THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, June 12, 2023
The Standing Senate Committee on Official Languages met with videoconference this day at 4:01 p.m. [ET] to study 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 Lucie Moncion (Acting Chair) in the chair.
[Translation]
The Acting Chair: I am Lucie Moncion, senator from Ontario and the Acting Chair of the Standing Senate Committee on Official Languages.
[English]
Before we begin, I wish to invite committee members participating in today’s meeting to introduce themselves.
[Translation]
Senator Mockler: Percy Mockler, from New Brunswick.
Senator Gignac: Clément Gignac, from Quebec.
Senator Cormier: René Cormier, from New Brunswick.
Senator Loffreda: Tony Loffreda, from Quebec.
Senator Clement: Bernadette Clement, from Ontario.
Senator Seidman: Judith Seidman, from Montreal, Quebec.
Senator Audette: [Innu-aimun spoken], Senator Michèle Audette, from Nitassinan, Quebec.
Senator Poirier: Rose-May Poirier, from New Brunswick.
[English]
The Acting Chair: I also wish to welcome viewers across the country who may be watching. I would like to point out that I am is taking part in this meeting from within the traditional territory of the Algonquin Anishinaabe Nation.
[Translation]
Today, we continue our study 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.
Today, we welcome a panel of distinguished legal scholars, lawyers, and experts to share their perspectives and to answer our questions on the technicalities of the bill: Michel Doucet, Professor Emeritus, Faculty of Law, Université de Moncton; Érik Labelle Eastaugh, Associate Professor and Director, International Observatory on Language Rights, Université de Moncton — I believe he has just been promoted to the position of dean, so congratulations — and Janice Naymark, Lawyer.
[English]
Welcome. We are ready to hear your opening remarks, starting with Mr. Doucet.
[Translation]
Michel Doucet, Professor emeritus, Faculty of Law, Université de Moncton, as an individual: Good afternoon, Madam Chair and honourable senators.
First, I want to thank you for inviting me today to discuss the modernization of Canada’s Official Languages Act, although I’m not sure I can contribute anything new at this stage of the process, except to encourage you to pass, as soon as possible, this bill that Canada’s francophone community has anticipated for many years.
For those who do not know me, I am an Acadian from New Brunswick. A lawyer by training, I spent a very large part of my professional life defending language rights across Canada. Being a native of a municipality in northern New Brunswick, I became aware early on that, all too often, my mother tongue was not respected in either the public or private sphere. I soon realized that, although there had been two official languages since 1969, one of them was more official than the other. I’ll let you guess which one that was.
I was 14 years old in 1969, when Canada and my province finally decided to pass the first Official Languages Act. For the first time since 1867, a statute was passed making English and French the official languages of my country and province. Despite that recognition, substantive equality between the two languages was far from established, and the road to that destination is still a very long one today.
Another step was taken in 1982, when sections 16 to 20 and 23 were enshrined in the Canadian Charter of Rights and Freedoms. Those sections entrenched in our Constitution the equality of status of the official languages and our right to be served in our language by federal institutions and those of the Government of New Brunswick.
In 1988, as president of the Société de l’Acadie du Nouveau‑Brunswick, I personally witnessed the first amendment of Canada’s Official Languages Act. I also had a front row seat as subsection 16(2), the sole survivor of the Meech Lake and Charlottetown accords, which acknowledged the equality of New Brunswick’s official languages, was added to the Canadian Charter of Rights and Freedoms. That recognition conferred a kind of special status on New Brunswick within the Canadian whole, even though, in reality, successive provincial governments have all too often tended to forget that fact.
Today I have come before you to discuss the most recent bill to modernize the federal Official Languages Act.
Will all these acts and constitutional guarantees, including this bill, leave the situation of francophone communities outside Quebec any less tenuous? Unfortunately, the answer is no. However, they are essential tools in developing and enhancing the vitality of our francophone communities. But make no mistake: Apart from Indigenous languages, French is the only official language in a vulnerable position in Canada. It is essential that this fact be acknowledged, and that is what this bill does.
English is not threatened in any province or territory, including Quebec. The anglophone community in Quebec very likely faces its own challenges, and I will leave it to that community to explain what they are. However, we simply cannot compare its situation to that of the francophone communities in the other provinces, including New Brunswick, which is the so‑called only officially bilingual province in Canada.
In the course of my career, I have witnessed all the battles that francophone communities have waged to have their rights respected. I have seen the challenges they have led in the courts, not just against provincial governments, but all to often against the federal government. Take, for example, one of the battles that I led against the RCMP in New Brunswick for the right of francophone citizens in the only officially bilingual province in Canada to obtain services from that federal institution in their language across the province. It took us 10 years to finally win a unanimous Supreme Court decision in our favour, 10 years to gain recognition for what should have been obvious to everyone. Was English Canada outraged by the situation? No. It probably knows nothing about it. I could cite many other such examples, but what is the point? Fortunately, under the new bill, which acknowledges the specific character of New Brunswick, I hope that a situation such as the one involving the RCMP will not occur again in New Brunswick.
So here we are in 2023. Will the bill before you solve all our problems? The answer, once again, is obviously no. Does it constitute progress? Yes, provided the political will is there to implement it. Could it have been a better bill? Probably, yes. Should we delay its passage because it doesn’t contain all the amendments we would have liked made to it? No, because, as Montesquieu said, “Perfect is the enemy of the good.” In striving for perfection, we stray from our initial goal and may thus destroy something good by seeking the best.
I repeat: what is important now is that this bill be passed. Adopting the bill does not mean that the review process is over. We can always try to improve the act. Yes, there will be a review in 10 years. However, there is nothing preventing us from beginning that process right now or from proposing amendments that, possibly and from time to time, may be adopted before that 10-year limit.
I will stop my presentation here because I would prefer to answer your questions. Thank you.
The Acting Chair: Thank you very much, Mr. Doucet.
I now turn the floor over to Ms. Naymark, then I will come back to Mr. Labelle Eastaugh, since we’ve had a connection problem.
[English]
Janice Naymark, Lawyer, as an individual: Good afternoon, Madam Chair and committee members. Thank you for the invitation to appear today. As was obvious from my introduction, I am not a constitutional law or language rights scholar. I appear before you as an individual and not as a representative of any organization.
I am a corporate commercial lawyer in Montreal, who was named to the Expert Panel on Language in 2021. My comments today will be limited to explaining exactly why it is that the Quebec English-speaking minority is so disappointed with Bill C-13.
While we certainly recognize that the French language is need of protection in Canada, so too is the English-speaking community in Quebec in need of protection, not because English itself is threatened, but because the survival and vitality of our community are far from certain.
My comments today will focus on three areas: The nature of the Official Languages Act, the use of French in the federally regulated private businesses act and references to the Charter of the French language in the Official Languages Act.
The quasi-constitutional Official Languages Act has special status over other legislation and is used to interpret other federal laws. The Official Languages Act, like the constitutional provisions it brings to life, has always enshrined equal treatment of minority language speakers in Canada. Bill C-13 affects a dangerous paradigm shift, moving the Official Languages Act from a well-balanced act that recognizes two official languages and two minority communities and affording them similar protections to an act that promotes unequal linguistic rights for its citizens based upon their language and location. Bill C-13 creates different types of rights in Canada depending upon which official minority language you speak, and the most recent amendments to the preamble of Bill C-13 expressly authorized this differentiated treatment. We keep being told that nothing in this act diminishes the rights of anglophone communities in Quebec. If that is truly the case, why not include language to this effect in the act itself?
In regard the use of the French in the federally regulated private businesses act, the provisions of this act insofar as they apply to French language minority communities outside of Quebec will promote the use of French in those regions and be positive for the rights of such communities and their members. In Quebec, they will instead be positive for the rights of the majority language community and detrimental to the rights of the minority language community in Quebec and its members. Unfortunately, this act will result in the elimination of jobs for anglophones and reduce the services available to them in English in Quebec.
English speakers are already underrepresented in the federal civil service in Quebec and have a higher rate of unemployment in general in the province. The reality is simply that when you require that things be done in French but permit them to be done in English, businesses will stop hiring anglophones and operate solely in French to keep their costs down.
With regard to the Charter of the French language, the adoption of Bill 96 in Quebec struck a significant blow to the English-speaking community, essentially creating two classes of citizens: French speakers and everyone else. Bill C-13 could not come at a more sensitive or difficult moment. We look to the federal government to protect our rights and assure us equal treatment as a minority language community in Canada. We are not conflating Bill 96 with Bill C-13, as some have suggested. As drafted, Bill C-13 provides credibility and support to, as well as indirect approval of, Bill 96. You need to be aware that Bill 96 contains many disturbing and even blatantly unconstitutional provisions, a number of which are already being contested before the courts in Quebec. Last week alone, 23 municipalities announced their intention to challenge various provisions.
Permit me to give you a few examples of what I am talking about. Bill 96 provides that all documents filed in legal proceedings by corporations must be in French regardless of the preferred language of the litigants.
Companies with more than five employees in Quebec must now publicly disclose the level of French competency of their employees on their registre des entreprises du Québec, and for what purpose other than to encourage public not to do business with these companies? The Office québécois de la langue française is given unheard-of search and seizure powers to verify whether a company is functioning in French. They have the right to seize computers and cell phones based upon an anonymous complaint. There is not even a warrant required.
Before accessing government services in English, an individual must now attest to the fact that they are entitled to receive these services in English. We actually have to check a box on the government websites before turning to the English page.
As you are all aware, Bill 96 purports to operate notwithstanding constitutionally protected fundamental rights and freedoms. The pre-emptive use of the “notwithstanding clause” alone to override these fundamental freedoms should be enough to give pause to anyone considering including references in Bill C-13 to the Charter of the French language. This truly matters, because supporting Bill 96 in this way tells all provinces that they can run roughshod over the Canadian Charter of Rights and Freedoms and disregard the rights of minority communities whenever it is convenient for them to do so. This is surely not the Canada you want to promote.
Including references to the Charter of the French language in the Official Languages Act has the effect of blurring federal and provincial spheres of competency. Why should the federal government, in a federal statute, recognize the goals of a provincial law? And why in particular one that is so controversial and dismissive of rights protected by the Constitution?
In conclusion, I have three recommendations. The first is that an additional paragraph should be added to the purpose clause in the Official Languages Act to provide that nothing in this act is intended to diminish the rights of the English-speaking minority community in Quebec. This will clarify the intention of the legislators and the interpretation of the provisions of the act. Second, it should be assured that the obligations created by the federally regulated private businesses act are balanced so that English-speaking employees and customers in Quebec won’t suffer. Finally, I strongly urge you to eliminate all references in Bill C-13 to the Quebec Charter of the French language. Thank you for your attention.
The Acting Chair: Thank you, Ms. Naymark.
[Translation]
Thank you for your opening remarks.
Mr. Labelle Eastaugh is having connection problems. He will be joining us as soon as he can, and I will allow him his five minutes at that time.
I would ask the committee members present in the room to refrain from leaning in too close to your microphones or removing your earpiece when you do. That will prevent any acoustic feedback that may injure committee staff here in the room.
[English]
Colleagues, being aware of the time we have available to us, I suggest that for the first round, each senator be allowed five minutes, including questions and answers. Considering that we do not have as much time today, I will be stricter on time allocation this time.
[Translation]
Senator Poirier: Thanks to both witnesses for being with us this evening.
My question is for Mr. Doucet. Would Bill C-13 give effect to all of the findings of the Supreme Court of Canada in its judgment in Conseil scolaire francophone de la Colombie‑Britannique?
Mr. Doucet: I don’t think it’s easy to answer the question whether the bill gives full effect to the Supreme Court’s judgment in the British Columbia case.
I think the bill, as it stands, provides tools we can use to enumerate rights holders more accurately. It’s an addition, a gain that we’ve secured that we didn’t previously have.
So should the Supreme Court’s judgment in the British Columbia case be given full effect? Some aspects of that decision trouble me. I might not want it to be given full effect.
The bill would definitely give greater assistance to francophone communities in enumerating rights holders who could then have access to French-language schools.
In that respect, this is definitely a very positive result. I don’t think any act gives effect to all the judgments rendered on language rights issues by the courts today. If that were the case, we might not be here today. The bill is definitely a step in the right direction.
Senator Poirier: Thank you.
Senator Cormier: My question is for both witnesses and it concerns the inclusion of the Charter of the French Language.
Thank you very much for your testimony, Ms. Naymark. You were very clear.
Once again, I’m going to cite certain points, and I’d like to hear the comments of both witnesses on the subject.
The inclusion of the Charter of the French Language in Bill C-13 doesn’t suppress anglophones’ rights. It’s a statement of fact, and, to use a legal expression, it isn’t an incorporation by reference. It doesn’t subordinate the Charter and federal institutions — and the Official Languages Act even less so — to the Charter of the French Language.
Bill C-13 doesn’t affect the constitutional rights of anglophones; for example, section 133 of the Constitution Act, 1867 isn’t affected. That section provides constitutional guarantees of the use of English and French in the debates of Parliament and the Quebec National Assembly.
The notwithstanding clause, which is section 33 of the Canadian Charter of Rights and Freedoms, thus authorizes Parliament or the legislature of a province to derogate from certain provisions of the Charter set forth in certain sections, but it is provided that the section does not apply to language rights; that is to say, sections 16 to 23 of the Canadian Charter of Rights and Freedoms.
I would like to hear what you have to say on that subject because our concerns are mainly about language rights. However, based on the information I have, it seems that doesn’t affect language rights.
I’d like to hear you both on that matter.
Mr. Doucet: I’ll let Ms. Naymark answer first, and then I’ll respond.
Ms. Naymark: First of all, it’s true that there’s no incorporation by reference. However, are you aware of any federal statutes that refer to a provincial act?
First, I find that bizarre; and, second, I consider it disappointing for anglophones’ rights given the major controversy surrounding Bill 96.
This act also affects other rights set forth in the Canadian Charter of Rights and Freedoms, particularly sections 2 and 15, which concern freedom of expression and equality. So this isn’t just about section 133; other rights set forth in the Canadian Charter of Rights and Freedoms are also affected.
We view this as a recognition of Bill 96, even though it isn’t an incorporation of that act in the federal act.
This guarantees support for and recognition of the validity of that act. The federal government shouldn’t be taking part in that debate but rather should protect our rights as a minority community.
Mr. Doucet: Senator, you probably answered the question in your preamble when you said it wasn’t an incorporation by reference. It’s true that sections 16 to 20 of the Charter, which concern federal institutions and language obligations, will continue to apply in Quebec; the notwithstanding clause doesn’t apply to those provisions. Section 133 will still stand as well, so I won’t comment on the validity of Bill 96. That debate must be conducted in Quebec, and it will be conducted in the courts, as Ms. Naymark said earlier.
At the federal level, and as regards the Official Languages Act, I don’t see how that reference affects constitutional rights or section 133.
Earlier Ms. Naymark mentioned that it was also important to have a certain degree of symmetry with respect to language rights. Speaking of section 133, I’d like to recall that that section itself created a linguistic asymmetry in Canada at the country’s founding, because it acknowledged the rights of anglophones in Quebec, whereas francophones in the other provinces didn’t have the same rights. In New Brunswick, people didn’t have access to section 133; they didn’t have that until 1982, when the Charter was adopted.
We can talk about Manitoba, with section 23 of the Manitoba Act of 1870, but we know what happened in that case: The government promptly abolished those rights that were equivalent to those provided under section 133, and we had to wait more than 100 years for Franco-Manitobans to get them back.
We can talk about section 110 of the North-West Territories Act, which was recognized in the Mercure decision and which acknowledged similar rights, which Alberta and Saskatchewan immediately abolished after the court rendered its judgment.
Consequently, there has already been an asymmetry with respect to rights; in this instance, that asymmetry is designed to promote a situation of vulnerability. I believe it’s entirely legitimate in the case of the Official Languages Act.
The Acting Chair: Your speaking time is up, Senator Cormier. I’ll put you down for the second round.
Mr. Labelle Eastaugh, we are going to allow you five minutes for your opening remarks. Then we will follow with our period of questions. Unfortunately, I believe you are still having connection problems.
So we will continue the period of questions with Senator Loffreda and then return to Mr. Labelle Eastaugh if his connection improves.
[English]
Senator Loffreda: Thank you to the panellists for being here.
I, along with the majority of Montrealers, believe in protecting the French language, but, Ms. Naymark, you expressed the English community concerns very well in your preamble. Would you agree that a solution to avoid any confusion and to seek legal clarity would be to remove the reference to the provincial law completely? Perhaps, as an alternative, we could replace it with a reference to the fact that the National Assembly of Quebec has recognized French as the official language of the province. Would that not reduce any risk of misinterpretation?
I do have a second question. I will give you some time to prepare that answer.
What impacts, if any, would removing the references to the Quebec Charter of the French language have on the overall intent of Bill C-13 in protecting and promoting the French language in Quebec? How does the inclusion of the charter in the federal law actually help francophones in Quebec?
I’m of the view that removing it will not affect French language rights; rather, keeping it could be harmful to the English-speaking community in Quebec, due to the concerns you have already expressed.
Ms. Naymark: Thank you, Senator Loffreda.
I was taking notes. I am not sure if I have your questions exactly correct. You asked whether removing the reference to the charter and replacing it with a recognition that the National Assembly of Quebec has declared French to be the official language of Quebec — if that would make a difference?
Senator Loffreda: Yes —
Ms. Naymark: That was your first question.
Senator Loffreda: My question — to reword it — is this: As an alternative, we could replace it with a reference to the fact that the National Assembly of Quebec has recognized French as the official language of the province rather than make reference — because there are three explicit references to Bill 96. That is concerning, because we all know — and you did explain well what Bill 96 entails for the English-speaking minority — that is a debate to be held in the National Assembly — but why refer to Bill 96? Let’s refer to the National Assembly that has declared French as the official language of Quebec.
Ms. Naymark: With regard to the references to the charter, they are all troubling, and the most troubling is the one in the preamble — the purpose clause — because that is the clause that will be used to interpret the remaining provisions of the act. If you replace it with a reference to the National Assembly recognizing French as the official language in Quebec, I think that would be an improvement. It would still be fair to ask for an inclusion of a clause to the effect that “nothing in the Official Languages Act is intended to diminish the rights of the English‑speaking community of Quebec,” because the problem we have right now is that this concept that improving French means diminishing the rights of the anglophone community, and it really doesn’t have to.
I am 100% behind everything Mr. Doucet has been saying about the fight for French minority rights outside of Quebec.
[Translation]
I congratulate them for fighting for many years to have their rights recognized. We’re demanding exactly the same thing; we don’t want to lose our rights.
[English]
By including the references to the charter, we are implicitly approving the removal of rights from the English-language community in Quebec, because that is what Bill 96 does.
Senator Loffreda: With respect to my other question, how does the inclusion of the charter in the federal law actually help francophones in Quebec? Do you feel it does?
Ms. Naymark: I feel it hurts anglophones more than it helps francophones in Quebec.
Senator Loffreda: Thank you.
Ms. Naymark: I think the rights are clear as they are spelled out in the bill, and by adding references to the charter, you are adding an extra tool to allow a reduction of the English-language community’s rights.
Senator Loffreda: Thank you.
[Translation]
The Acting Chair: Mr. Labelle Eastaugh, we can see that you’re back with us. We hope that you can deliver your presentation and that your connection remains stable. The floor is yours.
Érik Labelle Eastaugh, Associate Professor and Director, International Observatory on Language Rights, Université de Moncton professeur, as an individual: Good afternoon and thank you very much. I’m very sorry for all these technical issues. I’ll be brief in case I’m still having a connection problem.
First of all, I would just like to say that I support Professor Doucet’s comments — or at least the part that I heard — which echo comments that I myself have made before this committee in the past.
As for my remarks, I will take advantage of this invitation to discuss a very concrete and specific point. I recently noted, while preparing for a case, that Bill C-13 proposes a series of amendments to Part VII of the Official Languages Act. More specifically, it would clarify various aspects of the general obligation that is already set forth in the present act.
As you know, one of the main reasons for these additions is the Federal Court of Appeal’s judgment in Fédération des francophones de la Colombie-Britannique, or FFCB, which essentially gutted section 41 and drained it of all meaning.
Generally speaking, the new approach taken toward amendments to Part VII is excellent and entirely sensible. However, the amendments were drafted before the Federal Court of Appeal rendered its judgment in the FFCB affair.
I recently realized that, on one point in particular — which is nevertheless quite an important one — the wording of Bill C-13, as cited in the Federal Court of Appeal’s judgment in FFCB, represents a step backward from the current state of the law.
I prepared a brief working paper and submitted it to the clerk of the committee. You may not have received it yet, but I will be referring to it as I explain the nature of the problem in detail. The essence of that problem is that the Federal Court of Appeal’s decision indicates that federal institutions, as a result of all their decisions, have a systematic obligation to avoid or, if that’s impossible, mitigate the negative consequences that their decisions or initiatives may have on the vitality and development of official language minority communities.
A version of that obligation may be found in new subsection 41(7) introduced under the Bill C-13. However, this version was drafted before the Federal Court of Appeal handed down its judgment, and it does not go as far as the court does in that decision. Consequently, if subsection 41(7) were adopted in its present form, it would constitute a step backward from the current state of the law.
In my brief, I propose amendments to subsection 41(7) that reflect the language used in the Federal Court of Appeal decision and that would help eliminate the problem and harmonize the new obligation provided under subsection 41(7), in accordance with the current state of the law, in order to avoid any regressive impact.
As you will understand, this is quite an important issue, since although the obligation to take positive measures that contribute proactively to the vitality and development of the communities is important, we must avoid making decisions that undermine that vitality and development. In some cases, that may be even more important than taking positive measures.
The obligation not to harm is the logical counterpart of the obligation to take positive measures. I think it would be important to strengthen the wording of that obligation in Bill C-13 to ensure there is no backsliding on this point. I will conclude my remarks on that point. Thank you.
The Acting Chair: Thank you very much, Mr. Labelle Eastaugh. Senator Seidman, you are the next person to ask a question.
[English]
Senator Seidman: I would like to say thank you to our witnesses for being with us today. My question is for Professors Doucet and Labelle Eastaugh. And Professor Doucet, perhaps you might begin. It’s very simple. Are you concerned that the New Brunswick Official Languages Act is not mentioned in Bill C-13?
Mr. Doucet: No, I’m not concerned that it is not mentioned. I don’t see why it should be mentioned. What is important, though, is that the act does recognize the specificity when implementing the act. It is important to recognize the specificity of New Brunswick. The example I can give you is the same one I gave you a while ago where the RCMP in New Brunswick refused to offer services to francophone New Brunswickers all over the province at that time because it was applying the federal act, which states that you don’t have to offer services everywhere in New Brunswick. We had to go to the Supreme Court to get that overturned.
Now, in the act, when it talks about the specificity of New Brunswick, that does include New Brunswick and the linguistic obligation that we find in the Charter — for example, in section 16.1, which is the equality of both linguistic communities in New Brunswick. The example I gave would not happen anymore because we would be able to rely on that to make sure the federal institutions do respect the specificity of New Brunswick.
Senator Seidman: Mr. Labelle Eastaugh, can you answer the same question?
Mr. Labelle Eastaugh: Yes, I share Professor Doucet’s view. I’m not concerned for the same reasons he outlined and also because insofar as this is related to the mention of the Charter of the French language in the act, my understanding — I gather there was a bit of an exchange of views on this earlier when I was in and out, so I don’t know exactly what was said — of the scheme of Bill C-13 is that the relevance of that mention is that Bill C-13 applies to questions that potentially also arise under the Charter of the French language. And it provides a mechanism whereby federal companies can elect to be governed by the Charter of the French Language rather than the Official Languages Act. So there is a need for the act to be mentioned there. There is no overlap, as I understand it, between the federal Official Languages Act and the New Brunswick Official Languages Act that would call for that kind of specific reference.
Senator Seidman: Just further along that line, Professor Labelle Eastaugh — yes, you probably didn’t hear the discussion, but what you referred to are the federally regulated corporations, and that’s part two of this bill. But the first part of the bill has to do with the Official Languages Act, of course, where the charter as well is mentioned. So how to you square that with the point you just made about federally regulated corporations?
Mr. Labelle Eastaugh: Well, I would point out that the specificity of New Brunswick stems not principally from its official languages act but from the provisions in the constitutional Charter of Rights and Freedoms dealing with language. If I’m not mistaken — I’m working from memory now — those are explicitly mentioned in the Official Languages Act. In that respect, I don’t really see an issue.
Senator Seidman: My question for Ms. Naymark has already been asked and answered, so I am finished. Thank you.
[Translation]
Senator Audette: First of all, I’m going to start with a positive comment because my languages are French and Innu‑aimun, and I’m trying to speak English as I perform my senatorial duties.
You mentioned that Indigenous languages were vulnerable as well, and I thank you for that, because one’s choice of words can mitigate certain reactions, including my own when I hear that French is the only endangered language, whereas many Indigenous languages are as well. So I thank you for your comment.
My question is for Ms. Naymark. You mentioned that, at the assembly of chiefs, the First Nations Education Council filed a legal challenge concerning 14 sections of the Charter of the French Language. You surely know that education and access to justice are two major issues that will have an impact on us.
If we ever win this legal challenge in court, will that have an impact on the Official Languages Act, since it’s said that the Charter of the French Language is included in Bill C-13?
Ms. Naymark: We can always amend the Charter of the French Language in response to court decisions, government changes and needs of the moment. Sometimes, even after the courts have ruled certain provisions of the Charter of the French Language unconstitutional, the Quebec government hasn’t really reacted in accordance with the Supreme Court’s judgment. In short, the reference isn’t static; the Charter of the French Language may change, but the reference in Bill C-13 remains. The problem in my mind is that this recognizes an act that is controversial today — that’s the least one can say — and that could well be even more controversial in future.
I think it’s the reference as such that’s the problem.
Senator Audette: If I can go a little further, since I’m not a lawyer and don’t have the legal expertise, and so on, of many of my colleagues, I’ve always been concerned that, if you write — The choice of words is important; words create paragraphs, and paragraphs create laws. Can the act of talking about a specific province or region become a tool that can be turned around and used against us in our region to recognize conventioned First Nations, which are entitled to an exemption under Bill 101 in Quebec? Under Bill C-13, that exemption can no longer be recognized or debated in court. My concern is this: Could Quebec take advantage of this and say it now has an act that protects it as a province? I’m being told no.
Ms. Naymark: You can’t absolutely say that a federal act and a provincial act that contradict each other —The two acts don’t necessarily cover the same fields or derive from the same powers of the federal or provincial government. There are overlaps, of course, but there’s always a way to achieve recognition under one act of things that aren’t recognized under another act. There could well be conflicts.
Senator Clement: Good evening, and thanks to the three witnesses.
[English]
I’m going to say it in English and Mohawk. Good evening and thank you. [Indigenous language spoken]. I like it when the transcript reads “Indigenous language.”
[Translation]
Here’s my first question. I’ll begin with Mr. Doucet. You said in your testimony that Bill C-13 wasn’t perfect. So I’d like to know what more you would have done if we’d had more time, but I’d also like to know the following: What will you expect from this bill when it’s reviewed in 10 years? I’m putting those two questions to all three witnesses.
Mr. Doucet: First, no single act is perfect; unfortunately, nothing is perfect in this world.
Looking at Bill C-13, you could have added certain things, such as protection for the court challenges program to make sure it can’t be cancelled in future; you could have further clarified the powers under Part VII and ensured that they’re consistent with the judgments that have been rendered.
A lot of things could have been done. You could have added elements, but, at some point, you have to move on to a new phase and pass the bill. That doesn’t mean you should stop discussing possible amendments that might arise. What would I like to see in the act in 10 years? First of all, I’d like to see a government that makes sure it honours the obligations provided for in Bill C-13.
We’ve seen that with the Official Languages Act in New Brunswick. We have an Official Languages Act, and its implementation is far from guaranteed by the current governments. The same is true at the federal level; earlier we discussed Part VII, and the implementation of the act is never a sure thing.
The first thing I hope for is that governments, regardless of which government, make sure they actually discharge the obligations they’ve accepted.
What will happen in 10 years? When I took part in the first review of the Official Languages Act in 1988, there was no social media or Internet. You couldn’t have held a committee meeting via Zoom; it didn’t exist. I didn’t even know that would happen. Things change quickly in the world, so you have to ensure that the act continues to meet the needs of the communities as they occur.
Francophone communities in Canada are in a very vulnerable position. In two or three years, they may need other changes to the act, and we may have to address matters differently.
In that respect, I can’t say what we should see in 10 years, but I’m happy to see that there will be a review in 10 years, even though I would have preferred it to be in 5 years.
I’m happy to see that your committee can continue its work during that time.
Ms. Naymark: Thank you. In 10 years, I’d like to see growth in the francophone minority communities outside Quebec. I’d like to see that their rights have expanded. We take baby steps with every amendment to the act, but I hope we can continue in that direction. I’d like to see the federal government encourage English and French majority language people to improve their minority language skills.
I’d also like the rights of minority communities to be recognized across Canada.
Mr. Labelle Eastaugh: I’ll take the moderate view. There’s a lot in this bill that’s new; we don’t know exactly what consequences will follow from the new administrative penalties, the new powers conferred on the Commissioner and the new amendments to Part VII. Consequently, the revision process will enable us to take stock of the experience that we have acquired as a result of all these new provisions and to see what adjustments will have to be made.
Senator Gignac: I want to welcome all our witnesses.
My question is for Mr. Doucet. I’d like him to discuss the new powers of the Office of the Commissioner of Official Languages. We know he’ll be able to make orders. How many complaints can the Commissioner receive at times? You need only think of the airline industry, which makes the news. Are the new powers he’s being given strong enough? Do you approve or would you have hoped for more?
Mr. Doucet: I approve for the moment. We’ll have to see how the Commissioner uses those new powers. In 1988, we were very pleased to see that the Commissioner was granted the power to appear in court to ensure compliance with the act. Unfortunately, I believe that power may not have been used enough. The compliance orders are currently a very good tool that, if properly used, could ensure that the institutions implement and comply with the recommendations that the Office of the Commissioner of Official Languages makes. Earlier we discussed the possibility of imposing monetary penalties. That’s also a power. These are powers that should enable the Office of the Commissioner to be more effective, although that office will have to use the powers granted to it effectively.
Senator Gignac: I don’t know whether the other witnesses would like to add any comments or react on the subject as well.
Mr. Labelle Eastaugh: I’m going to echo Mr. Doucet’s comments.
I completely agree. I think the powers being granted are excellent, but there has to be a willingness to wield them. It’s an open secret that the Commissioner doesn’t make enough use of his power to bring legal proceedings. That may be due to the hybrid nature of his position.
The Commissioner position is based on the ombudsman model, which is intended to be non-conflictual. Former Commissioner Graham Fraser has written at length on the subject. By relying on persuasion as the main influence mechanism, one tends not to use other mechanisms that may be more impactful and conflictual. So it’s possible that this prevailing trend may continue in future, even with the new powers. We’ll have to see how the Commissioner uses them. We may have to consider more significant structural reforms if he doesn’t use them appropriately.
Senator Gignac: I’ve spent a large part of my career in the private sector.
Mr. Doucet, I’d like to hear your views on the new obligations that will be introduced to protect the French language in federally regulated private businesses. Are we going far enough in this area?
Mr. Doucet: When it’s said that this provision could apply to New Brunswick, if it has to apply to New Brunswick, I hope it isn’t applied solely in certain predominantly francophone regions because then it would be purely symbolic. If it’s done in New Brunswick, it should be done all across the province in a manner consistent with specificity and the recognition of equality or else it shouldn’t be done at all.
In certain cases, this provision could help improve the situation of francophone communities outside Quebec. However, it has to be done right. In the case of New Brunswick, it has to be done across the province, not in certain specific regions, as was noted.
Senator Gignac: Thank you.
Since you come from an officially bilingual province in Canada, I hope it’s done across all of New Brunswick.
Senator Mockler: I’d like to congratulate the three witnesses. I’d be remiss if I didn’t state the following fact.
Mr. Doucet is a staunch advocate of rights and liberties and is active in many cases. Thanks to his extensive experience, he has modernized our services and institutions both in New Brunswick and across the country.
Mr. Doucet, my sincere congratulations for the work you’ve done.
I have a few brief questions for you. My first question is for all three witnesses. Is the bill a step in the right direction?
Mr. Doucet: I believe I answered that in my opening statement. Yes, it’s a step in the right direction. Will it solve all our problems? No. However, it’s nevertheless a step in the right direction for the rights recognized in the 1988 act.
Mr. Labelle Eastaugh: Yes, it’s a step in the right direction. It’s a significant step in the right direction.
Ms. Naymark: I think it’s a step in the right direction for the rights of francophone communities outside Quebec. However, it isn’t a step in the right direction for anglophones in Quebec.
Senator Mockler: Could the bill have gone further? If so, why?
Mr. Doucet: Every bill could go further. We could definitely add a number of elements, and, if we did, which ones would they be? Earlier I discussed some things that could have been added, but, as my colleague Mr. Labelle Eastaugh said earlier, I think we now have to look at the bill. In the next 10 years, or in the following years, we’ll have to assess the way it was implemented. We’ll be in a better position to say what could be added or done differently to ensure our communities develop better.
Mr. Labelle Eastaugh: I generally agree with Mr. Doucet, except on two points.
First, there’s the point that I address in the working paper that I sent the committee this afternoon and that includes a specific provision that could be quite simply amended to enable the act to comply with the case law.
The second point that I would have liked to see addressed a little more thoroughly or more dynamically concerns immigration targets.
The bill provides for an obligation to develop an immigration policy but doesn’t outline the nature of an immigration policy that would genuinely respect the equality of the two linguistic communities in Canada. I would’ve liked to see more substance and flesh on the bone regarding that particular point.
Ms. Naymark: I have nothing to add.
Senator Mockler: Will the situation of francophone Acadians be better with or without this bill?
Mr. Doucet: I’ll answer briefly. The situation definitely isn’t worse; it can only get better.
Mr. Labelle Eastaugh: It’s better with this bill.
Ms. Naymark: I think it’s better, but I’m not the expert on New Brunswick.
Senator Mockler: I have another question. Do I have time?
The Acting Chair: You have approximately 40 seconds left.
Senator Mockler: Witnesses have said during this committee’s hearings that the reference to the Charter of the French Language in Bill C-13 would suppress the rights of anglophones in Quebec from a legal and constitutional standpoint. Is that correct?
Mr. Doucet: Sections 16 to 20 and 23 of the Charter will continue to apply and acknowledge the constitutional rights of anglophone Quebecers.
They can’t be stripped of those rights. Section 133 will also remain. The language rights they have enjoyed under the Constitution will remain, despite the reference to Bill 96 and the federal act.
Mr. Labelle Eastaugh: The short answer is no. In any case, all the new provisions in the act respecting language of work in the federally regulated private sector are new. There are no federal rights in those areas in any case. It’s brand new law.
Ms. Naymark: I don’t agree. I don’t share that opinion, that it will restrict the rights of anglophones in Quebec.
The fact that the bill acknowledges Bill 96, especially in the preamble to the act, provides a vision and a way of interpreting the rights under federal statutes. If those statutes must be consistent with Bill 96, that will definitely restrict the rights of anglophones in Quebec.
The Acting Chair: Thank you. I’m going to ask the next question, which is a bit different from the others.
My question concerns new subsection 65.95(1) of the use of French in federally regulated private businesses act.
This provision would prevent an entity subject to the regime of administrative monetary penalties from citing in its defence that it had exercised due diligence to prevent the violation of the Official Languages Act.
We’ve heard Air Canada’s concerns on this matter. My office followed up with Canadian Heritage, which provided us with the following explanation: Federal institutions have obligations of result, not obligations of means. This type of defence can’t be used in cases where language rights have been violated, given the very nature of those rights. They are fundamental rights. Furthermore, the principle of substantive equality means that such a defence is impossible.
To help us put matters in perspective in the context of our study of the bill, would you please comment on these statements and explain to us how the nature of language rights can justify disqualifying a due diligence defence for subject entities, despite their institutional obligations? I’d like to hear your legal opinion on the subject.
Mr. Labelle Eastaugh: I have to admit I haven’t examined the issue in detail. Generally speaking, the explanation that you read seems accurate to me, in that the fact that there’s an explanation or circumstantial reasoning explaining why a language right was violated is not a ground for concluding that the right was not violated. The existence of a violation is objectively and absolutely established. This is an obligation of result. On the other hand, the question of circumstances may be relevant to the type of penalties that many be imposed and to the reparation sought or granted by the courts, among other things.
Therefore, if an institution, for reasons beyond its control, was unable to discharge its obligations on a particular occasion, that isn’t the same situation as that of an institution that systematically refuses to establish systems that would enable it to meet its obligations. You have to distinguish carefully between these two types of situations.
Mr. Doucet: My colleague Mr. Labelle Eastaugh explained it very well. I haven’t examined that provision either, so I wouldn’t want to venture beyond what I’ve already said, and I entirely support his comments.
Ms. Naymark: I share Mr. Labelle Eastaugh’s opinion. I think it’s more nuanced than saying it’s an obligation of result. There are circumstances. There are always circumstances that you have to analyze before coming to a conclusion.
The Acting Chair: Thanks very much.
Senator Cormier: Mr. Labelle Eastaugh, thank you for that remark on section 41 and the necessary amendments. The act has to be reviewed every 10 years, but do you agree that amendments may be made to the act within that period? We aren’t required to wait 10 years to solve the problem you referred to; we could solve it in the coming years.
Mr. Labelle Eastaugh: Yes, definitely; there’s no limit to Parliament’s power in that area.
Senator Cormier: Ms. Naymark, you seem quite pessimistic about the content of Bill C-13 for anglophone communities in Quebec, even though it provides many improvements for Quebec’s anglophone communities, particularly regarding Part VII, which concerns improvements to positive measures.
I’d like you to comment on that statement that Bill C-13 doesn’t suppress the rights of Quebec anglophones and that it makes substantial improvements that will help ensure the vitality and development of Quebec’s anglophone communities.
Ms. Naymark: When an employer is required to prepare certain documents in French, to hold internal meetings in French and to provide customer services in French but still has the right to do so in English, I don’t think that expands anglophones’ rights. I think it results in lost jobs in the anglophone community.
I’m seeing a fair number of negative things in the act for Quebec anglophones. Is it a total disaster? No. As you said, there are some positive provisions, but, on the whole, the community is very disappointed with the bill.
Senator Cormier: Mr. Doucet, when we think about this version of the bill, what I have in mind is its restorative character and the idea of substantive equality. You mentioned improvements; I’d like to hear what you think are the main gains here, but I’d also like to hear what you have to say about the strong francophone presence in federally regulated private businesses. Do you think it’s nevertheless reasonable, based on what’s stated in the act, to allow a period of two years to make an effective contribution to the country as a whole in order to determine what a “strong francophone presence” means?
Mr. Doucet: There are obviously many positive aspects to the bill. For example, the obligation for Supreme Court judges to be bilingual when they sit is definitely a positive aspect. Part VII has also been improved. I agree with what my colleague said about what should be improved in light of the Supreme Court’s decision. That’s obviously an improvement, but we can go even further. There are the powers granted to the Commissioner of Official Languages, in this case, which are very positive, but we’ll still have to see, in this case, whether he actually uses the new powers conferred on him. There are many positive aspects.
As I said earlier, we can have the best act in the world, but if there’s no political will to implement it and guarantee follow-up, it will come to nothing. I’ll be monitoring the federal government’s commitment to implementing this act and improving the situation of official language minority communities. We can have whatever we want in this act, but it will all come to nothing if it isn’t properly implemented.
Will two years be enough to maintain representation? Yes, I think it’s reasonable and I especially want to go back once again to the situation of New Brunswick. With regard to providing services solely in certain francophone regions, I wouldn’t want that to happen because it would become purely symbolic and would achieve nothing. If that study is conducted, it must be done across the entire province.
Senator Clement: I have a question of a societal and legal nature. What does a future in which official language minorities and the protectors of Indigenous languages work together look like?
Mr. Doucet: It’s important for me that they work together.
Earlier I emphasized that Indigenous languages are also in a vulnerable position. I think it’s important in this case to give the Indigenous Languages Act more teeth so we can protect and improve the situation of Indigenous languages across the country. I think that francophone communities, especially minority communities, should help improve the situation of Indigenous languages. We have to work together because, every two years, we’re going to find ourselves in a situation where we have to protect languages
Take, for example, the third edition of a book entitled, Language Rights in Canada, which I published with former Supreme Court Judge Michel Bastarache and with the Université de Moncton’s Observatoire international des droits linguistiques. For the first time, we inserted a chapter in the book on the protection and advancement of Indigenous languages in Canada, which was written by Naiomi Metallic. It’s important for me that we make people aware of the situation of Indigenous languages in francophone communities and that they also be able to join in helping Indigenous communities more effectively protect their languages within Canada.
Ms. Naymark: I entirely agree with Mr. Doucet that it will be very important for us to work hard in future to improve the situation of Indigenous languages, which are definitely endangered.
Someone asked us what we would like to see in 10 years. A large portion of the Official Languages Act should be devoted to acknowledging the tenuous situation of Indigenous languages.
Senator Mockler: I am looking for a lot more clarification. There’s this consensus view that French is the language that’s threatened in Canada and Quebec. That’s an observation, an actual fact. My question for Mr. Doucet is this: Does the asymmetry exist in our Constitution? Can you explain that?
Mr. Doucet: There was no symmetry even in 1867 because section 133 acknowledged Quebec anglophones at the federal level, but not francophone communities outside Quebec. Francophones in New Brunswick had requested the same protection but were not granted it; the provincial government refused. We know what happened in Manitoba; I discussed it earlier. There was no symmetry until we adopted the Canadian Charter of Rights and Freedoms. However, there is no symmetry even in the Canadian Charter of Rights and Freedoms because the francophone communities in Quebec, Manitoba and even New Brunswick enjoy certain protections that other communities don’t. There has never really been genuine symmetry. The situation of francophone communities outside Quebec and anglophone committees in Quebec is definitely not symmetrical either.
Mr. Labelle Eastaugh: If I may add something, I would also say that, in practice, the equality principle, which is formally and symmetrically stated in the Canadian Charter of Rights and Freedoms, requires an asymmetrical treatment. The principle of equality is a principle of substantive equality. English and French are in the same situation. In practice, in real terms, different measures must be adopted for the two languages. That asymmetry is already latent in the equality principle itself.
[English]
Ms. Naymark: I wanted to weigh in on that. Symmetry and equality are the goals. I think we have been moving in the right direction, and creating asymmetric provisions now in the Official Languages Act is on the decline. I think we are going in the wrong direction. The goal would be to have minority-language speakers in all provinces enjoying the same rights. This is not only a question of language, it is a question of individual rights.
[Translation]
Senator Audette: That’s a message of hope. I’m listening to you and I’m hearing beautiful things. Would you be comfortable coming to work with me on the United Nations Declaration on the Rights of Indigenous Peoples Act and the Indigenous Languages Act once the bill is passed so we can take quick action because there’s room for everyone? I’m often told that I go off topic, but I’m working my naïveté today because I think there are ways to get things done. I’m listening to you, legal experts. I’d like us to be able to dream together to give the acts that I just mentioned more teeth.
The Acting Chair: Is that a question or a comment?
Senator Audette: I’m inviting them; it’s yes or no.
Mr. Doucet: My answer is yes, absolutely, without a doubt. I’ve always worked in the language rights field. I don’t know what I can offer, but if my experience can contribute anything, then there’s no problem.
Mr. Labelle Eastaugh: I’d say exactly the same thing; it’s a very enthusiastic yes.
However, this is a real challenge and a particularly complex one, given the number of Indigenous languages, the variety of their situations and the different practical constraints. All of that is significantly different from the situations of English and French. It’s a very complex exercise. I’m not in a position to propose measures right now, but yes, absolutely.
The Acting Chair: Ms. Naymark?
[English]
Ms. Naymark: I can’t pretend to be an expert on the topic of Indigenous languages and I am not very familiar with those laws, but speaking personally and not on behalf of anyone else, I am absolutely 100% in favour of working to strengthen Indigenous languages and their recognition in Canada.
[Translation]
The Acting Chair: Ms. Naymark, I have a quick question on the same subject. Could you confirm that Bill C-13 is consistent with the United Nations Declaration on the Rights of Indigenous Peoples Act, the Indigenous Languages Act and section 35 of the Constitution Act, 1982?
[English]
Ms. Naymark: I apologize, but I don’t have the expertise to answer that question.
[Translation]
Mr. Labelle Eastaugh: I have to tell you that I haven’t considered the matter and therefore can’t offer an informed opinion. However, I’m not currently aware of any potential problem in that area.
Mr. Doucet: Same answer from me.
The Acting Chair: Many thanks to our witnesses.
[English]
Thank you for being with us today. It is greatly appreciated.
[Translation]
It will help us continue our work on Bill C-13. Thank you very much.
[English]
Colleagues, we will now proceed to clause-by-clause consideration 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.
[Translation]
Thanks to the officials from Canadian Heritage, the Treasury Board Secretariat and the Department of Justice, who have joined us today to answer questions.
A few reminders regarding the process. I remind senators that, when we move more than one amendment for a single clause, they must be moved in the order of the lines of the text to be amended.
Consequently, before we consider an amendment to a clause, I will verify whether other senators intend to move an amendment to a previous line in the same clause. If that is the case, they will have the opportunity to do so.
[English]
If at any point a senator is not clear about where we are in the process, please ask for clarification. I want to ensure that at all times we have the same understanding of where we are in the process. If a senator is opposed to an entire clause, I would remind you that in committee, the proper process is not to move a motion to delete the entire clause but rather to vote against the clause as standing as part of the bill.
[Translation]
Honourable senators, some amendments that have been moved may have a substantial impact on other parts of the bill. I would refer senators to comment 698(2) in the sixth edition of Beauchesne, pursuant to which the chair may deem an amendment to be out of order:
. . . if it is contrary to or inconsistent with provisions of the bill that the committee has already agreed to, if it is inconsistent with a decision that the committee has made regarding a former amendment . . .
[English]
It would therefore be useful if a senator moving an amendment identified to the committee other clauses in the bill where this amendment could have an effect; otherwise it would be very difficult for members of the committee to remain consistent in their decision making.
Staff will endeavour to keep track of these places where subsequent amendments need to be moved and will draw our attention to them. Because no notice is required to move amendments, it is possible that there may have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to your arguments, decide where there has been sufficient discussion of a matter or order and make a ruling.
[Translation]
The committee makes its own decisions within the parameters established by the Senate, and a senator may appeal a chair’s decision in committee by asking whether the decision should stand.
As acting chair, I will make sure that every senator who wishes to say something can do so. However, I am counting on you to cooperate and would ask you to stick to the facts and to be as brief as possible.
If you have the slightest doubt about the outcome of a voice vote, the least disruptive way of intervening is to request a recorded division. Senators know that in the event of a tie, the motion is defeated.
[English]
Are there any questions about any of the above before we move on to the clause-by-clause study of this bill?
[Translation]
We are now going to proceed with a clause-by-clause study of the bill.
Is it agreed that the committee proceed to clause-by-clause consideration 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?
Hon. Senators: Agreed.
[English]
The Acting Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
[Translation]
The Acting Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
[English]
The Acting Chair: Is it agreed, with leave, that clauses may be grouped where appropriate according to the table of provisions of Bill C-13 and in Part I of the bill, according to the parts of the Official Languages Act?
Hon. Senators: Agreed.
[Translation]
The Acting Chair: Shall clause 2, which modifies the preamble to the Official Languages Act, carry? I believe Senator Clement has an amendment.
Senator Clement: I move the following:
That Bill C-13 be amended in clause 2, on page 3, by replacing line 37 with the following:
“revitalizing and strengthening Indigenous languages, which are Canada’s first languages,”.
The Acting Chair: Are there any questions or comments?
Senator Clement: I have a comment. I’m out of my comfort zone. I consider that I am an ally making an effort. When I’m uncomfortable, it tells me that I’m doing good work.
I consulted people back home in my community, the City of Cornwall, which is located on the traditional land of the Akwesasne Mohawks. I’ve spent some time at the Akwesasne Language Center, the Akwesasne Freedom School and the Native North American Traveling College. They reminded me that I’m entitled to speak my mother tongue. This amendment means that we are adding something pertaining to truth, because after all, we are involved in a truth and reconciliation process.
It’s not a matter of adding new obligations, but just acknowledging facts.
The brief presented by the Assembly of First Nations to the House of Commons Standing Committee on Official Languages says that:
Indigenous languages were the original languages used in the lands that are now in Canada. From time immemorial, the First Nations have had their own languages, laws, legal orders and governance structures.
We’re being told that we have the Indigenous Languages Act, and that’s true, but more space for Indigenous languages could be created here and now in Bill C-13.
When I was speaking to the witnesses earlier, I asked them how we were going to work together. They responded positively, and things will remain positive in the future, but I’m here today around this table and we are giving consideration to Bill C-13. That’s why I am presenting this amendment this evening, to take the discussion of truth and reconciliation into every possible sphere.
The Acting Chair: Thank you, Senator Clement. Are there any comments?
Senator Mégie: I’d like to ask Senator Clement a question. Apart from the people in your community you spoke with, do you have a mandate from the Indigenous peoples who gave you their consent to include this amendment in Bill C-13, rather than waiting for a thorough and proper discussion on the Indigenous Languages Act?
Senator Clement: The word that jumps out at me is “waiting.” I did indeed consult people in my community, the Akwesasne Mohawk community. I also consulted the offices of Senator Audette and Senator Greenwood. We worked together to do something now, without waiting, to find a way of getting recognition of the fact that there were languages here before English and French came to this country. It would be good to recognize that there was something before we got here. So I’m an ally. I’m not an Indigenous person, but I’m speaking out because I’m here around this table and we’re doing this work now, and it gives us an opportunity to acknowledge that there was something here before. That’s why I’m doing it.
Senator Cormier: Thank you for your presentation. The discomfort you spoke about is something I’ve experienced as well, but for the opposite reason. It’s not that I get the impression of doing good work when I feel ill at ease, but I think that the moment chosen to go through this exercise deserves closer attention to this issue. I’m going to speak very frankly. I have also had conversations with you, Senator Audette and Senator Greenwood. I’m just back from a trip to Nunavut, where I spoke to the Inuit in the region about language issues that affect Indigenous peoples. I’m also a strong ally of all issues that affect Indigenous people and languages, and I believe there is important work to be done on these.
The witnesses we have heard all say that work is needed to ensure that minority francophone communities are also allies that can work with Indigenous communities when they ask for it, because they are the reason why this consideration is being conducted. I’m going to repeat what I said before. Unfortunately, the Official Languages Act is not the best vehicle to promote these issues in the current context. My view is that this recognition of the fact that first languages in Canada are important, and that they need to be acknowledged, revitalized and promoted, is crucial. This effort is essential; the Indigenous Languages Act exists, and although, like any other legislation, it is not perfect, it’s an instrument that can do foundational work. That’s really where the effort is needed. I’m going to have to vote against your amendment. That’s why I’m uncomfortable about having to vote against your amendment. I wouldn’t want to be sending out the message that Indigenous languages are less important than French or English in minority communities. I’m unfortunately going to have to vote against this amendment, senator. Thank you for having made us more aware of this issue. Thank you.
The Acting Chair: Are there other comments or questions?
Senator Mockler: I might like to reiterate what the Official Languages Commissioner and the two ministers said when they answered these questions. Our colleague Senator Gold also responded in the Senate. Madam Chair, I’d like to ask the officials where in Bill C-13 is there a reference to the Indigenous Languages Act, with which I am in favour? I’d like to ask whether there are any areas that conflict with the Indigenous Languages Act.
Julie Boyer, Assistant Deputy Minister, Official Languages, Heritage and Regions, Canadian Heritage: Thank you for your question. I would say that when Bill C-32 was being drawn up with Minister Joly, and again when improvements were being made to Bill C-13 by Minister Petitpas Taylor, they both felt it was very important to ensure that the modernized version of the Official Languages Act did nothing to take away from the protection, revitalization and vitality of Indigenous languages in Canada. That was the idea behind including this reference twice in Bill C-13. They are considered complementary acts that endeavour to revitalize and protect the development and vitality of these languages and these communities.
To answer your question, the first reference, the one which you are planning to amend, in which the bill says:
. . . recognizes the importance of maintaining and enhancing the use of languages other than English and French and reclaiming, revitalizing and strengthening Indigenous languages while strengthening the status and use of the official languages;
That’s in the preamble; from the very outset, it’s important in Bill C-13 to keep the Indigenous Languages Act in mind. It’s a form of acknowledgement. Then, if we go to section 83 of the Official Languages Act:
83(1) Nothing in this Act abrogates or derogates from any legal or customary right acquired or enjoyed either before or after the coming into force of this Act with respect to any language that is not English or French, including any Indigenous language.
Nor does the bill attempt to impede “. . . the reclamation, revitalization, maintenance and strengthening of Indigenous languages.” These words come directly from the Indigenous Languages Act, which I have here, because we also believe that there should be close cooperation between the team working on official languages and the other team in our department working on Indigenous languages. Moreover, in the preamble to Bill C-91, it says that “Indigenous languages were the first languages used in the lands that are now in Canada and those languages have evolved over time.” There is a reference that cannot be eliminated and that needs to be looked at jointly with Bill C-13. Mr. Newman would no doubt be able to add information about the complementarity of the two acts.
Warren J. Newman, Senior General Counsel, Constitutional, Administrative and International Law Section, Public Law and Legislative Services Sector, Department of Justice Canada: Each of these acts is Canadian identity legislation: the Official Languages Act and the Canadian Multiculturalism Act, which was enacted at approximately the same time as the 1988 Official Languages Act.
The Indigenous Languages Act and the United Nations Declaration on the Rights of Indigenous Peoples Act are both Canadian identity statutes. Each needs to have a field of application and each has to be read in light of the other. I agree with Ms. Boyer, who explained that there are signposts in the Official Languages Act that acknowledge this, but each act has its own raison d’être. As you said, senator, it’s important to recognize that Indigenous languages were the first languages in Canada. The preamble to the Indigenous Languages Act states clearly that Indigenous languages were the first used in these lands, which are now Canada, and that they have evolved over time.
This recognition was already established by Parliament in the act it enacted only a few years ago, in 2019.
I believe that these acts and these references to Indigenous languages need to be read in association with one another to ensure that there is a place not only for Indigenous languages, which are in problematic circumstances and within a different structure, and whose act was developed in collaboration with representatives of Indigenous peoples, but also our Official Languages Act. The Official Languages Act opens the mind, because thinking a single language is restrictive, and when you make room for a second language, you can also think about other languages.
Senator Mockler: Are we jeopardizing the Indigenous Languages Act? It definitely needs to be improved. Could you comment on that?
Mr. Newman: If it needs improvement, it’s up to you, the legislators and politicians, to do the required work. Right now, there’s no threat to that act from any strengthening of the Official Languages Act which, in its references to Indigenous languages, is addressing something other than the constitutional framework for French and English.
Senator Mockler: Over the past few years, we’ve supported the United Nations Declaration on the Rights of Indigenous Peoples Act and the Indigenous Languages Act, which, in only a few days, will have been in effect for five years. On the basis of my experience with Acadians, and as a francophone, I can tell you that we could definitely share best practices through Bill C-13 to ensure that the Indigenous Languages Act is further enhanced.
Senator Audette: French and English are mentioned as official languages, but those who speak Indigenous languages had no role to play in the debate to point out that they too speak official languages in this great country of ours. That’s where allies are needed, along with an open mind, to explain why senators are going to support this.
The acknowledgement of the Indigenous Languages Act in the official Languages Act, to which amendments are being introduced… If that exercise had been carried out from the outset when the minister and I first met, it would have been easy to determine whether it passed the UN declaration act test. I don’t have a perfect answer. I’m waiting. I haven’t received an analysis, and it’s not a criticism. I’ll be here for a long time, so we can talk about it again soon.
How many experts in Indigenous law who are not Indigenous lawyers or constitutional experts in the language of these experts came to testify to provide another angle on things and to explain why it was important to add certain words? I’m sure that in 10 years, when the act is being reviewed, the preamble will include something about “original languages.” There were no witnesses; I’m waiting for the list. I’ve seen only two briefs. That has an impact on how decisions are made. Were there any experts in Indigenous law?
Ms. Boyer: When the Official Languages Act was being reviewed, some Indigenous representatives took part in consultations across Canada. I don’t know whether they were experts, but there were also meetings between Minister Joly, and a number of organizations. Minister Petitpas Taylor also had some discussions with the Commissioner of Indigenous Languages to obtain his opinion. Of course, as the Indigenous Languages Act has to be reviewed five years after its enactment… It was enacted in 2019, so that will come up soon. That might well be a good opportunity to consult these experts in that specific context.
Senator Clement: I’d like to point out that I heard what was said about complementarity and coordination. I’m here as a Franco-Ontarian and I’d like to say that the Canadian identity is not kept in silos. It’s everywhere. There needs to be room for Indigenous languages everywhere, and not only in the Indigenous Languages Act. That’s my final comment.
The Acting Chair: Thank you, Senator Clement. Are the senators ready for the question?
Hon. Senators: Agreed.
The Acting Chair: Is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Yes.
Hon. Senators: No.
The Acting Chair: Do you wish to have a voice vote or a recorded division?
Senator Mockler: On division.
The Acting Chair: Amendment defeated on division.
The next amendment is being moved by Senator Audette, and it pertains to clause 2, on page 3.
Senator Audette: I move:
That Bill C-13 be amended in clause 2, on page 3, by adding the following after line 39:
“AND WHEREAS the Government of Canada recognizes that Parliament has enacted the United Nations Declaration on the Rights of Indigenous Peoples Act, which affirms that the Declaration applies in Canadian law and that the Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration;
AND WHEREAS the Government of Canada recognizes that Article 13 of the United Nations Declaration on the Rights of Indigenous Peoples provides that
“Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons”, and
States have a duty to “take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means”;”.
The Acting Chair: Do you have a rational explanation for moving your amendment?
Senator Audette: Yes, and thank you for your patience. I sense that there is pressure for the bill to be enacted quickly and democratically.
I can understand why there were some sighs, but people mustn’t forget all the stress involved.
When we look at the part about private federal corporations or very specific positions, just imagine the kinds of reactions there will be when an Indigenous Canadian woman is appointed at a certain level, and so on. Just think of deputy minister or assistant deputy minister positions or positions in places where a person can have an influence on justice, but that person hasn’t learned English or French.
The Assembly of First Nations put forward amendments that we do not necessarily see here. In my discussions with the minister, we’re going to look into this transition. I believe it has already had a major impact, because when people say that the Indigenous issue ought not to be in this bill, but that there have to be Indigenous people in important positions in the public service, the systemic barriers are already in place.
Is this clause or this amendment going to allow for a change of that kind? I know the answer. I’ll still like you, but you must understand that in my view, it has a major impact. We need to make way to ensure that we can have positions like these, to have the positions or to have someone in the public service or within the justice system who can provide interpretation services when this issue comes up.
That’s where the dialogue and the relations with Indigenous languages lie, namely to have the act address a justice-related aspect that would provide services immediately to ensure…
I believe it’s important, because Quebec… I understand it because it needs to be connected to the Charter of the French Language… You have to see that the official language is French. It’s the same thing for people who contribute to this country and have to learn a third language. They have to learn a third language, which is not their own, in order to participate in the economy or the public service. That’s where I’m wondering whether we might have been able to do more, or conducted the exercise together from the outset.
I’d say that this clause gives me 40,000 feet of protection.
The Acting Chair: Are there any questions or comments?
Senator Clement: My question is for Senator Audette.
Last week, we heard that the act had been drafted with reference to the United Nations declaration on Indigenous peoples, without a specific mention of this, and that it might be redundant.
How would you react or respond to this kind of testimony?
Senator Audette: Thank you very much.
I requested a legal analysis, an analysis from the office responsible, from the minister or the minister’s office. I received a report. It wasn’t an in-depth analysis explaining how this aspect had been inserted, applied or honoured.
I’m not a lawyer, but I can tell when legal substance is missing and can say that the United Nations declaration on Indigenous peoples was not really applied.
For the next step, how can we manage to arrange — tomorrow, once the bill has been adopted or at least adopted in the Senate — that everyone will be able to understand it properly?
Does it mean that we have to see things through the lens of the United Nations declaration on Indigenous peoples? For now, I’m not reassured, but then I’m not a lawyer either.
Senator Clement: I have a question for the government representatives.
I know that there is a tendency now to specifically mention the United Nations declaration on Indigenous peoples. I’m thinking of Bill C-11. I myself proposed an amendment, which was adopted, to the effect that the United Nations declaration on Indigenous people should be mentioned directly in Bill C-11. This reference is also made in the Act respecting First Nations, Inuit and Métis children, youth and families, and in the Canadian Net-Zero Emissions Accountability Act . It’s a current trend.
I’d like to know why we couldn’t do the same thing here.
Ms. Boyer: Thank you for the question. I’d like to go back to the comments made by Ms. Mondou when she testified before the committee a week ago. There are several ways of doing it.
In Bill C-11, the intent was to reflect the importance of the revitalization of Indigenous languages by producing and broadcasting programming in these languages, in accordance with the United Nations declaration on Indigenous peoples and the Truth and Reconciliation Commission of Canada’s calls for action. That’s what was done in Bill C-11. It could also be done the way Bill C-13 did it, by affirming that there is no wish to abrogate or derogate from Indigenous rights. They would both have the same effect.
When Deputy Minister Mondou said that it would be redundant, it was because these rights are already guaranteed in another way that is written differently. We would be repeating it in a different way that refers to the United Nations declaration on Indigenous peoples. This would yield the same outcome, legally speaking.
Senator Clement: I’d like to respond to that.
I don’t think that having made a somewhat negative comment derogates in any way from Indigenous language rights. I believe that Senator Audette’s amendment adds something affirmative.
I would simply like to say that I’m going to support this amendment, because spaces need to be created everywhere to include very specific references to a declaration Canada has subscribed to.
Senator Audette: I’m a proud person. I’m a part of Quebec; I’m a part of Canada; I am partly Nitassinan. I was determined not to cry, because I care very much about it. I can’t learn my language because of these statutes. It’s either complicated or simply no longer feasible. I’m in the generation of those who completely lost contact with their language, and I’m upset about it for my five children and my two beautiful granddaughters.
I understand the Quebecers who want to keep the French language. We shouldn’t do anything against that.
At the same time, I did my homework, Ms. Boyer, when I looked at all of that and said to myself that this was great, we mentioned the United Nations declaration on Indigenous peoples in Canadian statutes, and we’re going to amend the acts and quote those words. I found it reassuring. I am a part of Canada and I have the legal instruments needed to tell Mr. Rodriguez that I would like to have courses in the Innu language and not, for the time being, courses in English or French, because I work in my own language in the Senate.
Barriers become systemic when the time comes to put words in Innu-Aimun on a sign. When the Senate is renovated, we’d like to see Indigenous languages there. There will be barriers and we will have to argue.
That’s what I couldn’t understand when I was listening to the debates a week and a half ago. I was trying to breathe and was asking myself why it was working here, but not there.
It might be necessary, as it was for Bill S-13, to make amendments just about everywhere to ensure that the wording is consistent, so that it’s the same message when referring to Indigenous peoples in section 35. Then I wouldn’t be coming here to bother you or scare you whenever I move an amendment.
The Acting Chair: Are there any comments?
Senator Cormier: Thank you for bothering us.
I’m going to raise this point because I’m not proud of the fact that we may not have dealt with it as you would have liked us to.
Tomorrow will mark four years to the very day since we were seated here and tabled a report on the modernization of the Official Languages Act.
So if you hear some sighs around this table it’s because there have, when all is said and done, been four years of work accomplished. We might, of course, have done otherwise. It’s important to note that the feeling of urgency that you may be feeling around this table is related to the work that was done and to the concerns that some communities have expressed. Thank you for your comment.
The Acting Chair: Are the honourable senators ready for the question?
Hon. Senators: Yes.
The Acting Chair: Shall the clause as amended carry?
Hon. Senators: No.
The Acting Chair: Shall the motion to amend carry?
Hon. Senators: No.
The Acting Chair: The motion is defeated.
Hon. Senators: On division.
The Acting Chair: The motion is defeated on division. Shall clause 2 carry?
Hon. Senators: Carried.
The Acting Chair: Was it carried on division? You can do that. Shall clauses 3 and 4, which modify the “Purpose of Act” section of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Shall clauses 5 to 7, which modify the “Interpretation” section of the act, carry?
Hon. Senators: Agreed.
The Acting Chair: Carried.
[Translation]
Part II — Legislative and Other Instruments, clauses 8, page 6, to 10, page 7. Shall clauses 8 to 10, which modify Part II of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Part III, administration of justice, clause 10.1, paragraphs 8 to 12, paragraph 9. Shall clauses 10.1 to 12, which modify Part III of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[Translation]
Part IV — Communications with and Services to the Public, clauses 12.1, page 10, to 13, page 10. Shall clauses 12.1 to 13, which modify Part IV of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Part V, language of work, clauses 14, paragraph 11, to 18, paragraph 13. Shall clauses 14 to 18, which modify Part V of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[Translation]
Part VI — Participation of English-speaking and French-speaking Canadians, clauses 19, page 13, and 20, page 14. Shall clauses 19 and 20, which modify Part VI of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Part VII, advancement of English and French, clauses, paragraph 14, to 24, paragraph 21. Shall clauses 21 to 24, which modify Part VII of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Senator Clement, I believe that you have an amendment on this.
[Translation]
Senator Clement: I move:
That Bill C-13 be amended in clause 24, on page 21,
(a) by replacing line 15 with the following:
“portance of cooperating with provincial, territorial and municipal”;
(b) by replacing line 17 with the following:
“into account the diversity of the provincial, territorial and municipal”.
I come from a municipality and my whole career has been at the municipal level. I’ve always been very sensitive to references to municipalities. A committee study on francophone immigration has just begun. The witnesses were almost unanimous about the importance of municipal government in everything pertaining to community development, and also to the context of the minority francophone community.
I also consulted the Federation of Canadian Municipalities, which said that all levels of government have an essential role to play in promoting the vitality and development of official language minority communities.
Municipalities represent the level of government that is closest to the people and in the best position to address local needs and the diversity of their residents. Across Canada, many municipalities provide services in both official languages.
In some instances, the provision of bilingual services is required in local bylaws. In others, a municipality may have decided to voluntarily provide such services. The clearly local dimension of providing services in the minority language requires that municipalities be involved in the modernization of the act. Bilingual municipalities are also keen to share their ideas and best practices to help in the formulation of the next action plan for official languages.
They requested the addition of a reference to municipal governments. It’s in the section on collaboration between the three orders of government. I don’t like saying “level” and prefer saying “order.” The municipalities are not all that fond of the hierarchy, because budgets have to be drawn up, and these are complicated not only at the infrastructure level, but also in terms of community development. The word “municipal” should be added to underscore the fact that we still want the three orders of government to work together at all times, including on community development, particularly in francophone minority communities.
The Acting Chair: Are there any questions or comments?
Senator Cormier: You know as well as I do just how strongly I believe in the role and importance of municipalities. I have a question for you.
Needless to say, municipalities are creatures of the provinces. Can you tell us why the municipalities were not included, and what your perspective is on the fields of jurisdiction, and what to do about including the municipalities, which has proved to be a challenge? I’ll let you answer the question.
What I really like about the bill is that there are many provisions, including in Part VII, pertaining to positive measures that would have a beneficial impact on the whole process of developing the organizations that work in these municipalities. There are measures that would benefit the municipalities and the communities.
Ms. Boyer: When the bill was drafted, the focus may have been on provincial and territorial governments, but the municipalities were also considered. They were left alone because they are indeed creatures of the provincial or territorial governments. There are nevertheless a few references to coordination between federal, provincial, territorial and municipal services. For services, it was specified that municipal services were included. In the more general wording, however, we went no farther than mentioning the provinces and territories, because we know they are included. Perhaps Mr. Newman could talk about jurisdictions.
Mr. Newman: Constitutionally speaking, seen from the traditional standpoint, it’s true that the focus has always been on two levels of government, federal and provincial.
In the Interpretation Act, as time went by, the territories were given recognition, even though in some respects they fall under the jurisdiction of the federal Parliament. As for the municipalities, as Ms. Boyer explained, it would be important to choose the appropriate place to refer to them, in coordinating municipal services, for example.
As for collaboration with the government, because municipalities come under the jurisdiction of provincial legislatures, it was decided initially to include the municipalities as part of collaboration with the provinces, in addition to referring to this collaboration at the provincial level.
Senator Audette: You are about to get a taste of my Innu humour. Earlier, it was tears, and now it’s humour; in 10 years, there will be talk of a fourth order of government — I’m joking, of course.
You mentioned services, Ms. Boyer. What would this act look like, since you are saying that it would be reflected in services?
Some francophone community organizations in Indigenous communities — for example, I have family in Vancouver and friends in Winnipeg — have a lot of trouble getting their events or documents translated; is that something that’s discussed? These are non-profit organizations or organizations linked to the municipality.
Ms. Boyer: Thank you very much for your question. In this section, we’re talking about collaboration; coordination is required with the provinces and territories, while still paying attention to municipal governments. Then there are language laws and systems. So this is not the place to speak directly about the offer of services. For matters pertaining to the offer of services, there would have to be collaboration with the provinces, territories and governments.
Sarah Boily, Director General, Official Languages, Canadian Heritage: Good afternoon. Just to add something to my colleague’s answer, there is also an amendment in Part VII which recognizes certain sectors that are essential to the vitality of official language minority communities. It takes things farther than does the wording of the current act with respect to education and services. It also addresses health, immigration, justice, employment and culture.
We hope that the impact of all that will result in federal institutions taking further steps to support these sectors. This would make it happen in more communities across Canada.
The Acting Chair: Thank you.
Senator Clement: Thank you for your comments.
The reason for introducing this amendment and for inserting the word “municipal” is that the topic here is intergovernmental collaboration. That’s really why the amendment is being introduced.
Every time I attend a Federation of Canadian Municipalities conference, there is a discussion of the relationship between the federal government and the municipalities. I’m very much aware of the Constitution, but people from the municipal side of things are much more interested in a more proximate relationship. It’s true that we are creatures of the provinces — and we hate that — but there’s more to it; what happens in fact is that we come up with solutions and ideas that the provinces would not, because they have their own priorities. The municipalities also have their priorities and areas of expertise.
It’s really to mention the important work being done by the municipalities in the section on intergovernmental cooperation.
Our colleague, Senator Simons, appealed to the Senate this year, and several senators discussed the relationship between the federal government and the municipalities. That’s the purpose of my amendment.
The Acting Chair: Thank you, Senator Clement.
Is it your pleasure, honourable senators, to adopt the motion to amend?
Hon. Senators: Yea.
Hon. Senators: Nay.
The Acting Chair: I believe the nays have it; the amendment is defeated.
I’d like to make a minor correction; from the outset, I’ve been talking about paragraph 14, and I’d like the transcript to be corrected to say “page” rather than “paragraph.” The clerk called me to order and I’ll get it right from here on.
We will now continue with our clause-by-clause study.
Shall clauses 21 to 24, which modify Part VII of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Part VIII, responsibilities and duties of Treasury Board in relation to the Official Languages of Canada, clauses 25, page 22; and 26, page 23.
Senator Clement, you have an amendment to clause 25.
[Translation]
Senator Clement: Dear colleagues, I’ve got to my final amendment.
I move:
That Bill C-13 be amended in clause 25, on page 22, by adding the following after line 34:
“(d.1) develop and implement a policy that would empower the use and the promotion of Indigenous languages in federal institutions to ensure the advancement of the principles of the United Nations Declaration on the Rights of Indigenous Peoples;”.
It’s an amendment that is based on an idea from Senator Greenwood. I worked with her office to introduce this amendment as a member of this committee. We also worked with Senator Audette’s office.
The purpose of this amendment is to enable the Treasury Board to consider how it might include Indigenous languages in the public service.
There was a conversation with the minister last week. She assured us that work is progressing. It was very encouraging. The purpose of this amendment is to officially assign a mandate to the federal government with respect to the public service.
I’ll begin by talking about a document from 2017 that referred to the federal deputy minister, who is the champion for Indigenous federal employees in Canada, who ran a series of interdepartmental circles on Indigenous representation. These circles, which were held with Indigenous federal public servants, both current and former, were intended to provide an understanding of the challenges being faced by Indigenous peoples in the public service. This 2017 report summarizes the feedback received in connection with these circles.
The participants believed that the federal government didn’t think having an Indigenous language was important. And yet, there are singular barriers to Inuit people who work in the public service in Nunavut. English is the main language used and the report mentioned that the Inuit encountered these barriers because the Inuit languages, including Inuktitut and Inuinnaqtun, were considered less important. However, these are often the languages being used to provide services in Nunavut.
It’s clear that there are barriers, but the work gets done somehow; the purpose of the amendment is therefore to give the government a clear mandate with respect to the work that still needs to be done to acknowledge and encourage the use of Indigenous languages in the public service.
The Acting Chair: Thank you, senator.
Are there any comments or questions? Go ahead, Senator Cormier.
Senator Cormier: Can you give us more details about what’s being done in this area?
Senator Clement mentioned the situation in Nunavut. We are aware of the fact that there are three official languages in Nunavut; here, the context is somewhat different, but how does the work get done, and what leads us to believe that the Indigenous languages issue will be given consideration in the federal public service?
Ms. Boyer: Thank you very much for your question. I’ll ask my Treasury Board colleague to answer that one.
Carsten Quell, Executive Director, Official Languages Centre of Excellence, Office of the Chief Human Resources Officer, Treasury Board of Canada Secretariat: The Treasury Board Secretariat has been dealing with the Indigenous and official languages issues for some time now, and particularly so, since the publication of the government document on official languages reform. There are going to be a number of legislative and administrative measures introduced to ensure, as was mentioned, a degree of harmonization between the promotion of Indigenous employees in the public service and the promotion of the official languages.
As part of this work, we conducted some consultations and heard some extremely difficult and heartrending testimony about the role of the ancestral language and the feeling of being forced to learn a second colonial official language.
To remedy the situation, the federal government launched a new framework for language training. The new language training framework is much more inclusive than the existing one, and its intent is to adapt the training to all groups seeking equity, including Indigenous employees.
We worked with a union to obtain an initial idea of the current use of Indigenous languages in the federal government. It was a preliminary study with 24 departments. It will be available soon. It will give us an overview of the use of Indigenous languages.
That said, the part of the act we are dealing with today is Part VIII of the Official Languages Act, which addresses the responsibilities of the Treasury Board of Canada pursuant to parts IV, V, VI and VII.
We do not believe that the Official Languages Act is the appropriate statute for ensuring that there is a policy on the use of Indigenous languages, if it is decided that such a policy is needed.
For example, the Official Languages Act provides that the Official Languages Commissioner is responsible for the implementation of the act and for following up on obligations under the Official Languages Act. It’s difficult to see how the Official Languages Commissioner could address issues pertaining to Indigenous languages. The Commissioner of Indigenous Languages should be dealing with these issues.
Our view is that the Indigenous Languages Act is the appropriate act for the inclusion of such a provision. As was mentioned, the Indigenous Languages Act provides for a triennial parliamentary review and a major review every five years. That’s when the Indigenous Languages Act could be modified to introduce a policy on the use of Indigenous languages.
The Acting Chair: Do you have anything else to add, Senator Clement?
Senator Clement: It’s okay, I’ll return to it later.
Senator Audette: I’m going to give a good example to show that this amendment is not only for the emotional side of things, but also the concrete aspects. Indigenous Services Canada, Crown-Indigenous Relations and Northern Affairs Canada, federal government; Health Canada, federal government; housing, federal government; the list of departments involved in relations, exchanges and land-related and fiduciary responsibilities on an everyday basis is a lengthy one.
When departments want to announce good news or information on matters that the nations — the future fourth order of government — have agreed on with the departments, they are not allowed. Canadian Heritage refuses to translate press releases into Indigenous languages. And who handles this?
I wanted to keep that for the end so that I could say that I felt it all has a very real impact in this act. When the question is put to the Commissioner of Indigenous Languages, he says that it’s not up to him to do it, but rather the other commissioner. It’s as if there were a gap… And yet, they have an obligation to us; they want to do well and they pass on good news or information in English, French or Indigenous languages.
Who can answer my question?
Mr. Quell: I can’t comment on this specific case, but I’d like to point out that the Indigenous Languages Act provides for being able to answer requests for services in Indigenous languages and making the federal government capable of serving communities in Indigenous languages.
An act is currently being enacted that would make it possible to provide services to Canadians who speak Indigenous languages.
Senator Audette: That means informing the public service and cabinet that this is not where we are making the request, but rather under the Indigenous Languages Act. It’s the same department.
Thank you.
The Acting Chair: Senator Clement?
Senator Clement: Last week, Minister Fortier spoke about the Mosaic program, which looks very interesting in terms of promoting Indigenous languages. She also mentioned that a Public Service Alliance of Canada joint committee would be studying the issue of Indigenous languages.
I’m saying that because I listened and got the message, which I think is positive.
However, when we are told that it will all be done through the Indigenous Languages Act, I don’t think that’s enough. The purpose of Senator Greenwood’s amendment — and I would like to thank her publicly for the work I was able to do with her in order to understand the intent of the amendment — is that everything has to be done at the same time. People can’t be told that they have to wait, that it’s not the right moment, that we’re going to do it soon, or that we’re going to do it only here, or that it cannot be done elsewhere.
The purpose of Senator Greenwood’s amendment is to give the public service a mandate in an act that talks about official languages, and which refers to Indigenous languages.
The purpose of the amendment is to make room in the Official Languages Act for words that make it clear to the public service that it has a mandate with respect to Indigenous languages.
The country we live in has many things to deal with, but they can all be done at the same time. That’s the purpose of the amendment, and of the arguments and amendments this evening. We don’t live in silos; we can make references and mention statutes and languages in this extraordinary piece of legislation, Bill C-13, and leave a little space for Indigenous languages.
I’d like to say [Indigenous language spoken] to all my colleagues for listening this evening.
The Acting Chair: Are the honourable senators ready for the question?
Hon. Senators: Agreed.
The Acting Chair: Shall the motion to amend carry?
Hon. Senators: No.
Hon. Senators: Yes.
The Acting Chair: The motion is defeated on division.
[English]
Shall clauses 25 and 26, which modify Part VIII of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[Translation]
Part IX — Commissioner of Official Languages, clauses 27, page 23, to 39, page 37. Shall clauses 27 to 39, which modify Part IX of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Part X, court remedy, clauses 40, page 37, to 43, page 41. Shall clauses 40 to 43, which modify Part X of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[Translation]
Part XI — General, clauses 44, page 42, to 50, page 44. Shall clauses 44 to 50, which modify Part XI of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Part XIV, transitional provisions, repeal and coming into force, clause 51, page 44.
Shall clause 51, which modifies Part XIV of the act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[Translation]
We are now at the part called Related Amendment to the Department of Canadian Heritage, clause 52, page 45. Shall clause 52 carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Regulations, clause 53, page 45. Shall clause 53 carry?
Hon. Senators: Carried.
The Acting Chair: Carried
[Translation]
Part II of the bill is about the enactment of the use of French in federally regulated private businesses act, clause 54, page 45.
Shall clause 54, which enacts the use of French in federally regulated private businesses act, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Amendments to the act, clause 55, page 68 to clause 63, page 72.
Shall clauses 55 to 63 carry?
Hon. Senators: Carried
The Acting Chair: Carried.
[Translation]
We are now at the part called Related Amendments to the Canada Labour Code, clauses 64, page 73, to 67, page 74. Shall clauses 64 to 67 carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Transitional provision, clause 68, page 74.
Shall clause 68 carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[Translation]
We are at Part III: Coordinating Amendments and Coming into Force. Coordinating Amendments clauses 69, page 75, and 70, page 75. Shall clauses 69 and 70 carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Coming into force, clause 71, page 76. Shall clause 71 carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[Translation]
Shall clause 1, which contains the short title, carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[English]
Shall the title carry?
Hon. Senators: Carried.
The Acting Chair: Carried.
[Translation]
The Acting Chair: Shall the bill carry?
Hon. Senators: On division.
The Acting Chair: Carried on division.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized —
Does the committee wish to consider appending observations to the report?
Hon. Senators: Agreed.
The Acting Chair: Rule 12-16(1)(d) allows us to go in camera to discuss a draft report. Does the committee wish to move in camera?
Hon. Senators: Agreed.
The Acting Chair: We will therefore now continue the meeting in camera.
(The committee continued in camera.)