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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 28 - Evidence


OTTAWA, Thursday, March 7, 2002

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-32, to amend the Official Languages Act (fostering of English and French), met this day at 10:55 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, today we will be starting with Ms Deborah Hook of the Quebec Community Groups Network. Perhaps, Ms Hook, you would begin by introducing your confreres.

Ms Deborah Hook, Executive Director, Quebec Community Groups Network: In fact, the Chair of the Quebec Community Groups Network, Mr. Hugh Maynard, will present the brief. Mr. Richard Henderson, president of Outaouais Alliance, is here for support.

Mr. Hugh Maynard, Chair, Quebec Community Groups Network: Honourable senators, I believe a text is being circulated for your benefit. I thank the committee, and in particular, Senator Gauthier, for the opportunity to express our opinion on Bill S-32, sponsored by the honourable senator. We have heard quite a lot about the unflinching commitment the honourable senator has shown over many years to supporting minority communities in Canada, and we would like to express our appreciation. It is also important to note the impressive credentials in the field of official languages of the other honourable senators around this table who are here to listen to us and consider our point of view.

I will take a moment to introduce the Quebec Community Groups Network. The QCGN is a non-profit network of community associations that receives funding from the Department of Canadian Heritage to support English-speaking communities throughout Quebec. Our mission is to contribute to the development and enhancement of the vitality of the English language minority communities throughout Quebec. The member organizations conferred a mandate to promote a coordinated approach to community development with other partners to support and develop our communities. The QCGN is also mandated to promote dialogue between the English and French language minority communities in Canada and the representation of our English-minority communities at the national level with federal institutions and bodies that influence the development and enhancement of our communities. I think that is fairly evident from our relationship to the Official Languages Act and the Official Languages Support Program of Canadian Heritage.

Senator Gauthier's bill should be supported because it enhances the mandatory nature of section 41 of the Official Languages Act. The QCGN feels that it strengthens the obligation of the federal government to take necessary measures to promote the vitality and development of minority communities. History tells us that section 41 is, in fact, executory in nature. The Honourable Ray Hnatyshyn, on March 22, 1988 before the House of Commons legislative committee responsible for considering Bill C-72 on official languages, and the Honourable Lucien Bouchard, then Secretary of State, appearing before the Senate committee considering the bill, both stated that section 41, which introduces Part 7 of the act, created an obligation for the federal government to act positively to promote the vitality and development of minority communities.

We should like to share with you today a rapid overview of the actual state of our English-speaking communities and what they are facing against the backdrop of the Official Languages Act as it is presently being applied. Before getting into the details, we feel it is very important to clearly and unequivocally express our understanding of the need to protect the French language and culture in Quebec for many reasons. More and more anglophones are marrying francophones, which has resulted in an English community that is very cognizant of the reality in Quebec today.

Also, the QCGN is working more and more with the Fédération des communautes francophones et acadienne du Canada and is reaching out to the francophone minority communities throughout the country. This has resulted in an understanding of and sensitivity to the reality for francophones living outside Quebec.

We believe that we are among the best ambassadors for Canadian unity, with our understanding of our unique and rich culture in Quebec and Canada and as we live with linguistic duality on a daily basis.

There are some alarming facts and figures concerning our minority communities that must be shared to gain an understanding of why we support Senator Gauthier's bill to clarify how section 41 of the Official Languages Act should be applied.

The 1996 Canadian census tells us that there are 926,000 anglophones living in Quebec and 968,000 francophones living outside Quebec. The demographic portrait of English Quebec is changing dramatically. Recent statistics tell us that the demographic weight of the anglophones within Quebec continues to drop. Migration from other Canadian provinces is lower than previously. The Quebec government has a policy to actively encourage French speakers to come to Quebec, and those anglophones who do come to Quebec tend to stay in the Montreal area.

Our population is aging faster than that of our francophone neighbours. There are more poor anglophones than poor francophones in Quebec. Unemployment is 15 per cent higher for anglophones than for francophones in Quebec, despite the fact that English-speaking Quebecers have a higher level of education and are more bilingual than their francophone counterparts. The English-speaking minority in Quebec needs the support of the Official Languages Act to change this situation.

I think that that reinforces the earlier statement about the changes to the statute that are being proposed.

Within the education sector, reality for anglophones in Quebec is not as it would seem if one only used the Canadian Charter as a measure of the state of affairs. The Canadian Charter permits the use of the mother tongue as a criterion for access to schooling in a minority language in Quebec; however, anglophones there are refused schooling in English even if their mother tongue is English because of Bill 101.

In reality, the Canadian Charter and Bill 101 combined have some rather startling effects on the English-speaking minority communities throughout Quebec. Obviously, the restriction on access to English schools has resulted in fewer English speakers in our school system. The numbers are estimated to have dropped by 50 per cent over the last 25 years, which has provoked a real crisis in the educational system. In the outlying regions, schools are shrinking and closing. Distance education, which technologically links students in these regions, has become necessary so that they can stay with their families and complete the necessary prerequisites for entry to cégeps and universities.

Access to health and social services in one's own language, in this case, English, is recognized by Health Canada as a clear determinant of health. While budget cuts, hospital closures and amalgamations are a reality for health care across Canada, a snapshot of the situation for English-speaking Quebecers sadly points to the politicization of access to health and social services as a factor in the challenges Quebec anglophones face. For example, plans were developed in the early 1990s with the English-speaking communities to allow access to services in English, either from a French institution or from an English institution in another region. Before the implementation of these plans, they were sent to the office de langue français to ensure that they respected the charter of the French language. Over time, in the highly charged political arena in Quebec, there have been attempts to radically change or even abolish these plans because, as has been stated, they allow too much English in the system.

Also, the institutional network that has been historically linked to the English-speaking community has come under many direct and indirect pressures that have clearly hindered it in providing services to anglophones, which threatens the central role played by the organizations in the network. Recently, the entire provincial advisory committee on health and social services for the English-speaking population resigned as a result of political interference by the Quebec government, leaving us institutionally bereft in terms of our representation at that level.

Thus, an analysis of the situation in the health and social services sector for the English-speaking minority from the ``outside,'' so to speak, without seeing the real facts and figures, would lead one to come to a rapid and, at times, erroneous conclusion that all is well, when in fact it is not.

Various other issues are beginning to impact on the English-speaking community, most recently, municipal affairs and the effect of the mergers in Quebec on the availability of English-language services, and this is not only at the local level. It must also be stated that the refusal of the Supreme Court to hear a motion with regard to the municipal mergers was a major blow to our minority communities. To quote Senator Fraser in her recent speech in Moncton, New Brunswick, it is not every day that a minority is refused even the opportunity to be heard before its rights are eliminated. Does this mean that our minority communities must wait until there is real damage before going before the court for a remedy, bearing in mind the financial and human costs involved? I think that is very important.

I made a commitment when I became involved in community organizations in the mid 1990s that I did not want to earn a reputation as a whiner, always complaining about this, that and the other. I was there on a positive note to get something done. However, I think the question must be asked: If you cannot get action and you cannot get results, what other course do you have? I suppose the broader definition of a ``whiner'' would be someone who goes to court. Perhaps that is stretching the argument a little, but it brings us back to the point of the changes proposed by Senator Gauthier. We want to be proactive rather than reactive in these situations.

We also have difficulty with the intergovernmental agreements between our federal and provincial governments. Quebec is the only province that has not signed a Canada-Community agreement with the federal government to support the official language minority communities. We have been working with the federal government to increase the level of employment in the federal public service. Since anglophones represent 13 per cent of the population and only 7 per cent of the federal public service in Quebec, and of course, only about 0.5 per cent of the provincial public service, it makes it very difficult to provide employment opportunities.

As you can see, the wording of the Official Languages Act in section 41 and Part 7 allows other issues to crowd out the federal government's support for official language minority communities, in this case, the English-speaking minority in Quebec. Moreover, as you have surely noticed, recent newspaper articles tell us that the latest polls show reduced support for minority-language communities in the majority communities.

Even with the protection of the Canadian Charter, and taking into account the institutional structures we have built, the English-minority population in Quebec, despite the misconceptions, myths and misinformation, needs a strong and clear law and the political will to apply it. This ambiguity permits our government to determine, within the confines of its own structures, what is good for our community. Consultation is often too little and too late. It is a paternalistic relationship, not a partnership.

Witnesses who have preceded us, particularly the FCFA, have suggested modifications to section 1 with which we agree. These modifications will serve to clarify and enhance the federal government's obligation to support minority communities across Canada and will open the door to regulations that allow the timely, pertinent and flexible application of the Official Languages Act.

Honourable senators, through the Official Languages Act, particularly section 41 in Part 7, the government must mobilize the necessary resources to develop leadership and empower the community to take care of itself. The federal government must be committed to its obligation to ensure the means to support and develop a vibrant and healthy minority English-speaking community in Quebec. We need legislation that, combined with the political will, will support and enhance our minority communities as they really are, and which will be understood and accepted by the majority populations and those whose job it is to implement the law. We need a clear, strong law that will enable the English-speaking minority in Quebec to base its voice on solid facts and broad-based knowledge and empower us to work with the government to contribute to the rich social fabric of our communities, our province and our country.

[Translation]

A few years ago, when Marcel Massé was President of Treasury Board, I was a member of the Fontaine Task Force on Government Transformations. One of the points that came out of our discussions on transformations involving the transfer of obligations regarding official languages to the new agencies and new service providers was Canada's two official languages: English and French. Canada must get involved and include these words in all regulations, activities, programs and Government of Canada policies. I think that Senator Gauthier's proposals seek to achieve exactly that. It is one of Canada's fundamental values, and we must have legislation supporting it.

[English]

Senator Beaudoin: The brief states that section 41 is executory, or imperative. Do you agree with that?

Mr. Maynard: Yes.

Senator Beaudoin: My second point arises from your third page, the fifth paragraph from the bottom, where you say that in Quebec, anglophones are refused schooling in English.

It is true that, according to section 59, anglophone immigrants are in that category. That is what you want to say. It is only for the immigrants. However, I agree with you that it is very important. It is true that the Charter of Rights and Freedoms operates differently in that field in Quebec, because we enshrined this in section 59 of the Constitution Act in 1982. Some people have suggested that it be amended, but the fact is, this is the situation. Perhaps it should be said that anglophone immigrants are refused schooling.

Mr. Richard Henderson, President, Outaouais Alliance: We deal with situations all the time involving mixed families. An example would be where two siblings, because of their parents' English education in Canada, are permitted access to English schools, but a third sibling, who might be the result of a second marriage, and is still being raised in an English family, does not have that access. It has happened in various circumstances throughout the province where the child has been denied English schooling. Therefore, this would be a Canadian citizen, born in Canada to Canadian parents. English education may be denied because of the educational circumstances of the parents. Perhaps the mother was educated in French and has now married a French Canadian. The parents are educating two of their children in English and wish for the third child to attend the same school. That is one example.

Senator Beaudoin: If they are born in Quebec, or in any other province, of course, they have access to education in the English language. There is no doubt of that.

Mr. Henderson: That is not necessarily so in Quebec. They would have access to English education anywhere else in Canada, but in Quebec they are being denied access because of their parents' education. The child is a member of a family in which two siblings are in an English school, yet that child is denied access to the same school.

These are exceptions, of course. In most circumstances, English children have access to English schools. No one would deny that. However, there are many exceptions where, even after going through the appeal process, the child is still denied access to English schools. That process is very uneven in its application.

Senator Beaudoin: I take note of that.

Mr. Maynard: I will conclude by saying that I think our major challenge is that, with continued out-migration and a declining birth rate, and without the ability to attract immigrants, obviously there will be a continuing decline, which is not dissimilar to francophones living outside Quebec. In that sense, there is no ability to replenish the community. It is a similar problem in a different language.

Senator Fraser: To clarify Senator Beaudoin's point, 23(1)(a) of the Charter does not apply in Quebec. For example, I have a cousin whose family has been Canadian anglophone for 200 years. They were living in Ottawa when she was small and her parents laudably sent her to a French school so she would speak good French. She married a French Canadian. Their children would not be eligible for English schooling in Quebec. It does not just apply to immigrants.

I would like a clarification from the panel. On page 4 of your brief, at the top, you say that preliminary figures show that for every 10 francophones in Quebec receiving specialized training, only 5 anglophones receive similar training. Could you tell me what that means?

Ms Hook: I will try. If I do not do a good job, I will ask the person who supplied those numbers to submit something in writing. Obviously, statistics are not my forte.

It means that Quebec English speakers are doubly underserved. Out of 100 people, if 10 francophones in Quebec receive the training they need, only 5 anglophones will.

Senator Fraser: It is a percentage.

Ms Hook: Yes. It is because of the size of the schools. They have half of the ``market spread,'' if you like, in the community. We have just discovered this, frankly, and will probably research it further. Once again, it is a subculture. That group of anglophones does not have the education, the language skills or other skills to get a job, and that directly affects the unemployment rates. They are being forgotten or lost in the system.

Senator Fraser: Thank you. I do not know about the rest of the committee, but I would like to see those numbers.

Ms Hook: Okay.

Senator Fraser: That leads to my next question. Many of the problems that you outline lie within provincial jurisdiction. As we know, the federal spending power is a wonderful thing.

When you refer on page 3 to distance education, are you arguing that there is a role for the federal government in the funding or the provision of that?

Mr. Maynard: Yes. It is used as an example of the type of support that could be provided. One of the difficulties we have with the intergovernmental arrangements is that if Quebec decides not to sign — we cited the example of the health and social services agreement — we are very often denied access to the federal resources that would have been available.

Second, in some cases, the money is transferred directly to Quebec and we have to try to find it.

When we look at the particular needs of the English-speaking communities, because of their dispersed nature, particularly outside of the Island of Montreal, distance education becomes extremely important. Obviously, it is not of the same importance to the majority francophone population in Quebec. Therefore, we are not part of the developmental priorities of the provincial government.

Certainly the federal government can play a very prominent role in that. Our difficulty is that very often, these issues are in areas of so-called ``provincial jurisdiction,'' and that is where we get the political interference. We have tried, although unsuccessfully to date, to suggest to the representatives of the federal government that they should work directly with the community on the application of programs. The interdepartmental partnerships on official languages communities are a prime example of where we could accomplish more. However, on the intergovernmental level, where there are significant dollars attached to things like health, social services and education, we have been unsuccessful to date.

Senator Fraser: Do you think this bill would prod the federal government to be more active in ensuring minority rights?

Mr. Maynard: It would give us another lever. I do not know how many levers we need, but another will always help.

Senator Gauthier: Mr. Maynard, you talked about health, education and professional training. I understand where you are coming from, because I, a francophone, have lived here in Ontario all my life. We have only had post- secondary education in French here for the last 10 years. It is a grind, but you will get there if you keep at it. I will also tell you why I appreciate your support for Bill S-32.

I was here in 1988, when Mr. Bouchard and David Crombie, Secretary of State, spoke to the committee. I will refer to the text of that meeting.

It is from July 1988. It says that section 41 describes the extent of the government's intention; it assigns to the federal government the obligation to enhance the vitality of linguistic minorities.

This is the first time any federal law has talked about ``enhancing'' minority communities. I appreciate that lawyers have interpreted that to be declaratory, or some kind of wish or intention, but not a legal obligation. I understand what you just said to us about access to health care and education. You also mentioned that you were working closely with the Fédération des communautés francophones et acadienne. I appreciate that, because there has been a longstanding lack of communication between the minority groups outside Quebec — and I do not like that expression ``outside Quebec.'' I consider myself a Canadian of French expression — and anglophones, or Canadians in Quebec who speak English.

For me, there is only one country with two official languages. We are not a bilingual country. I do not buy that nonsense. I say we have two official languages that must be respected and given equal rights.

My bill tries to reinforce the obligation of the governments in this regard. I say ``governments'' because section 43 of the Official Languages Act gives very specific responsibilities to the Minister of Canadian Heritage.

I know that you tried to use the courts on the issue of the merging of municipalities. I appreciate that you tried hard. However, have you recently used legislation, for example, or the courts in any way, to try to confirm your language rights in education?

[Translation]

Ms Hook: I have been in my position for two years. I must say, senator, that we have not gone to the courts. I believe that Mr. Brent Tyler, the President of Alliance Québec, will appear before you. His specialty is minority rights, especially as regards education. So he will be in a better position to answer your question.

We are part of the Court Challenges Program. As our francophone colleague said, it is not easy. The Court Challenges Program must serve all Canadians. Successfully receiving funds, even with the best will in the world, is not easy. Then, once that is done, we have to come up with the time and money to follow through. Often, minority cases end up in the Supreme Court. So we must be prepared for a long battle and we must have a lot of money.

In an informal conversation with one of the lawyers who was before the Supreme Court on the municipal amalgamations, the lawyer told us that he had to provide evidence at trial, to make sure that it would work in the Supreme Court. Apparently, the evidence was presented at trial, but it was rejected. So we can in fact go to court, but the matter almost always has to become political so that, at trial, it becomes part of the evidence required to move on. So we have not used the court route as much as we could have, and we would prefer to avoid doing so, if possible.

Senator Gauthier: The Court Challenges Program does not accept to hear cases on section 41 of Part VII. Do not waste your time asking people who are part of the program to help you, they will tell you that they cannot.

I would like to ask a question that has been bothering me. You have surely heard about the Montfort Hospital. Some time ago, in Ottawa, the Ottawa Citizen published an article which said that the Montfort Hospital was a —

[English]

— ``boondoggle — never in Quebec would we expect to have such a hospital with English services.'' I was rather upset by that so I wrote to the Ottawa Citizen to say that those are not the facts. They never published my letter, of course. They never do. It is a difficult situation.

My question is about access to health services in English in Quebec. Is it generally accepted that there are English- speaking hospitals in Quebec? I know that the official language is French, but there are English-speaking institutions, and I think there is one being built now in Montreal. Am I right?

[Translation]

Mr. Henderson: You are right. The services that Montrealers have in English are excellent. In the regions, for example here in west Quebec, I can also say that services are excellent. Access to service in English is not necessarily equally consistent everywhere. I must also say that a lot depends on the benevolence and the professionalism of the people in the hospitals.

We have fought for those services for a long time. We got them through our access to service in English regime. But I must say that the battle is still ongoing, as these regimes are reviewed every three years. They must be reviewed. So we do not have guaranteed access. Access may change every three years. Recently, Minister Trudel, who was the Quebec Minister of Health, wanted to review these access regimes. Mr. Maynard told you earlier that we resigned en masse from the provincial consultative committee because we could see what was coming.

With the Quebec Community Group Network, we now have the strength of a network that has a strong voice and that enables the community to see the real situation. It is not well known. I too waged a small battle in the Ottawa Citizen recently to state that in Quebec, there are hospitals that were built with the money of our ancestors by anglophones before the public network existed. They are no longer anglophone hospitals. They provide services in English, which is allowed under the access regime, but they are not English hospitals. After all, it is obviously up to us to continue fighting for that.

As for the battle for the Montfort Hospital, for example, it goes without saying that we supported it entirely. We were there right from the beginning, and we are happy with what they did, because the anglophone community will also be able to benefit from their action.

Mr. Maynard said that Bill S-32 is another lever that we will need so that there is an obligation to support our linguistic community.

Senator Gauthier: The Montfort Hospital is not an exclusively francophone hospital. It serves French and English- speaking Canadians. What makes the Montfort Hospital different from other hospitals in Ontario is that the language of work in the hospital, among doctors and nurses, is French. It is the only hospital outside Quebec where the language of work is French. That is what we wanted to save, because the Montfort Hospital, in cooperation with the University of Ottawa, trains doctors for francophone communities outside Quebec.

Mr. Henderson: The Montfort Hospital is the reflection of what is happening in Montreal.

Senator Gauthier: The problem is not the same in Quebec. There is no problem obtaining medical training in English. It is done commonly. McGill University has four or five hospitals that work in English.

Mr. Henderson: The comparison is not with the numbers. Of course there are many anglophone hospitals in Montreal. However, in the regions, in west Quebec, for example, there are no anglophone hospitals offering services or working solely in English. We have access to services and we have to fight to maintain them.

Senator Gauthier: I would really like to be able to use both official languages in all hospitals in Ontario. I know people throughout Ontario who do not have access to the same services as I do because I live in Ottawa.

My next question is for Mr. Maynard. In a letter that I received last October or November, the Minister of Justice told me that section 41 was political in nature. I have been in politics for 40 years. I fully understand what that means. In your interpretation, within your means, do you have an idea of what it means to say: ``Use the political strength of the minority in Quebec to change the ideas of the majority''?

When I am told that it is political and I know that the official opposition is the Canadian Alliance, which does not want any federal government involvement in official languages, I tell myself that something is wrong. I have never heard the Canadian Alliance Party express support for the report of the Commissioner of Official Languages. It would never do that. Do you agree that it is political or are you convinced, like me, that it is binding and that the legislation needs to changed?

Mr. Maynard: Yes, but perhaps it starts with the political side, because it is part of a need for political change, and we are starting the process. We start with a change and in the end, politics evolve. Sometimes, when that requires more time and effort, we face difficulties implementing the regulations. In that sense, it is a political need.

Senator Joyal: Mr. Maynard, some witnesses have told our committee that mixed marriages were one of the factors of assimilation in Canadian society. They have shown us in particular that in some regions, assimilation was the result of this situation, and today, mixed marriages are even more numerous than they were decades ago, when religion was a very important element of social distinction.

Today, we have learned to accept religious differences within a family without any problem, whereas in the past, I would say that it was a relatively effective kind of barrier.

In your opinion, what is the situation in Quebec in this regard? Are the mixed families in Quebec one of the main reasons for erosion in the anglophone community?

Mr. Maynard: Yes, it is something new in that it is an assimilation process. I think that data in the most recent census tend to indicate an increase in mixed marriages, in marriages among francophones and anglophones.

This is a challenge today, because with a birth rate on the decline and emigration that is ongoing, the loss is felt in the anglophone community. It is new, however. The problem is not as extensive as it is for French-speaking communities outside Quebec, but it is certainly one of the matters we will study in greater depth. If you are bilingual, you naturally have more contact with the French-speaking community.

Senator Joyal: If you could focus all of your efforts on a single priority, would it be additional protection or additional regulations? I do not want to give you the answer. In your opinion, if you look at all of the aspects considered essential for maintaining the vitality of a minority community, what is the determinant factor that could contribute to maintaining a kind of social balance in Quebec? As you said, the anglophone community in Quebec is on the decline, not only in terms of numbers, but also in terms of vitality, in other words, in its participation in all social, economic and cultural activity in Quebec. In your opinion, where should efforts be focused?

Mr. Maynard: It is difficult to choose a single area. In my opinion, it would be access to schools. Without a school in the community, there are no families; without families, there are no children; and without children, the community has no future. It is not a question of opening doors, in the sense of establishing a balance between the protection and promotion of the French language in Quebec.

Clearly, in some communities, the schools are close to the families. Closing them will mean an end to the communities. That does nothing for the other services, economic services, health care, etc. If there is no school in the village, there is no village. To my mind, that is the biggest challenge, because it is not easy to know how to increase and provide access to schools in English without opening the doors to a major transfer from other communities, anglophone and francophone at the same time. We must come up with a solution.

[English]

Senator Grafstein: I have just one question. I believe one of your organizations was involved in the amendment to the Constitution that changed the educational framework in Quebec several years ago. A number of us sat on that joint committee. There was a belief that that change to the constitutional structure would provide some sustenance to and vitality for English education in Quebec. What is your view of that?

Mr. Maynard: Are you referring to the constitutional change, senator?

Senator Grafstein: No, the impact of the constitutional change on the revitalization of English language education in Quebec. Has it been good, bad, or neutral?

Mr. Henderson: In the community for which our association is responsible, I would have to say that there probably has not been a great deal of change as a result of that. It probably signalled to the community that it now had to step in and take a more active role in the administration and take more responsibility. However, it did not provide the tools or the resources that the community needs. Nor does it give our institutions the protections that they need to increase their vitality.

By that, I mean that obviously, in Quebec, we have the Charter of the French language. There are many measures in that charter that essentially make it difficult for the community to not only revitalize its institutions, but also to have access to the larger community, the rest of North America, and to bring people into our communities who wish to have an English education.

In other words, as people who are of English extraction leave the province, our institutions begin to die. That aspect of it has not changed. I would say that in most people's minds, at least, it has given a visible example of what an English institution is and how to take care of it, and it divides things less on religious lines. It was not always obvious, in religious terms, whether one was a part of the francophone or anglophone community.

The Chair: I thank you very much for appearing today.

Our next witness is the president of the Law Commission of Canada.

[Translation]

Ms Nathalie Des Rosiers, President, Law Commission of Canada: Thank you very much for allowing me to appear. I am very pleased to have the opportunity to make some remarks. I will be rather brief, and I must add that the first part of my remarks stem primarily from my personal interest as a researcher in the area of constitutional and language law.

I have called the first part of my statement ``The constitutional need for the proposed amendment''. In the second part, I am going to try to relate how this amendment fits in with the major legislative changes, the main trends in law reform.

I will address three points: community development, the role of pluralism in our legal system, and the role of pluralism in globalization. First of all, I want to discuss the constitutional need for this amendment to the Official Languages Act.

The constitutional context with regard to linguistic rights is fairly well known, but it has changed in recent years. I know that later on this morning you will hear from Mr. Caza, an expert in the Montfort case; I therefore will not dwell on that issue at great length.

Since the Quebec Secession Reference, it has become clear that the protection of minorities in Canada is a fundamental structural constitutional principle.

[English]

Ms Des Rosiers: I should say that I am quite happy to answer questions in English at any time.

[Translation]

In the Montfort case, the Appeal Court confirmed that this principle forces the government, to a degree, to take into account the relative weight of an institution with respect to the survival of the minority. The Appeal Court did not recognize the validity of the ratcheting-up principle, which means that we cannot go back on any progress which has been made. If a government has recognized that a minority or an institution has certain rights, it cannot repeal them.

The Appeal Court did not recognize the validity of the ratcheting-up principle under section 16(3), but — and this is my opinion — I think it did so implicitly, by referring to the underlying fundamental structural principles, that is, the unsaid principle of minority protection.

Indeed, the court suggested that from the moment the French Languages Services Act recognized the Montfort Hospital as being an institution, as an organization providing public services in French, it could not repeal its institutional character, unless — the imposed limits seem important to me — it was reasonable or necessary to do so. So the test is whether it is reasonable or necessary to go back to the way it used to be or to change the character of an institution.

We have to remember two aspects of this ruling. The first deals with the unwritten constitutional principles which mandate the ratcheting-up principle. That is a good thing. We do not want to repeat the mistakes of the past which basically meant that the rights of minority institutions were unnecessarily or unreasonably violated. The second is that the argument as to whether it is sometimes necessary or reasonable to change the character of an institution sets limits to the debate and allows for an active assessment of institutions and of their character as proposed by the minority.

This does not mean that the minority will always win. Once in a while, a minority will not be able to maintain an institution which is inefficient, ineffective or badly managed, but at least the minority will have the power to review the decision-making process which would weaken its institution. It will allow for a more informed and objective public discussion of the role played by minority institutions. It will allow minorities to stand up for themselves by taking charge of their own institutions and by allowing them to argue in support of the legitimate and appropriate character of their institutions. It will also make it easier for the majority to enter into a dialogue with the minority on whether it is necessary or reasonable to change the character of an institution, if this proved necessary.

This aspect of the dialogue between a minority whose power has been confirmed and the community is very compatible with the general development of law reform.

I will move on to the second part of my presentation, which deals with the significant trends in law reforms and how this amendment fits into those trends. The Law Commission did a lot of work on community development. We are increasingly witnessing the development of a civil society which is happening outside of government. It has been referred to as ``governants outside of governments.'' It is a grassroots development which works its way to the top. However, we cannot ignore the role of government. That role is becoming increasingly sensitive, but the government nevertheless plays a leadership role and is a role model which inspires and empowers communities to take their fate into their own hands and grow.

In my view, the draft amendment to section 41 clearly addresses the issue of whether a community has the ability to decide its own fate. Many studies have shown how hard it is for young people to maintain their francophone identity under the pressure of American culture, for instance. We have to keep in mind the success of many community initiatives which received government support, such as francophone day cares, the growing influence of schools, and the acquisition of original artistic productions in French and the development of French software for children. These programs were created with the help of taxpayers' money to meet the needs of the community. Community development feeds a committed and involved citizenry. It is the key to healthy democratic development and there is no doubt that community development will foster progress within society.

In the Law Commission's research on community development, two points emerged. First, that community development — this is probably the way of the future — and governments must ensure that resources are spread equally amongst communities and facilitate a dialogue between communities. Section 41 makes it easier for communities to enter into a dialogue.

It is not easy for governments to support communities because our research has shown that governments sometimes create a distortion with regard to community needs. Sometimes people develop needs because money is available for those needs rather than others. The Law Commission is willing to help governments minimize the distorting effects which are sometimes created by their programs.

I want to mention two other things: the importance of bilingualism for Canadian multiculturalism in terms of respecting each other's differences and the importance of pluralism on the international stage, which puts this small amendment in a much larger context, and perhaps a more theoretical one, but I feel I should share with you some of the research the commission has conducted in that regard.

Some people argue that it is difficult to maintain bilingualism in a multicultural environment. I feel this argument must be rejected because there would be no Canadian multiculturalism without bilingualism. One of the characteristics of Canadian society is the fact that we accept our differences and the right for people to speak and act freely, and to be respected and acknowledged publicly. In so doing, we accept each others differences, be they cultural or linguistic.

In practical terms, there is no doubt that bilingualism and its attendant challenges have led to the creation of mechanisms promoting multiculturalism, which can present itself on an answering machine asking the caller to press one for English, two for French and three, four or five for other languages, if need be. It is often more cost-effective to address citizens and taxpayers in their own language and to take into account their culture in providing them with relevant information, which makes it easier for them to participate in the democratic process.

I do not know how many times I have been asked:

[English]

``Could you spell your name again?'' for the fifth time.

[Translation]

What I am saying is that it is often more efficient and cost-effective to acknowledge diversity and respect other people's differences.

This leads me to my last point: Canada's contribution in the huge international debate regarding globalization and individuality. Clearly, the amendment to section 41 may seem like small game compared to those issues, but the Law Commission is often asked to promote tools developed in Canada which take into account people's individuality. In this era of globalization, cultural hegemony is an issue which is hotly debated. People are often lumped into two groups: those who are for globalization and those who are against it.

The debate in Canada revolves around respecting globalization as well as the cultural, legal and linguistic differences which exist in our world. Canadian models are a source of pride which have been exported, such as official bilingualism, community support programs or the respect for native traditions. These aspects have allowed us to develop a much more sophisticated compromise model which is much more adapted to the differences which set people apart.

In fact, it is a vision of the world which incorporates regional, cultural or linguistic identity. More and more work is being done with a view to gaining a better appreciation of legal pluralism. I am simply saying that the participation in and the respect of legal and cultural pluralism are part and parcel of the major trends in law reform.

There is an increasing number of measures to protect threatened animal species. More efforts are being made throughout the world to protect threatened native languages. We should — and we must — recognize that our global human heritage will soon force governments and all citizens to protect the identities of their minorities, be they cultural or linguistic.

In conclusion, I feel that it is probably a constitutional duty to force the issue and pass the amendment. In my view, even if the amendment is defeated, what it is striving for will nevertheless happen a few decades from now. It is the right thing to do. It is in line with studies on community development and on the affirmation that communities are the basis for citizen participation. It also contributes to the diversity of Canadian life, which includes multiculturalism, and allows Canada to play a role on the international stage as a model of pluralism and the creator of a pluralist vision of humanity.

I would be pleased to answer any questions you may have.

Senator Beaudoin: I was impressed by your explanation of the Montfort case because it is a very interesting and very important case. I understand that you support the amendment for many reasons and that, as you said, it is our duty to protect cultural identity in the 21st century. I am in complete agreement with that. I think it is a good thing.

But you went on to say that even if the amendment is defeated, we would eventually meet that objective. I think that from the outset section 41 was, to a degree, binding and imperative. A quasi-constitutional law is not inherently political, but aims to set structures. That is its objective and that is what I concluded.

I am in full support of this amendment. I feel that those who disagree will eventually come on board, because we are strengthening section 41, which is something that some people do not understand. Must I conclude that we are basically strengthening a provision which is already imperative?

Ms Des Rosiers: In my statement, I ask: If that is the inevitable outcome, why amend section 41? It would save years of litigation and clarify a situation which is inevitable. Governments have the positive obligation of supporting community groups, otherwise there will be more litigation like the Montfort Hospital case. In fact, there may be international litigation. People are increasingly calling for the protection of cultural identity. In any case, it has to be done. It may be necessary to do so through constitutional means, but it is the right thing to do and we should do it now.

Senator Beaudoin: We should solve the constitutional problem right away. That is good for those who feel it is imperative; everyone else will eventually become a believer, too.

Second, we would save time, energy and money. Why not support the amendment? There is no other alternative. Otherwise, we will become bogged down in debates and it would eventually cost a fortune to take the matter to court. We would have to take it at least to the Court of Appeal, if not to the Supreme Court.

We share that point of view.

Senator Gauthier: To conclude with the Montfort Hospital issue, I regret the fact that the Government of Ontario did not decide to take its case to the Supreme Court. The court's ruling would have been felt across the country.

I want to come back to the ratcheting-up principle which you mentioned. Were you in attendance when Mr. Dion spoke before lawyers in Toronto?

Ms Des Rosiers: No, but I read Mr. Dion's speech with great interest.

Senator Gauthier: He said that the court had rejected the ratcheting-up principle. Do you agree with that statement?

Ms Des Rosiers: I agree with you on one point: it is unfortunate that the Supreme Court was not given the opportunity to rule on this issue because its position may have been much clearler than that taken by the Court of Appeal. I say may have been; we will never know. In any case, the matter has just been postponed. These problems will obviously be resolved one day because other people will take the fight before the courts. My position is that the ratcheting-up principle has been recognized, not under section 16(3), in the view of the Court of Appeal, but rather implicitly through unwritten and underlying principles.

The structure of the ruling is interesting. First, we were told that section 16(3) is simply a defensive provision, in other words, that its aim is to protect language provisions from constitutional challenges. Second, the court used underlying principles to say that it cannot weaken the powers of an institution once government has recognized these powers under the French Language Services Act.

From the moment the government has endorsed the status of an institution, it cannot change its mind, unless it can demonstrate that it is necessary or reasonable to do so. This approach closely resembles the ratcheting-up principle. It means that you cannot come back on a decision unless you have grounds to do so. I think this has always been the case.

Senator Gauthier: I thank you for supporting my position on that matter. You also said that Bill S-32 addressed the issue of whether a community has the right to take its fate into its own hands. I appreciated what you said in that regard.

Do you feel Bill S-32 represents an improvement to the amendment to section 41 with the addition of the word ``positive''? Do you think that adding ``take the necessary positive measures'' would change anything?

Ms Des Rosiers: At this stage, the symbolic importance of the amendment is almost more significant than the wording itself. What I am talking about is a confirmation, a confirmation which, in the opinion of many people, should already be implicit. In this case, we are reaffirming a positive obligation in a new context, a context in which — be it with regard to the Montfort ruling or other rulings — we must give thought to the ability of communities to take their fate into their own hands and whether this is necessary.

Time is precious for minority communities because of increasing globalization and the pressure of American culture. Kids are increasingly identifying themselves with the culture of the United States rather than with French culture. It is important that we immediately take measures which go beyond the school setting. The federal government must do more than simply provide support.

We have always believed that schools were the seat of cultural development. That still holds true, but we have to go even further. Our cultural identity is increasingly influenced by events taking place outside of school, be it through French websites or television programs, community forums, festivals or the creation of artistic works. These events provide the community with a mirror which does not limit itself to the family but reaches into the public domain.

Senator Fraser: Let's come back to the wording of the amendment. It is important. Let's study the words that are before us. What will their impact be once the act is enforced? What would be the scope of the obligation imposed on the federal government? Would it mean that this issue would become a priority for the federal government?

It seems to me that goes quite far.

The federal government shall take the measures necessary to ensure the vitality of minorities.

[English]

— shall take the measures necessary to ensure the vitality of the linguistic minority communities and development.

The ``necessary'' might be of huge importance. How far would we be going in writing this into law?

[Translation]

Ms Des Rosiers: That was what I was trying to say. I feel that that enshrines the ratcheting-up principle as understood —

Senator Fraser: Excuse me, I am asking you if that is what it does or if it does something else?

Ms Des Rosiers: We will not know that for a long time. I am not too concerned because if the Montfort ruling continues to hold, it is quite clear that sections 16(1) and 16(3) are only aspirations, they are long-term wishes. The reference to sections 16(1) and 16(3) in that context does not mean that minorities have to be today, right now, at the same point as the others. Of course positive measures must tend towards that goal.

I think the ratcheting-up principle has two limits. The first is the affirmation of the role of such an institution by a government authority or by the community itself. One might think that eventually the community could take charge of itself and define its institutions itself. The second is that necessary and reasonable limit whereby it could be necessary and reasonable to force a change in the institution that has been established.

Senator Fraser: You no doubt are aware that the Supreme Court refused to hear the case of the municipal amalgamations in Quebec. What does that mean in terms of ratcheting-up? That was clearly a step backwards for anglophones.

Ms Des Rosiers: For a long time now I have thought that one should not read too much into the refusal of the Supreme Court to grant leave to appeal. A refusal to grant leave to appeal is not an agreement with the Court of Appeal's ruling. It simply means that the case does not meet, for now, the criterion of national interest. Another criterion — and this is a criterion that has started to appear in certain written documents — is that the Supreme Court should intervene when the case is ready, at the right time, when there is enough variance.

Senator Fraser: After the damage!

Ms Des Rosiers: That is perhaps one way of looking at it. One could also say that if one is too close to the issues, if one has not had the benefit — I am trying to see it from their point of view — of hearing the opinions of different courts of appeal, and if one has not had the benefit of the scientific journals and papers, or of a public debate, one will not be able to fully grasp the problem. I am just giving you one of the arguments that has often been put forward to justify not granting leave to appeal.

Senator Joyal: Ms Des Rosiers, the question that I am raising is linked in a way to that of Senator Fraser. I will put it somewhat more broadly.

In today's context, under the restructuring of public services, be that at a federal level or at a provincial level, under municipal amalgamations — we have gone through that in Ottawa — as well as the amalgamation of hospitals and school services, to only mention a few, in fact the principle of the vitality of institutions is being made more fragile. On the one hand, section 41 and the following section say that ``the Government of Canada is committed to enhancing the vitality of [...],'' but on the other hand, the right hand is undoing what the left hand is doing.

In some cases one can presume that the intentions are right. In other cases, after hearing the contradictory statements of politicians, one can only conclude that they are speaking out of both sides of their mouths. In the case of Ottawa it is obvious. The Premier of Ontario said that if the city requested it, it would happen, and when the city requested it he said he was not going to do it. One can only wonder why he had two opinions at two different times.

In practice, would you not agree that we do not yet know the full impact of the applicability of the principles underlying the constitutional order of Canada set out in the opinion of the Supreme Court in the Quebec Secession Reference? What Senator Fraser was saying about Quebec municipal mergers is very real. According to your criteria, this must be reasonable and a good management practice.

In Quebec, the municipalities on the West Island of Montreal all had budget surpluses and were very well administered and managed. A number of these cities existed before Confederation. The constitutional order in Quebec and the distribution of Senate seats in Quebec protect the anglophone minorities in that province. It is the only province in which the constitutional structure protects the minority in some way. I am trying to reconcile the principles expressed by the court in general terms with their practical implementation, as a government, both federally and provincially, when it comes to restructuring services. In practice, as you said, we act after the fact. The President of Treasury Board, Ms Robillard, said three weeks ago: ``We have restructured services, and unfortunately, we have slashed francophone positions in the public service and we will try to make up for this.''

The City of Ottawa is trying to catch up under a new government. What will be the impact of the disappearance of anglophone municipal institutions in Quebec? We do not know that yet, no one can say for sure. How does the Law Reform Commission see this issue?

Ms Des Rosiers: I would like to start by making a connection between your comments and the negative side of the issue. The negative argument suggested by the Quebec Recession Reference is a context to stop or slow down certain developments. This allows for an approach based on the protection of minorities. That makes it possible to say: ``Just a minute, you have not proven that it is necessary or reasonable to slash my institutions.'' This merely provides a context for an approach and slows down a process which is often quite rapid when people claim they have good objectives, that they want to save money and they are therefore slashing all sorts of programs. It at least allows us to ask the question: ``Have you found all the alternatives that could protect official language minorities and at the same time allow you to achieve your other objectives?'' This is somewhat similar to section 1 of the Charter of Rights and Freedoms. It simply allows for a broadened debate and enables everyone to say: ``Just a minute, I am not sure you are right. Before moving forward, prove to me that what you want to do is compatible with our democratic principles, with a free and democratic society.'' Here we have a new approach whereby we say: ``I am entitled to my institutions.''

The second point, the positive side of the argument, is that this does not mean that the institutions are necessarily government bodies. What we may perhaps be talking about in future are non-governmental institutions, community institutions that will function with government support or by means of other support networks.

In my view, section 41 permits these two interpretations, either the negative interpretation in which we say ``just a minute'' which is represented by the Montfort case, and the positive interpretation, in which we say that individuals are entitled to certain measures to ensure the development of their community by calling for support for both government and community institutions.

Senator Joyal: There is the damage prevention component to which Senator Fraser referred, which prevents a government from doing something that would destabilize the growth or development of a community at a time when the community is already under attack for various reasons. The second component is the provision for positive development measures.

When we try to understand the logic behind section 41, I think the courts have not yet given enough consideration to this aspect, and we therefore find there are decisions such as those involving the Quebec municipalities. And this could have happened elsewhere, such as New Brunswick or other regions where there is a sufficiently broad sociological fabric.

The courts have not yet grasped the implications of the principles that they defined in the Quebec Secession Reference. Decisions on these issues have been all over the map.

Ms Des Rosiers: As for the constitutional change, I think it is too soon to develop a coherent theory. I think that we must wait and see and not lose hope. You said it better than I did. I think that we should view the incentive or the community support as something which is positive and preventive. As for the negative aspect, it will enable us to get a better handle on the issue and to hold a debate on these matters. Often this was a debate that had no legal parameters. It was simply a political debate. That did not always help us.

[English]

The Chairman: Thank you very much. Do you think that Senator Gauthier's bill will totally remove all discretion from the minister?

Ms Des Rosiers: I do not think so.

The Chairman: If it does not, could someone then take action that would, in effect, force the minister to give up some of that discretion?

Ms Des Rosiers: The way I read this, it will allow a debate on whether the discretion is properly exercised. The discretion will have to take account of, and respond to, different criteria. There could be a political debate about the measure of success or how much money is being saved. It will be about whether a study has been done on how much this will impact the following communities and their institutions. It at least allows this debate to take place, which, in my view, it has not before.

[Translation]

Senator Gauthier: You talked about the national interest, stating that this was an important principle. The Supreme Court, the Federal Court and the CRTC — a quasi-constitutional organization — said that the expansion of TFO into Quebec was not a matter of national interest. Could you provide me with a legal definition of the expression ``national interest''?

Ms Des Rosiers: You are right. If we had known this, there would have been no debate. We need to be able to structure the debate based on principles. This is what enables us to debate the issue, to determine whether or not it is reasonable, necessary or compatible with our principles. That does not mean that the good side always wins.

Senator Gauthier: Thank you.

[English]

The Chairman: Thank you. Our next panel will consist of Colleen Soltermann and Jean-Marc Aubin.

[Translation]

Mr. Jean-Marc Aubin, President, Association canadienne-française de l'Ontario (ACFO): Thank you for letting us appear here today.

I am the President of the Association canadienne-française de l'Ontario (French Canadian Association of Ontario) and I have neither legal nor academic experience. I have spent all my life working as a technician, in industry. My experience as a francophone has been a visceral one and there is no doubt that my perspective will be quite different from what you may hear in traditional fora on linguistic matters.

First of all, since the Montfort case has been discussed a great deal, I thought it would be appropriate today to be accompanied by Mr. Ronald Caza, who played a major role in this file.

The whole issue of hospitals in Ontario is a really good illustration of what has occurred in French-speaking Ontario. I spent many years working on the educational files in Ontario. I have experienced various phases, including the toothless advisory committee phase, the minority section phase and, finally, the school board implementation phase. I experienced this evolution, but at the same time, in the health sector, we witnessed the disappearance — for those who are familiar with Highway 17 west of Ottawa — of French-speaking hospitals such as the one in Mattawa, which was run by the Grey Nuns, the one in Sturgeon Falls, which was run by the Daughters of Wisdom, and the one in Elliot Lake, which was also run by the Daughters of Wisdom and the one in Sudbury, where for 50 years there was only one French-speaking hospital, l'hôpital Saint-Joseph.

We had French-speaking surgeons in the north, in Hearst, and as well as in Haileybury. In the Ottawa region, the Grey Nuns ran a French-speaking hospital as did the Daughters of Wisdom.

The devolution and disappearance of French-language services in the health sector alone made us realize that we were taking care of the barbarians while Rome was burning down around us. That meant that the government, instead of advancing our cause, was, in fact, creating obstacles.

A long time ago Ontario set up normal schools to train French-speaking teachers; however, there was a gap in French-language education between primary and normal school. Little by little, we put the missing pieces together.

Franco-Ontarians, who outnumber Acadian francophones by twice twofold, are often accused of not speaking with one voice. Their population is comprised of such disparate elements that it is almost impossible for it to have one voice. Franco-Ontarians are criticized about this and therefore they are neglected.

The goal of the Association canadienne-française is to support the development and enhance the vitality of Ontario is 550,000 francophones. The Association is the principle organization representing Franco-Ontarians. The ACFO is involved in a sustained and ongoing manner in all areas of community development and makes its presence felt among political authorities at the federal, provincial and municipal levels. The ACFO also works with other organizations promoting the interests of the Franco-Ontario community.

The ACFO cooperates with its 22 member organizations, which are loosely connected to each other. Each organization is incorporated and responsible for the issues in its region. Each organization does not exactly follow what the provincial association does, nor is it the provincial ACFO's mandate to set guidelines for these organizations.

There are affiliate members within the organization which include credit unions, education and literacy associations and parent groups. We have 26 parent groups.

The ACFO is an umbrella organization which, throughout its history, has experienced dissent, but that is part and parcel of the evolution of a people. For example, one of its members, the Table féministe, preferred to go it alone, because it felt that the ACFO was a little bit too dictatorial. It would be inaccurate to say that the ACFO represents all francophone groups; however, it does represent many of them. It grew out of the infamous regulation 17, at the same time that the newspaper Le Droit was established and for the same reason. Throughout its history, it has gone through all kinds of trials and tribulations, but it is still here today and it still plays an important role.

The ACFO was an intervener in the Montfort Hospital case. It focused primarily on the Ontario French Language Services Act, put forward arguments pertaining to this matter and was quite successful. The ACFO is present in all francophone struggles.

Ontario's francophones are located primarily in the area around Ottawa, Sudbury, Windsor and Toronto. However, we must not forget those people whom I would describe as being heroic. In Thunder Bay, in Ontario's northwest region, there is a group of women who set up a francophone reception centre. The Thunder Bay region does not meet the criteria established by the Ontario government for obtaining services in French because of a low percentage of francophones. Residents of Hearst have to travel to Thunder Bay for cancer treatment. It would be remiss of me to forget these women who helped these francophone patients by acting as their interpreters. This is very important survival work.

The ACFO is founded on two fundamental values: respect for and promotion of the country's linguistic duality and, in particular, the respect for and protection of its official language minority. These two principles are an integral part of Canada's constitutional and legislative foundation. Minority language rights are recognized in sections 93 and 133 of the Constitution Act of 1867. They have been given broad recognition over the years and were entrenched in the Canadian Charter of Rights and Freedoms, and, in 1969, by the Official Languages Act. This Act lay the initial foundation for the recognition of official languages in Canada. The new act of 1988 gives effect to the language rights recognized by the Constitution, and the amendment proposed by Senator Gauthier is intended to clarify an ambiguity with respect to the government's responsibility.

This is what I was referring to earlier when I talked about barbarians; this type of thing overwhelms us. When, as a minority, we believe that we have made important progress and are told, for instance, that a government will enhance development and then this type of section is subsequently interpreted as being merely declaratory, it is a bit discouraging.

It is particularly discouraging because Ontario's francophones took a clear position with respect to the Quebec Referendum. Franco-Ontarians were not ambiguous in their support for and belief in this country. We believed in this country because of sections of this type, which appear to promise something to us. At least, this is what I experienced and what I am experiencing today. We saw politicians from across the country — Mike Harris went to Montreal to participate in the demonstration for the NO campaign, only to come back and do what he did to Montfort and Ottawa with respect to services in French. We thought that all these people were our friends and that they were sincere.

The provincial ACFO contends that section 41 appears vague as it stands. It should therefore be amended to make it more precise and appropriate to the federal government's commitment, which is to ``enhance the vitality of the English and French linguistic minority communities in Canada.'' However, it should be noted that there is no instrument of legal recourse for Part VII of the act. There is legal recourse for other parts of the act, but not section 41. This would suggest that section 41 is first and foremost political in nature.

According to the provincial ACFO, section 41 enables the federal government to protect, foster and help the vitality of linguistic minority communities. Furthermore, this section is enforceable. This section contains an imperative that many lawyers acknowledge without hesitation. So why does the federal government not make compliance with section 41 of the Official Languages Act mandatory? As this section is currently drafted, it is political, and to amend it would make it more legal. We therefore support the senator's action.

The senator proposes the following for section 41:

In accordance with subsections [...] of the Constitution Act of 1982, the Government of Canada shall take the measures necessary to ensure the vitality and the development of the French linguistic minorities [...]

The provincial ACFO is of the opinion that Senator Gauthier's proposal is more in keeping with the intent of the act.

It is incumbent upon our legislators to ensure that the legislative provisions that they adopt in the area of official languages enable citizens to avail themselves of their rights. This is what we believe.

We find it difficult to understand why, today, we need to reinterpret or redefine section 41. If our legislators do in fact have an obligation to ensure that the legislative provisions that they adopt in the area of official languages enable citizens to avail themselves of their rights, I am wondering why we are here.

We ask that the Senate Standing Committee on Legal and Constitutional Affairs support this amendment. We firmly believe that this amendment to Part VII will clarify and strengthen the Official Languages Act and will go a long way to ensuring the vitality of linguistic minority communities.

To clarify any points that may arise from the Montfort decision, I invited Mr. Ronald Caza to accompany us today in order to define, with a little bit more clarity, where Ontario's francophonie is heading today. Is section 41 the most important section in the law to clarify or improve in order to help the minority?

Ms Soltermann: If I may, I would like to first of all address my comments to Senator Jean-Robert Gauthier, the author of this bill.

Senator Gauthier, we greatly appreciate the work you have done to promote minority francophone communities in Canada. We would like to thank you for this opportunity to participate here, today.

The Commission nationale des parents francophones represents parents everywhere in the country. We are working to provide education in French in the country. We realize that it is difficult to focus the attention of our elected officials on the state of the francophone minority in Canada and you succeed, Senator Gauthier, in keeping the issue on the agenda, because once the hearings of this committee are completed, Bill S-32 will come back to the Senate. We are also hoping that there will be follow-up in the House of Commons.

We understand that you intend to strengthen the Canadian government's commitment with regard to the two official languages. Our commission supports this objective. You knocked on several doors that turned out to be walls. We had the same experience. We have come here today because we hope to find an opening somewhere.

Is the Official Languages Act ambiguous or does the problem lie with a lack of political will?

I would like to begin with the ambiguity issue. Given the diverse interpretations of Part VII, we may conclude right away that the act is ambiguous, that the legislator meant to say something, but did not succeed on the first try. Only a court could decide whether or not Part VII is declaratory or mandatory. But after Senator Gauthier's attempts, everything leads us to believe that the courts do not want to get involved in this.

What shall we do?

Our commission fully supports the objective of amending the Official Languages Act. This might be the only strategy we have left. We would hope that parliamentarians will find a way to strengthen what defines Canada and that they will be willing to improve this act.

First, the amendment should reenforce the mandatory nature of the act, as proposed by Senator Gauthier, and give the Office of the Commissioner of Official Languages the mandate to sue the government, based on the principle that a law cannot be without a remedy.

Respect for minorities, two official languages and progress towards equality, are issues that involve justice. Let justice be done. Should there not be an enabling feature? The Act must enable the government, it must enable the Office of the Commissioner of Official Languages and must enable minorities, otherwise we cannot make any progress.

The commission I represent has been asking for amendments to the Official Languages Act for the past 20 years. Our objective was and still is to empower the francophone minority with regard to education. Our request is aimed at the Official Languages in Education Program, the OLEP. This program has been very disappointing to us. For some years, we have asked for the creation of a new program that would meet the minority's needs.

The OLEP was created in 1970 and spends billions on supporting education in the minority official languages in provinces and territories. In 1996, we published a study entitled ``Where did the billions go?'' We denounced the way in which funds are shared between the minority and the majority. First, immersion programs were expanding at the time and were granted funds in keeping with their expansion, at the expense of first-language programs. Quebec anglophones received, by reason of their number, the lion's share for several years.

For instance, most of the funds meant for post-secondary establishments of minorities were granted to Quebec, for McGill University. Francophones have to face reality, which is that in most provinces, students must leave home to pursue post-secondary education in their language. Many prefer to study in English.

We also denounced the way funds were used for ends other than education in French. Up to the current agreement, the provinces were not accountable to Ottawa. Despite this, Nova Scotia's Department of Education succeeded, for two years in a row, in using the funds for other purposes, and did so with impunity. Despite our cries of alarm, nothing was done to rectify the situation. And we are still waiting for Heritage Canada to investigate Nova Scotia as requested.

We asked several times that the program be revised to take into account section 23 of the Canadian Charter of Rights and Freedoms, adopted in 1982. According to Canada's Supreme Court, this section is ``the cornerstone of Canada's commitment to bilingualism [...]'' Section 23, as we know, is meant to ``remedy the progressive historical erosion of official language groups.''

There is an obvious continuity between the Official Languages Act and the Charter. On paper, section 23 does not provide for any status for immersion schools, but rather it guarantees an education in the first language. The OLEP is disregarding this obligation. It is treating the majority and the minority equally, whereas section 23 requires a different treatment.

How can we change bad habits that have lasted for more than 30 years? The Official Languages Program has created dependency in the provinces. Helped by federal funds, provinces generally rushed to offer immersion programs while at the same time they hindered the creation of programs in the first language.

In Prince Edward Island, when parents asked for a French school in Prince-West, they were told: ``We will give you immersion, which will help both communities.'' And this community has been constantly eroded ever since.

The situation has not changed much. Still today, hundreds of thousands of dollars are spent by Ottawa to maintain services for the linguistic majority even though this is a responsibility of the provinces. Basically, the program empowers provinces and not minorities.

Nonetheless, the provinces have signed the Charter. They, just like the federal government, have a constitutional obligation to promote official languages in education, and to achieve equality in these results. To the contrary, they decided to take advantage of the federal government's help. In fact, the progressive historical erosion of francophone groups is still going on. We are still waiting for the act and for the section 23 to bear fruit.

What is the status of education in French? With the advent of school management, the newly elected francophones were given the key to the school system and told, essentially, to make due as before, which means with nothing!

Heritage Canada, which is responsible for the program, maintains that the funding is more and more favourable to the minority, but there is no way of verifying whether this is so. We only know that the federal government is currently spending $293 million per year in the provinces and territories for this program.

The waste of federal funds is obvious in the way programs are developed by the departments. Even now in 2002, it is every man for himself. No matter whether they have 1,000 or 100,000 francophone students, the provinces all get federal funds for developing provincial programs. Now these programs are essentially the same in every province. They are meant as much for education in the first language as in the second language.

This is why the commission asked Heritage Canada to pay the funds meant for education in French directly to the educational communities, without going through departments. Then we could develop a national curriculum for teaching French as a first language and we could grant more funds to the aspects of cultural identity.

On the contrary, this is simply not being done. They gave us the answer that education is a provincial mandate and that the federal must necessarily go to the provinces to exercise its spending rights. Then we were invited to participate in the process of orienting the program and to take part in the negotiations with the provinces. None of this has happened yet.

Nonetheless, our position is clear: if the federal government uses its spending power for education, it must do so while respecting its legal and constitutional obligations. These obligations are found in the act and in the Charter.

Thus we are still hoping that the Official Languages Act will be amended to remove the provincial mandate as it applies to education in French as a first language. In other words, section 23 makes no sense because it is supposed to give management rights to the minorities. We are still waiting for the enabling of the minority provided for under section 23.

Thus, in 2002, the commission asked for the creation of a new federal program in support of community initiatives in education. We presented this request to the minister in charge of coordinating official languages, Mr. Stéphane Dion. He listened to us attentively.

This is probably a good time to talk about political will because we finally have something positive to share with you. We saw the Supreme Court come down on the side of the Summerside francophone parents, in P.E.I., — I am just coming back from there today — and the Ottawa Montfort Hospital defenders. We heard Prime Minister Jean Chrétien state in the 2001 Speech from the Throne that protecting and promoting official languages is a government priority.

Soon after, Minister Dion was put in charge of coordinating official languages. We have high hopes for the recovery plan the minister is to introduce in the coming weeks. Having witnessed the political will going downhill for decades, are we right to hope? The future will tell.

However, there are contradictory signs concerning this political will. You know that the Arsenault-Cameron Supreme Court decision allowed three schools and community centres to be set up on Prince Edward Island. I would like to open a little aside here: when the French school finally opened its doors in Summerside, Ms Arsenault- Cameron's daughter was too old to register. She had to pursue her education in the neighbouring community. The two levels of government announced this great news hand-in-hand, but initial enthusiasm soon disappeared when the Island's francophones found out that the federal government was not ready to do its share to build and manage those centres. The management of the centres is still very unsettled.

Now, these centres are essential to develop the francophone communities on the Island. These communities saw their French schools closed down decades ago but they are still managing to find a few live coals amongst the ashes. Our children do have potential, but they need resources and something to carry them over the long term. Unfortunately, the facilities are not of comparable quality. If we do not mention Summerside in our two other regions, it is because we have trailers parked in a field being used as a school in one of the communities and in the other one, the French school that closed its doors in 1970 reopened them. We are far from equality of results.

It is clear that the support to official languages communities cannot be done without supporting infrastructure such as community school centres, schools, public libraries and early childhood service centres. After decades of neglect and abandon, official languages certainly cannot recover on an ad hoc basis. To achieve equality of results, we will have to invest heavily and over a longer period.

Unfortunately, we are being invited to not ask for too much, but we are asking for what we need. The Canada we want comes with a price attached.

The new program our commission is asking for is focused on an early childhood national support plan. This plan is based on a simple basic principle: the coming of the first child, for the parents, is the opportunity to make a decisive choice for the family unit. So the time to provide what is necessary in early childhood is now or never.

We believe that if the Official Languages Act has teeth, we will be able to pursue our development at the early childhood preschool level and that is the key for the success of our future communities.

Mr. Ronald F. Caza: Mr. Aubin asked me to share my opinions on the relevance of the Montfort question with you. You must not underestimate the problems that members of minorities have in defending their rights before the courts. When people look at the Montfort affair, they find it is extraordinary that we won, but we had to battle on for five years before winning our case. The sacrifices required of minority language citizens, whether francophone or anglophone, to defend their rights are inhuman.

I read Mr. Gaboury's article in yesterday's Le Droit, the newspaper, and when he mentioned the government lawyers, he said they come before you to tell you that any given section is declaratory. The message I hear, as a member of a linguistic minority, is that if you want to use that clause to uphold your rights, you are going to fight all the way up to the Supreme Court.

The fact of the matter is that we do not even know if we are going to win. Senator Gauthier is of the opinion that the clause, in its present wording, is enforceable. I share that opinion, but to tell a client to go to the Supreme Court to find out if it is true or not, to take four years to get there and find out the clause is not enforceable, because you never know what is going to happen, then that is inhuman. Until you actually get to the Supreme Court the damage caused to the minority language communities who will not have had an opportunity to make a claim will be enormous.

The question is not whether the clause as it is presently worded is enforceable or not because the government has said that, in its opinion, it was not enforceable. That means that to claim a right you have to go to the Supreme Court. Thus the essential importance of Senator Gauthier's bill. It is essential because if we battle it out before the courts, it is one thing to battle on and say that we have the proof to justify the courts' intervention, but it is something else altogether to battle on and say that the courts have the right to intervene.

So what the amendment is clarifying, and this is essential, is that the courts have the right to intervene if the evidence shows that the federal government is not fulfilling its obligations. With your bill, you are clarifying this question. The other question still remains, the question that we usually have to demonstrate. It is normal to impose upon the members of a linguistic minority the burden of proving that there is a breach. This is a fair burden that should rest on the shoulders of the minorities, but not the burden as to whether the right itself exists.

There is also the symbolic value. If ever Senator Gauthier's bill was not to win the day, then the message you are sending to all language minorities in Canada is that protecting minorities is not important enough for you to clarify something as essential as the government's obligations in this matter.

In Canada, it is fundamental that the linguistic minorities be able to continue to exist all across the country. The tool being presented by Senator Gauthier is essential to allow that survival.

It is essential for this bill to be passed to determine that the obligation is enforceable so that, after that, francophones and anglophones will be able to take this tool and use it to those ends for which the Official Languages Act was passed and which is to ensure the survival of our linguistic minority communities. Symbolically, the simple fact of passing this bill will give a second wind to all members of language minorities all across Canada to ensure that they have a tool that they can use in their efforts.

Being a member of a linguistic minority means making efforts every day. It is when you stop making efforts that you become assimilated. The members have to be encouraged and this bill is a contribution to that. Second, it offers the essential tool.

[English]

The Chairman: We have seven minutes before we must rise. Committees cannot continue while the Senate is sitting.

[Translation]

Senator Beaudoin: I agree with you, we must accept the amendment. Secondly, if we do not do it, sooner or later we will have to go before the courts. I prefer the first solution even though I am a lawyer. Our role as senators is to improve our system. This amendment is headed in the right direction.

Senator Gauthier: I wish to thank the witnesses for their evidence. Your presentation, Mr. Aubin, impressed me in the sense that you represent those French Canadians living in Ontario. What means do you use? Do you have enough in the way of financing? Where do your funds come from and what problems do you have?

Mr. Aubin: I have often spent my own money, the same as you have done. I am still doing it. I find it a bit hard, because in the generation following ours, there are fewer people. It also seems to me that they are more tired and absent-minded.

When we have to intervene, the French-language or English-language institutions in Quebec who defend our rights are not perceived as being important enough by the federal government to ensure that they have permanent offices. I regret that very much. I regret that the federal government cannot set up offices for all kinds of departments. If you believe that Industry Canada needs an office and permanent staff but you still do not believe that the provincial ACFO is important enough for that even after 92 years of existence, then that is a big problem for me. If there was nothing left to do, I would not care, but there is still a lot to do. I identified something before in the area of hospitals and I can see it coming. And I have indicated many times at many government levels that what the federal government is setting up, what is called ``government on-line'' — or in French: ``gouvernement en direct'' — is going to have disastrous results unlike anything we have ever seen before. It is simply a devolution of services. You give the contracts to somebody. We are going through that in Ontario.

When you call somewhere in Ontario to get service in French, you are given the choice of pressing on the one or the two on your dial pad. When you press on the two, three or four times, then you have to wait 15 or 20 minutes before somebody answers you in English: ``Did somebody take care of you?'' That is what you are in the process of setting up at the federal government level.

[English]

The Chairman: The same thing happens if you press ``one.''

Mr. Aubin: I will give you an example. If you wish to reserve a room at the Delta Hotel or Courtyard Marriott in Toronto, you can get quick and good service in French. There is no reason for a provincial or federal government not to do the same. Hire people, and pay them $100 a week more.

The Chairman: I should like to see quick service in both official languages.

Mr. Aubin: I would like to see that as well.

[Translation]

To answer your question, Senator Gauthier, the funds often are not there to defend the causes or to advance minority rights.

Ms Soltermann: We are far from having enough money to pay for the cost of our cases and our challenges.

[English]

The Chairman: Thank you all very much.

The committee adjourned.