Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 23 - Evidence

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-32, to amend the Official Languages Act (fostering of English and French), met this day at 3:36 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we have before us this afternoon Senator Gauthier who will present his private member's bill, Bill S-32, to amend the Official Languages Act (fostering of English and French).

Welcome to our committee, Senator Gauthier.

[Translation]

The Honourable Jean-Robert Gauthier: This is a very important forum for French-speaking minorities. Bill S-32, an Act to Amend the Official Languages Act (fostering of English and French), was read for a second time on November 20, 2001. I have distributed a copy of the Official Languages Act, a copy of Bill S-32, as well as a copy of the official report of Debates of the Senate from November 20, 2001.

I have dreamed about setting up a Standing Senate Committee that would study official languages. And I am still dreaming! For more than six years, now, I have been trying to convince parliamentary authorities of the need to set up a Standing Senate Committee on Official Languages. This committee could review the application of our linguistic rights - rights that distinguish us as a society and which are part of our fundamental values - in a non-partisan environment where the Senate's role as a protector of minorities would take shape. For more than a year, the Standing Senate Committee on Rules, Procedures and Rights of Parliament has been studying the proposal. Let us be patient!

Can we believe that there are obligations without concluding at the same time that real rights exist? On July 20, 1988, when Bill C-72 was adopted, the Honourable Lucien Bouchard, Secretary of State at the time, outlined the government's linguistic policy when he made the following remarks before a Senate committee, and I quote:

The importance which the federal government attaches to the communities is expressed more particularly in Part VII of Bill C-72, implementation of which is the responsibility of the Secretary of State. Section 41 states the full scope of the government's intentions. It confers on the federal govern ment the obligation to enhance the vitality of the linguistic minorities, to support their development and to foster the full recognition and use of English and French.

For me, and probably for all other parliamentarians, this commitment to honour the purpose of the act was real and taken seriously.

[English]

Mr. Bouchard was clear about the objective of the act; in other words, the "why" of the question. The "how" is set out in sections 42, 43, 44 and 45 of Part VII of the act. Obviously, if governments do not respect their commitments under the Official Languages Act, language minorities have the right to turn to the courts for help. That makes sense, and they have done so.

When the Secretary of State or the Minister of Canadian Heritage speaks today on behalf of the government, he or she must, under the terms of the act, encourage and promote a coordinated approach to the implementation of the Official Languages Act by the various responsible departments. It is probably lack of action in this regard that led the Prime Minister of Canada to appoint a minister responsible for official languages coordination. The Honourable Stéphane Dion is, in a sense, an associate minister of Canadian Heritage, with the Prime Minister's authority and mandate, responsible for coordinating, developing and implementing official languages promotions and programs. Mr. Dion has even promised Canadians an action plan by this spring. He has been at it for one year and we are still waiting.

[Translation]

Heritage Canada's mission is clear in the act. Implementing section 41, as worded, seems to be a major difficulty for federal government departments and agencies. Does that mean the act is unclear, non-binding and that the provisions that provide the authorization to act are not strong enough or encouraging enough to fulfil the mandate? Is there a lack of political will that is preventing federal institutions from acting? If you look at the definition of institution in Part II, you can see that it is clear.

[English]

Last Thursday, January 24, the Honourable Stéphane Dion spoke to the members of the Ontario Bar Association. He said:

Until governments themselves assume their constitutional and legal responsibilities for Canadian bilingualism, citizens and communities will be justified in turning to the courts.

In my view, he should have added, "As long as federal institutions do not receive more convincing leadership, nothing will change." Instead of using the expression "Canadian bilingualism", he would be well advised to use the clear expression "Canadian duality." There is a big difference between bilingualism and duality. The word "bilingualism" is not in our Constitution. It does not exist as such. It is a discipline.

[Translation]

I am bilingual, as are many of you. A person is not born bilingual. It develops gradually. It is like a hybrid. A bilingual does not reproduce.

[English]

I wish to make it clear that there is a big difference between the concepts of bilingualism and duality. Our government must stop talking about bilingualism and start talking about respect for both official languages by the government and its institutions, including Parliament. If we fail to do that, then we are not doing a good job.

I believe there are legal obligations that require the Minister of Canadian Heritage to carry out her mission. The Department of Canadian Heritage must coordinate and maintain promotion programs and this assumes that the minister must act as well. Naturally, these obligations are liable to monitoring by the courts.

[Translation]

My bill has been winding its way through Parliament for some time now. From a fairly reliable source, I have heard the negative arguments of certain people in authority regarding Bill S-32 and other arguments that have been positive. Make your own decision. I have been told that Bill S-32 will lead to more court action regarding the Official Languages Act. This legal jargon means that there will be more cases before the courts.

Senator Nolin: To date, it is not that bad.

Senator Gauthier: This bill will create expectations among official languages minorities that the government will be unable to satisfy. The Minister of Heritage has said so in a letter. It is true that Bill S-32 was inspired by the 1982 Constitutional Act. It starts this way. I refer to subsection 16(1) and (3) of our Constitution. It is also true that this bill repeats the wording that refers to taking the steps necessary to enhance the vitality and the development of anglophone and francophone minorities in Canada, et cetera.

This wording or the inspiration for Bill S-32 can be found in part in subsection 43(1) of the Official Languages Act, and I quote:

The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to advance...

I also used the act recognizing the equality of the two official linguistic communities in New Brunswick, assented to July 17, 1981. That was more than 20 years ago. I am going to read an excerpt from the New Brunswick act:

The Government of New Brunswick shall, in its proposed laws, in the allocation of public resources and its policies and programs, take positive actions to promote the cultural, economic, educational and social development of the official linguistic communities.

I will admit that I almost put the word positive in my bill. I did not do so, because I was advised otherwise. It is nevertheless in the New Brunswick act.

I am not a lawyer, you are aware of that, nor am I a legal expert. But I do know how to read. And it is true that I was inspired while reading our Constitution and the New Brunswick Act. I am guilty of plagiarism. What can I say, we find our inspiration where we can! I wonder if Bill S-32 will lead to more court action. If fundamental rights are ignored, will people be able to resort to legal remedies? Yes, they will, and rightly so.

I could tell you about a speech made last January 24 in Toronto by the Hon. Stéphane Dion on this matter.

Senator Nolin: That is expensive.

Senator Gauthier: I object to putting a dollar sign on fundamental rights. I say no. That is not true.

At any rate, the courts do not generally waste time on people who are abusing the legislative or legal system, nor with minorities that do not have the financial means nor the time to be frivolous in claiming their rights. As for the expectations that would be created by the modest proposal in Bill S-32, I would simply reply that a right is a right is a right. I will add, for the benefit of those who are concerned about this, that linguistic communities are simply asking for respect in terms of equity and justice.

Some people will say that Gauthier is impatient, that is true. I have been doing this for 40 years. I have worked in the field of education since 1960 and in the federal government since 1972. You have to have the patience of Job to get governments to act, whether they be at the provincial or federal level. I am in the autumn of my life and of my political life as well, because I will be leaving in three years. Some things are urgent.

The assimilation of French Canadians living in minority environments is worrisome and even critical. I am doing all that I can to change that.

I have been involved in several political campaigns at the local, regional, municipal, provincial, and federal levels, in education, in health, and in social services.

I am going to try to convince you to adopt this proposal. I do expect you will have some amendments to suggest. I could perhaps even suggest some.

The objectives of Part VII of the Official Languages Act are identical to those contained in section 23 of the Canadian Charter of Rights and Freedoms, as interpreted by the Supreme Court of Canada in the Mahé et al. in 1990. It is an extension of subsection 16(1) of the Charter of Rights and Freedoms, nothing more, nothing less.

The general purpose of Part VII of the act is to maintain the two official languages of Canada and the cultures they convey. Section 41 of the Official Languages Act talks about enhancing the vitality of both official languages of Canada. The aim of this part of the act is to remedy the progressive erosion of linguistic minorities.

[English]

Part VII of the act seeks to achieve this by placing obligations on the federal institutions in the exercise of their mandates. This is what is generally known as "institutional bilingualism," the system of rights and obligations connected with language, communications, services, language of work and equitable participation within federal institutions, et cetera. Part VII does not create new rights; it gives effect to the principle of advancing equality and status of equal rights and privileges as to the use of both official languages in the institutions of Parliament and the Government of Canada. That is in our Constitution; I did not invent that.

Section 23 of the Charter deals with minority language rights in education. Part VII, at section 41, recognizes status of official languages throughout Canada and reflects an unequivocal commitment on the government to foster and enhance the vitality of the official languages community.

Part VII enables the government to use its spending power to meet its obligations in supporting and assisting the development of official language minority communities. Honourable senators will understand what I mean by that, I am sure.

[Translation]

The objectives of the 1988 Official Languages Act are still relevant:

1. ensure respect for and equality of status of the two official languages;

2. support the development of anglophone and franco phone minorities; and

3. promote the advancement of the two official languages within Canadian society.

Another of the act's goals was to clarify the powers and obligations of federal institutions.

Canada became officially bilingual 32 years ago, when the Parliament of Canada enacted the first Official Languages Act in 1969. That was the first step towards solving the linguistic problems that existed at the time. Official language minority communities knew that the act would not provide equal access and social peace as regards official languages overnight. They knew that.

You are aware of how difficult and sometimes even traumatizing daily life can be for official language minorities, throughout Canada. Montfort is just one example of several incidents in this campaign that has lasted far too long in Canada. Linguistic communities are becoming more effective, you might say, in defending their rights.

I am going to explain why. It took five years to obtain justice for the Montfort cause. In Ontario, in education, it took 17 years, in a province that, as you know, has an anglophone majority, even when our rights were entrenched in the Constitution. For the right to education, in section 23, it took 17 years for Franco-Ontarians to be given the responsibility for school management throughout the province. Seventeen years of squabbling, assimilation on one side, and fundraising campaigns to pay for lawyers to defend the cause. We have made enormous progress, I will admit that. Progress in official languages is slow, but steady.

All I am doing today is trying to help move things along a little bit. I believe that linguistic duality is a concept that most Canadians still do not understand. I do not want to make any accusations, but I think that people confused bilingualism with duality. People think that it is the same thing, but it is not.

Duality is written into our Constitution, and as I said earlier, the word "bilingual" does not exist in our Constitution. The concept of bilingualism obviously exists: there is institutional bilingualism, and individual bilingualism. If you read the speech Mr. Dion made last week, the word "bilingual" was mentioned five or six times on the same page. Canadian bilingualism, constitutional bilingualism, and legal bilingualism. I know what the concept means. But I am talking about duality, about respect for both official languages by federal institutions, by the federal government. The concept is slightly different.

Here we are, now, in 2002, facing this bill. I admit that I did not invent the wheel. The bill was more or less drafted based on personal experience. I challenged the CRTC decision with respect to TFO, the Télévision française de l'Ontario, in court. TFO had asked the CRTC for permission to broadcast a signal, with its programming, in Quebec. It had tried with the Quebec companies, Vidéotron, and Cogeco. The file was very thick, and I have volumes on it. TFO was not admitted, but American programs were. The money is better, that is true, including the translations.

I thought the CRTC would make an honourable decision, because it is a federal institution. No. We were left with a decision that says, among other things, that it is not in the national interest. I emphasize that these are the words used to enable the CRTC to require Quebec cable companies to transmit the TFO signal. The same week, in Le Droit, an entire page purchased by Vidéotron, a rather large Quebec company, provided the figures. They talked about it as if it were the discovery of the century: "If you purchase Vidéotron programming, you will have access to 20 channels in the package offered." Out of 20 channels, there were about 8 French ones and the rest were all in English, and American.

I did not understand. I must admit that I was rather taken aback. I went to Federal Court and said I wanted to contest the decision, since the federal Cabinet told me there was nothing it could do. "Our hands are tied" is what they said. The issue was one of law or jurisdiction. They asked me whether I questioned the jurisdiction or the legislation. I said neither. They asked what it was I was questioning. I said that I was questioning the definition of federal institution and what a federal institution's obligations were in law. They said they would help. They did what the federal government can do, which was to issue an order to the CRTC calling for a study on the television needs of francophone communities.

A nice report was produced. It was well crafted, but did not change a thing, except perhaps the potential that something may happen at a later time. I went to Federal Court, I asked to be heard, and six months later, the Federal Court refused to hear my case, without providing its reasons.

I went to the Supreme Court of Canada. It is expensive to go to Federal Court and then to the Supreme Court. We were fortunate, however, in that we received support and encouragement from a federal program, namely the Court Challenges Program. I made an application in Winnipeg and with the Supreme Court. We received help with the legal fees.

In the end, after preparing the case, the lawyers were the same ones who represented the Montfort Hospital, and I knew them. The Supreme Court turned down my application. So I stopped all legal proceedings and decided to take a political approach. That is why I drafted Bill S-32. You have to take politics by the horns and that is what I am doing today.

Take Air Canada, for instance. Air Canada's managers are good people and Mr. Robert Milton likely has nothing but good intentions. Things move forward slowly and sometimes ground is lost. It is like taking two steps forward and one step back. Things may have changed a bit at Air Canada, but I can tell you in all sincerity that I have been a member of the Official Languages Committee for 30 years and we are still talking about Air Canada and the service it provides in both official languages.

Last fall, the Transport Minister and the President of Treasury Board came before the Joint Standing Committee on Official Languages. They appeared because the Official Languages Commissioner had made public the high number of complaints received regarding Air Canada. The witnesses admitted that they did not have the power to coerce, apply penalties to or take legal action against Air Canada. Yet Air Canada falls under the Official Languages Act.

The parliamentary committee has done all it could, but nothing has changed for many years. There are all kinds of reasons to explain this, and we will do our best to help people. A certain Mr. Beaulieu from the Union of Workers sits on the committee and I asked him what was going on, why it was taking so long. He replied that it was a matter of bad faith. This does not come from me, those were the words of a union representative.

So why introduce Bill S-32, and why now? In my view and in that of many Canadians, the fight taken up in this country on behalf of linguistic minorities is happening because people firmly believe that without the dynamic and flourishing presence of official language communities throughout Canada, without the willingness to respect their development and to promote their growth throughout the country, Canada will not desintegrate because of separatists; it will simply disintegrate through the "progressive balkanization" of French in Quebec and English in the rest of Canada. What will happen to all of the Canadians such as myself who live outside Quebec?

Let us move on to assimilation. Provinces with an English majority have a serious and worrying problem, since the pernicious and galloping rate of assimilation is eating away at francophone communities today. I have distributed recent figures from Statistics Canada.

I did not find a statistical definition of the phenomenon of assimilation, since Statistics Canada never uses this expression, as it is not clear. Instead, the expression "language transfer" is used. This refers to the number of people who speak a language other than their maternal tongue at home.

There is a table entitled: "New Canadian Perspectives", which is published by Canadian Heritage. For instance, in Ontario, in 1971, the rate of language transfer was 30.3 per cent. In 1991, it was 37.2 per cent 1996, it was 39.1 per cent French Canadian out of three in Ontario does not speak his or her mother tongue at home anymore. I have been told that next December new language statistics will be published and we will be able to update our figures.

I have to say in all honesty that I am not optimistic. For instance, 10 per cent of Quebeckers transferred to a language other than their mother tongue. In Ontario, that figure stands at nearly 40 per cent.

There is a problem. Minister Dion caused a furor when he raised the issue of exogamous couples. This is when spouses of different backgrounds speak different mother tongues. According to Mr. Dion, this type of situation is an obstacle to speaking one's mother tongue. I will quote part of the speech Mr. Dion gave before the Ontario Bar Association last January 24 in Toronto. He was speaking about exogamous marriages, and I quote:

There is every indication that this trend will increase in the future. In the past, people were isolated because of their language and constrained by their religion, which discour aged interlinguistic marriage. When one of the spouses is a unilingual anglophone, only 13 per cent of children raised in francophone communities outside Quebec learn French.

I am the product of an exogamous marriage. My mother was of Scottish and Irish background and my father was French-Canadian. I had the good luck or misfortune of being born in 1929, during the depression. My father lost everything and I ended up here, in Ottawa, in an orphanage.

The Grey Nuns of the Cross raised me and they did so in French, obviously. My parents' marriage fell apart. There was nothing my mother could do. I received a classical education at Limbourg, which was paid for by the government, by friends and by my grandfather, who felt a moral duty to do so.

In 1966, only 14 per cent of Franco-Ontarians had a grade nine education and 86 per cent of them did not have access to a learning institution to study until grade nine. People became janitors, elevator operators or carpenters. They could not become doctors or lawyers, because they could not afford it. This is what happens when education is not accessible to everyone. Parents told their children: "It is too bad, but you will have to work on a farm because we need your salary to survive." I went through that, here, in lowertown. That is the way it was at the time.

Assimilation takes its toll. I could talk for hours about what I went through. I represented the poorest riding in the region for 22 years, the riding with the highest number of labourers, the highest rate of poverty and human misery. I saw houses with dirt floors in the Vanier neighbourhood. This does not go back a century, but only 25 or 30 years.

The shadow of assimilation hangs over us and it concerns me, because there will be repercussions for my country. Some people talk about "the rest of Canada" and Quebec. I hate hearing "the rest of Canada", as if it were only English. That is not true! Let me share with you some statistics which speak for themselves.

In 1969, I was a school trustee. Following a campaign by the francophone community to get their own schools and the right to French secondary and post-secondary education, the Premier of Ontario, Mr. John Robarts, announced that the provincial government had decided to fund French secondary schools in the region out of government coffers.

At the time, there were private schools in the area which were run by religious orders - including the Soeurs de la Sagesse, who built the Montfort Hospital - and which provided an education for young people who often did not have the means to pay.

I was there and pleased to hear Mr. Robarts say: "From now on, the government will pay for French public schools". In 1969, there were 1,700 students in Ottawa. In 1972, when the first French school was opened, 7,200 students were eligible. It was astounding. Public school officials said: "You don't have enough students to justify these expenditures, and even if you did, it would not be achievable, because we do not have the financial resources." You can still hear the same speech throughout the country today. You hear: "Where numbers warrant." Since when do you have to count the number of deaf or blind people, or handicapped people, before deciding that they also have rights? Everyone has rights. The aim of Bill S-32 is to widen the scope of section 41 to bring about real change. I have a problem with organizations like Air Canada which do not abide by the law. Bill S-32 would give the legislation some bite.

Federal institutions are more or less paralyzed because of a lack of political will and a weak Official Languages Act which is, to say the least, ambiguous.

[English]

I tried for a number of years to use my limited resources to get a new deal, to get a more generous interpretation of the act, one that would be more receptive to the needs of the community. I failed because I was naive. I admit that. I believed in the government's commitment, made in 1988, as expressed by Minister Bouchard and his successor, David Crombie, who said almost the same thing in committee. I have the transcript of that meeting. I am not fabricating anything. I really believed him. Although I was the official opposition spokesperson for official languages at the time, I believed the government. I worked hard in connection with Bill C-72 and I even tried to put forward some amendments. I had a tough time. There were 40 Liberals in the House and 212 Conservatives, a majority that had the power to do what they did.

However, I convinced my colleagues in caucus to support that bill. Jean Chrétien was a member of that caucus as were many others, such as Sheila Copps. They know what I am talking about. They lived through that with me.

I have nothing against the political aspects of this, I am simply saying that our institutions are not receiving the leadership that they need at this time. Perhaps they never will.

Raymond Hnatyshyn, the Minister of Justice at the time, appeared before our Senate committee and told us that proposed section 41 was declaratory, that it did not oblige the government to do anything but, rather, that it explained the intentions of the government.

Honourable senators know that I am not a lawyer so, in clarifying the meaning of section 41, I am using political rather than judicial terminology. Since 1988 when I voted for the bill, I have firmly believed that section 41 is executory and imperative. I believed that the courts would interpret this section and, in doing so they would, as they usually do, rely on testimony at the time of the adoption of the bill. However, I have not had an opportunity to appear before the courts. They will not hear us.

Part VII of the act is excluded from the judicature. Section 77 does not allow the Commissioner of Official Languages to go to court. That is more specific.

I have often wondered why the minorities have not made the claim in court that they are being assimilated at a critical rate, that they do not have the necessary institutions to deal with this, and asked for help to survive. All of that would be in the interest of making the country a little better. None of that has happened.

For the last 30 years, however, I do admit that we have had three or four education programs. Senator Joyal is familiar with those because he was the minister responsible for a program dealing with education and support of communities.I believe that only one new program has been introduced since 1988. We need more action.

I have researched this project; I have consulted experts in this field; and I have racked my brain. I have concluded that we must take some political action, and that is why I have introduced Bill S-32.

[Translation]

You all know that I want to see the creation of a Standing Senate Committee on Official Languages. I honestly feel that it is essential and urgent to strike such a committee.

I have to admit that the Joint Standing Committee on Official Languages has done good work recently. This committee, as all joint committees, is not a legislative committee, but rather an administrative committee. It studies the way legislation is applied. It is interpreted by the courts, but its application is a matter for the ombudsman to look into. The Official Languages Commissioner produces reports and tables a report every two years.

The report outlines difficult situations. I am not advocating the abolition of the Joint Committee on Official Languages; I am simply saying that section 88 of the Official Languages Act calls for a standing Senate, House or joint committee of both chambers. I am asking for the creation of a Senate committee.

[English]

In 1988, a special committee of both Houses studied the act. It was not possible to send this bill to the joint official languages committee at that time, although it had existed since 1979. Senator Joyal, Senator De Bané and I asked Joe Clark for a Senate committee on official languages. I have never understood why this institution of Parliament has not had a committee on official languages since the Senate's preoccupation is regional questions and minority rights. I am confident that before I leave this place there will be one.

The Chairman: Senator Gauthier, I am giving you a great deal of leeway but I must ask you to speak to the bill.

[Translation]

Senator Gauthier: This bill is important, because it responds to a need. First, the need to clarify the legislation; second, the need to confirm that Parliament is listening to linguistic communities; third, the need to proceed with the formal commitment made in 1988 and to do everything to encourage the growth of minority language communities; and lastly, the need to foster their development.

This open and enlightened vision calls for more tolerance and generosity, rather than court action to settle disputes.

The courts have not yet ruled on the scope of section 41 and on whether it is binding. I might add that there are other important reasons which prevent this section from being "legally enforceable".

First, section 41 is too vague and is probably political. Indeed, that is what the minister wrote to me in a letter. The section is not executory, it is political. Second, there is no recourse under Part X of the Official Languages Act for violations to Part VII. Third, the Official Languages Commissioner cannot be asked to intervene either, since this is not provided for under section 77, and in any case, the commissioner could not intervene, since Part VII is excluded from section 77(1). It is a little complicated, but that is the way it is. However, an individual or a group of individuals could make an application before the Federal Court, Trial Division. But they would need deep pockets - basically an endless supply of money - as well as various smart lawyers and infinite patience.

I am not sure that we would find satisfaction, since the courts do not waste their time drafting clear and specific legislation. That is not their job. They have the wisdom of their profession and they leave those problems to politicians. That is the way it works, and I understand that.

[English]

I would not be surprised if the government did not support the parliamentary initiative. In fact, the Minister of Canadian Heritage told me quite plainly in a letter dated November 30, 2001 that she is afraid that the effect of Bill S-32 would be to fan the flames in the linguistic communities and that this might raise expectations and cause problems for the government. Those are her words.

[Translation]

The President of the Privy Council and the minister responsible for the coordination of the official languages file coordinates the departments of Justice and Canadian Heritage and Treasury Board. Mr. Dion, at a meeting in my office on December 19 last, told me once again that he had concerns about this bill because, in his view, it would bring about more involvement by the courts. In other words, the courts would be asked to interpret the legislation and its application more frequently. I do not understand his reasoning, but that is what he told me.

But there is something I must confess. When I said I did not understand his reasoning, that is not quite true. I know why. The Contraventions Act was contested before the courts. Judge Blais ruled that, in matters involving federal lands, the federal government could not transfer obligations onto the provinces without sidestepping the law. What does this mean? It means that you cannot issue a fine on federal lands, such as airports, parks or even oceans. If you do so, you transfer responsibility to the provinces through devolution.

Six provinces are involved: Quebec, Ontario, Manitoba, Nova Scotia, New Brunswick and Prince Edward Island. They have until March 23 next to solve the problem. Otherwise, according to Judge Blais, the law will become void. This probably means that we will go back to the old system. The RCMP will start issuing fines. Court case loads will increase. It will become impossible. So what are we to do?

In my view, we should strengthen Part VII of the act. The rights enshrined in the Constitution should be reflected in the Official Languages Act. The way I see it, section 41 allows the government to use its "spending power" to protect, promote, develop and help minority official language communities to flourish. I am not alone in thinking this. The commitments made by the federal government with regard to this section should not be perceived as merely being empty promises, because they are not. I have important documents in my office which confirm that my position is supported by legal experts, by people who are familiar with the law and in whose opinion section 41 is binding, and who feel that federal institutions will have to abide by the law.

[English]

I have concluded that we must adopt Bill S-32 for the following reasons.

[Translation]

If the Standing Committee on Legal and Constitutional Affairs concludes that something must be done, if it is true that the courts are staggering under the weight of complaints - this is what they have told us - and if it is also true that the government will reject, or will not be in a position to support, Bill S-32 - I do not know, but I think that is what is going to happen - as it is currently worded, for the reasons I have just explained or listed, the committee could produce a report for the Senate.

The report could explain the ambiguity of section 41, the problems it is causing us and recommend that the government invoke its right to refer matters to the Supreme Court, and ask the Supreme Court for a clear and precise legal interpretation of section 41. If that happens, legislators would have every reason in the world to clarify the issue and implement an Official Languages Act which is fairer and more equitable for minority official language communities. By the way, I am open to questions if there is any time left.

Senator Beaudoin: I must, at the outset, congratulate Senator Gauthier, who, besides exhibiting his customary patience, has brought before us an issue which is extremely interesting but not quite as thorny as one might think. I agree that clause 41 is binding and imperative. It is an important piece of legislation and the legislator was not being frivolous. I have always felt that it was imperative. If I understand correctly, you are saying that, either the government or, I don't know, perhaps the legal system, have not understood, and it is not before the courts at this time, but the courts should deal with this, at whatever cost. That is the thrust of my question. There has been neither a referral, nor a trial, and this has not yet gone before the courts. You say that, legislatively, clause 41 will be amended. And if I read clause 41, it is even clearer than the present clause 41. It is imperative. But you are suggesting that this might be referred to the Supreme Court. That is often done in our committee, sometimes successfully, and sometimes not. I can tell you from the outset that I am convinced that something must be done, and that what you are suggesting is more explicit than the existing clause 41. I would like to know what you think; should we only deal with the bill that we have before us, or should we consider other possibilities in our report? I don't know what my colleagues will have to say - I have some idea, and there are many aspects -, but are you most in favour of an amendment, rather than having the government refer this to the Supreme Court of Canada?

Senator Gauthier: I feel that clause 41 deals with the issue: how do we proceed? This can also be found in clauses 42, 43, 44 and 45. Those clauses might have to be amended; they clearly indicate the obligations incumbent upon the Secretary of State. There is a list of these in clause 43. If you read clause 43(1), for example:

The Minister of Canadian Heritage shall take such measures as that minister considers appropriate to advance the equality of status and use of English and French in Canadian society and [...]

There is a whole list of things that must be done. The important words in this clause - and lawyers are the ones who told me this - are: "shall take such measures as that minister considers appropriate".

Senator Beaudoin: We agree on that.

Senator Gauthier: Perhaps that should be changed. Perhaps adopting the positive steps taken in New Brunswick would be better than the measures that you deem necessary and that already exist in the current act. As I said earlier, Bill S-32 does not solve the problem in its entirety, but it is a good start. But if I can initiate a debate, I would be happy to have you call the witnesses who will support me in my initiative.

Senator Beaudoin: It is because this case is closer to that of Mr. Forest who, in 1979, went before the Manitoba courts to plead that section 23 of the Manitoba Act was mandatory and not simply directory. He lost on all counts. I will always remember him coming to visit me here in Ottawa and asking me for my opinion. I told him that it was clearly mandatory. He agreed with me, but he lost the case. I told him he would win if he went to the Supreme Court, and that is indeed what happened. I am pleased to see that we are discussing it today. The Standing Committee on Legal and Constitutional Affairs can submit a report and say either yes or no.

We will not win until the Supreme Court has ruled on the mandatory character of clause 41.

Senator Gauthier: You are absolutely right. I knew Mr. Georges Forest well. It cost him $70,000 in legal expenses. There was no court challenge program at the time. It was following this Supreme Court case that the then Minister of Justice, Mr. Basford, acting on orders from Mr. Trudeau, set up the Court Challenge Program. Georges Forest was instrumental in having this measure set in place. His legal costs ruined him. He died destitute. He spent his entire life savings on it.

Senator Beaudoin: You have long since convinced me of the legal aspects. Clause 41 is mandatory. Unfortunately, some people do not feel that way and they are entitled to their opinion. I agree that you should call upon Parliament to help you in this matter, which will find its way to the Supreme Court someday. There are two stages left. I do not foresee any problems, though some people will have to be convinced. The Supreme Court will have to rule on this. You are telling us that it is mandatory. I wholeheartedly agree with you. I have nothing else to add.

Senator Fraser: As for the CRTC, I would say that they are blindly stupid and foolish. It applies to us as well. For example, in the remote regions of Quebec, CNN is available on cable but we cannot get Newsworld. How logical is that?

You said that in Quebec, 10 per cent of the population no longer speaks its mother tongue at home. In fact, it is 10 per cent of the anglophone population of Quebec which does not speak its mother tongue at home. Among the francophones, it is 1 per cent.

Senator Rivest: Ten per cent of anglophones?

Senator Fraser: Believe it or not, that is the case. A number of francophones refuse to believe it.

Senator Rivest: I am a francophone who does not believe it.

Senator Fraser: I have known this for some time. It is only a detail. I know that your figures are always accurate and I admire you for that.

I would like the federal government to be forced to act to protect the interests of minority communities. This seems obvious to me. As to the scope of your amendment, when we say that the federal government takes the necessary steps to ensure the growth and development of minorities, this seems rather a broad statement. The federal government cannot control all of the factors. The federal government cannot take care of everything. How far are you willing to go in the wording of your proposal?

Senator Gauthier: The present wording of clause 41 says that the government is committed. When I undertake to do something, I keep my promise. I was told: Mr. Gauthier, this does not mean "to commit" the way you understand it. The ministers of Justice - I have all of this in writing in my office - have told me just about the same thing whenever I have written to them. I wrote to Mr. Cauchon recently in order to find out what his position was. Ms. McLellan, on two occasions, told me that it was a political provision and not a legal one. I told her that the provision had no teeth. I cannot go before the courts to challenge this. I wanted to have the word "commit" deleted because it causes a problem. It will be deleted and replaced by necessary measures. I could have added the word "positive", but I did not do so.

Senator Fraser: My question goes to the heart of the matter. I did not speak to Cabinet. It is conceivable that if the government were to decide after the fact that it was only declaratory, it might be because they have realized that in being directory, it becomes so broad that it could potentially eat up the entire federal budget, for example. That is only hypothetical. I would like to know what you think.

Senator Gauthier: We have been very open as to the reason why. We are politicians. When we draft policy, it must be broad, and we must do our best to avoid being discretionary. When it comes to regulations, the opposite applies, as they are discretionary. There is no doubt about that.

When I tell you, Senator Fraser, that we are going hunting or to watch a hockey game, that is an objective. How we will get there, whether we will walk, ski, ride a bike, take a train or a bus, well, we can argue about that. We might argue for weeks on which method to use. Clause 41 is not clear when it says that the government is committed.

[English]

If you commit to something in English, I know you would keep your word. However, the lawyers in the Department of Justice have advised their ministers not to get involved in this, because it is not a justiciable matter. I hope I gave the honourable senator some insight.

Senator Fraser: As we proceed in our study of this bill, I should like to have a legal opinion before the committee.

The Chairman: We have a long list of witnesses, and we will be hearing legal opinions.

Senator Grafstein: I would commend Senator Gauthier for raising important and complex issues that require clarification and support. I support his initiative. My question, however, is: How can we support an initiative that is obviously in the public interest, but which is focused on responding to the wrongs that must be corrected? How will a remedy be developed to solve an obvious public deficit?

I understand Senator Gauthier's deployment of section 16(3) of the Constitution, which says that nothing in the Charter limits the authority of Parliament or the legislature to advance the equality, status or use of English and French. That is clear. However, it becomes a little more difficult for me when he seeks to deploy subsection 16(1), which is limited to equal status, rights and privileges in all institutions of Parliament.

Dealing with the latter point, institutions of the Parliament and Government of Canada, does the honourable senator desire to ensure that the ambit of his rights, which he is trying to support or affirm, extends to the federal government in all of its activities including, in addition to Parliament itself, Crown corporations, regulatory institutions, and so on? Is that the purpose of enlisting both subsections 16(1) and 16(3)?

Senator Gauthier: I understand what my honourable friend means when he uses the word "complex". He is not using the term "complicated." A pile of stones may be a complicated pile of stones. It becomes complex when it is put together to construct building.

I am doing what I think is appropriate. I am using subsections 16(1) and 16(3) of The Constitution Act, 1982 as a basis for arguing that it calls for the basic fundamental rights of this country, as outlined in those subsections, to be obeyed or complied with.

Senator Grafstein: I understand that.

Let us turn to your proposal. I take it that you are suggesting we move from a discretionary section - because the Government of Canada is committed to decide what they want to do when they want to do it, but it is permissive as opposed to mandatory - to a section which includes the words "shall take", which would make it mandatory. Is that your purpose?

Senator Gauthier: I hope that the new wording will make it executory or, as you say, mandatory. We are on the same wavelength. Some people argue that it is declaratory. That is not how I understood it in 1988, and nor did many others who were there.

Senator Grafstein: I am asking you these questions because I hope that, when we get legal advice from the department and the government, we will be able to focus on how they view the mandatory obligations under existing acts and under your proposal. That will help lay the groundwork.

A basic principle of law that students learn in law school is not very complicated. It is ubi jus, ibi remedium, which means, "Where there is a right, there lies a remedy." You are trying to establish a clear-cut right, pursuant to section 16(3), which deals with deals with equality of status of use of English in the language, so that people who do not achieve, under section 15(1), equality before and under the law and the right to protection and benefit of the law without discrimination - that being the equality right - have a clear-cut remedy.

Is that the purpose of your bill?

Senator Gauthier: Yes, the purpose of the bill is exactly that. It says in the summary, "..clarify the scope of section 41 of that Act in the manner most apt to ensure the attainment of its object."

Senator Grafstein: We are in total agreement with what you want to accomplish. The question is the best methodology to accomplish it.

Dealing with the government's fear, of which I have heard and which has been addressed by Senator Fraser, it is called the paralysis of activity, that is, the decision to do nothing because you fear impossibilities. It is, therefore, an argument to do nothing. That is a great argument that governments use again and again.

Senator Gauthier: There are sins of omission.

Senator Grafstein: Trust me; I understand about sins of omission, both venial and otherwise. I am a student of Jesuit practices.

To illustrate my problem with your proposal, I would cite the Montfort case. A French speaking population feels that it is being deprived of equality under section 15(1). It feels that under section 16(3) there is not appropriate or aggressive federal support for their position and they are compelled to go to the courts to establish their remedy.

With the pseudo fear of the government mandarins, how would your provision speed this along? Someone who does not receive medical treatment in their first language rightly feels insecure. How does compelling the federal government to take measures allow the aggrieved patient in the Montfort Hospital solace, and give them a remedy to force the hospital officials to do what they should do under any terms of any provisions of rectitude? By the way, in this case it is an arm of the provincial government. How does it do that? We lash the federal government and say it must do this. Yet, the offending party is a provincial agency that fails to respond to the equal rights provisions under section 15. How would your provision help that?

Senator Gauthier: I am not a lawyer and cannot give you a legal answer. However, I can give you an answer that I hope will convince you.

Three recent decisions of the Supreme Court of Canada changed the whole scenery.

[Translation]

The Constitution, federalism, and respect for minorities are all unwritten principles.

[English]

Another case is the one which dealt with is the Summerside, P.E.I. school question. Yet another is Beaulac from Vancouver in which an accused was not given the opportunity to be heard by a judge and a jury that spoke his language.

The scenery has changed. Legal authorities have told me that things are quite different than they were five years ago. I believe that if the Supreme Court of Canada were asked to interpret section 41 it would say that section 41 is executory or mandatory.

If the government does not want to accept this bill, the Senate could still recommend that we go to the Supreme Court of Canada because there is a good case to be made in view of the changing legal scene. That is the best answer I can give you.

Senator Grafstein: Finally, we are left with a dissatisfied feeling that we are doing what we are not supposed to do, which is to delegate to the courts the responsibility of Parliament to fulfil its mandate under the Constitution. Section 16(3) and section 15 apply to equal status for French language. We are not doing that. We are setting up a system that allows the courts to do the job that Parliament should do, which is institute positive measures to accomplish positive goals.

Senator Gauthier: I have a profane observation to make.

Senator Grafstein: Do it confidentially.

Senator Gauthier: I believe the courts are there to settle disagreements in interpretation of the law. I say it is executory. The advisors to the ministers over the last 14 years have said that it is declaratory. I say they are wrong. They say I am wrong. Let us go to the courts, then.

[Translation]

Senator Joyal: I would like to remind you that the three programs to which Senator Gauthier referred earlier are programs that I introduced when I was Secretary of State. There is, first, the program on the teaching of minority official languages, that is, English in Quebec and French in the other provinces. The second program involves training the official language teachers, and the third is the program that offers financial support to develop community leadership for francophones, namely, the Fédération des francophones hors Québec and Alliance Quebec, in Quebec, that many of us are familiar with.

I would like to say something about the Forest case. I was the Secretary of State when Mr. Forest came to see me to ask for funding from the special fund. It was following my recommendation that the government, headed by Mr. Trudeau, and with Mr. Chrétien as a minister at that time, had agreed to support the court challenges to the new Charter that had been adopted on April 14, 1982.

When Mr. Forest came to see me, I had to seek direction from the Minister of Justice before I could decide. That was part of the procedure. The recommendation made by the Minister of Justice was that the Forest case was unfounded, because this would mean that all of the legislation in Manitoba could be considered unconstitutional and that, as a consequence, the result would be so monstrous that the principle would make no sense. The deputy minister, Ms Huguette Labelle, came to see me in my office and she said: "If you agree to fund this, it will be based on your discretion as a minister." I signed, with the encouragement of Senator Beaudoin, because I felt that this involved a fundamental principle and that it should be tested by the courts. The court would rule on the merit of Mr. Forest's case. I might point out that he had lost at all of the lower levels.

Senator Gauthier will remember that I was the first Canadian citizen to dare challenge the Official Languages Act in the Air Canada case. At the time, the problem with Air Canada was exactly the same as the one we have with clause 41. The federal Minister of Justice maintained that clause 33 of the Official Languages Act was purely declaratory. The intentions expressed were generous, that goes without saying, but it was not considered mandatory by the courts. A citizen who felt aggrieved or felt that he had not been respected in law could not seek redress from the courts. That was the position that was put forward by the Attorney General of Canada at the time, and history shows that my opinion and that of the courts were one and the same. That is why, in 1981, the Canadian government included clauses 16 and subsequent clauses in the Canadian Charter of Rights and Freedoms. That was the first time that clause 16 as well as the other clauses of the Charter of Rights and Freedoms were referred to the court.

As the government sees it, section 41 is of a purely political nature. For one of our next meetings, I would like us to distribute the Blais decision handed down in 2001, as it is relevant to the debate on the Bill S-32. Justice Blais sums up the claims or the position set out by the Attorney General of Canada on page 13 of his decision and I quote:

The Canadian government's claim is that section 31 is essentially of a political nature.

Then, on page 8, section 55 mentions that the defendant was the Attorney General of Canada and I quote:

The defendant ...

maintains that section 41

[...] is mainly a commitment of a political nature.

What was Justice Blais' view of the matter? There is a decision in the Blais ruling on the scope of section 41. On page 15 of this ruling, in sections 90 and 91, and I quote:

Consequently, the plaintiff did not convince me that the recent evolution in case law, and particularly the Beaulac decision, supra, enabled the Federal Court to intervene, following action taken under paragraph 78(1)a) of the OLA, with respect to alleged violations of Part VII of the OLA.

In other words, the judge tells us that the arguments of the Commissioner of Official Languages did not convince him that Part VII, that is section 41 to 45, are covered by judicial actions.

He goes on to say, with respect to section 91 and I quote:

It is important to mention, however, that the Federal Court of Appeal ruled in Devinat, supra, that there is always the possibility of taking action under section 18.1 of the Federal Court Act in case of breaches of parts of the OLA that are not set out in subsection 77(1) of the OLA. There is no need for me to return to this in the case in point, except to specify that the plaintiff chose to resort solely to section 71 (1)a) [...]

Justice Blais maintains that there may be a remedy under the general powers of review set out in section 18 of the Federal Court of Appeal Act. He did not make a definite ruling on the matter.

Would it not be simpler to amend section 71(1) of the act to include those who have made a complaint to the commissioner relating to an obligation or a right set out in sections 4 to 7, 10 to 13 and Parts IV, V or VII of the act? It would suffice to add Part VII to section 77 and this would allow the Official Languages Commissioner to undertake investigations and to make recommendations and it would be up to Parliament to decide whether or not the government is carrying out its responsibilities. Ultimately, it would allow the Commissioner of Official Languages to go before the courts.

It seems to me that this would allow for the kind of control that we are attempting to obtain. As Ms Fraser mentioned, Quebec anglophones want to ensure that the Canadian government will take initiatives to counteract the phenomenon of assimilation or the phenomenon of outward migration from the province.

People want the Canadian government to take initiatives. There is no one to control or to manage such initiatives. If we amended section 77 to include Part VII, this would allow at least partially for the type of control we wish to have in order to manage initiatives that remain up to the discretion of the government of the day.

Every year the Commissioner of Official Languages makes a report to Parliament. There may be some discussion about whether he should appear before the Senate or the House of Commons or before a joint committee but at least we would have some type of follow-up so that the government does not rest on its laurels. And there are only three programs, those that I set up as well as one other.

These government initiatives have been in existence for 20 years. Wouldn't that be just as efficient a way of giving effect to your amendment?

Senator Gauthier: You are quite right. Justice Blais did not rule out legal remedy. But at the beginning of my testimony, I told you that the communities could not afford to go to the courts for a ruling on section 41 or section 77. It would certainly be simpler to amend section 77 to include Part VII of the act.

I knew at the time that if I did so, my actions would not only have a bearing on section 41 but they might also have the effect of amending section 77 as well. This initiative could have brought about other amendments. Today, through regulation, we can achieve much more. I could go on about this for an hour. I think I could give you some good arguments but that is not my aim.

My aim is to ensure that section 41 achieves what it should. It should be binding and, if possible, amended later. The purpose is to amend the section 77 so that the Commissioner of Official Languages can make use of public funds to do this work. That was in the Blais case. French-speaking jurists brought this case to court because in Mississauga tickets were being issued in English only. They were successful. The judgment will take effect on March 23.

Senator Joyal: Exactly; assuming the Commissioner of Official Languages is given the responsibility of measuring the way in which the Canadian government carries out its responsibilities, according to the means set out in sections 43, 44 and 45, it seems to me that this would provide the necessary guarantees for Parliament to be informed every year about the way in which the Minister of Heritage and the government as a whole are taking on and defining their responsibilities, taking into account budget constraints, as you and other senators have mentioned.

It is not an absolute right. It is like all the other rights about which the commissioner expresses an opinion. She gives her opinion once decisions are taken by the government and ultimately it is Parliament that deals with the recommendations.

It seems to me that this would be a more efficient manner of achieving your objective rather than giving effect to your amendment and waiting for the day when the government fails to live up to its obligations, at which point a complaint may be submitted to the courts. An attempt would have to be made to come up with funds for dealing with this complaint and then the commissioner would be asked to monitor its progress. It seems to me that this is a very roundabout way of achieving our end.

Senator Gauthier: Sometimes, that is what we have to do.

Senator Joyal: Let us set it out in the act then.

Senator Gauthier: Section 77 indicates that Part VII is not subject to court rulings because it is not included. The commissioner deals with the complaint relating to an obligation or a right set out in sections 4 to 7 and 10 to 13 and in Parts IV and V. Part VII is excluded. I have always been told that the commissioner cannot bring a matter before the courts.

Senator Joyal: In that case, why don't we put Part VII under the mandate of the Commissioner?

Senator Gauthier: I am asking for an opinion since I am not a lawyer. What I said was that an individual or a group could undertake to do so before the Federal Court under federal legislation. Is that the case? Then we will have to start collecting funds.

Senator Nolin: Senator Beaudoin referred to your patience and what strikes me is your passion, which has certainly helped you show such patience. We have had several debates. In my view, Justice Blais demonstrated what Senator Joyal attempted to demonstrate. The act is incomplete. Justice Blais said: "Commissioner, you are before me without having any jurisdiction. The powers set out in section 77(1) describe your jurisdiction. You come before me under Part VII and you do not have the right to do so." When he refers the parties to the Federal Court Act, he is absolutely right because that is a sort of catch-all provision that enables citizens to appear before a court when they are dissatisfied with the action of the federal apparatus. That explains the reference to sections 18 and 28.

For example, Senator Grafstein raised an interesting point about the Montfort Hospital. I do not think that an amendment to section 41 could settle the matter of Montfort. We agree that section 41 applies to the federal government. A provincial jurisdiction would not be affected by section 41 in the exercise of its prerogative relating to health.

Here is my question, Senator Gauthier. You talked to us about the CRTC and the possibility of extending TFO services to residents of Quebec. The CRTC practically sent you packing without following up on your request.

Do you think that the amendment you are asking for to section 41 would enable you to appear once again before the CRTC, once the appropriate amendments to the CRTC legislation have been made, with a government that would feel required to act under section 41? Do you think that the amendment you are asking for would be useful for an initiative of this sort?

Senator Gauthier: I think it would, my friend. Let me explain why. The four unwritten principles that helped convince the courts, both the Division Court and the Ontario Appeal Court, that Montfort was an essential institution for the survival of a community such as mine did not include section 41. I remember that I suggested section 31. We do not have time to waste our time. We decided to rely on what we knew best. There were the following rulings: Beaulac, the Quebec Secession Act, Summerside and Arsenault-Cameron, Prince Edward Island.

I am convinced that if we give some teeth to section 41, we could make use of it before the courts in defining the obligation of federal institutions to favour the development and promotion of the language communities.

Senator Nolin: Was the financial aspect of this matter mentioned in your discussion with the various ministers who attempted to show you that your proposed amendment to section 41 was dangerous? How was the financial aspect presented to you? Were you given any figures?

Senator Gauthier: I was told that following the decision of Justice Blais, it would cost $10 million to come to an agreement with Ontario. Someone else with an excellent reputation told me afterwards that Judge Blais's decision would cost not $10 million but over $20 million, because the provinces do not have the necessary infrastructure to deal with these offences in the language of the accused. My answer was that if it was merely a problem of translation, it could be settled. I was told that this was not the case, that it was a matter of support staff in the courts. There is no such staff in Ontario municipalities for the time being. It will take some time. My reply was that the deadline was March 23.

I do not know what will happen but time is of the essence. When we talk about softwood lumber in the Senate, everyone knows what we are talking about and the same is true for helicopters. When I raise the issue of language rights, it is always postponed indefinitely. What I want is action, I want people to listen to what I have to say and when I ask questions about the Blais decision, I want a proper answer, I do not want to be told that it will be forthcoming in a few weeks. In a few weeks it will be over. It is not just yesterday that I started raising this matter, it has been going on for weeks and months, and in written form, even though it may not be in public. Today is not the first time.

The Minister of Justice, Mr. Cauchon, came to see me today to ask me to send him a copy of my correspondence. I intend to do so, with my comments on the decision of Justice Blais, relating to section 41 as well as other matters.

Senator Nolin: So you were given some opinions about the nature of costs that would result from such an amendment but no details about the kind of spending it would mean for the government?

Senator Gauthier: No, that is why yesterday I asked the government leader in the Senate to provide me with a breakdown of this supposed cost of $10 million, something that was quoted and even repeated in public by the Commissioner of Official Languages. Mr. Dion is the one who told me.

Senator Nolin: The answer you were given is rather similar to what was said to Minister Joyal at the time: "Be careful with your decision because it will cost a lot of money. It is impossible!"

Senator Gauthier: I am shocked at the attempt to assign a monetary value to my fundamental rights!

Senator Nolin: I agree with you.

Senator Joyal: Indeed.

Senator Gauthier: I was told that when we did not have the critical mass in Ontario, we did not have the means. For years we demanded schools, etc. Let us be clear about one thing, we will have to stop saying that basic rights cost a lot of money. There is a price to Canada, that is true.

[English]

Senator Beaudoin: I want to ask about a comparison with the Canadian Charter of Rights and Freedoms, which is a masterpiece.

[Translation]

There are 450 cases involving the Canadian Charter of Rights and Freedoms. That must have cost a lot of money. But no one ever brought up the financial problem. In 1867, when the Constitution was drafted, no one talked about how much it cost. Yet the Constitution is not called into question. Does that not confirm your opinion that these are two different types of arguments?

I realize that at one point the State does have to limit its spending but never when it is a matter as fundamental as creating a Charter of Rights and Freedoms, language rights and so forth. The question does not come up. I agree with you, these are two distinct matters.

Senator Gauthier: When I went to see the Minister of Finance, his answer to the support programs for official languages was no, in view of the costs involved in the Blais decision. That shocked me.

As you say, we did not talk about costs when we were adopting a Constitution. We knew that it would cost a lot of money. Now, I am told that there is a set budget for the funding of programs for minorities, the programs mentioned by Senator Joyal. There will not be any more money because we want to go to court.

"Stop going to court, we are fed up with paying! There is a limit." Perhaps I am being unfair but it strikes me as very Canadian to tell a minority group that they will not be getting any more money because they challenged a wrong committed by the federal government. It is not the minorities who made the mistake, the federal government is failing to do its duty when it does not point out to Ontario that there were obligations relating to language matters. The devolution of certain administrative powers such as issuing tickets results in certain expenditures. There are requirements. There is an act that does apply to federal lands: the two official languages are equal; both of them are in use. The federal government did not say this to Ontario. When Ontario finds itself in a court action, is it the minorities that are to blame?

Senator Beaudoin: Surely not.

[English]

Senator Grafstein: This gets to the question of costs versus benefit: red herring costs versus effective benefit. It strikes me that another approach - and this arises out of the exposition by Senator Joyal - would be, under the Official Languages Act, to would consider another amendment, which would provide a class action funded by the federal government for citizens who would be agreed that their fundamental rights were violated, however it applies. It would not involve billions or millions of dollars.

Let us assume for the moment that the target of the wrong is a municipal institution and not a provincial one, where, for example, there is a homeless shelter in a community that is French-speaking and the provision of services is not in French. The municipality says it does not have money. It is not a federal government issue. The issue is for the municipality. Would not a targeted approach to this be to arm citizenry, who are aggrieved of their fundamental rights, with a legal weapon based on not one individual but a group of individuals so it moderates itself - it cannot be one person; it must be a group of people - to a federal, provincial or municipal institution that fails to provide services in a way that is consistent with the Charter? Would this not be about a targeted response to those who say that this will open up the federal purse to millions of dollars?

That was a long exposition, but it is a way of focusing on the problem.

Senator Gauthier: I could make you a list as long as my arm of things that I think should be changed in the judicial field, starting with the divorce law, for example. We could put the two official languages on an equal footing in the divorce law. That is a law of federal jurisdiction, but nothing is being done. I do not have the time. I am alone. I have one secretary. If I were a lawyer, I would go after those people in the Department of Justice. They are good people but, in my view, they are not open to the kind of criticism I am making. Many changes should be made, such as changes to the provision of health care in both languages. It took five years for the Montfort Hospital to settle its matter, and it cost $1 million. We do not have that kind of money. We would also like to see amendments to the Divorce Act.

I will not continue in this vein because the chairman will call me to order.

[Translation]

Senator Rivest: First of all I would like to congratulate Senator Gauthier. I very much support his initiative. For a long time the Joint Standing Committee on Official Languages has been discussing whether or not this is binding. A lot of energy has been put into discussing this matter and the situation is never clarified.

Part VII is not the Official Languages Act as it is normally understood. The Official Languages Act gives linguistic equality in Canada to individuals. The courts and the Commissioner of Official Languages can easily sanction those who contravene it.

Reference is made to support measures for community activity. Over the years, we have realized that linguistic equality and linguistic duality do not only apply to individuals and can only be supported and viable if they are based on dynamic minority communities. This is the spirit in which programs - very few programs - have been developed.

The point raised by Senator Gauthier, and very frequently raised by the reports of the different commissioners of official languages is that the departments and federal government organizations have a very negligent attitude towards minority language community needs in Canada, whether it be anglophones in Quebec or francophones outside Quebec. We often receive reports about the efforts of the departments to implement Part VII of the Official Languages Act. These reports are ridiculous. They are completely lacking in conviction. The communities have social, cultural, sporting and community requirements and when they apply to the different departments, they often receive an unsatisfactory response.

We do not wish to discus whether the present section is binding or not. We want to have programs as well as a clear and precise legal obligation so that government departments and organizations respect individual rights to obtain services. We also want a strong and determined legal obligation to support communities. That is the meaning of Bill S-32. It would not be up to the courts to decide whether, for example, the Minister of Canadian Heritage should be paying out 10 or 15 million dollars, that will be a political judgment.

We have realized that the phenomenon of the assimilation of minority groups in Canada cannot be countered merely by granting individual rights. In order for the minority communities to be able to survive, there must be institutions. We came to this conclusion because in the Constitution, Quebec was given rights for anglophones, such as schools, for example. This was then extended to the rest of Canada and francophones can count on such school networks. In Quebec, this was extended to social services. That is your concern, Senator Gauthier. You do not want the courts to sanction the level of support for linguistic communities.

What you want is a requirement, with appropriate sanctions, to provide support to language communities. That is the purpose of your bill. Is that in fact your main concern?

Senator Gauthier: You have put it very well. Minister David Crombie said that the government would not be content with principles and aims but that it was his intention to take action. He also said that the government intended to renew its programs and to give them some substance. He was speaking of intentions. What I want are obligations.

Senator Rivest: You want obligations?

Senator Gauthier: Yes.

[English]

Senator Bryden: Senator Rivest has identified, in my mind, the concern I had in trying to come to terms with this. I do not agree with Senator Gauthier that his amendment simply clarifies what is contained in the section 41. Indeed, it attempts to do what Senator Rivest has said; namely, it places requirements on the government or agencies to take positive action in relation to communities or collectivities.

In relation to Senator Joyal's comment, does it make sense to add that to the enforcement section. In sections 41 and 43, we see words such as "enhancing the vitality"; "encourage and support"; "foster an acceptance," and "encourage and assist." That is the language in this act. It conveys a quite different obligation from that suggested by Senator Gauthier's amendment which states, "...Canada shall take the measures necessary to ensure the viability..." That is an identifiable judicial matter whereas the other could be questionable.

Senator Gauthier: Thank you for your comments. Perhaps the honourable senators would put forward an amendment to add the word "positive."

Senator Bryden: We have that in New Brunswick, as you know.

The Chairman: We will continue this discussion in the future.

The committee adjourned.