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Proceedings of the Standing Senate Committee on
Official Languages

Issue 3 - Evidence - Meeting of February 25, 2008

OTTAWA, Monday, February 25, 2008

The Standing Senate Committee on Official Languages met this day at 5:05 p.m. to study and to report from time to time on the application of the Official Languages Act and of the regulations and directives made under it, within those institutions subject to the act.

Senator Maria Chaput (Chair) in the chair.


The Chair: I welcome all of you to the Standing Senate Committee on Official Languages. My name is Senator Maria Chaput and I am chair of this committee.

Please allow me to introduce our witnesses invited to appear before our committee today. The Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada, is here to discuss the implementation of Part VII of the Official Languages Act, which deals with the vitality of official language minority communities and the promotion of Canada's linguistic duality. The minister is accompanied by Marc Tremblay, General Counsel and Director, Official Languages Law Group, Justice Canada, and Andrée Duchesne, Senior Counsel and Manager, Francophonie, Justice in Official Languages and Legal Dualism, Justice Canada.

As chair of the committee and on behalf of our members, I thank you for your appearance before us today. Your department is responsible for interpreting the provisions of the Official Languages Act for the purposes of its implementation by federal institutions. Therefore, your department plays a key role in the implementation of the new Part VII of the act.

The committee is aware that your department is involved in court proceedings taking place right now before the Federal Court in Fredericton. These proceedings will ultimately determine the scope of Part VII of the act, as modified in 2005.

The committee is also aware that your department has filed a memorandum of facts and law in which you state the government's position on the interpretation to be given to Part VII of the act. Seeing that your position on this matter has been clearly laid out in a public document, the committee anticipates that you will be able to answer our questions, even though this matter is before the courts.

This case before the Federal Court could take years to resolve. Two years have already gone by before the coming into force of Senator Gauthier's Bill S-3. The committee believes it is now time to examine the implementation of Part VII, and we thank you for your cooperation on this study.

Mr. Nicholson, would you begin with your opening remarks?


Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Madam Chair, I am very pleased to be here with my colleagues, Mr. Tremblay and Ms. Duchesne.


I begin by reaffirming the statement made in the last Speech from the Throne of October 2007, where the government said, ``Our government supports Canada's linguistic duality.'' We are indeed committed to enhancing the vitality of official language minority communities and to promoting Canada's linguistic duality, which is at the core of our identity as Canadians.

In supporting Canada's linguistic duality, however, our government has worked hard to respect the federal division of powers. The involvement of the federal government must take into account that the administration of justice is a shared jurisdiction. If it is true that we must act in respect of provincial competences, that is not to say, of course, that we cannot play a role in delivering services to our fellow citizens. On the contrary, I believe that every effort should be made to ensure that our fellow citizens are provided with the services they can rightfully expect under their language rights.

As Minister of Justice and Attorney General, my role is twofold. I act as legal counsel for the government and as a minister responsible for a federal institution. I ensure that the department complies with the legal obligations contained within the Official Languages Act.

I trust you will find that the Department of Justice has fully assumed its responsibilities under the act, and that it has spared no efforts in ensuring that the department is at the forefront of the official languages program.

As the legal advisor to the Government of Canada, the Department of Justice provides advice to federal institutions on the scope and application of language rights. In this regard, the committee should note that the department, in close cooperation with its partners at Canadian Heritage and central agencies, implemented an extensive awareness strategy designed to make Part VII of the act better known, and to encourage thinking and action by federal institutions.

The department and its partners have offered multiple training and information sessions on official languages issues to approximately 3,000 senior managers, official language champions, Part VII coordinators, official language advisers and departmental lawyers throughout Canada since Part VII of the act was amended.

The Francophonie office, Justice in Official Languages and Legal Dualism coordinates, within the department, activities relating more specifically to the implementation of Part VII of the Official Languages Act.

This component of the office's work includes two elements: Improving access to justice in both official languages and coordinating the implementation of the government's, and therefore the department's, commitment to the development and growth of official language minority communities provided for in section 41, Part VII of the Official Languages Act.

The Commissioner of Official Languages noted in his last annual report that access to justice in both official languages is one area targeted by the action plan for official languages, ``in which the most progress has been made.''

He further states that ``Justice Canada has carried out its activities in a satisfactory manner'' with a view to reaching the main objectives in access to justice in both official languages. I am, of course, proud of that.

A support fund incepted in 2003 has provided funding for over 200 projects, some in partnership with provincial jurisdictions. For instance, the support group fund provides core funding for the association of French-speaking lawyers and their national federation, and supports the development of legal, linguistic and terminology tools as well as the training for stakeholders of the justice system and access to justice in both official languages. The latter activity is particularly aimed at the effective implementation of the language provisions of the Criminal Code.

According to the Commissioner of Official Languages, the efforts of Justice Canada and its partners should be applauded. The financial support provided, amongst others, by the support fund allowed the Association des juristes d'expression française du Manitoba to launch the campaign, entitled, ``Accès aux services juridiques en français''; an awareness and promotional campaign entitled, ``Mon droit, en français, mon choix.''

A consultation mechanism with the community groups working in the areas of interest to justice has also been created providing, amongst other things, the opportunity for feedback from the various jurist associations and their national federation to work better with them within the department's mandate.

The department has also established a federal-provincial-territorial working group to engage communication among its members on improving access to justice in both official languages. Although participation in the working group is on a purely voluntary basis, I am pleased that each and every province and territory is taking part in the works of the group, either as a member or as an observer.

One outcome from the working group activities is the establishment of the bilingual prosecutors' network, notably aimed at breaking the isolation of its members through sharing and support. Another outcome is the training organized by the French Language Institute for Professional Development intended for provincial crown prosecutors and other professionals of the justice system. Provided for the first time in 2005, the training was a complete success and has been repeated since.

The federal government also plays a leadership role in support of the family justice activities of the provinces and territories, while always respecting provincial jurisdiction in that area. Federal-provincial-territorial collaboration is an absolute necessity to support and inspire a national family justice system, and many of the provincial and territorial family justice programs and services are delivered in whole or in part by funds allocated by the department.

Funding agreements include an official languages clause that highlights both obligations under Canada's Official Languages Act and the provinces' and territories' obligation to consider the needs of official language minority communities when offering services.

As you can see, the department is building partnerships with official language minority communities, provinces and territories to better understand their needs and to help build a capacity to provide better access to Justice Canada in both official languages. I am pleased to report that the work by the department has also been recognized in the best practices implementation of section 41 of the Official Languages Act, published by the Department of Canadian Heritage.

On a more prosaic note, the department is also engaged in the implementation of the Contraventions Act, in keeping with the spirit of the decision of the Federal Court of Canada in this matter and Justice Canada undertakings under the action plan.

Finally, knowing the interests of the committee towards the issue of linguistic capacity of federally appointed judges, I would be remiss not to address that subject. I want to assure the committee that our government is committed to ensuring that the federal judiciary's linguistic capacity meets the needs identified by the chief justice of each relevant court.

This concludes my presentation. If you have any questions, I am pleased to receive them.

Senator Keon: Mr. Nicholson, you rightly pointed out that the Commissioner of Official Languages had a lot of praise for Justice Canada. Something puzzles me. I understand this statement is correct, that Justice Canada, in particular, tends to interpret the amendments in a restrictive manner, advising caution, above all, to federal institutions.

Why do you think that statement was made and what is the basis for it? What is the problem?

Mr. Nicholson: We at the department indicated that is not our understanding. We look at all our obligations and we look at every piece of legislation before us. The interpretations and the advice we give are reasonable with respect to every component. I am satisfied that we do it in a way that respects all our obligations, of course, the linguistic duality of this country and the legislative obligations of the department. We made that clear.

I think that overall we received a positive assessment of what we are doing. With the legal advice we give on this issue, and indeed on all issues, we are careful. We live up to not only the letter of the law in these matters but also the spirit of the law.

Mr. Tremblay, do you have anything to add?

Marc Tremblay, General Counsel and Director, Official Languages Law Group, Justice Canada: Perhaps the only thing to add is that we had discussions at the departmental level with the commissioner's office and with the commissioner himself. He has voiced that opinion on a number of occasions. We have indicated that we do not know the basis upon which he can make such comments. Of course, our legal opinions are privileged information, so he is not privy to that information.

I find it somewhat ironic. There is some inconsistency. Sitting across the table from us is Ms. Duchesne, a client of mine. I provide legal advice to the Government of Canada on language rights, and she, as a representative of the Department of Justice, is a client of mine. She presumably follows some of my advice in doing the wonderful things the commissioner reports upon in his report. It seems to me the evidence is somewhat contradictory, and I again fail to see the basis for the conclusion.

On the other hand, there will be disagreements. Our deputy minister, in meeting with the commissioner, said there will be disagreements on the scope and interpretation of this act and any other act. Ultimately, that is why we have courts and why courts are busy. However, the fact that there are disagreements about the scope and interpretation of an act does not necessarily follow from the proposition that Justice Canada follows some ill will or ill-conceived plan of interpretation.

That is what I can add to this discussion at this point.


Senator Tardif: I am pleased that Senator Keon asked this question, because I too wanted to ask you the same one. Your department is subject to Part VII of the act. In addition, you must act as a legal adviser for the other departments. No doubt you must use caution with respect to the departments.

Do you now have a definition of the term ``positive measure?'' The departments consult you in order to find out what is meant by this term and to understand the scope of their responsibilities under this new amendment to the act. I dare not speak on behalf of the commissioner, but certain groups have told us that you appear to be using more of a technical and legal definition which does not, however, respect the intent of the law with proactive measures. Could you comment on that?


Mr. Nicholson: I am pleased to do so. You summed up well the challenges we have. As you correctly pointed out, we have that dual responsibility with respect to the implementation within the Department of Justice. I commented on that challenge in my opening remarks when I said that I believe that aspect is going well.

At the same time, we provide legal advice to other government departments. Other departments, of course, have a stake in this implementation. The Department of Canadian Heritage, for example, is committed to the implementation of the provisions we have before us. We give what we believe is reasonable advice. Sometimes it is specific and sometimes it is general, but I can tell you that our interest in this matter is ongoing and that we are committed, as I am sure are members of this committee are, to the linguistic duality of this country and we provide advice on that basis.


Mr. Tremblay: I find this question ironic. When Parliament and the Senate debated Bill S-3, Department of Justice witnesses, including myself, appeared before the committee on several occasions in order to explain, to the best of our ability, the interpretation difficulties created by the proposed amendment. Parliament, in its wisdom, adopted these amendments and the text became law. However, the interpretation problems did not go away. On the contrary, these interpretation difficulties have become enshrined in the statute.

Now we have to try to interpret it. Questions can be directed to us, to the Commissioner of Official Languages and other bodies. You need to submit to us what you mean by positive measures. In time, we will know whether the analysis stands up to the courts' ruling.

For the time being, the whole issue of what constitutes a positive measure is before the court. Out of respect for these revered courts, we cannot today discuss the ins and outs of the definition of the term ``positive measure.'' We have no authority to do this today, given that the Federal Court, in Fredericton, is hearing arguments on this same issue.

Senator Tardif: You are right to say that when this bill was adopted, it represented the will of Parliament. According to the will of Parliament, recognition, if you would like, was to be given to the development of francophone communities in a minority situation. This development is to be achieved through the adoption of positive measures. If we deem that this is a matter of interpretation, we are putting technical reasons before the will of Parliament. Is it not the role of the Department of Justice to ensure that the intent of Parliament is respected rather than deciding on procedural matters that are technically difficult?

Mr. Tremblay: I really do not know how to answer this question. It does not really reflect my vision of what type of advice we provide. If I were to consult the annual report of the Office of the Commissioner of Official Languages, if I were to examine his arguments before the courts and the interpretation he claims to give to Part VII of the Official Languages Act, it also seems to me that we could accuse him of doing this in terms of process and procedure. He wants to have consultations, he believes that this is how we will identify what constitutes positive measures, but he himself is unable to say what is meant by positive measures and what is not.

All that we can tell you is that we provide legal advice to federal institutions, we interpret statutes based on the principles drawn from jurisprudence, in a broad and liberal fashion, and in accordance with their subject. There is a wide range of measures — my colleague and the minister could discuss this further should you question them on the matter — taken by the Department of Justice and by all federal institutions in order to support the objectives of Part VII. I really do not see how you draw a link between this technical and restrictive approach that we are supposedly adopting and the facts.

Senator Tardif: The commissioner provided three suggestions for defining positive measures. He said that the concept presupposes proactive action, either the active participation of citizens and the various actors involved, namely the community, and the assessment of the systematic enhancement of programs and policies of federal institutions in accordance with Part VII. Do you agree with this approach to interpret the concept of positive measures?


Mr. Nicholson: I think the commissioner is asking for a comprehensive approach and is looking to see if there is one. In a number of areas that I outlined in my opening remarks, we are taking that route. We are not doing it only in one narrow field. For example, I indicated the federal-provincial working groups to show we are doing what we can while respecting provincial jurisdiction.

Another example of how we are moving ahead in a proactive away is Bill C-13, which is commonly known as an efficiencies bill. The bill brings about improvements with respect to people's rights to appear before court and to understand the proceedings, and to understand their rights in both official languages. It is one of those things that I would like to see this Parliament move ahead on. I was told, for instance, that this bill has been before Parliament for the fourth time in 10 years. I am one Minister of Justice, the present one, and I am absolutely determined to see that the bill is passed. Among other things, the bill improves the situation for individuals accused of a crime and want their rights told to them. They want rights to a certain trial. These things are important. I have that bill back in the House of Commons. If you look into these things, you will see that a number of amendments were made by the Senate. Indeed, I and the government have accepted four of those amendments. I am not prepared to accept the other two, for good reasons that I can go into, if you like. The bill is not specifically your focus. Inasmuch as the amendments we are not accepting touch on the issue of official languages, I think there are good and reasonable arguments put forward. I would like to see that bill go forward. People at all points in the judicial system of this country want to see us move forward on some of these issues. I hope that Bill C-13 will receive complete passage by the House of Commons and the Senate and receive the Royal Assent it deserves.

We are moving ahead on a wide range of areas. Thank you for your question.

Senator Comeau: Mr. Nicholson, I want to come back to the exchange between you and Senator Tardif on the interpretation. I believe Mr. Tremblay mentioned this interpretation was before the courts in Fredericton. Do I understand that the fact that there is something before the courts in Fredericton is holding up progress on the interpretation?

Mr. Tremblay: Absolutely not: If we want to go back in time, let me explain what the department has done since November of 2005.

Senator Comeau: What is before the courts in Fredericton? Is that the Court Challenges Program?

Mr. Tremblay: Yes. Beginning in 2005, the amendments were passed. At that point, we were scheduled to go forward to the Supreme Court on the interpretation of previous provisions. The provisions are still in the act, now section 41(1). The Supreme Court seemed to think issues were debatable, although the Federal Court of Appeal accepted our arguments in their entirety that Part VII, as it then stood, did not create rights and duties and did not provide a right of remedy. The act was amended to reflect the intent of Parliament that there be rights and duties and that the courts be in a position to review those duties.

The country, and I, personally, went about, and Ms. Duchesne accompanied me, and presented the recent amendments to our colleagues, to deputy ministers, to official language champions, and to section 41 coordinators. We told them what they were required to do as far as we could see.

Senator Comeau: Let us not go too far on that topic. I only want to ensure I understand where we are now. It appears to me that you are saying that going to the court to re-establish the Court Challenges Program put a stop to the progress we were making.

Mr. Tremblay: No, that is not what I said.

Senator Comeau: Why should you have difficulty coming up with an interpretation definition?

Mr. Tremblay: I have no difficulty coming up with an interpretation definition. I provide advice on a daily basis to the 198 federal institutions who receive services from the Government of Canada.

Senator Comeau: Are you prepared to provide it to us?

Mr. Tremblay: Those opinions are privileged and cannot be shared with others than our clients.

Senator Comeau: The Court Challenges Program, and I want to be absolutely positive on this matter, is not holding up the government in providing interpretation to section 41 of Part VII.

Mr. Nicholson: Absolutely not.

Senator Comeau: I wanted to establish that. The Court Challenges Program is something else entirely.

Mr. Nicholson: Again, our hesitation here is in as much as that issue is specifically before a court in New Brunswick, as you may know, and we are circumspect or find it difficult to comment.

Senator Comeau: I was confused when Mr. Tremblay responded to a straightforward question by the senator on the definition, and he brought in the Court Challenges Program as a part of the response as to why there was no definition. I was not sure what we were leading to.

The Official Languages Commissioner suggested, in a recent report, three principles on which an interpretation could be given. One was to clarify the meaning of ``positive measures;'' to clarify what the government sees as positive measures. The next suggestion was with respect to active participation of citizens. I believe that participation means the consultation with groups impacted by the Official Languages Act. Rather than act, speak to them. The final one was how to measure and assess the enhancements that are given, I assume, under the positive measures.

Do you not agree that those three principles are reasonable ones on which we could set up?

Mr. Nicholson: We are moving forward. One area you talked about was consultation. I indicated in my opening remarks that we sat down with thousands of individuals and groups, discussed the provisions with them, received their input and gave our advice with respect to the implementation of these provisions.

There is a keen recognition within the department that this consultation is necessary. We recognize much of the administration of justice is within provincial and territorial jurisdiction, but nonetheless, I indicated to you our movement towards federal-provincial working groups and our participation in that forum because of our complete commitment.

As Mr. Tremblay has said, we give legal advice, and it is governed by solicitor-client privilege, as you would understand. However, at the same time, when it comes to evaluating within our own department, as I took pains to set out, we are receiving good reviews. Those results are your measure of our commitment to promoting the linguistic duality of this country; that the results within our own department have been good. Again, we understand and recognize it is important that we have this outreach, and that we do what we can to promote linguistic duality, which I think almost all Canadians would agree, is something positive.


Senator Poulin: Thank you for coming, Mr. Minister. I see that you are in good company. I have to tell you that when I studied law, I had the privilege of having Mr. Marc Tremblay as my professor in official languages law. I will have to be careful when I ask my question as I fear that he may give me a new mark for his course, based on this question.


Mr. Nicholson: I am sure you did well, senator. I will give you the benefit of the doubt.


Senator Poulin: Part VII is quite recent. As you mentioned, this is a part that merits discussion by responsible people in the right places. However, I know that Heritage Canada, with the participation of your department, published a guide. I am wondering whether you could tell us about the guidelines in this guide. Given that Part VII is in fact quite recent, I would like to know exactly what distinction has been made between the guidelines tabled five years ago and those tabled this year.

Mr. Tremblay: That is a good question.

Senator Poulin: That is no preferential answer!

Mr. Tremblay: No, but with respect to your mark, however, it will be.

Indeed, the guide repeats the legal advice that the department provided to its clients that are responsible — the Department of Heritage Canada — for coordinating the implementation of Part VII in all federal institutions. In reading this guide, I find that it contains instructions that closely resemble those provided by the Commissioner of Official Languages: participation, consideration, accountability. In my opinion, the Commissioner is not introducing anything new as far as that is concerned.

Has the advice changed? No, because as the Department of Justice pointed out to the various committees when providing testimony, even when Part VII was not, to use our jargon, binding and judicable, it did not mean that there was no content, that it had no effect, that it was not necessary to take measures to reach these objectives. Hence our advice has not changed; it is not more cautious or restrictive that it used to be. Our advice was not restrictive or cautious beforehand. As part of the 2003 accountability framework, whose principles were repeated in the Heritage Canada guide, we advised departments to provide employees with training and make them aware of the issues. We also need to review our programs and initiatives through what I call a language lens in order to see if there are any linguistic issues that emerge, and, whenever appropriate, we can use them as one of the means to identify positive measures, and the way that public consultations are carried out; we can take measures, document them and be prepared to report on them to Parliament, something that federal institutions have been doing since 1994 as part of the accountability framework that had been adopted at that time. This is what they have been doing since 2003 with the accountability framework adopted along with the Official Languages Action Plan and this is what they are invited to do again with the guide published by Heritage Canada in 2007.

Senator Poulin: If I am not mistaken, minister, what Mr. Tremblay has just said is that the changes to Part VII have no effect on the directives issued by Canadian Heritage.


Mr. Nicholson: The Department of Canadian Heritage can speak for itself, but our approach has been, apart from Part VII, that we are committed to what Part VII or the amendments to it envisage, which is the promotion of linguistic duality within the federal government and across this country.

It is a question of either we are committed to it or we are not committed to it, and I appreciate the legislative changes that have taken place in the last couple of years. Frankly, it permeates everything we do. One of my responsibilities is the appointment of superior court judges in this country, and I take the responsibility to make sure we have individuals who have, where needed, a facility in both official languages. I take it seriously. In that regard, we consult closely with the chief justices in each province, and that is one item we take up with them, to make sure that we meet those needs. Those needs differ, as you know, between various provinces, but nonetheless we keep a close watch on them.

It is one of the reasons the judicial appointments we have made in the last two years have been well received.

Senator Murray: I, for one, was not scandalized to find, if it is true, that the Department of Justice was advising caution. None of us have known many lawyers — and certainly none in the Department of Justice — who advise their clients to be incautious. I will start with that.

Mr. Nicholson: I think that was a compliment, was it?

Senator Murray: It was intended as a compliment, yes.

Mr. Nicholson: I will take it.

Senator Murray: However, I am puzzled by the process and by the involvement of the department, not insofar as your own department is concerned regarding the appointment of judges et cetera, but your involvement in the initiatives of various other departments with regard to section 41.

By the way, what happened to the regulations that were authorized by section 41? Were they ever been brought in?

Mr. Tremblay: A regulation-making power was put into the act in 2005. However, as the Commissioner of Official Languages himself has stated publicly on a number of occasions, he does not see the need for regulations at this stage in the process. Frankly, I guess, the commissioner is telling us that he sees issues outstanding in the implementation and interpretation of Part VII that need to mature. He is telling us that we might need guidance from the courts before we move along with potential regulations, which, as you must know, have tended to take a long time to drive through the parliamentary process in the past because they entail public consultation and a certain number of sitting days of both committees.

Right now, to my knowledge, there are no plans to move ahead with regulations, although you might want to take up that question with the President of Treasury Board, who is responsible for any regulations under the act.

Senator Murray: I know you cannot disclose the legal advice that you give to various departments and agencies, and I do not think we need to know it anyway. However, can you describe or characterize your role vis-à-vis the different departments and agencies of government with regard to section 41?

If a department — social development, agriculture or fisheries — is developing an initiative, that department knows that it must take into account the proactive promotion of the vitality of official language minority communities according to Part VII of the act.

I am trying to ask this question without being offensive, but why do they need legal advice? Why are you in that process?

I contend that the promotion of the vitality of official language minority communities is not a legal question; it is a policy question. Do departments come to you and say: Here is what we propose to do; is it enough? Do they say: Here is what we propose to do; is it too much? Or, do they say: Can you help us put some kind of plausible spin on an area that is neutral as to official language minority communities?

What is your role? Why are you mixed up in it in the first place?

Mr. Tremblay: We are mixed up in it because I think your description of the policy objectives of Part VII correctly reflects the vocabulary intent and spirit of Part VII, as it was drafted prior to November 2005. In November 2005, with the amendments, the wording used was changed to that of a legal duty.

Senator Murray: I understand that.

Mr. Tremblay: Our clients, well-intentioned as they are with their programs and initiatives to move ahead, ask themselves, legitimately: What is the full extent of our duty? They do not ask, as seems to be suggested by some of the questions we are hearing: Do we need to do anything at all? They ask: How much do we need to do? How far does this legislation go? Does this legislation apply to every single breath we take?

They ask those questions. At this stage, to answer those questions is the object of legal advice that is provided to those departments, and many of those issues will be debated in the court proceedings with the Court Challenges Program. We will receive guidance, potentially, from the courts on the more specific scope of the provision, in which circumstances it applies and whether there is a sliding scale of considerations, as the commissioner seems to have suggested in his pleadings to the court.

Senator Murray: Mr. Tremblay, I am terribly sorry, but I wonder whether the involvement of all these lawyers and legal considerations in a policy matter does not become part of the problem rather than part of the solution. If these departments fail in their duty, someone will take them to court. At that point, you will need to, or someone will need to, defend them, or not, in court, I would think.

Tell me again: Does the Department of Agriculture, or whatever, come with an initiative? Do they say: Here is the initiative we propose; are we doing enough to satisfy the requirements of section 41?

Is that the kind of question that is put to you, or do they ask you in a vacuum: What does this provision mean?

Mr. Tremblay: From November 2005, for the first period since the implementation of the amendments, the first part of the process was to provide general information to our clients, not to provide all the answers. We always tell them they will have questions. They have several general questions and we try to answer those questions as best we can, while pointing out that ambiguities and issues will need to be resolved. Ultimately, we tell them that this commitment is set out in the act, and that they now need to do their work.

After the first period, now, they are doing their work. They have been doing their work for a year or so, examining their programs and initiatives, and trying to think of ways to implement this legislation. At times they are told that, in this particular area, they need to do this much more, or in this other area they did not include the correct clause, or whatever. At that point, they come to us with more specific questions.

I agree, and the Department of Justice has been publicly on the record about this matter, that in the implementation phase we are now in, the role of Canadian Heritage, as the policy driver, is the most important role. We support departments in putting forward their initiatives and in obtaining the best possible advice they can obtain, because, under the Department of Justice Act, we have a legal duty to provide our legal advice to departments and agencies. We are providing that advice, but ultimately it is a question of implementation on the ground, if you like.

Senator Murray: I will close on this question. I think some of us can look at any piece of legislation, especially any piece of government legislation that comes before us, and we can make a judgment call: Yes, this piece of legislation engages, or should engage, Part VII, section 41. However, there are other pieces of legislation in which the answer is, there is no connection. Do you give them that advice occasionally?

Mr. Nicholson: I think Mr. Tremblay touched on this point, that with the changes that were made in 2005, a legal obligation was imposed; it is not only a policy decision. It follows reasonably, particularly as Mr. Tremblay indicated, that when the provision was first brought in, legal advice would be provided. It does not mean that we either dominate or have taken over this legislation. Mr. Tremblay indicated that Canadian Heritage is the policy driver on this legislation, but does it not follow logically that, any time a legal obligation is placed on anyone, legal advice will flow from that obligation?

Senator Murray: The problem was that we did not start with a legal obligation. I was involved in the 1988 bill, and I remember it well. I might as well make full disclosure. When I brought the bill through the Senate, I defended the fact that the part was not justiciable, and I gave the reasons why. Then, because Part VII was not working, our friend Senator Gauthier brought in his amendments that eventually passed to make the part legally binding and justiciable. Mr. Tremblay pointed out the difficulties that arose because we made it legally binding after the fact.

Mr. Tremblay: Some of those differences of opinion will happen at the margin of any legal document. That is not to say that nothing is being done. Those who try to portray the government's record on Part VII in that way do an injustice to what the government has done.

On the other hand, on any single issue, there is some disagreement as to the scope of the legal duty involved. Is there a legal duty to finance a nongovernmental organization that provides funding for test case challenges on language rights? Is the duty to take positive measures to finance that type of nongovernmental organization? The Federal Court will need to look at that question.

Thousands of similar questions can be asked in other areas of government endeavour. Ultimately, those questions at the margin must be resolved somehow. In the meantime, our role is to provide the best advice we can.

Senator Murray: It is legal advice.

Mr. Tremblay: Legal advice.

Senator Murray: I understand that. With the greatest respect, I think perhaps departments involved in initiatives must take counsel not only with their legal advisers but with others.

Mr. Tremblay: I would say they do.

Senator De Bané: Minister, as you know, the Constitution Act, 1982, included for the first time both official languages as the languages of this country. As the supreme law of the land, I think that the observations of the Commissioner of Official Languages that the Department of Justice takes a prudent approach in the interpretation of Part VII does not take enough stock of the meaning of that new chapter in our Constitution. Most Canadians do not fully realize the meaning of that new chapter enshrined in the Constitution Act, 1982.

I grew up in a period where, in Quebec, people asked the federal government to write the words, ``gouvernement du Canada,'' on its cheques beside the English version. The position of the Government of Canada was that no, the cheques need to be only in English.

Senator Murray: That was the case until Mr. Diefenbaker changed it.

Senator De Bané: I do not want to enter into politics. I grew up in that era, where a bilingual cheque was unreasonable. Then, in 1982, we have the same official languages and the same status, same privileges and same rights, so it is a new era.

When I read the report of the Commissioner of Official Languages, am I unfair in saying that he says your department, or the Government of Canada as an institution, is prudent about the meaning of both the amendments to the Official Languages Act and to the significance and the implications to the Constitution?

Mr. Nicholson: Senator, you raise an interesting question. I suppose it is a point of debate. I agree with you that language rights did not begin in 1982. Indeed, the original British North America Act itself has a number of specific provisions that deal directly, or sometimes indirectly, with the whole question of language. That act goes back some time. Indeed, in terms of opening new chapters with respect to human rights of all description in this country, as I think Senator Murray, in his interjection, pointed out that Mr. Diefenbaker's election in 1957 was a new era in terms of rights for Canadians. For instance, I was recently talking about his extension of the rights of Aboriginal Canadians to vote. I remember I was in Grade 3 or 4 when a teacher told us that Mr. Diefenbaker had extended the right to vote to Aboriginal Canadians, and she said it had been a long time coming. Even at the time, in Grade 3 or 4, I recognized that something had changed in this country.

Indeed, legislation with respect to the official languages that preceded the amendments in 1982 was important to developments in this country. We have all come a long way in that regard.

With respect to your specific comments about the Official Languages Act, if you want to judge how the department advises other individuals, look at what the Official Languages Commissioner said about the Department of Justice itself. Also, look at the fact that the department received favourable comments from the Official Languages Act. In the middle of my comments, I noted that I am proud of the fact that the official languages commissioner specifically pointed out the positive steps being taken by the Department of Justice.

On the second part dealing with official languages, there is comment with respect to the advice provided by the Department of Justice. It is protected by solicitor-client privilege, but nonetheless, as Senator Murray pointed out, lawyers are prudent in the advice they give. They are not incautious, I think, to use his words. Inasmuch as changes have been made within the last couple of years with respect to Part VII, the department is giving reasonable advice. Again, I am not sure I completely take issue with what you are saying, but it seems to me that things are unfolding as they should.

Senator De Bané: Minister, with all due respect, I want to quote an extract from the Commissioner of Official Languages. My briefing note is in French, and I will read it to you. On page 3, it says:


Justice Canada, whose role it is to provide legal advice to a number of federal institutions, has favoured a ``defensive'' approach to the new Part VII, and tends to interpret the amendments in a restrictive manner, advising caution to all federal institutions, rather than encouraging them to find creative and innovative solutions.

This is what is said on page 5 of the 2006-2007 Annual Report.


I have taken note that the section of your department headed by Andrée Duchesne, I think, is certainly progressive. When I arrived in this town as a member of the House of Commons, bills were written in English then sent to translation, and that was it.

Today, they work together and both bring their own contributions, et cetera. This improvement is extraordinary.

However, when I see the department that is the legal adviser to all government institutions adopting a defensive attitude, to quote the report, I say, no, I want you to be on the vanguard, and to go beyond the letter of the law. You must say, no, we want the two official groups to feel at home.

Government institutions are obliged to follow your legal opinion. You are not an ordinary legal firm. By law, departments must follow the advice of the Department of Justice. You have a big responsibility. I have confidence, minister, that you will do your utmost to make that happen.

Mr. Nicholson: Thank you. One thing that impressed me, as a new Member of Parliament in 1984, as a member of the House of Commons Standing Committee on Justice and Human Rights, was that point you made: Bills were drafted simultaneously in both official languages. As a lawyer, you will appreciate the details and some of the business in which we were involved. I cannot help but be impressed with the work carried out within the Department of Justice.

You were good enough to point out certain comments by the Commissioner of Official Languages, and Mr. Tremblay may want to address those comments specifically. Again, I put on the record that he said:

Justice Canada has carried out its activities in a satisfactory manner. . . .

Again, those who investigate other individuals are not given to either exaggerating or underestimating what has been done. The Commissioner of Official Languages believes the Department of Justice is on the right track.

With respect to the advice we provide to other departments, Mr. Tremblay touched on that and I will ask him to address it again.

Mr. Tremblay: We discussed this issue previously today. I repeat that, in my view, there is no basis for the commissioner's statement. I told him when I met with him that I see no basis for his statement. We have a disagreement over that issue, and that happens.

To provide a quick anecdote, the first time I heard the Commissioner of Official Languages make this claim was at the end of a conference that, ironically enough, I and members of my team organized in April of 2006, in which we invited legal advisers. We opened up our processes in a transparent way that I think was exemplary to members, who you will interview in the next part of this meeting, the representatives of the jurists association and so on, and to our clients.

At the end of the conference, the commissioner indicated in his closing remarks that he was disappointed that the Department of Justice was coming out with a restrictive interpretation. I had a chat with a client of ours who I invited to this conference because he, upon receiving our advice, could not believe his ears. He thought we were going too far: surely, Part VII cannot say all the things you say it might say; and, you are not seriously telling me I incur risks if I do this or that. As he put it to me, he almost fell off his chair when he heard the commissioner say that the Department of Justice was providing a restrictive interpretation.

I think there is an issue of perspective. The commissioner is doing his utmost to encourage the implementation of what he and we see as an important part of the act. However, on the type of advice that we provide, and how we approach the implementation of the act, I think we must differ.

Senator De Bané: I understand, listening to Mr. Tremblay, why he is one of the senior legal officers of the Department of Justice and why he leads a team of lawyers there. He is a gifted lawyer. However, I want to remind him that the reason why, in 1969 or 1970, in the Official Languages Act, we created of the position of Commissioner of Official Languages was precisely to have someone independent of the different departments and bureaucracies monitoring the implementation of the law.

I like the eloquent argument of Mr. Tremblay but, at the end of the day, as a parliamentarian, I must listen to an officer of the Parliament of Canada.

The Chair: Mr. Nicholson, you told us you needed to leave at six o'clock, and it is five minutes past six. Can you give us another five minutes?

Mr. Nicholson: By all means.

Senator Tardif: I wanted to check on something that was said further to a question from Senator Poulin. Did I hear correctly that the directives in the booklet prepared by Heritage Canada, by you, further to the amendments to Part VII of the act, have not changed even though there have been legislative changes?

Mr. Tremblay: The advice on how to select and identify positive measures and to implement the commitment — which is unchanged in the following amendments — remains essentially the same. There are differences, of course, in part because under the previous — let us call it regime, we required, and we still require, a number of institutions to submit plans to the Minister of Canadian Heritage on an annual basis. That was all fine when Part VII did not have the obligatory content it now has; an obligation imposed on all federal institutions.

Although the advice remains the same, the impetus or the scope has been enlarged so that we now call upon a broader array of federal institutions to participate in those measures.

Ultimately, the gist of the policy is: Go out, identify positive measures and take them. That was the case when Part VII was not justiciable or obligatory, and that policy remains the case.

Senator Tardif: Do you consider that your government's response to the Doucet case in New Brunswick is a positive measure?

Mr. Tremblay: The Doucet case — which deals with Part IV of the Official Languages Act, the regulation-making power and an order of the court to amend the regulation — comes under a completely separate and distinct heading of the Official Languages Act.

Senator Tardif: I am aware of that.

Mr. Tremblay: Therefore, we are respecting our duties to communicate, and offer services from certain office and points of service in compliance with the court order. I would say that is a measure for implementation of Part IV of the Official Languages Act.

Senator Tardif: I would like to continue.

The Chair: Senator Murray.

Senator Murray: This very day, the Attorney General of Canada is here but his representative is in Fredericton appearing before the Federal Court of Canada to defend the decision of the government to do away with the Court Challenges Program. In so doing, it will offer an interpretation of Part VII that I think the Commissioner of Official Languages would be justified in describing as defensive and restrictive.


According to the Attorney General:

The obligations imposed under Part VII are vague and give considerable discretion to the government to choose which of all the available measures it will use to implement the commitment set out in the text. Part VII therefore essentially provides for permanent, but general action on the part of the federal government, as opposed to the specific obligations to be performed at certain times that are set out in other parts of the act.


You are narrowing the scope of Part VII. There is no other way to interpret that factum or brief that you have placed before the Federal Court on this matter.

Mr. Nicholson: We will not comment specifically on the brief before the court or indeed, the matter before the court. We are somewhat circumspect.

Again, we have had a discussion with respect to general advice we provide. I pointed out to you the specific achievements we have made within the department, and I think we have acted in a fair and reasonable manner throughout. We may have to agree to disagree.

Senator Murray: You are putting the best face on it, Minister Nicholson.


The Chair: Minister, on behalf of all the committee members, I would like to thank you for appearing before us today. We have had a frank and open discussion, which was very much appreciated by all. I would also like to thank Mr. Tremblay and Ms. Duchesne for having been here with you.

I would now like to introduce you to the witnesses from whom you will be hearing during the second half of this meeting. We have Ms. Louise Aucoin, President of the Fédération des associations de juristes d'expression française de common law inc. (FAJEF) and Mr. Rénald Rémillard, the federation's Director General. They are here to discuss the implementation of Part VII of the Official Languages Act, which seeks to promote Canada's linguistic duality and to enhance the vitality of francophone and Acadian minority communities. The federation comprises regional, provincial and territorial associations of French-speaking common law lawyers. The federation's raison d'être is to promote and defend the linguistic rights of francophone and Acadian communities and to promote and defend access to legal services in French.

Ms. Aucoin, Mr. Rémillard, as the chair of this committee, and on behalf of all of the senators, I would like to thank you for having accepted our invitation to provide testimony today. The floor is yours.

Louise Aucoin, President, Fédération des associations de juristes d'expression française de common law inc. (FAJEF): Thank you, Madam Chair. My name is Louise Aucoin, and I am the President of the Fédération des associations de juristes d'expression française de common law inc. (FAJEF). I am here today with our Director General, Mr. Rénald Rémillard. The FAJEF comprises seven associations of French-speaking jurists and is mandated to promote and defend the linguistic rights of French-language minorities particularly, but not exclusively, with regard to administration of justice. Although the majority of our members are professional jurists, the FAJEF has a community-based mandate.

It may interest you to know that the four western provinces, as well as Ontario, New Brunswick and Nova Scotia have associations of French-speaking jurists. The seven associations of French-speaking jurists represent some 1,350 French-speaking jurists and our membership has been expanding significantly over the past few years. The FAJEF is also a member of the Fédération des communautés francophones et acadienne du Canada, an organization with which it works closely. Indeed, Ms. Diane Côté, a representative of the FCFA, is here with us today.

Our presentation will address Part VII of the Official Languages Act, and more specifically, some of the justice- related measures introduced by the federal government over the course of the past few years.

As the minister noted, Justice Canada has provided financial support through its access to justice in both official languages support fund. Indeed, the FAJEF and its network have received base funding as well as support for a number of projects seeking to provide access to justice in both official languages from this fund.

In concrete terms, the support fund allows communities and universities to run projects such as those promoting legal careers and those providing legal training in French for numerous stakeholders in the justice sector such as crown prosecutors, clerks, defence lawyers, and so forth. It is also used to raise the public's awareness of the linguistic rights that they have in the Canadian legal system.

Two years ago, Justice Canada launched another fund, which it termed a positive measure, called the Child-centred Family Justice Fund. The department provided $250,000 for 2006-2007 and 2007-2008 for official language projects under the auspices of this Child-centred Family Justice Fund.

Although the fund is a modest one, it is greatly appreciated and has already yielded some very positive results. We therefore fervently hope that it will be continued. As you know, family law directly affects the life of many people and children and, as a result, is a subject of great interest in our communities. Indeed, we are already working with parents' associations, and we are also exploring the possibility of developing partnerships and projects with French-language immigrants' associations by whom we have been approached.

Furthermore, we have developed close ties with both the Quebec branch of the AIFI — the international French- language association of practitioners working with separated families — and Éducaloi, a well-known and reputable Quebec organization that provides legal information in everyday language. With regard to a mechanism for consultation of Justice Canada reports, such a process is already in place and has proved very successful, as has our regular, informal contact with the department. For example, we are currently having discussions with Justice Canada about the possibility of holding a conference on language rights in Dublin, Ireland, in 2009. It would be organized as part of the Canadian Bar Association's annual convention.

It is also thanks to the consultation mechanism that we have both been able to stress the importance of providing legal training in French for the future and to set out what we would like to see included in any new official language strategies.

Furthermore, Justice Canada sought input from the Fédération des associations de juristes d'expression française de common law inc. (FAJEF) when Bill C-13 was being drafted, in particular with regard to language provisions related to the Criminal Code. The Fédération des associations de juristes d'expression française de common law inc. (FAJEF) was also invited to participate in a symposium organized by Justice Canada — one which Mr. Tremblay has already mentioned — on Part VII of the Official Languages Act in general.

A final point that I would like to discuss is our relationship with the RCMP. For a number of years, French- language and Acadian communities have been concerned about their relationship with the RCMP. Thanks to the hard work of the FCFA, we are currently discussing the possibility of organizing a national symposium to allow the RCMP and the French-language and Acadian communities to discuss a number of issues, including the relationship that the communities have with the RCMP.

The table is not yet ready, but it seems very promising at this time.

We do not really want to conclude on a negative note, but I think that it is very important to emphasize two serious shortcomings in our justice system that, in our opinion, require the application of positive measures.

First, there is the Federal Court judges' appointment process. We want to amend the federal judges' appointment process to take the legal language obligations into account. For example, the bilingual skills of candidates should perhaps be evaluated, and the number of bilingual judges that would be necessary to give equal access to justice in French in Canada should be established for each province or region. This is certainly not the case at this time.

Secondly, we should have some kind of funding program for clarifying and enforcing constitutional language, legal and other rights.

Those were our comments. I will be pleased to answer your questions.

Senator Poulin: Thank you, Ms. Aucoin, for being here. We very much appreciate your coming. As you witnessed our discussion with the minister a few minutes ago, you can understand that we were surprised by the fact that the directives currently issued by Heritage Canada are exactly the same directives; the preamble and prologue of Part VII.

Could you tell us if your association was consulted regarding the interpretation of the new provisions in Part VII?

Rénald Rémillard, Director General, Fédération des associations de juristes d'expression française de common law inc. (FAJEF): We took part in the conference mentioned by Justice Canada, but there was no consultation as such to try to define or to discuss a settlement or anything like that. I must say that it was a very interesting conference. It was mainly comprised of university professors, thinkers who discussed language rights, as well as Part VII, but who also drew comparisons with international law because there were some principles in international law or even in aboriginal law that could help us or guide us in our reflections on the positive measures to be taken. Thus, it was quite academic, representing the main currents of thought. Though it was interesting and though our participation was appreciated, we were the only community group to be invited. It would have been useful to have other groups than just the Fédération des associations de juristes d'expression française de common law inc. (FAJEF). It was good, but it could have been more open.

Ms. Aucoin: One thing that came out of that day was the fact that consultations are important. When we discuss positive measures, it applies both ways. Communities must be consulted and the government must understand the needs of the communities. It is the only way.

Senator Poulin: Since you have not been consulted, let me put the question to you directly: how do you interpret Part VII?

Ms. Aucoin: Regarding positive measures? We hope that this will be a proactive measure. It would involve consultation, for the government should not take any measures without consulting the people. We hope that it will be innovative, and that we can really see our communities making progress.

Mr. Rémillard: Most of the principles stated in the Official Languages Commissioner's annual report have to do with many factors. There are certain cardinal principles that could guide our deliberations. In the light of our participation in the conference, it would be interesting to see if we can inform our reflection by referring to other fields of experience, other legal notions et cetera. In this sense, there are still things to explore. The two subjects that were discussed the most were aboriginal law and international law. It would be interesting to see what we could come up with. We had a preliminary discussion, but we did not have any further discussion after that. I do not think that we are ready to state that the three principles are exclusive, but it is a good starting point. We need to put some flesh on the bones by going ahead with further discussion and exploration.

Senator Comeau: Thank you for appearing before us. I would like to come back to a comment made by Minister Tremblay. He told us that the commissioner had suggested to Justice Canada that they should not intervene in the current settlement.

Second, he also said that it may be better to wait for the judicial decisions. This second statement, whereby nothing should be done so long as the courts have not given us the go-ahead, seems strange and infantilizing to me.

When you attended the symposium, did you hear any comment of this kind from the commissioner? Would he have suggested that we should wait for the settlement?

Ms. Aucoin: Since the positive measures are relatively new, I think that a quick settlement would be feared as being too restrictive and contrary to community interests. I believe that this is one of the concerns.

Senator Comeau: This may be a good point. I appreciate your comment. As for the second comment, whereby we should wait for the court decisions before going too far, do you think that this is good advice?

Ms. Aucoin: Possibly, the Federal Court decision will define a positive measure for us, but we do not really know. We will probably have a decision in six or seven months, and then, we will have to live with it.

Senator Comeau: In the case at hand, the recommendation is not made by the Department of Justice, but by the Official Languages Commissioner. This worries me a bit. I did not know that the Official Languages Commissioner had suggested these things. I will certainly reflect on both these issues.

Now, I think that you are currently present in seven provinces, but not in Quebec or in the Territories. On the other hand, the representation in Newfoundland and Prince Edward Island is rather small.

Ms. Aucoin: I entirely agree. The problem, or challenge, in these provinces is that there are too few francophone legal professionals. For instance, in Prince Edward Island, federal government lawyers from the Department of Veterans Affairs are often hired and they feel that there are some problems with conflict of interest. We have no representation because of these very practical reasons.

In such situations, we try to work with associations or advocacy groups, such as community associations, to learn about their needs.

Senator Comeau: Is the problem due to the fact that there are very few lawyers in those provinces who speak French?

Ms. Aucoin: Who do not speak French or do not work for the federal government.

Senator Comeau: I agree that the federal government lawyers should be very careful before deciding to join your group, especially if they are hired by the Department of Justice. Those are my questions for the time being.

Mr. Rémillard: Regarding the issue with Prince Edward Island and Newfoundland, in fact, some time ago, the federation travelled to these provinces and territories to see if it would be useful to create a territorial lawyers' association. Because of demographic dispersion, there are, more often than not, very few lawyers; we do not have a critical mass that would enable us to create a lawyers' association.

Prince Edward Island is collaborating with New Brunswick and with Nova Scotia, because there are existing connections, and thus, these provinces have lawyers' associations.

They are not being neglected, they simply need a different approach. In Newfoundland, I think that we made a presentation, about a year ago, before the Association des francophones de Terre-Neuve et Labrador and issues relative to justice were discussed.

However, there are, nonetheless, a few key persons at work, namely lawyers, but not enough to form a board of directors, for example. But those files are dealt with by the associations and we are always trying to keep them abreast of events and to get them involved in some way or other, either through the Fédération des communautés francophones et acadienne or through other avenues. Those provinces are not inactive.

Besides, in Newfoundland and Labrador, some interesting things are being done. For instance, courses in legal French are given by the Department of Justice in collaboration with Newfoundland and Labrador and there are many students.

In Newfoundland and Labrador, it is quite astonishing to see how many people speak French. The Department of Justice in that province is really quite open.

Senator Comeau: I am glad to hear that.

Ms. Aucoin, could you repeat for me the second criticism that you made during your last comments?

Ms. Aucoin: Ultimately, this would be the equivalent of a court challenges program, perhaps with a different name, because it would have to be broadened. I think that we really need to be subsidized so that we can clarify and seek respect for our constitutional language rights. Thus, it could be somewhat broader than the former Court Challenges Program.

Senator Comeau: Moreover, the last Court Challenges Program was very broad, it included support for all kinds of things.

Ms. Aucoin: No. Section 15, equality, or language rights.

Senator Comeau: It was both.

Ms. Aucoin: They were the only two.

Senator Comeau: Are you proposing one that includes language rights?

Ms. Aucoin: We could broaden the constitutional rights; there seem to be some issues that do not meet the standards and that it would be very useful to clarify.

Senator Comeau: What is section 15 about?

Ms. Aucoin: It is about equality issues, such as gay marriage for instance.

Mr. Rémillard: It may include poverty, racially-motivated discrimination, and so on. It is quite broad. Equality rights are subdivided into several categories.

Senator Comeau: Thus, there was section 15, and what else?

Ms. Aucoin: Language rights.

Senator Comeau: Thank you.


Senator Keon: Following up on your comments about the good things you see in Newfoundland and Labrador, for example, and the availability of many jurists who are fluent in French, what are the educational facilities? Do you have educational facilities in Canada collectively to produce the number of French jurists that are required, leaving aside Quebec, because the legal system is different there?

Ms. Aucoin: Two law schools in Canada, University of Ottawa and University of Moncton, offer common law in French.

Senator Keon: Can these two institutions provide the numbers of people you require across the country?

Mr. Rémillard: There is common law in French, but many of our members, or the members of our members, come more and more from various law schools, whether from Manitoba or other universities. They are often immersion students who have gone through the system and will study in English common law but are fluent in French. They might not have the same ease in French legal terminology, but out west, many new members are graduates from those schools with immersion programs. They are French-speaking lawyers. It is a broad, inclusive definition. That definition is intended to be open. We have a lot of new members coming from those law schools.

That is law schools. There is definitely a need for training, because we do not need only lawyers. We need people who can work through the system. We need judges. We need support staff. If only the lawyers speak French, or are bilingual, and there is no support staff, then everything falls apart. That is where more training is needed, and that is one thing we are looking at, or certainly that we think is important: to enhance the capacity of that training so that we have a more bilingual system and not only bilingual lawyers. We should not ignore lawyers, but we need to look broader than that. If we increase the capacity of the system, that will help make the system bilingual. That is one initiative where we can make a difference. It is a more concrete way of doing things also.

If we encourage more people to study in French and go through immersion, or whose mother tongue is French, that is a concrete way of helping people along. We have seen some successes in the health sector, and we hope to take the same initiatives in the justice system.

Senator Keon: Relating to infrastructure, for example, can a young francophone whose primary language is French, educated in Edmonton, function adequately for one of your infrastructure positions, or whatever you want to call them? Have they proper command of the legalese and so forth to function?

Mr. Rémillard: If they have not been through a French university or community college, probably they cannot function adequately, because of legalese. It is specific. That is why courses are offered in French legal terminology through most government departments of justice. Various groups offer those kinds of training. Many of those programs come out of Justice Canada and help to foster that sort of ease in French legal terminology. That training is an ongoing thing. That is professional training or continuing education. That component of the training is important. Things are being done, but they must continue.

Training must also be broadened to include support staff in community colleges and other programs. We hear more and more that police services have a difficult time recruiting. We need bilingual police officers to work for the RCMP, the City of Ottawa, the City of Winnipeg or whatever it is. That initiative, for example, would be justice in its broad definition. We would like to see that sort of initiative so that we broaden the definition. It is justice in a much broader definition than only lawyers.


Senator Murray: Ms. Aucoin, you mentioned two shortcomings. The first was the process for appointing provincial Superior Court judges. The Department of Justice told us that appointing bilingual judges involves analyses carried out by chief justices from various provinces. Do you think that this is inadequate or insufficient? Does this hinder equal access?

Ms. Aucoin: It does in certain provinces. If we look at the Manitoba code, where the Chief Justice is Marc Monin, who is sensitive to francophone concerns, we might say that there is an opening. On the other hand, in other provinces, we have to ask a member of the majority to make a decision about the needs of the minority. Also, I am very aware of the fact that even in a province like New Brunswick, an officially bilingual province, recently some unilingual anglophone judges were appointed to replace bilingual judges.

Senator Murray: Did this happen in regions that are mainly bilingual?

Ms. Aucoin: We think that in New Brunswick this should be wall-to-wall. It varies from one province to another.

Senator Murray: I heard about this situation in New Brunswick.

Ms. Aucoin: If we have this problem in New Brunswick, if we have chief justices who are not necessarily sensitive to francophone concerns, if we ask them how things are, they will say that things are going very well. This is normal.

Senator Murray: As you know, for each province, there is an advisory committee that includes representatives of legal authorities, judges, courts, the Bar and perhaps the public at large. Are you suggesting something extra that would necessarily involve representation by minority language communities?

Ms. Aucoin: I think that we should assess the needs. I think that bilingualism should be more important than membership in the Rotary Club, the Lions Club or things like that. When files are evaluated, Superior Court justices' positions are very popular. There are many candidates. As we look at various files, there are several factors, like community involvement, et cetera. But when the need is considerable, bilingualism should be given greater weight than just having been the chairman of a United Way campaign or something of that nature. If we have bilingualism tests for the federal government, it seems to me that we could also think of doing the same for judges.


Senator Murray: I want to come back to a subject that we discussed when Minister Nicholson appeared. It is probably never greatly appreciated when one tells lawyers that we should not be too legalistic about these matters, but I am concerned with Part VII of the act. While I understand perfectly why we did what we did in 2005 to make this part legally binding, justiciable and all the rest of it, and I understand also why the Federal Court is now hearing protests about the Court Challenges Program, when it comes to the proactive promotion of the vitality of official language minority communities, I do not think that the answer will be found in court.

If all agencies and departments of government are under an obligation, they will see the obligation, both the letter and the spirit of it. When initiatives or bills are brought forward we, committees of the Senate or the House of Commons, should take it upon ourselves to see whether there is a possible or likely link between that initiative and the vitality of official languages communities. We need to press the ministers and officials of the government on that point if we believe the obligation is not adequately attended to in the draft bill that may be before us.

I think the organizations that represent official languages minorities must gear up to take those initiatives, and to make the obligation part of the political and legislative process rather than believe that there is a satisfactory remedy in court.

Ms. Aucoin: Court is always the last measure.

Senator Murray: That is exactly what I was hoping you would say.

Ms. Aucoin: Our communities are not rich. Look at how much it costs to go to the Supreme Court of Canada now. It is unbelievable. It is certainly not the first choice.

I grew up in Nova Scotia. We had French schools only because we went to court. Montfort in Ontario exists only because the matter was taken to court. Unfortunately, if it had not gone to court, we would have nothing. It is true.

Senator Murray: I know.

Ms. Aucoin: Even as it stands now, assimilation is a grave preoccupation for us. We do not have any choice in the matter. It is dramatic when we must go to court. Oftentimes, families become torn apart because they are not necessarily on the same side. It is a difficult issue. It is not a first choice.

There is no guarantee. In Nova Scotia, we have all sorts of issues. We were to receive a French school in Cheticamp, so the francophones were given the old school and the English were given the new school. That is the way it works.

We do not go to court because we like to. We go because we have to.

Senator Murray: With respect to the assimilation problem, this committee, when we made our rounds of some of the official language minority communities, and notably when we studied education and the availability, or not, of mother tongue and the problem posed by — what is the expression for ``mixed'' in English?

Ms. Aucoin: Famille exogame.

Senator Murray: — where perhaps the francophone parent was in the services and would be sent overseas for periods of time and English became, one way or the other, the language of the household. When the time came for the child to go to school, there was a reluctance to send that child to French school because there was an embarrassment about the quality of the French. Also in some provinces — Manitoba, for instance — there was some reluctance on the part of those running the French schools to accept that child. There are many problems like that.

My point is that the solutions are political and the pressures must be political. I understand fully what you are saying. It was only through the courts you were able to obtain many of the rights and their exercises, but in many of these matters, I hope people understand that political pressures must be brought strongly to bear.

Ms. Aucoin: However, when we are a minority, we do not often have the political clout because our numbers are not there.

Mr. Rémillard: It is relevant when we are talking about Part VII. You are right in that there must be a balance between the legal approach and partly, the political approach.

Much of the approach deals with building relationships with people in departments. That is part of the answer. When we talk about consultation processes, we are talking about building relationships between people. Largely, I think that is a first step. It is often the most constructive, and it builds a long-term relationship. That approach is the best one. Unfortunately, once in a while we need other options.

Senator Murray: I appreciate that.

Mr. Rémillard: I believe you are right in the sense that we should not skew things totally one way versus the other.

Senator Murray: I wonder whether people think that Part VII is a magic bullet. I hope they do not.


The Chair: If there are no further questions, I want to thank you for appearing before the committee this evening. I wish you success in continuing your good work and I guarantee that the Standing Committee on Official Languages is here to support you, as you may have noticed. Good luck and thank you very much.

The committee adjourned.