French Language.
Senator Loffreda: I wanted to get back to that. In passing, those are Ms. Janice Naymark’s comments to the House of Commons, and not mine. It’s in that detail. . .
Mr. Pelletier: No, I said the comments you referred to. I understood they weren’t yours.
Senator Loffreda: Exactly. I’d like you to continue on that. I’m very interested in hearing what you have to say. There’s a lot of talk about it in Quebec, as you might imagine. And in the same way as the francophone minorities outside Quebec are talking about it, the anglophone minorities in Quebec are worried about it.
The Chair: We’ll make sure that this question is asked.
Senator Moncion: My first question is for Mr. Bastarache. If Mr. Pelletier would like to add something, I’d be extremely interested in hearing that too. Mr. Bastarache, you mentioned earlier that Bill C-13 is acceptable as it stands. You nevertheless mentioned a number of things, like the powers of the Commissioner of Official Languages. You mentioned a few other minor items, such as having the work shared between Canadian Heritage and the Treasury Board. I’d like to hear what you might have to say about things that are missing from the current version of Bill C-13.
Mr. Bastarache: I don’t personally think that there’s anything really important missing. That’s why I think we should move on to the adoption of the bill and then put the finishing touches to it by means of regulatory initiatives to address any remaining details. The act itself establishes the principles, the objectives and a legal framework, but there should be no attempt to address all the problems that might arise by amending the act. That, I believe, is what happens when you ask everyone what they would like to add and/or change. Then you end up with a list of 50 suggestions and everything gets slowed down, as if significant progress had not already been made.
It’s important not to forget that the people who drafted the bill worked on it for a long time. They consulted others over a lengthy period and were aware of everything people wanted. There is already a degree of internal consensus about what can be done. There’s also that aspect to consider, you know. Personally, there are things I would like to see, but I know that they won’t be accepted and so I don’t put them forward.
I can give you an example. I believe that it’s illogical for everyone to have a right to a criminal trial in their own language, but not to have a right to appeal a decision so that it can be heard in French. The federal government has opposed this for years. I don’t know whether the current government has changed its mind. My assumption is that they have not, because they’ve never mentioned it in their white paper or in the bill itself.
Senator Moncion: Thank you very much. I’ll ask you the same question, Mr. Pelletier.
Mr. Pelletier: To begin with, I must say that the change in philosophy I mentioned earlier ought not to be ignored. After all, it’s significant that consideration has now been given to the fact that French “. . . is in a minority situation in Canada and North America due to the predominant use of English.” That’s a quote from the bill.
What I would like, however, is for the same principle, which really aims at ensuring that the fragility or vulnerability of French is given greater consideration, to be included among the act’s interpretative principles.
As for the interpretative principles, and I am referring here to the section entitled “Interpretation,” we find the following:
3.1 For the purposes of this Act:
(a) language rights are to be given a large, liberal and purposive interpretation;
(b) language rights are to be interpreted in light of their remedial character;
(c) the norm for the interpretation of language rights is substantive equality.
I think it would be worthwhile to include an interpretative principle that refers once again to what is found elsewhere in the bill with respect to the distinctive and particularly fragile nature of the French language in Canada. I find that this is missing. The political leadership driving the introduction of the bill — which I have lauded publicly — should also appear in connection with the interpretation of the act.
Senator Moncion: You’re talking about the Charter of the French Language. Am I to understand that you would like it to be referred to in the new version of Bill C-13, or would it simply become a footnote?
Mr. Pelletier: To begin with, I find the manner in which the bill mentions the Charter of the French Language to be perfectly appropriate. I wouldn’t want to suggest any changes as such. However, I found the condemnation of the bill from some quarters in Quebec unjustified and unfair.
Senator Moncion: Are you talking about anglophones?
Mr. Pelletier: No, I’m talking about the Quebec government. I found it unjustified and unfair, because some very significant improvements had been made to the bill. A hand was extended to Quebec. The bill demonstrated a concern for Quebec’s distinctiveness and francophone communities across Canada. In my view, this should have been welcomed by Quebec rather than condemned, as it was. That’s my opinion.
You know, I occasionally allow myself to make political comments, having been in politics in the past. I was Minister of the Canadian Francophonie and Minister of Canadian Intergovernmental Affairs. So don’t be surprised if I occasionally set aside my lawyer’s robe and begin to sound like the ex-politician I am.
Senator Moncion: Thank you.
The Chair: I’m going to ask everyone, dear colleagues and witnesses, to try to be brief. I know everyone wants to ask you questions, but we’re likely to run out of time.
Senator Bellemare: My first question is for Professor Pelletier. My second is for our two remarkable witnesses.
I’d like you to explain why, in the bill, quasi-federal private businesses that choose to adopt the Charter of the French Language are exempt from the provisions of Bill C-13. There is an option. If quasi-federal private businesses choose Bill C-13, are there any subsets that are not covered? I have trouble understanding the wording of this section. How will businesses go about choosing between the Charter of the French Language and the provisions of this bill?
Mr. Pelletier: Very frankly, senator, I don’t understand the dispute between Ottawa and Quebec over the application of Bill 101. I understand that Bill 101 was amended by Bill 96, which means that Bill 101 has been revamped and strengthened in certain respects. Some might say that it’s an unfortunate form of strengthening, but I wouldn’t want to comment on that here.
I don’t understand the debate, because Bill C-13 allows private businesses to opt for the application of Bill 101. Likewise, Bill C-13 provides a right to work in French, to obtain services in French and to communicate with private businesses in French, in Quebec in particular, and wherever francophones are well represented. The expression used is “regions with a strong francophone presence.” I don’t see anything in Bill C-13 that takes something away from the French language. If an attempt were made to impose French as an inclusive language on federal businesses, I don’t see how that could be done in practice. I’ve never understood this conflict between Ottawa and Quebec in this matter, and I hope it’s explained to me someday.
Senator Bellemare: I thought you were going to clarify things for me.
Mr. Pelletier: I’m simply reporting my thoughts on the subject, and they are still far from complete. We haven’t finished exploring this entire issue. Federal private businesses are allowed to opt for Bill 101 if they wish. On the surface, I find that adequate. I wouldn’t want to impose Bill 101 on all quasi-federal private businesses.
Senator Gagné: I’d like to welcome the two witnesses. Mr. Bastarache, Professor Pelletier, it’s always a pleasure to hear from you.
My first question is for Mr. Bastarache, because you’ve already addressed the matter of language provisions. How do you envisage the Part VII regulations, in view of the comments you made about the language provisions? You mentioned that it was very important to properly monitor how the money is used and to request that there be accountability on how funds are spent. What kind of framework would you suggest for the issue of the language provisions in the Part VII regulations?
Mr. Bastarache: I previously talked mainly about the federal-provincial agreements. At the time these agreements were signed — and it’s well documented — a significant portion of the funds allocated for French education were used for teaching French as a second language. There were also some funds that were quite simply not used for the education system as such. They were used to build schools, buy school buses or other things of that kind.
If the federal government is serious, and it wants to promote French in education and signs an agreement of that kind, it simply needs to make sure that the terms are complied with.
When I asked the minister about this in the past, he simply said that we didn’t want a fight with the provinces. If we don’t want one, then perhaps we need to know whether we want a contract. That’s what bothers me in all of this.
Speaking more generally about Part VII, the problem is not so much financial, but rather related to planning. When, for example, an industry assistance or small business assistance program is being prepared, of the kind we have seen in the past, a committee or a group of people prepares a project on the basis of the known facts, and the reality is anglophone. Once the plan has been prepared, all that remains is to translate it. However, the translation will not necessarily yield a project that is suited to the circumstances of the minority group.
In my view, it’s at the first stage, the program development phase, that acknowledgement is needed of the fact that there are two communities to be served, and that they are neither similar nor do they have the same needs, unless what’s involved are things that are really applicable to everyone, like the highway safety code. That’s where things have to stop.
I believe that the basic problem with Part VII is that the federal Department of Justice has interpreted it in an entirely unrealistic manner. They’ve gone to court on two occasions and argued that programs in French could be eliminated and that it didn’t matter, provided that other existing programs promoted francophones. Consequently, Part VII was not set aside. I, on the other hand, believe that Part VII serves no purpose unless it can be used to request that the realities of the minority group be taken into account and if the department fails to factor in the elimination of a favourable program.
Senator Gagné: I’m going to ask my question, and if Professor Pelletier has time to answer it, I would be very grateful.
One of the things I wanted to mention was that we should perhaps follow up on the question Senator Loffreda asked. After all, Quebec anglophones expressed concerns about the fact that the asymmetry in Part VII would be likely to cut back the support they have been receiving from the federal government.
Do you believe that the bill can reconcile the principles of equality of status, the use of both official languages, and substantive equality?
Mr. Pelletier: To be honest, I need to mention that with respect to language, what we have in Canada, constitutionally speaking and even beyond that, is asymmetry. Everyone is familiar with section 133 of the Constitution Act, 1867, which grants anglophones constitutional protections with respect to the language of courts, judicial matters, and debates in the National Assembly. It also has an impact on the language of statutes through legislative bilingualism.
In terms of the judiciary, there is already asymmetry, which means that, if I go back a bit to the discussions that were held before I entered the fray… There are all kinds of bilingual judges in Quebec — not all of them, of course, but quite a few — and there is an increasing demand for bilingual judges in Quebec. Anglophones are increasingly demanding their rights, or at least resorting to the use of English in court, and there is no decrease in this use of English at the moment.
This constitutional asymmetry needs to be taken into account; the act does not affect this constitutional asymmetry and it cannot affect the Constitution.
Senator Gagné: Thank you.
Senator Dagenais: My question is for Justice Bastarache.
Mr. Bastarache, I agree with your comments to the effect that all acts that have been adopted could be improved, but it’s impossible to please everyone. However, there is one factor that strikes me as fundamental, and that is the right for francophones to be judged in their own language. Francophones are, among other things, one of the two founding peoples of Confederation.
Can you explain why the government does not clearly state in this act the rules that would ensure a sufficient number of bilingual judges appointed to the bench, not only to the Supreme Court, but all courts to which appointees are designated from Ottawa?
Mr. Bastarache: I am completely in favour of conducting a study in every province to determine what the actual needs are. Of course such requirements are based on the number of people who want to use their official language in court.
At the moment, there is no long-term planning. Several years ago, I carried out a study for the Commissioner of Official Languages on the availability of bilingual judges in the various provinces. What I found was that Ottawa had presumed there were enough bilingual judges, because many anglophone judges had taken courses in Quebec every year to enhance their language proficiency. However, what I discovered in my study was that three quarters of the judges who had completed the program refused to hear a trial in French. They felt that their proficiency was inadequate, but they were prepared to hear a motion or other matters of lesser importance.
So the federal government’s premise was unacceptable because in fact, in the end, not enough bilingual judges had been trained in the sense that there would be judges capable of functioning in French without the assistance of interpreters or translators. That’s my definition of a bilingual judge.
Now, what I would like would be for the government itself, since it’s the government that appoints judges, to carry out a serious study of needs, to determine the number of functionally bilingual judges required, and to appoint these judges. The problem that arose — which we discussed a little earlier — was that as the service was not available, there was no demand, and because there was no demand, judges were not being appointed. So we are stuck in a vicious circle.
I live in Dieppe, Moncton’s next-door neighbour; 40% of the region’s population is francophone, and approximately 15% of trials are held in French. Why? Precisely because there has always been very little access to francophone judges. One or two anglophone judges have heard some cases, but these were appealed to the appeal court on grounds that the judge had not understood properly, that the decision should be overturned ,and that a new trial be held.
Another reason why that sort of thing happens lies in the fact that a bilingual judge is simply someone claiming to be bilingual. I believe that we need to begin following the lead of other countries around the world and introduce stringent language tests, because that’s the only way to identify bilingual judges.
As we’re talking about judges, I’d like to say that I’m totally against the idea of a bilingual Supreme Court that could hear francophone applications with a reduced quorum. I’ve visited many bilingual countries. In countries like ours, such as Switzerland, Belgium, or northern Italy, all the judges speak all the official languages; but here we are, after 150 years, and we are unable to find nine people who speak both official languages. Frankly, that’s not serious.
Senator Dagenais: I’d like to continue on this topic, Mr. Bastarache.
Should the bilingualism of judges be addressed in the act, or is it simply a matter of regulation to stipulate that the government proceed within a reasonable period of time following the adoption of Bill C-13 to ensure that this gap in services be filled rapidly?
Mr. Bastarache: It has to be in the act precisely because we have seen unkept promises for years, by which I mean that the appointment of bilingual judges was denied when they were necessary, or that those doing the appointing pretended to believe that the people who were appointed were bilingual.
What I’m saying is that if that is what’s going to happen from the political standpoint, then perhaps the government’s hands should be tied by means of legislation.
Senator Dagenais: Thank you, Mr. Bastarache.
Senator Mégie: My question is for Mr. Pelletier.
In your answer to a question from one of us, you spoke about a strong francophone presence; we’ve heard a lot about that recently.
I believe that Quebec is already a francophone province. I thought it was more about the circumstances of francophone minorities outside Quebec. Am I wrong? Have I misunderstood what you said?
Mr. Pelletier: You’re right, senator; the act would apply to Quebec and regions where there is a strong francophone presence in Canada.
However, we know full well just how sensitive these criteria are and how, to some extent, they could be considered threatening. The “where numbers warrant” criterion requires us to conduct reviews as Canada evolves and changes. I hope that the Government of Canada and Canada’s Parliament will strengthen the application of the act to federal private businesses because the “strong francophone presence” criterion is relative.
I’d simply like to say that I’ve always believed the Canadian francophonie would be expressed in all provinces and territories. My view is that francophones and francophiles will only be strong insofar as they are united, and they will be united only insofar as Quebec jumps on board to row in the same direction. In order to row in the same direction, a more sustained dialogue is needed.
In Bill C-13 — of course certain things could be improved — I see an overall balance in giving proper regard to the distinctiveness of Quebec and of the vulnerability of the French language across Canada. The presence of anglophones in Quebec, who have historical rights and even constitutional rights, is a part of this Canadian duality in which I take so much pride. I trust that the political leadership will be up to the task and that the Government of Canada and Parliament will go beyond the act. My goal is not to say that the act should go beyond what is provided in the bill. It’s important to go further than the act, meaning that it’s not only a matter of doing what’s provided in the act, but rather going beyond it and demonstrating sound and comprehensive political leadership.
The Chair: I’ll take it from here on the question of duality. I know that you’ve appeared before the Standing Committee on Official Languages and that you’ve spoken about the importance of including linguistic duality in the act. I’d like to hear what you have to say about this. I would also like to hear what Mr. Bastarache has to say about this concept being tossed around in the common parlance, but which doesn’t appear in Bill C-13. What impact would the inclusion of the linguistic duality concept have on the development of the francophone and anglophone community as a whole?
Mr. Pelletier: I’ll tell you why I believe it’s important and what the negative impacts could be.
First of all, the linguistic duality is defined as the presence in Canada of a vast francophone community concentrated in Quebec, but which is also living and vibrant in the other provinces and territories, and a large anglophone community concentrated in the provinces other than Quebec, but also living and vibrant in Quebec. That’s the definition of linguistic duality.
My view is that this linguistic duality accurately depicts the two great dimensions of Canadian federalism, meaning that in Canada there are two major host societies. I am also alluding to anglophone immigration, to which we should be receptive, generous and welcoming. In the past, the francophonie defined itself as a welcoming society; we have been hearing this less and less from the Canadian francophonie.
The existence of two major host communities is central to the linguistic duality concept. The glitch, however, is the emergence of the Indigenous reality. In francophone and francophile Canada, there are two major challenges awaiting us about which we have not been speaking enough. The first will be to integrate the Indigenous component and the Indigenous emergence into the definition of Canada and into this highly binary vision postulated by the concept of the Canadian duality.
The second challenge will be internationalization. I’m pleased to see that the bill addresses this. Canada’s international image ought to be a bilingual one, and Canada ought to make linguistic duality and bilingualism a source of pride not only here in Canada, but internationally as well.
The Chair: Mr. Bastarache, would you like to add something about linguistic duality and the possible inclusion of this concept in Bill C-13?
Mr. Bastarache: I believe it’s problematic to delineate this duality, because we have never been able to do so for the multiculturalism policy. I don’t understand multiculturalism as described by the Government of Canada. I don’t know what it is supposed to accomplish. The idea is to attract immigrants, but without really integrating them, because we want them all to be given the opportunity to retain their cultural characteristics. Whether that’s good or not, there appear to be some incompatibilities.
With respect to the Indigenous reality, I don’t really know what it means when we talk about reconciling and all that. We talk about it and there are all sorts of gestures of recognition, but in fact, nothing changes. I have a cottage right beside the largest reserve in the Maritimes, the Mi’kmaq reserve. We never see them, they never turn up at our schools, they don’t go to university and we rarely see them at the shopping centres. They are really living in a closed world. The problem starts when we hear them, with the exception of a few chiefs, say that they want to live in a self-contained world. They want to live in their own world, and they tell us that they don’t want to be assimilated to the guiding philosophy of the White community, as they describe us in New Brunswick.
I have trouble taking a position on this because I don’t think even the government knows where it’s headed with it. I believe there’s a lot of wishful thinking going on.
The Chair: Thank you for your answers.
Senator Mockler: I’d like to begin by telling the two witnesses that Canadians — wherever they may live — are lucky to have two specialists like you who are willing to take part in a debate like the one we are having today.
I might stop from time to time to say that there is regulation, or to add that this debate needs to be held in the legislative assemblies and the federal government.
I’d like to ask you both a question. I’m quoting now:
The September 2020 Speech from the Throne recognizes the minority language status of French in Canada and in North America. It commits the Government of Canada to protecting French outside Quebec, but also in Quebec, in full respect of the rights of its English-speaking minority.
It’s easy to see that the languages are not equal and that French is threatened in Quebec and Canada. As you no doubt know, the Supreme Court acknowledged this fact several times in recent years.
Would you agree that it’s the status of the French language that is precarious in Canada and Quebec? Don’t you think the act should reflect a differentiated approach for the two official languages of Canada?
Mr. Pelletier: First, with respect to the differentiated approach, I agree with you that we need to promote this approach as much as possible.
I believe in the concept of substantive equality put forward by the Supreme Court of Canada. This substantive equality requires that we factor in the socio-political context in which the languages are actually evolving. That said, I see a wonderful opportunity for the Government of Canada — I mentioned this already and would ask you to allow me to return to it — in terms of intergovernmental cooperation.
I believe that the time has come for Ottawa to concentrate more on cooperation with the provinces, including Quebec.
When I was in politics, we signed cooperation agreements with all of the provinces and territories. When I left politics, we had begun to hold discussions — though still very brief — with a view to Quebec City and Ottawa signing a collaborative agreement on the French language.
Agreements are being discussed with the other provinces and territories, but there ought to be a solid collaboration agreement for the promotion of French in Canada between the Quebec government and the Canadian government. This is where I find that the Quebec government is missing an opportunity to collaborate with Ottawa and that it has, as I said before and I’m saying again, made a strategic mistake.
The Chair: Would you like to comment, Mr. Bastarache?
Mr. Bastarache: Like Mr. Pelletier, I am definitely of the opinion that there ought to be this kind of collaboration. However, it will only come about if Quebec is willing to contribute to the development of the Canadian francophonie, and the development of Canada. It’s not just the “separatists” who don’t really want to get involved in this.
I have frequently heard representatives of Quebec political parties claiming to be federalists say that it’s essential to elect people to defend us in Ottawa, rather than people who want to participate and work with people in other provinces.
I don’t know if they were doing this on purpose, but it hints at how they see Canada. From the very outset, francophones outside Quebec have been making an effort to collaborate more closely with Quebec, and one of the barriers was in fact that we were perceived to be too close to the federal government. That, however, is refusing to recognize reality.
If we are in conflict with the federal government, where does that get us? Who will support the francophonie? Many provincial governments will do so. Francophones outside Quebec are in a fix, and are hostages, because the true conflict has always been between Quebec City and Ottawa. And in the end, we got lots of programs and assistance as a result of this conflict between Quebec City and Ottawa.
And yet, I’m not sure that it was really for us, in the great scheme of things.
The Chair: This political stance that you both take towards official languages issues is fairly impassioned. I don’t know how it will all play out in a renewed Official Languages Act, but your enlightening comments will definitely make a very useful contribution to our deliberations.
We have until 7 p.m. Senator Mockler wanted to ask a question, and then we’ll move on to the second round.
Senator Mockler: I’d like to begin by thanking Mr. Pelletier, a colleague I knew when he was active in politics. Mr. Pelletier, you always kept a very open mind about the modernization of official languages. Based on what you and Mr. Bastarache have presented, it’s clearly important to take the time to have good debates and to recognize that there are anglophone and francophone minorities in our provinces. Indigenous languages are also emerging.
In addition, several community organizations have been requesting amendments to the language provisions in Part VII of the act, and the establishment of a central agency like the Treasury Board to oversee its implementation.
As a constitutional lawyer and respected legal expert, what do you think of these proposals?
Mr. Bastarache: I didn’t quite grasp what it was you wanted me to comment on…
The Chair: It was about including language provisions in the federal-provincial agreements. The second point, which some organizations have been arguing for, is making a central agency responsible for the application of the act. Those are the two points raised by Senator Mockler.
Mr. Bastarache: I believe I’ve already answered those questions. I think that it’s essential to have language provisions, simply because the terms of contracts can sometimes be sidelined afterwards for political reasons; when that happens, the people who need these programs and this assistance are given only second-class treatment.
With respect to the central agency, I would simply say to those who blame Canadian Heritage that the Treasury Board didn’t do any better in this regard. Neither really showed a deep desire to control, monitor and enforce the application of the act in all agencies and departments.
In my view, the important thing, whether responsibility is assigned to one or the other, or to both together, is for people to be accountable and committed to delivering the goods.
I’m not impressed by those who say that because the Treasury Board is much more powerful and influential, everything will go smoothly. I don’t believe it. It depends on the political commitment of the people doing the job, and thus far, we haven’t really seen an example that would be worth following.
The Chair: Thank you. We’ll have to be very brief with the questions and answers in the second round. I appreciate your cooperation.
Senator Loffreda: Mr. Pelletier, I liked your comment about the fact that the Government of Quebec could have been more receptive to Bill C-13. As you mentioned several times, the French language needs to be promoted and protected everywhere in Canada.
I fully agree with Mr. Bastarache about the Government of Quebec perhaps not wanting to promote the French language everywhere in Canada. As is often the case in politics — and you yourself have been a politician — the desire to please voters is sometimes stronger than pursuing the common good. Not collaborating with Ottawa often gets us more votes. It’s too bad, but that’s the way it is. We may well see this at work again this evening in Quebec. But eventually, we will have to face the facts; certain levels of French need to be promoted everywhere in Canada, and the means to do so provided.
Yesterday morning, I had a discussion with some young francophone leaders in British Columbia who wanted better services in their province, and in particular access to French-language education at a level equivalent to what’s available to the anglophone majority. These young people were very pleased about the 2020 Supreme Court of Canada decision. Clause 21 of Bill C-13 requires the federal government to strengthen opportunities for equivalent quality minority language education throughout the education continuum, from early childhood to post-secondary.
How could this provision be implemented? Does the federal government really have the powers and jurisdiction needed to ensure that young francophones in minority communities can have access to education in their language? When we look at universities across Canada, we see that it’s difficult, even in Ontario, to keep francophone universities running. Would it really be possible to open francophone universities in British Columbia? How do you see this situation? I’d like to hear what you have to say.
Mr. Pelletier: We’ll have an opportunity to continue this conversation on another day. With respect to accountability, I agree that there has to be better control by the federal authorities in terms of how funds made available to minority groups are being used. It has to be admitted, however, that the idea of accountability and federal control over the use of funds is an extremely sensitive one in Quebec, particularly given that Quebec takes it for granted that there are, politically speaking, some accountability issues to be dealt with in Ottawa — and I’m not talking about myself here. It’s the leading issue in Quebec politics.
I don’t have a categorical answer to your question, but I’m in favour of enhanced control to ensure, first of all, that education can be provided to young people in the official language of their choice, and secondly, very briefly, on the matter of intergovernmental cooperation, I would say that Quebec has, on several occasions throughout Canada’s history, turned down some attractive offers. There are people in Quebec with an absolutist vision of things and that’s not enough. We mustn’t forget that sometimes, things evolve empirically. I really believe it, and that’s what’s happening with Bill C-13.
Mr. Bastarache: I was talking about language provisions in areas for which objectives and programs have been specified. I don’t like the way the Government of Canada conducts its federal-provincial relations. If you look at the most recent throne speech, I think 50% of all the projects were for areas of provincial jurisdiction. That’s in Ottawa. You’re told that you’re going to be receiving money for health and education, and for all sorts of sectors that are areas of provincial jurisdiction, on condition that… That’s where the conditions come, and then you have to revamp the provincial program and priorities.
I don’t think it’s really compatible with true federalism. Our federalism is completely biased, simply because of the way the funds available within the federal government are shared with the provinces. We are in favour of agreements, but not agreements like that, because I believe we will end up against a brick wall. At some point, the provinces are going to react somehow. I can understand why Quebec reacted by saying it would take the money, but would not be willing to report on how it is being spent.
Don’t forget that during the constitutional negotiations, one of Quebec’s first requests was for a cost-shared program, but without the usual restrictions on operating conditions.
The Chair: Thank you very much. We only have three minutes left. Senator Moncion and Senator Bellemare, if your questions are essential, please ask them and I will conclude with a question of my own which I feel is important.
Senator Bellemare: I have a question that simply needs a yes or no answer. If we want substantive equality for official languages and international promotion, do we need to have the provisions on translation from the 1982 Constitution in French in Bill C-13?
Mr. Pelletier: That’s quite a question. The answer is yes, subject of course to the fact that the translation of constitutional statutes requires a formal constitutional amendment. However, I completely agree with you that we should take advantage of the opportunity to renew the federal government’s commitment with respect to the translation of constitutional statutes.
Mr. Bastarache: I agree.
The Chair: Thank you very much. If you had to reassure the anglophone community in Quebec about Bill C-13, given the obvious concerns, what arguments or ideas would you suggest to reassure Quebec’s anglophone community, which believes that this bill, whose intent is to solve the problem of the decline in French, could penalize them? Mr. Bastarache, what might you say to us about this issue?
Mr. Bastarache: I don’t really know what it is in the bill that worries them. I don’t think that promoting French takes anything away from anglophones. It’s like someone who is learning a second language; does it really mean that they are losing their first language? I don’t think so. I believe it’s cumulative. One can help a community in trouble without harming another that is not.
I don’t think the anglophone issue in Quebec has anything to do with the federal government, but rather the Quebec government. There has to be some form of modus vivendi.
Mr. Pelletier: I don’t think, once the act has been adopted and has received assent, that it will be applied in a way that is inequitable to anglophones in Quebec, because of their political clout, their linguistic influence, their demographic weight and Canada’s history.
However, the major challenge we are facing is the redefinition of Canada in 2022. When this redefinition is underway, it will be important to remember that the cohabitation of both official languages represents a major asset to the country and is something to consider not only in our discussions, but also in the government’s official statements. Unfortunately, there doesn’t appear to be much talk about it.
The Chair: On that edifying note, I’d like to thank you for your testimony and the answers to our questions. Thank you very much, Professor Pelletier and Mr. Bastarache. We’d like to thank you enormously for what you’ve contributed this evening, and for what you have been giving our country for so many years, through your commitment, your ideas and your leadership.
That concludes our meeting. Good evening and I look forward to seeing you soon.
(The committee adjourned.)