THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, November 9, 2023
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 11:31 a.m. [ET] to study Bill C-35, An Act respecting early learning and child care in Canada.
Senator Jane Cordy (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning. My name is Jane Cordy. I’m a senator from Nova Scotia and the deputy chair of the Standing Senate Committee on Social Affairs, Science and Technology.
I would like to begin by welcoming members of the committee and the public who are watching our proceedings. I would like to do a round table and have all of the senators here today introduce themselves.
[Translation]
Senator Cardozo: Andrew Cardozo from Ontario.
Senator Moncion: Lucie Moncion from Ontario.
Senator Cormier: René Cormier from New Brunswick.
[English]
Senator Burey: Sharon Burey, a senator for Ontario.
Senator Osler: Gigi Osler, a senator from Manitoba.
Senator McPhedran: Marilou McPhedran, a senator from Manitoba.
[Translation]
Senator Petitclerc: Senator Petitclerc from Quebec.
[English]
Senator Dasko: Donna Dasko, a senator from Ontario.
[Translation]
Senator Mégie: Senator Marie-Françoise Mégie from Quebec.
[English]
Senator Moodie: Rosemary Moodie, Ontario.
[Translation]
Senator Gold: Marc Gold from Quebec.
[English]
The Deputy Chair: Today we are continuing clause-by-clause consideration of Bill C-35, An Act respecting early learning and child care in Canada.
We are again joined by officials from Employment and Social Development Canada. Some are with us today in the room, and some are by video conference. I will introduce them, and perhaps those who are in the room can raise your hand: Cheri Reddin, Director General, Indigenous Early Learning and Child Care; Kelly Nares, Director, Federal Secretariat on Early Learning and Child Care; Christian Paradis, Director, Federal Secretariat on Early Learning and Child Care; and by video conference, Michelle Lattimore, Director General, Federal Secretariat on Early Learning and Child Care.
We will resume clause-by-clause. We finished with clause 7 yesterday, so we will begin at clause 8.
Shall clause 8 carry?
Senator Cormier: Madam Chair, I have an amendment.
Colleagues, I move:
That Bill C-35 be amended in clause 8, on page 6, by replacing lines 13 to 20 with the following:
“8 (1) The Government of Canada commits to maintaining long-term funding for early learning and child care programs and services, including early learning and child care programs and services for Indigenous peoples and for official language minority communities.
(2) The funding must be provided primarily through agreements with the provincial governments and Indigenous governing bodies and other Indigenous entities that represent the interests of an Indigenous group and its members.”.
[Translation]
This amendment adds the words, “official language minority communities” to the first sentence of clause 8 after “for Indigenous peoples” and splits clause 8 into two subclauses. The first subclause sets out the government’s financial commitment. The second subclause lays out the mechanisms via which the federal government will provide the funding.
This amendment will do two things. First, it will correct the omission of official language minority communities in clause 8, thereby clarifying the legislative intent, which is that the Government of Canada commits to maintaining long-term funding for official language minority communities.
Second, it will ensure that adding official language minority communities to clause 8 does not end up creating a new negotiation mechanism that would oblige the federal government to negotiate directly with official language minority communities.
Colleagues, why is it important to add official language minority communities to clause 8?
In his testimony, François Larocque, a professor in the Common Law section of the Faculty of Law at the University of Ottawa and counsel with Power Law, made it clear that, according to Supreme Court of Canada jurisprudence, in the absence of clear direction from Parliament, the courts should not expand the scope of official language minority communities’ language rights. In Caron v. Alberta, the Supreme Court refused to recognize the existence of language rights in the absence of explicit guarantees in the relevant legislative and constitutional documents.
Regarding the principles of statutory interpretation, Professor Larocque added that clause 8 could give a judge seized with the question the impression that the silence of clause 8 with regard to official language minority communities was a deliberate and intentional choice on the part of the legislator. In other words, the legislator implicitly sought to exclude OLMCs from clause 8 because it explicitly included them elsewhere in the act. This principle of implicit exclusion is supported by the work of the eminent professor Ruth Sullivan.
In short, although the provisions in clause 7, which cover OLMCs, set out guiding principles for the government’s investments, clause 8 is the crucial part of the bill, containing as it does a real and binding commitment. It is therefore absolutely essential that clause 8 mention the financial commitment to OLMCs.
In a message to the clerk of the Standing Senate Committee on Social Affairs, Science and Technology, former Supreme Court of Canada Justice Michel Bastarache, an authority on language rights, wrote, and I quote:
In clause 8, it seems to me that the intention is to guarantee ongoing funding for groups facing assimilation, Indigenous peoples and francophones outside Quebec.
I want to emphasize the last few words of that quote because clause 8 must explicitly include official language minority communities.
[English]
I would also like to point out that there is consensus among both the English-speaking communities in Quebec and the French-speaking communities outside Quebec on the essential nature of the amendment to clause 8. This period of solidarity among the communities reflects the importance of this amendment for these communities.
La Commission nationale des parents francophones, la Fédération des communautés francophones et acadienne du Canada and the Quebec Community Groups Network agree that there is a lack of clarity in clause 8 and that the federal government’s commitment to official language minority communities must be specified.
[Translation]
The Commissioner of Official Languages, an independent officer of Parliament, also sent the committee a letter in which he stated the following:
Without proper funding for these [official language minority] communities in the context of the Canada-wide Early Learning and Child Care Plan, the capacities of the early childhood sector in linguistic minority communities will continue to be compromised.
He is of the opinion that Bill C-35 should be amended to include OLMCs in clause 8.
In response to my question yesterday, senior New Brunswick officials also agreed with the importance of this addition.
In closing, colleagues, I’d like to reiterate that this amendment does not create a new funding mechanism for OLMCs. Again, according to Professor Larocque, and I’m quoting directly from his testimony:
Clause 8 . . . specifies that funding is passed on through agreements between the federal government, the provinces and the territories, and not directly to the communities, and that’s not what’s being asked for and reflected in the suggested amendments.
I’d also like to point out that, yes, certainly, bilateral agreements with the provinces and territories currently provide funding for OLMCs, but we can’t ever take that for granted. I won’t cite the many cases these communities have argued in court, but I can talk to you about it in more detail if you want.
Any commitment that is not codified in law is tenuous. Governments change, but laws remain. The Senate of Canada’s role is to represent and protect linguistic minorities, among others. By giving this amendment its due, we are assuming our important role.
Let me be clear: OLMCs aren’t seeking a privilege through this amendment. They want appropriate statutory tools to ensure their rights are respected across Canada.
Thank you, Madam Chair.
[English]
The Deputy Chair: Thank you, senator.
Senator Osler: May I ask a question to Senator Cormier?
The Deputy Chair: Senator Cormier, would you accept a question?
Senator Cormier: Of course.
Senator Osler: Thank you, senator.
When this committee heard the Indigenous perspectives at meeting number five, we heard Indigenous leaders express satisfaction with Bill C-35. My understanding of clause 8 is that the intention was not to exclude official language minority communities but to expressly state a long-term funding commitment and pathway for Indigenous peoples. Were Indigenous governing bodies, governments, leaders, consulted on this amendment?
Senator Cormier: Thank you for your question, Senator Osler.
I want to be clear here that we are not opposing Indigenous language rights and funding. I don’t have an answer on that. I’m saying that if it’s not included in the bill in clause 8, then the rights of the linguistic minorities will be, I’ll say, endangered. That’s not the right word. You understand I’m trying to explain in English here. There is no opposition there, so there shouldn’t be any concerns. We’re not taking rights away from anyone. We’re not taking funding from anyone.
What communities are asking for is in case they have to go to court. I have several examples here to demonstrate this. When you look at the history of linguistic rights in Canada, it’s always the citizens who have to go to court to have their rights respected. It’s in almost all provinces. In Prince Edward Island, there is the Arsenault-Cameron case, which was very important. Mothers and parents fought for a school in French, and the impact of what they had to do to get their school was that some families were broken. That’s the way linguistic rights advance in Canada. Obviously, it’s not because of the Parliament. What we do helps, but we need to have a good tool. It happened in P.E.I. It is happening this year in the Northwest Territories. The Commission scolaire francophone des Territoires-du-Nord-Ouest had to fight with the Minister of Education of that territory. It’s happening in British Columbia. It’s happening in Alberta with Caron v. Alberta. So it’s happening in education. It’s happening in justice.
Colleagues, I want to make sure you fully understand before voting on this. This amendment is asking for protection, and it’s based on reality. We might say that everything is going well between the federal government and provinces and the territories in terms of agreements. We saw yesterday it was great with New Brunswick. But we see a whole lot of issues concerning rights, and if it’s not in there, then the communities don’t have tools to fight for their rights.
That my long answer. I’m sorry, Madam Chair.
Senator Osler: Thank you.
Senator Moodie: First, I really want to thank my honourable colleague for introducing this amendment and for his tireless advocacy for your province, for his community, in and amongst us and out in the public. You are a model for all of us, and we are proud of the work you do.
I strongly believe that every Canadian should have access to child care for their children in their language of choice. I do believe that. I believe this government also believes that. Every jurisdiction should move towards ensuring that one day soon there will be meaningful access for official language minorities and that this will become a reality for all.
Nevertheless, I cannot support your amendment, I’m afraid, and I will vote against it. We heard this from multiple witnesses, and there was a lot of discussion in our committee about it, and I just want to take a moment to reiterate why I believe this amendment is not necessary but also why I think it could be harmful.
Bill C-35 already contains multiple provisions that highlight that funding for child care must include investments for official language minority communities. Clause 7(1)(c) states that funding must support the provision of ELCC in English and French linguistic minority communities that respect and value the diversity of those children and families and respond to their varying needs. Clause 7(3) states that the federal investments into child care must be guided by the Official Languages Act, and clause 11(1) states that the minister should have regard for the importance of having members of the council who are from the official languages minority communities. Through these provisions, I believe that ELCC for official language minority communities is quite robustly protected for generations to come in this legislation. The guiding principles in clause 7 provide this and guide how clause 8 will be enacted. Therefore, I believe the provisions are sufficient, and I do not believe an amendment is needed to strengthen the bill in this area.
Even more than this, in all the agreements except for Quebec, which has an asymmetric agreement, as you know, there is a stated objective of ensuring that OLMCs have a proportion of spaces that are available equal to and above the share of their population. These agreements are already drafted. They are signed. This happened before the bill was tabled. They are in place.
Additionally, there is an investment of more than $60 million over five years into early learning and child care in francophone minority communities, including supports to develop the workforce, through the Action Plan for Official Languages 2023-2028.
I do appreciate the way that the amendment you put forward has been structured in that it attempts to clarify that there is no new pathway that would exist because of this amendment. I will be asking the officials to comment on this, but before I do, I would like to address some of your central rationales around your amendment.
The thinking is that without this amendment, there is no ongoing guarantee of funding for official languages minority communities if they are not included in clause 8, explicitly written there, despite all of what is present right now in clause 7. If this is the case, does that mean that funding for children with disabilities is not guaranteed if they are not named in clause 8? What about families from rural communities? Is the guidance in clause 7 insufficient for them as well? I understand that official languages minority community education rights are protected, and that is why they are very present in clause 7. It strikes me that it would be more reasonable to assume that the guiding principles for funding are sufficient and that all clause 8 is doing is committing funding to partners based on the guidance already present in clause 7.
I would assert that adopting this amendment might introduce uncertainty and concerns from some provinces, certainly from Indigenous peoples and some other communities. This is a problem that we would be creating where there is no problem right now.
Equally concerning are some of the comments that we heard from ITK President Natan Obed, who expressed concerns to us right here in this committee that this amendment would harm language rights for Inuit peoples. I know that is not your intent, but I want us to acknowledge that it could happen — this is their feeling — and to weigh that risk.
Finally, colleagues, it’s important to note that something similar to this amendment was raised and discussed in the other place. Our colleagues there did not seek to bring it forward, and I know that was a conscious choice, having gone back and spoken to them. All parties recognized that this amendment is flawed.
Because of the concerns of the potential harms caused by this amendment, because I think this bill is strong as it is, because the agreements are in place and working well, especially in New Brunswick; and because other policies regarding official language minority communities are present and protecting their rights, I’m comfortable voting against this amendment, knowing that these communities will be well supported by the bill’s current provisions and that their rights are assured and will be respected for the long term.
Thank you.
The Deputy Chair: Senator Moodie, did I hear you say you wanted the officials to comment?
Senator Moodie: I would like to ask the officials to comment on the clause.
Michelle Lattimore, Director General, Federal Secretariat on Early Learning and Child Care, Employment and Social Development Canada: We are happy to offer two general observations that the committee might wish to keep in mind as it considers this proposed amendment related to clause 8. The first is around the roles and responsibilities for delivering a Canada-wide system, and the second is on Indigenous languages in particular, for which I’ll turn to my colleague Ms. Reddin to elaborate.
First, I would like to underscore that Bill C-35 was drafted to ensure that the Government of Canada respects both the constitutional jurisdiction of provinces and territories as well as respects and upholds the rights of Indigenous people, including the right to self-determination. It would be inconsistent to recognize English and French linguistic minority communities alongside provinces, territories and Indigenous peoples, who are responsible for the design and delivery of early learning and child care programs and services in clause 8 of the legislation. The mention of Indigenous peoples in clause 8 is deliberate. It’s to recognize their status and role in delivering ELCC programs and services.
It is my and the team’s understanding that, legally speaking, English and French linguistic minority communities do not have the same status or role in delivering ELCC programs and services and in building and maintaining this Canada-wide system as the provincial, territorial and Indigenous partners do. Adding a reference to that group, then, in clause 8 would create the expectation for dedicated and increased funding. It is my understanding that this is the legal interpretation not influenced by an amendment, which would split the clause into two paragraphs.
Notwithstanding the role that official language minority communities, or English- and French-speaking linguistic minority communities, might not have in the design and delivery, there is no question that the federal government works very closely with delivery partners — you heard this from New Brunswick yesterday — to ensure that programs and services are in place to ensure access to an affordable and inclusive Canada-wide system. Because of that, support for specific groups, such as English and French linguistic minority communities, are very importantly and appropriately captured in that guiding principles clause, which was already amended at HUMA in clause 7 in subclauses (1) and (3).
I would also note that the Canada-wide agreements, as well as the multilateral framework, do contain commitments to support English and French linguistic minority communities. It is through those Canada-wide agreements that the government is already working with our partners every day to ensure that support is provided through those provincial and territorial systems. Adding another mention of official languages in Bill C-35 could, per our understanding, legally be seen as specifically excluding federal support for other systemically marginalized groups, such as children with disabilities, who aren’t listed.
Beyond jurisdictional roles and responsibilities, I think this amendment also raises questions around support for Indigenous languages, which are not mentioned in the legislation and regarding which I would invite my colleague Ms. Reddin to provide additional context.
Cheri Reddin, Director General, Indigenous Early Learning and Child Care, Employment and Social Development Canada: The concept has been well captured.
I’ll highlight that we officials were following the testimony of Indigenous representatives here last week. As Senator Moodie highlighted, President Obed was quite vocal about the absence of Indigenous Languages Act references and suggested the exclusive references to official languages came at the detriment of Indigenous languages.
Senators, this is my fourth time here as well. Twice, I have also been asked a question about Indigenous languages from Senator Greenwood, a senator of First Nations ancestry, so I would encourage senators to consider that optic and perspective in your deliberations around the amendment.
Senator Cormier: So are both of you saying, if I understand, that because there is an issue about Indigenous language, we shouldn’t make sure that linguistic rights in Canada shouldn’t be respected and included in the right manner in a bill? What I hear here — it’s like an opposition, and there is no way that this amendment is undermining the status of the Indigenous people and Indigenous languages. It is just not for me to speak on that. That’s the first thing that I think has to be clear here.
I understand, and I am in solidarity with the Indigenous communities here totally, but I cannot undermine the linguistic rights of the minorities, which are quasi-constitutional in that act, to say, “Well, okay, we won’t do this because it might be uncomfortable.” You understand that this argument cannot stand for us. It’s like, if, for me — as a proposal of this amendment. That’s the first thing. That amendment is not asking for the same status. That’s why it is divided in two.
I’ll leave it there for now, but I am really uncomfortable with the fact that the federal government is bringing around the table issues that belong to two groups. I want to be very honest and frank here. This conversation is very important for the future and for our relations between the Indigenous and the linguistic minorities of this country. The government must not divide us in any way in terms of legislation or discourse. We must stand together for that. I will stop there, but I will say that I’m really uncomfortable with this.
Colleagues, I won’t list for you again all the court cases in every province. That means that your citizens — women and men in your communities — have to go to court to fight for their rights. It will continue, no matter the goodwill of the federal government and the provinces and territories. This is an occasion to put something there. It’s not asking for more funding. It’s asking to maintain funding. It’s there just in case there’s a case in court. It’s a tool for that. That’s the only thing we’re asking for.
Thank you, senators.
The Deputy Chair: Were you looking for clarification from the officials on that?
Senator Cormier: I could look for an answer, yes. Madam Chair, it was probably more a comment.
The Deputy Chair: That’s fine. Thank you.
Senator Burey: Are we ready for the question, or can I speak? I don’t have to speak if you’re ready for the question.
The Deputy Chair: We’ve got a list of people.
Senator Burey: Okay, there’s a list.
I’m used to having sleepless nights when it comes to something this weighty. Senator Cormier, I appreciate your passion. I’m a minority myself, and I understand that passion. That’s why I couldn’t sleep last night. I had to get up, as usual, at 2:30, and I ended up staying in bed until 4. I said, “I have to get this.” So I went to Bill C-13. That is what really helped to bring me to see what was going on in terms of official languages and An Act for the Substantive Equality of Canada’s Official Languages.
What caught my mind was the commitment in Bill C-13, which I think just received Royal Assent in June of this year, to minority language and “pursue quality learning in their own language throughout their lives, including from early childhood to post-secondary education …”
I think the most important thing is the commitment in section 23 of the Canadian Charter of Rights and Freedoms whereby the Government of Canada shall estimate periodically, which I thought was important, using the necessary tools, the number of children whose parents have, in section 35 of the Charter of Rights and Freedoms, the right to have their children receive instruction in their choice of language. I saw from that a total commitment to get the numbers right, to provide funding and to ensure it.
That is my addition to this wise deliberation that we’re doing right now.
[Translation]
Senator Gold: I understand your disappointment and the fact that you’re not remotely comfortable with the position that the government I represent is proposing. I truly do understand, and it saddens me personally. Nevertheless, according to the government’s reading of this bill and the constitutional context, that’s not the case, and I invite the representatives to comment on that.
You said that the inclusion of OLMCs according to clause 8 would be entirely appropriate. Perhaps I misunderstood the representatives, but I don’t think so. Senator Moodie explained why it’s not appropriate given the different status in the provinces, territories and Indigenous governments. As such, it’s not true that it’s appropriate.
This is disappointing for the cause you champion with passion and dedication, but with respect to legislative principles in the constitutional context —
[English]
to make sure that I’ve got it right, my understanding is that this amendment is not appropriate for the reasons that were well expressed by Senator Moodie and by the officials. Second, the division of this into two clauses doesn’t change the fact that it remains inappropriate. I say this without wanting to repeat all the other things that Senator Moodie said, of which we’re all aware in this legislation. Can I get clarification on that understanding of at least the officials’ position on those two points?
Ms. Reddin: I think the senator expressed it. That is the position, the technical advice.
The Deputy Chair: Ms. Lattimore, did you have anything to add?
Ms. Lattimore: No. I think Ms. Reddin is correct in reflecting that that is the position.
The most appropriate clause in which to capture the concerns that I hear being raised by Senator Cormier, in our view, is clause 7 of the legislation as it exists. We are not lawyers, but we spend a lot of time talking to them, and I can confirm that the division of clause 8 into two clauses or two paragraphs does not change the legal interpretation. That would, in essence, assign some role to English and French linguistic minority communities as responsible for the design and delivery of early learning and child care programs and services. Our understanding is that they do not have that role in Canada in the same way that the provinces, territories and Indigenous partners do.
[Translation]
Senator Petitclerc: I want to take a moment to say that I support the amendment for all the reasons Senator Cormier laid out.
I’ll just say, with all due respect for Senator Moodie, that linguistic communities have constitutional rights, so it’s important not to confuse that with the rights of people with disabilities, of which I am one. It’s not the same thing.
Here’s one of the reasons I support this amendment. This amendment does not take away or dilute anyone’s rights, and it makes explicit a guarantee, a protection people need to ensure that the rights of children in OLMCs are respected. Given the numbers, the data and the legal situation that Senator Cormier talked about and that we’ve heard about in this committee, that guarantee and that protection are necessary, not optional. That’s why I’m going to support the amendment.
As Senator Cormier said, bills and governments change, but bills remain, so we have a responsibility here.
[English]
Senator Moncion: Senator Moodie, you said that this government is committed to the rights of the minority linguistic communities. We don’t refute that. This is exactly the point of the amendment, but it is also to ensure a commitment for long-term funding not by the federal government but by all governments over time. That’s extremely important because the federal government puts things in place and then, when we get to the provincial and the territorial level, that’s where the mechanisms often change. That’s where the linguistic minorities everywhere, in Quebec and outside of Quebec, the rights are brimés — I don’t know how you say that in English.
Senator Petitclerc just said that government changes over time, and yes, the difference in negotiations also changes. Senator Moodie also referred to the agreement. Respectfully, we are discussing Bill C-35, which will have long-lasting impacts. I find no comfort at all in knowing that bilateral agreements are currently working well. I simply know that the history of francophones in Canada is the reality of having to constantly fight for our rights. Senator Cormier has a pile of these, and it’s everywhere and in every province. We’re fighting in front of the courts because of a failure of Parliament to ensure the protection of minority rights in legislation. That’s what we’re looking for here, and that’s what Mr. Larocque was saying in his testimony.
I think I will stop there. Thank you for giving me the opportunity to speak.
Senator Moodie: I’d like to call the vote.
The Deputy Chair: Call the vote? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Deputy Chair: Honourable senators, there has been a request for a recorded vote. I’ll first ask the clerk to name all the senators present who are entitled to vote at this time, as she did yesterday.
Emily Barrette, Clerk of the Committee: The Honourable Senator Cordy, the Honourable Burey, the Honourable Senator Cardozo, the Honourable Senator Cormier, the Honourable Senator Dasko, the Honourable Senator McPhedran, the Honourable Senator Mégie, the Honourable Senator Moodie, the Honourable Senator Osler, the Honourable Senator Petitclerc, the Honourable Senator Seidman, the Honourable Senator Gold, P.C.
The Deputy Chair: If any member present does not wish to vote, you may withdraw from the table now. The clerk will now call members’ names, beginning with the chair and followed by the remaining members’ names in alphabetical order. Members should verbally indicate how they wish to vote by saying “yea,” “nay” or “abstain.” The clerk will then announce the results of the vote, and the chair will then declare whether the motion is carried or defeated.
Before we do that, I will read the amendment proposed by Senator Cormier. It has been moved by the Honourable Senator Cormier:
That Bill C-35 be amended in clause 8, on page 6, by replacing lines 13 to 20 with the following:
“8 (1) The Government of Canada commits to maintaining long-term funding for early learning and child care programs and services, including early learning and child care programs and services for Indigenous peoples and for official language minority communities.
(2) The funding must be provided primarily through agreements with the provincial governments and Indigenous governing bodies and other Indigenous entities that represent the interests of an Indigenous group and its members.”.
Ms. Barrette: The Honourable Senator Cordy?
Senator Cordy: Nay.
Ms. Barrette: The Honourable Senator Burey?
Senator Burey: No.
Ms. Barrette: The Honourable Senator Cardozo?
Senator Cardozo: Nay.
Ms. Barrette: The Honourable Senator Cormier?
Senator Cormier: Yes.
Ms. Barrette: The Honourable Senator Dasko?
Senator Dasko: Nay.
Ms. Barrette: The Honourable Senator McPhedran?
Senator McPhedran: Nay.
Ms. Barrette: The Honourable Senator Mégie?
Senator Mégie: Yes.
Ms. Barrette: The Honourable Senator Moodie?
Senator Moodie: Nay.
Ms. Barrette: The Honourable Senator Osler?
Senator Osler: Abstain.
Ms. Barrette: The Honourable Senator Petitclerc?
Senator Petitclerc: Yes.
Ms. Barrette: The Honourable Senator Seidman?
Senator Seidman: Yes.
Ms. Barrette: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Ms. Barrette: Yes, 4; no, 7; abstentions, 1.
The Deputy Chair: The amendment has been defeated.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Deputy Chair: It has been carried.
Shall clause 9 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 14.1 carry?
[Translation]
Senator Mégie: To this point, I’ll start by reading what’s in the bill.
14.1 The Minister may, on request of the Council, provide the Council with any information respecting the Canada-wide early learning and child care system that is related to the Council’s functions and that is in the Minister’s possession, if it is within the Minister’s authority to share the information.
One part of that sentence is very important: “if it is within the Minister’s authority to share the information.” If the minister does not feel authorized to share it, the minister doesn’t have to.
The amendment states that, on the request of the council, the minister may provide the information. In support of that, we received a letter from Winnipeg MP Leah Gazan. She reminded us that this change was made to other bills, such as Bill C-29, in the other place. It was amended by adding “must allow . . . the Council.”
The comments we received may have been related to information that people didn’t want to share and wanted to keep secret. They can keep whatever they want to keep secret because the rest of clause 14.1 says, “if it is within the Minister’s authority to share the information.” That’s the very important point that justifies being comfortable adding what the minister has to provide. It’s already in the bill on the recommendation of the other committee in the other place.
I don’t see why “must” is okay in one bill but it’s not okay here. I don’t know if Senator Moodie has any objections; I’m sure she does.
[English]
Senator Moodie: Thank you, Senator Mégie, for bringing this forward. It’s an important qualification I think we should talk about. I appreciate the intent of the amendment, but I will also be voting against your amendment.
The inclusion of the term “must” in my mind would create an obligation for the minister to provide the council the information requested, irrespective of the scope of that information. It could be at risk that ministerial discretion would be removed. This could result in the council expanding its areas of focus to include an oversight function of the ELCC system, which it currently does not have the mandate to do. For example, should the minister have to provide information regarding negotiations on agreements? If there is an appetite on the council to share this information publicly, this could be inappropriate and undemocratic for a particular province.
The government needs to also respect the principles of Indigenous ownership, control and access and possession of their data. We would be placing the minister in a position where he would potentially have to disclose information he does not have complete control over.
If the government does not have the discretion on whether or not to share the information with anyone and cannot respect those principles of Indigenous ownership, it could impact their relationship with Indigenous peoples and with the provinces because the minister may be forced to share information within his or her authority without the consent of these people, these partners.
Lastly, I want to note that, as you pointed out quite correctly, there was a discussion in the House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, or HUMA, by MP Gazan. I very much respect her work. At the time this was happening, we were in dialogue as well around these issues. She proposed a subamendment to bring to us “may,” and this is what is before us today as a complement. I think it’s important to consider the path that led to section 14.1 being the way it is currently stated in the bill.
[Translation]
Senator Mégie: The minister’s discretionary power at issue here is already protected by the words, “if it is within the Minister’s authority to share the information.”
A minister may be comfortable saying that if they are authorized to share the information, they’ll share it, but when it comes to accountability, they should share it. That’s why I’m saying that, thanks to that part of the sentence, which is not being changed, if the minister is authorized to share the information, I think their discretionary power is covered because I don’t believe they want to hide everything — at least, I hope not.
That’s my point of view, anyway. I don’t know what other committee members think.
[English]
Senator Cormier: This is more a question for the officials, probably — or I don’t know who, Senator Moodie. I just want to understand the clear relation between the minister and the council. How is it going to work? I just want to make sure I understand that well.
I have to agree with Senator Mégie about it being within the minister’s authority to share the information. If the minister doesn’t have the authority, the minister won’t share that information.
I just want to have more clarity on the relationship between the minister and the council.
Ms. Reddin: Ms. Lattimore can take that one.
Ms. Lattimore: Thank you for the question, Madam Chair. In terms of discussing this amendment, it would be helpful for the committee to consider a few things.
The proposal that is in front of you to amend 14.1 of the bill, which replaces that word “may” with “must,” is, as has been noted, something that was brought forward at HUMA and defeated. Our understanding is that the inclusion of that term “must” would create an obligation for the minister to provide the council with information requested, provided — again, there is some contextualization there — that it’s in the possession of the minister and it’s within the minister’s authority to share, irrespective of the scope of that information. It would, in effect, remove ministerial discretion to not share information that he or she may have authority to share but may not wish to from the perspective of, for example, respecting federal-provincial-territorial negotiations that are under way.
The impact of that is that it could result in the council expanding its area of focus, which, as outlined in the legislation, is really to provide the Minister of Families, Children and Social Development — at least for the time being — with independent advice. They have a consultative mandate to really work with the minister and with the department to support the ongoing design and delivery of a Canada-wide system. If the council were to expand its focus beyond that to include, for example, an oversight function for the early learning and child care system, that would go beyond the current mandate of the council as outlined in the legislation. Bill C-29, which was mentioned earlier, includes reference to this word “must.” Bill C-29 does, in fact, refer to the role of an oversight body that has a role to monitor progress. That is not the role that is proposed for the council in this legislation.
From an official’s perspective in terms of maintaining and fostering relationships with provincial, territorial and Indigenous partners, who are really at the core of the work we do, the concern is that there would be instances where sharing information with the council could be damaging to those relationships. If the government doesn’t have the discretion to decide what information is shared, we may end up in a world where partners are reluctant to share information with the minister, which could impact future collaborative work on early learning and child care and compromise those relationships.
I hope that’s helpful.
Senator Cardozo: The issue does interest me a lot in terms of ministerial accountability and openness.
In terms of amendments, I think the guiding principle is also what I referred to yesterday — which I will call the Shugart protocol — which is a call for us to exercise restraint when amending bills, understanding our role in the overall constitutional process as a Senate. As I mentioned I think yesterday, before the reforms of the Senate in 2015 with the appointment of independent senators, the Senate was reforming about one to two bills a year. When I started, I heard that the figure was up to about 30% a year, which I think is a good figure. I think we’re now up to about 50% a year. I think we want to set a fairly high bar when we amend bills and think about things that are absolutely necessary, recognizing that we are amending bills that are sent to us from the elected house on the other side. That’s it. Despite the interest I have in this, as I did with the previous vote we just had, I’m a bit reluctant.
My question for the officials is on ministerial discretion. From what you understand, when there is this issue of ministerial discretion, would there be similar clauses in other acts where ministers are required to share or asked to share information with others? How is that treated in other legislation that you’re familiar with?
Ms. Lattimore: Thank you for the question.
I think it comes down to what I mentioned earlier with respect to the role of the council as laid out in legislation. We would expect to see — and as pointed out, do see in Bill C-29 as an example — language that reflects more of an obligation to share information than we would see in legislation that outlines a role of a council that is more of an advisory body. That’s really the distinction in terms of how we’re choosing what language is most appropriate in any given act. In this case, we’re speaking specifically of an advisory body role for the council, and that’s why this language is, in our view, the most appropriate in this case.
Senator Cardozo: I would like to ask one more question. Could a parliamentary committee — either the House or the Senate — ask for that information? Would we have more authority in asking for that kind of information?
Ms. Lattimore: I’m sorry, senator, I’m not sure I understand the question.
Senator Cardozo: Does a parliamentary committee have more authority to require a minister to share information than, say, an advisory committee? What kind of authority does Parliament normally have to ask ministers for information?
Ms. Lattimore: Parliament would have more authority to ask ministers for information than an advisory committee would in general, yes.
Senator Seidman: Ms. Lattimore, thank you very much for your explanation. I think it has helped me understand much more clearly the meaning of 14.1. If I understand correctly, it has to do with the line of authority and the actual authority of the council. I also see that there could be interpretation confusion about the council’s functions if you say that the minister must report on issues in the system that are related to the council’s function. Then you have to start defining in a more particular way, so we create even more confusion. I don’t think that’s what we want to be doing here, so I will not be supporting this amendment.
In regard to Senator Cardozo’s question about parliamentary authority, so to speak, very often you see in a piece of legislation a reporting period and the minister must report back to Parliament, both Houses of Parliament or one of the other houses of Parliament. The Senate likes to always say both the house and the Senate. We do very often ask the minister to report back to us. Even then, there is a lot of discussion about the word “may” or “must.” I’ll just leave it at that.
The Deputy Chair: Language is wonderful, isn’t it?
[Translation]
Senator Mégie: The official’s reply to Senator Cardozo’s second question is the question I wanted to ask, so I have my answer.
[English]
Senator Moodie: Can we call the vote?
The Deputy Chair: Yes.
It has been moved by Honourable Senator Mégie
That Bill C-35 be amended in clause 14.1, on page 8, by replacing line 15 with the following:
“14.1 On request of the Council, the Minister must pro-”.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Deputy Chair: Do you want a recorded vote?
An Hon. Senator: On division.
The Deputy Chair: Defeated. Thank you.
Shall clause 14.1 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Deputy Chair: Does the committee wish to consider appending observations to the report?
Hon. Senators: Yes.
The Deputy Chair: Yes. Okay. Do you wish to go in camera to discuss the observations? No? I’m at your mercy. No. Okay. Fine.
Senator Seidman: It’s the committee’s discretion whether they want to go in camera or not, but we have very generally decided to go into camera to discuss observations, so I bring that forward. Sometimes it’s easier to deal with a lot of the issues in camera. I leave that open for the committee.
The Deputy Chair: Is it agreed we go in camera? We will suspend briefly to go in camera. I’ll ask officials and any members of the public to please leave the room.
(The committee continued in camera.)