Tuesday, June 13, 2023

The Standing Senate Committee on Official Languages has the honour to present its

THIRD REPORT

Your committee, to which was referred Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts, has, in obedience to the order of reference of Thursday, June 1, 2023, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

Observations to the Third Report of the Standing Senate Committee on Official Languages (Bill C-13)

On June 1, 2023, your committee received an order to examine Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts.

Since your committee reported on the subject matter of this bill on November 17, 2022, more than sixty amendments have been made by the House of Commons. Your committee applauds the work done in the other place to improve Bill C-13 and bring it more in line with stakeholder expectations.

However, your committee regrets the late arrival of this bill. Considering:

•the scope and seriousness of the work carried out by your committee to contribute to the collective effort to modernize the Official Languages Act (OLA), between 2017 and 2019;

•the significance and nature of the concerns heard by your committee during the pre-study of Bill C-13, between May and October 2022, to which it devoted eight meetings, heard 41 witnesses and received 22 briefs;

•the large number of amendments to this bill by the House of Commons between January and May 2023; and

•the high expectations of the vast majority of stakeholders for the swift passage of this bill;

your committee would have liked to have more time to hear testimony and examine briefs, which would have allowed for a more in-depth analysis of the proposed new legislative amendments.

After two meetings totalling eight hours devoted to the study of Bill C-13, on June 5 and 12, 2023, your committee respectfully submits the following observations.

Oversight of the Official Languages Act’s Implementation

Your committee welcomes the provisions of Bill C-13 pertaining to the implementation and coordination of the OLA. Enhancing and expanding the implementation and coordination responsibilities of the Treasury Board, a central agency, received substantial support from the stakeholders heard by your committee. The governance and implementation structure set out in Bill C-13 could remedy more than 50 years of partial and fragmented implementation of the OLA.

However, your committee notes that several witnesses, including the Commissioner of Official Languages, stressed the importance of having the federal government devise an effective and comprehensive mechanism for overseeing the OLA’s implementation. This mechanism should assess compliance by entities subject to the OLA with its various provisions and include appropriate indicators, particularly the demographic weight of francophone minorities and the enumeration of the children of rights-holders.

Quebec’s English-Speaking Communities

Representatives of Quebec’s English-speaking communities told your committee that they support measures to promote both official languages, and they endorse the need for extra support for minority francophone communities. They applaud parts of Bill C-13, such as the increased powers for the Commissioner of Official Languages, mentions of the Court Challenges Program or improvements to Part VII. They also understand and support the continuing need for all levels of government to support and promote the French language.

But they have serious concerns; namely, they strongly object to the inclusion in Bill C-13 of references to Quebec’s Charter of the French Language, particularly the insertion of such a reference into the purpose clause of the OLA. The Minister of Official Languages told your committee that mention of Quebec’s Charter of the French Language was a purely factual statement.

The Minister of Official Languages, the President of the Treasury Board and the Commissioner of Official Languages pledged to monitor the effects of Bill C-13 closely. Your committee believes that it will be essential for them to pay particular attention to developments affecting Quebec’s English-speaking communities and to report regularly on the effects of Bill C-13 throughout Canada, without waiting for the review that will take place 10 years from now.

Enumeration of the Children of Rights-Holders

Bill C-13 includes an obligation to estimate the number of children of those who hold rights under section 23 of the Canadian Charter of Rights and Freedoms (the Charter). However, given the alarming decline of French in Canada, several stakeholders argued for the importance of counting, rather than estimating, the number of children of rights-holders, given the detrimental impact and pressures to assimilate resulting from systemic and historical underestimation. The Fédération nationale des conseils scolaires francophones submitted a brief calling for Bill C-13 to be amended so as to create an obligation for systematic enumeration, arguing that francophone school boards need conclusive data from a neutral and reliable organization such as Statistics Canada.

Based on the testimony heard and briefs received, your committee notes that periodic enumeration of the children of rights-holders is critical to the survival and vitality of francophone minority communities, and that the only tool available to the federal government capable of accomplishing this, and thereby implementing section 23 of the Charter, is the short-form census, since the questions on it are put to all Canadian households. Short of enshrining an enumeration obligation in law, your committee recommends that the federal government periodically enumerate the children of rights-holders through the short-form census.

Coherent and Equitable Air Transportation Rights Regime

For the Canadian travelling public, your committee notes that Bill C-13 perpetuates the “fragmented and inconsistent” language rights regime described by the Commissioner of Official Languages in a brief submitted to your committee during its study on the subject matter of Bill C-13.

To make this point, Air Canada notes in its brief to your committee that “[t]he use of two different concepts for the same industry, ‘significant demand’ on the one hand and ‘strong francophone presence’ on the other, will inevitably cause confusion for travellers who use different airlines and who travel outside Quebec.” Air Canada also points out that “Bill C-13 does not clearly define the Commissioner’s powers with respect to other airlines, including the power to issue orders and impose administrative monetary penalties.”

Your committee recommends that the federal government address these issues and establish a coherent and clear language rights regime for the travelling public, who must be able to understand their rights in order to assert them. Your committee also notes that this is a matter of fairness with respect to the obligations of the various airlines, which today occupy competitive shares of the Canadian air transportation market.

Bilingual Constitution

Your committee notes that some constitutional texts establishing the foundations of our Canadian Confederation, including the Constitution Act, 1867, still only have official English versions.

Your committee notes that on March 29, 2022, the Senate unanimously adopted a motion calling on the government to “consider, in the context of the review of the Official Languages Act, the addition of a requirement to submit, every 12 months, a report detailing the efforts made to comply with section 55 of the Constitution Act, 1982.” Several stakeholders argued in favour of this approach, pointing to the legal and constitutional basis for this proposal. Section 2 of the OLA and section 16(1) of the Charter confirm the principle of the equality of status and equal rights and privileges of English and French as to their use in all institutions of the Parliament and government of Canada, and the underlying principle of the continuing advancement toward the equality of status and use of the two official languages.

Your committee calls on the federal government to implement the measures proposed in the Senate motion to support the advancement toward the equality of status of both official languages, by making sure that the Minister of Justice of Canada, respect section 55 of the Constitution Act, 1982, which states that all constitutional texts set out in the schedule to this Act must be drafted and adopted in French. Your committee also recommends that the federal government submit a report to the Senate and to the House of Commons every 12 months detailing the efforts made to ensure compliance with this section.

Discoverability of French in the Digital Space

At a time when the digital space is particularly dominated by American giants, your committee believes that the presence and discoverability of all works, creations and research of any kind in the French language are essential to fully ensure the perpetuity of the French fact in this country. Your committee therefore recommends that the federal government continue to take concrete initiatives to ensure the dissemination and discoverability of Canadian content in French.

Translation Bureau

Through its translation, interpretation and terminology activities, your committee notes the indispensable role played by the Translation Bureau in the vitality of Canada’s English and French linguistic communities and in the protection and promotion of our two official languages. Your committee encourages the federal government to strengthen the role of translation and interpretation functions within the federal administrative apparatus, notably the Translation Bureau.

Indigenous Languages

Indigenous peoples in Canada, with their unique histories and experiences, expect the Government of Canada to fulfill its commitments to them as set out and agreed to in the United Nations Declaration on the Rights of Indigenous People Act, in the Truth and Reconciliation Commission’s Calls for Action, in the National Inquiry into Missing and Murdered Indigenous Women and Girls’ Calls for Justice, and in the Indigenous Languages Act.

The OLA does not exist in a silo. Every piece of legislation passed by Canada’s Parliament is an opportunity for truth, reconciliation, and action, and for a departure from harmful colonial policies.

Some members maintain that with further amendments, Bill C-13 has the potential to advance reconciliation in Canada. However, your committee notes that, in the absence of substantial reform of the legal regime governing Indigenous languages, Indigenous peoples have little recourse or means to work towards the reclamation, revitalization and strengthening of Indigenous languages.

Indigenous languages are recognized in the Indigenous Languages Act and for the first time; they are also acknowledged in these proposed changes to the OLA. This is a small step in furthering reconciliation. Your committee believes it is important to recognize First Nation, Métis and Inuit languages as the first languages of the land.

Your committee notes that a lack of Indigenous representation in governmental and parliamentary bodies negatively impacts the development of legislation and the implementation of policies. Some members maintain that the Government of Canada should recognize the right of parliamentarians to use Indigenous languages in any debates and other proceedings of Parliament, for their words to be interpreted for Parliamentarians into English and French and reported in the Journals and other publications of Parliament. While parliamentarians are currently able to use Indigenous languages in Parliament, codifying this right would advance reconciliation and let Indigenous peoples in Canada know that their voices are valid and heard in our decision-making process.

We know that a diverse workforce with strong Indigenous representation means a stronger and more adaptable public service. Representatives from the Public Service Alliance of Canada provided testimony to your committee during its study on the subject matter of Bill C-13 regarding the important work that is being done by public servants across Canada, including in Indigenous communities, and that the federal government should lead by example and formally recognize the work of employees who use Indigenous languages in their day-to-day work. Some members maintain that the Government of Canada should explore administrative measures that would strengthen the ability of the public service to use Indigenous languages, including the development of an Indigenous language benefit for federal workers who speak an Indigenous language, and consider certain exemptions to the federal government’s bilingualism requirements should an employee speak one official language and another Indigenous language, in order to attract and retain more Indigenous workers in the public service.

Your committee notes that the Indigenous Languages Act requires the Minister responsible to conduct an independent review of the administration and operation of the Act within five years of its coming into force, and every five years after that. In the spirit of reconciliation and decolonization, your committee expects the federal government to meet — and exceed — minimum legal expectations in respecting the governance and self-determination rights of Canada’s Indigenous peoples.