Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 25 - Evidence
OTTAWA, Wednesday, February 20, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-32, to amend the Official Languages Act (fostering of English and French), met this day at 4:05 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today we will be hearing from three organizations in the form of a panel.
We will start with Mr.Marc Boily, President of the Fédération nationale des conseillères et des conseillers scolaires francophones.
[Translation]
Mr. Marc Boily, president of the Fédération nationale des conseillères et conseillers scolaires francophones: Allow me to start by thanking you for having invited us to appear before your committee as part of your consideration of Bill S- 32, an act to amend the Official Languages Act.
This will enable us to add the voice of school board trustees working in a French language minority education system to the voices of other members of the francophone community. We represent all of the school boards set up throughout Canada to provide teaching in French as a first language.
The 31 boards are the result of a host of processes to implement the rights recognized in section 23 of the Canadian Charter of Rights and FreedoMs We represent the only level of government that is completely francophone, duly elected and whose purpose under the Constitution is to serve francophone communities.
Given the long processes that led to our creation, we feel that we are in the best position to express the need for adopting adequate, clear legislation, so that the francophone community is not required to turn to the courts to guarantee its survival, its development and its vitality.
From the outset, we want to state that we fully support SenatorJean-RobertGauthier's approach, which is designed to give more teeth to the Official Languages Act and confirm the very spirit of the Canadian Constitution.
Before going on to the more legal side of our presentation, allow us to outline the issues we face and then explain the type of cooperation we would like to see with the Canadian government.
The implementation of educational projects designed to ensure that language and culture are passed on from generation to generation are necessary to guarantee the development and vitality of a minority. The lack of such projects inevitably leads to assimilation. By adopting section 23 of the Canadian Charter of Rights and Freedoms, the government sought to remedy past prejudices and ensure that the francophone community has access to an essential element of development, in accordance with the very principles of linguistic duality that must guide legislators.
Thanks to the numerous representations before the courts, we now have responsibility for school board management throughout Canada, the last province to comply with the Charter being NewBrunswick, where school boards have been in place since the start of the school year in 2001.
If legal recourse had not been possible, we would still be waiting for the government in several provinces to accept to listen to reason. Unfortunately, and in spite of everything, the tools we have are not enough. In fact, 50 per cent of all children entitled to education in French are not in our schools. Of this percentage, a very high proportion are children from exogamous families who are deprived of the structures of our system, that could enable them to develop in an adequate linguistic framework.
Moreover, we find that schooling in French—which must not develop in a vacuum—cannot always fulfil these obligations for cultural and linguistic development effectively. In its current form, the education system that we have does not make this possible for several reasons.
Our schools, despite their entirely distinctive vocation, operate according to models that are virtually identical to those used to serve the linguistic majority and therefore do not place much importance on the need to support language learning at a young age.
Our schools are developing in a legal framework similar to that of the majority, even though they must be more present at the preschool level, and even though they must also often make up for a lack of francophone infrastructure outside the school environment.
The education system is funded almost entirely in the same way as the system for the majority, without taking into account these historical changes for which it is responsible, and without taking into account the slow pace at which governments have been putting in place the structures we were entitled to as of 1982.
As a result, many children have had to go to English school even though they were entitled to an education in French. Thus, other government programs and legislation, which if used by francophones would make it possible to guarantee the intent of section 23, to not take into account the specific needs of the francophone community.
Apart from legal action against the Government of Canada, we have no other way of forcing anyone, the provinces or the territories, to do so. Section 23 requires a specific and different approach to the one adopted for teaching in the majority language, which is more costly and capable of making up for past wrongs, to ensure the development and vitality of francophone communities.
That means involvement at a young age: support for families, especially exogamous families, where learning French is difficult; and community support, in terms of communication on radio and TV, as well as culture, sports and leisure activities.
The Canadian government is the only level of government that has clear and specific obligations to official language minorities. The unwritten principles, outlined in the Quebec Secession Reference, clearly highlight the obligation to act.
In our opinion, this government is responsible for supporting the development and vitality of the minority in all areas of life in society, and to enable francophones and Acadians to survive.
In the context of the school boards that we represent, the federal government must play a much more active role in French as a first language education, and directly with the boards we represent. There is a cost associated with the survival of a people.
Traditionally, the Canadian government has paid for a modest part of this, according to the good will of the provinces and territories, and by hiding behind the idea of shared jurisdiction which gives the provinces jurisdiction over education. We know, however, that the federal government can directly support the development of a minority in the area of education, and that its action must take into account its linguistic responsibilities and the vast needs of the school boards.
That also means that the federal government must take direct action with its programs, and in our case, especially with Health Canada as regards early childhood development, and with the Department of Human Resources Development for matters regarding the labour force, in order to consolidate the role of French schools in minority communities.
We need the direct support of the federal government which, through its responsibilities and its spending ability, will enable the francophone community to equip itself with family-oriented programs as well as early childhood development programs, in accordance with children's cultural and linguistic needs. We must put in place preschool programs for very young children, as well as projects for homogenous daycare centres, so that children are not assimilated by anglophone structures before they even enter French schools. This must be part of our education system and be actively supported by the federal government, as this is a federal government responsibility.
As regards the labour force, we do not have the infrastructure we need to renew personnel, in the area of teaching and in other areas. The requirements are huge and our faculties are modest. The impending crisis is dramatic, bigger than what the majority faced. If our little school boards cannot come together at the national level, it will be impossible for us to face this crisis. However, there is no national program at the Department of Human Resources Development Canada that can meet these needs.
The situation is the same in the development of teaching resources. We are currently at the mercy of the difficult negotiations among the provincial ministries, whereas we know that national and federal action is not only legal, and therefore possible, but also desirable. Small school boards and small departments have neither the expertise nor the ability to meet these needs. Bringing school boards together and federal government support would guarantee the quality of the specific education the minority needs.
So we feel that it is important that the Canadian government not restrict itself to the interpretation of the courts and that the act acknowledge in black and white the existence of the government's obligation to promote development and enhance vitality, including in education.
Part VII of the Official Languages Act should therefore be given more teeth. It needs to enable the various departments to act directly under new programs, tailored to the needs of the minority groups, and not just within a general framework where everyone has to fall in line with a certain conception of government intervention, which does not take into account our unique and thus specific needs.
The proposed amendment to section 41 would permit and even facilitate this new approach, without which it will take us another decade in the courts to have these legal rights enforced. If that happens, we will be sacrificing another generation of people eligible for French school but who will not have had the means to benefit from our system.
We need to correct the mistakes of the past. Legally speaking, only the Canadian government can and should be able to do it. We believe that the very survival of our country depends on this.
Without the principle of linguistic duality, of which we are an essential part, our country will have little meaning and could break up into several countries. In 1982, by adopting the Charter of Rights and Freedoms, legislators wanted to confirm this particular characteristic of our country. Twenty years later, the work to create this country has still not been done. We do, of course, administer our schools now, but our resources and scope are so limited that we cannot guarantee the future of our children.
Too much time has been wasted in the courts, too much energy spent convincing everyone why we need the system that we want to set up. Adopting Senator Gauthier's proposal would be a step in the right direction, a step that the government will sooner or later inevitably have to take of its own volition or with the help of the courts.
Mr. Tory Colvin, President, Fédération des associations de juristes d'expression française de common law: I would like first to thank you for inviting us to speak to you. Secondly, I would like to address those of Liberal persuasion and apologize for my first name. I can assure you that it was not my doing.
As you may have noticed, the Fédération des juristes d'expression française de common law represents the seven associations of French-speaking jurists across Canada, that is, in provinces where anglophones are in the majority. All the provinces except Newfoundland and Labrador, and Prince Edward Island, are represented. So we are able to give you a brief overview of the problem throughout Canada.
If we look at section 41 as it stands, it might seem to meet our needs, but if we listen to the arguments made in court by the federal Department of Justice and the remarks by various ministers of Justice and officials, it seems some times like we are living in some other world. What is apparently very clear, in fact, becomes merely a political statement and not a legal reality. We therefore support this measure and the proposed amendments.
We are involved in all court cases pertaining either to the protection of acquired language rights, such as the recent ticket offence case heard by Mr.Justice Blais, or to our efforts to advance and clarify language rights, such as the Beaulac case, against the Government of Canada, that is, the federal Justice Department.
The first time I argued a language case at the Ontario Court of Appeal, I was told that the Justice Department intended to intervene in the case. I was thrilled. I was naive enough to assume that they would be arguing in our favour. It was the Simard case, in which we were asking for the information document, that is, the basic document defining the trial, to be available in the language of the trial. In Simard, it was in English.
Maybe I was naive, but I was surprised to see that Justice Canada, in fact, argued against us that the information document could be and should be in the language of the police officer and not in the language of the accused, even though the document was addressed to the accused.
We raised this issue again following the Beaulac rulings. We have a decision in our brief called Boutin. We argued the same thing in that case that we did in Beaulac, but we indicated that Beaulac did not follow the Simard ruling. That ruling will be challenged when it comes before the Appeal Court next Friday. It will probably be argued this summer. Up to this point, Justice Canada has not intervened.
I do not want to read our whole brief. I am going to talk a little bit about the practical problems which I feel stem from the fact that the government gives the impression this is a political issue and that language rights are not rights as such, but rather favours that can be granted or withdrawn.
That was exactly the case in the ticket offence case. The accused had the right to a trial in French for a traffic ticket. That right was withdrawn in terms of how the procedures were passed along to the municipal level. Mr.Justice Blais' decision does not advance language rights. It merely maintains the status quo.
I would like to talk to you about what is happening in the area where I live. I am a lawyer working in London, Ontario. In London, we are actually very lucky because Ontario, unlike most other provinces, has given us a bilingual status through the French Language Services Act and the Courts of Justice Act. So people have the choice of having their trial conducted in either English or French. Theoretically, everything should be wonderful. In practice, it is not.
Suppose, for example, a couple decides to split up. Maybe the woman wants temporary custody of the children because she is afraid that her husband may abduct them. She wants to argue the case in French. When it comes time to schedule a hearing in French for temporary custody of her children, she is told that she will have to wait and come back in a month, because they have to find a judge who speaks French. But if she agrees to go ahead in English, she can do it the following week because there are judges available. If people need child support or temporary custody, will they be prepared to wait for a month or two for the case to be heard in French, or will getting it done quickly be the priority? As a result, things get done in English, and so the statistics indicate that there is no demand, that there is no need for proceedings in French. So there is no need to appoint bilingual judges and have bilingual court clerks and reporters. I feel that all that stems from the fact that the Minister of Justice and the Canadian government has no legal obligation to provide equal access to the judicial system.
We are lucky in Ontario because, in most places, we have access to services in French. Imagine the situation in Nova Scotia, Alberta or British Columbia! Think about the federal statutes, bankruptcies and divorces that cannot be argued in French across this country.
It is high time to amend the act to give it some teeth and some power, so that our two languages are not considered something that is granted as a favour or tolerated, but rather that they be put on an equal footing and that access be truly equal because the system wants it to be that way.
Our brief talks about the need for bilingual forMs These forms exist now only in English or French. The questions are the same. Why not put them on the same form? Then people can answer in the language of their choice.
Justice Canada is arguing against us right now in a case in the Northwest Territory Superior Court. The department claims that, with the creation of a new government council for the Northwest Territories, the linguistic obligation in the federal government will not exist in the Territories. It is arguing that section 41 confers not an obligation but a favour. So linguistic rights that exist because it is a federal territory will be withdrawn if Justice Canada maintains its position and wins. I find that unacceptable in a country that considers itself bilingual, in a country where, according to Beaulac, we have two official languages that have equal status.
We could talk about many other aspects. I find it somewhat incredible that we are being told that it will cost $20million to implement the Contraventions Act. Since criminal law procedures are involved in contraventions and since criminal proceedings in either French or English are allowed everywhere in the country, I would say that the mechanism must already exist. So I find it hard to understand how it could cost $20million and why it cannot be done.
Mr. Georges Arès, Fédération des communautés francophones et acadienne du Canada: I would like to begin by thanking the Legal and Constitutional Affairs Committee for this opportunity to express the views of the Fédération des communautés francophones et acadienne du Canada on a topic that is of particular importance to us. Before getting into my brief, I would like to introduce those accompanying me, Mr.François Boileau, the Fédération's legal counsel, Mr.Richard Barrette, Executive Director, and MsDiane Côté, Liaison Officer for our office.
The FCFA is an umbrella organization of francophone groups representing nine provinces and the three territories as well as four national organizations having associate member status. The role of the federation is to defend and promote francophones' rights and interests outside Quebec. Because we are a political organization, I hope that you will understand if I deal a little less with the legal aspects in our presentation.
The first question we have to ask is this: Why are we all here debating a bill to amend PartVII of the Official Languages Act? Of course, the FCFA wants to support the work of Senator Jean-Robert Gauthier, for whom we have the greatest respect.
But there is more than that, of course. We are here because, since 1988, since PartVII came into effect, the federal government has seemed unable to enforce these provisions of the act in its various departments, institutions and agencies. Given the short time available to us, we will not get into the chronology of the unsuccessful efforts made by all the successive governments since 1988. We will be glad to get into that during the question period.
Senator Gauthier has introduced Bill S-32, which is intended to strengthen the binding character of section41, since he is concerned by the minimalist interpretation given by certain federal institutions to the Official Languages Act. He wants the act to become a watchdog, rather than a lapdog, as he put it.
In our opinion, Part VII is imperative and binding, and not just declaratory. Although we recognize, of course, that there is always another side to the coin, we humbly believe that PartVII already has everything it needs to be binding. Without going over all the legal arguments here, I would simply say that if the legislator had not wanted PartVII to be a real commitment on the part of the federal government and its institutions to develop and promote the vitality of official language minority communities, the current preamble would have been considered enough.
On the basis of the well-known principle of legal interpretation that says that legislators do not say anything if they have nothing to say, it would not have been a good idea to adopt PartVII if it was not intended to mean something. Moreover, recent case law gives us reason to be optimistic about the future with respect to how linguistic rights are interpreted by the courts.
The Supreme Court of Canada has clearly indicated, particularly in Beaulac and Arsenault-Cameron, that linguistic rights have a restorative aspect and that, that being the case, they always need to be interpreted broadly and liberally.
We could also add that one of the basic principles of the Canadian Constitution is respect for minorities, along with federalism, democracy and the rule of law. It was by using that unwritten principle of respect for minorities that the franco-Ontarian community was able to courageously defend their essential institution, the Montfort Hospital.
Minister Stéphane Dion, in a speech to the Association des juristes d'expression française de l'Ontario given on January 24, said as follows:
[...] it would be much more desirable for government and legislators to show leadership and henceforth themselves adopt, without being driven by the courts, the dynamic and liberal approach that is clearly indicated in case law.
We agree completely with that statement. We are not convinced that the debate would be productive for all parties concerned if we were to go to court, especially since considerable energy, money and time would be required.
But we should be clear. Francophone and Acadian communities will never hesitate to go before the courts in order to have their rights recognized. So we feel that it would certainly be desirable to clarify, if necessary, the scope of PartVII with respect to the obligation of the federal government and its institutions.
We propose leaving the wording of section 41 of the Official Languages Act as it stands. However, for purposes of clarity, we suggest adding the wording in paragraph 41(1)(a), or similar wording, to require the Minister of Canadian Heritage to take the measures necessary to ensure the vitality of the English and French linguistic minority communities in Canada and foster their development.
In other words, if this more specific commitment were to be added to section 41, it would clarify the situation even more, although we feel that it is already very clear that the federal government and its institutions must take these measures.
Moreover, we believe that it would be useful for the Governor in Council to issue regulations to create an appropriate enforcement regime for federal institutions. We will come back to that in a moment so that we can talk about the role that the federal government should play right now and the action that it needs to take.
We have indicated the additions we would like to see, that is subparagraphs 2 and 3 of section41. Adding subsection 3 to section 41 would enable the federal government to create enforcement mechanisms, as it did under the regulations on Part IV dealing with communications and services.
The obvious advantage of this subsection would be to counter the bottomless pit argument used by some people with respect to obligations applying to all federal institutions. The government would ensure, through regulations, that federal institutions create a mechanism to carry out consultations with the francophone and Acadian communities in order to identify their needs and expectation regarding the development of their community.
These regulations under Part VII would set a minimum threshold that federal institutions would have to meet. In short, what has really been missing since Part VII came into force in 1998 is the political will to finally make PartVII binding in a concrete way.
We know that the chairman of the Privy Council and Minister of Intergovernmental Affairs, the Honourable Stéphane Dion, is in the process of developing what he calls an action plan and what we, at the Fédération, have for 25 years called a ``comprehensive development policy.''
In fact, we have already begun discussions with the minister so that the action plan will be consistent with the needs expressed by the francophone and Acadian communities to ensure their development and vitality.
We expect the federal government to play a leadership role with federal institutions first of all, but also with other levels of government. Leadership does not necessarily mean assuming all the responsibility, but it can also mean taking steps, in co-operation with the provinces and territories, that truly target the development and vitality of these communities.
The existence of the Official Languages Support Program in education is a good example of leadership. Education is not a federal area of jurisdiction, but federal leadership exists in this area and it is pronounced.
There are many other areas where the federal government could take on a leadership role. A good example would be health, where quite recently an advisory committee including senior officials from the Department of Health as well as representatives from the francophone and Acadian communities, created by the Minister of Health, identified essential and above all realistic sectors of development concerning access to health care in French.
This is an area in which community consultation work was remarkable. We are now awaiting the political leadership, the support, the follow-up to last October's report, in order to show once again the degree to which the federal government can make a significant difference.
There is also the area of immigration, where we recently signed an agreement with the Department of Citizenship and Immigration, to create another advisory committee that will identify the needs in terms of reception capacity in francophone and Acadian communities as well as measures intended to promote these communities abroad.
In a speech given in Moncton last February15th, as part of a conference dealing with linguistic rights, whose title was quite revealing: ``A Symmetrical and Asymmetrical Application,'' Minister Stéphane Dion reminded us of something we already know. There is asymmetry as regards the treatment of official languages in Canada, and francophone and Acadian communities find themselves in a triple minority linguistic situation, which however takes nothing away from the rights of the anglo-Quebec community.
However, Minister Dion's approach is refreshing in more than one way. Not only does the federal government recognize that communities living in a minority situation do not all enjoy the same rights, but these communities also have different needs as a result of their development and their particular situation. What is more, the federal government says they resort to an asymmetrical treatment according to the community's needs.
The framework for action must be based on a comprehensive development policy for francophone Canadians, a policy that would clarify and specify the federal government's commitment to communities as well as the extent of the obligation set out in PartVII of the Official Languages Act.
Up until now, the legislation has shown itself to be inadequate as regards ensuring the permanence of the various initiatives set up to support community development. Such measures depend entirely too often on the authority in power, always under threat of sinking into oblivion with the departure of those who launch them. One of the greatest challenges of a comprehensive development policy is that of putting an end to the precariousness of past achievements, and to guarantee a certain durability, if not continuity, of support programs intended to help francophone communities.
Comprehensive development policies face another significant challenge: to change the federal approach so that it is no longer based on the achievement of scattered projects as is the case right now, into a collective approach that would encourage all departments and government organizations to integrate the considerations related to community development while they are developing their policy or government programs
To get back to the consideration of the bill before us, we believe that we should also try and amend the bill in order to allow a legal remedy under the Official Languages Act itself, and not under the Federal Court Act as is presently the case. You can see our proposals, an addition to section 82.1, where Part VII would be added.
In conclusion, I would like to say once again that the Canadian FCFA reiterates its support for Bill S-32, while humbly proposing a few changes which we hope will contribute to the debate. We regret the necessity of proposing changes to Part VII in a country that states it recognizes linguistic duality as a core value. We expect that the comprehensive development policy that Minister Dion is presently formulating will show, in his words, the leadership and liberal and dynamic approach necessary to make PartVII binding, in law and in reality.
We are ready to take your questions and hear your comments.
Senator Beaudoin: All three presentations were very interesting. I will start with Mr.Arès. In my opinion, section41 is binding. I have compared it with many other sections that I have seen in other pieces of legislation. The text, the wording is such that, in my opinion, it becomes binding. The legislator does not legislate for nothing. When we legislate, it is in order to move things forward.
Now, Senator Gauthier said that this is all well and good, he shares my opinion, but that we have to do something practical, for example, an amendment that would clearly state that section41 is binding. I agree.
If we wait for a constitutional amendment, this always takes a certain amount of time. In the meantime, we cannot rely on a decision. There is no decision concerning section41 that says whether it is binding or not. This is unfortunate but that is the way it is.
I would like you to tell me how federal regulations under section 41 could help us in this debate. We have a particular problem in the parliamentary system. We give too much power to regulations. Most legislation states that we can enact regulations, one can issue Orders in Council, and so on. This gives massive power to the executive rather than to the legislative branch.
Perhaps you are convincing me that section 41 could be useful in the meantime, while awaiting an amendment, or — and I would like this very much — until the Supreme Court states that section41 is binding.
What would your regulations be?
Mr. Arès: I did not understand the question.
Senator Beaudoin: Section 41, in my opinion, is binding. Others say that no, it is declaratory. Only the Supreme Court can settle the debate by examining section 41 and saying that it is binding. You remember the Forest case, in Manitoba. All the courts decided against him stating that it was directory. I told him he would win his case before the Supreme Court. And he won. Section 133 is binding. In my opinion, the same logic applies to section 41.
While we wait for this to get to the Supreme Court, while we wait for Senator Gauthier's amendment to be passed, all of this takes time, and I would follow your decision to have regulations. But we still need the government to show the political will to make this binding in its regulations.
Mr. Arès: That is exactly what we say in our brief. Political will is needed to declare section41 binding. And when we study the language, we also believe that the language is sufficient for it to be binding. The Department of Justice has different opinions. These people have a right to their opinion. But the politicians could say that section 41 is binding.
Therefore, I think that the leadership we want to see from the federal government should indeed clarify this issue once and for all. MsAdam stated in her report that this required leadership from the highest level of the federal government. The federal government now has an opportunity to proceed without obliging us to go through the courts. Mr.Dion's speech clearly shows what the federal government ought to do.
The government should not force us to go to the courts. I think that we have been very patient with the federal government. There have not been any cases on section 41. You are right. We wanted to give the government as much leeway as possible to show us what it could do. Mr.Dion was ready to develop a policy and an action. He had a unique opportunity to show the necessary leadership for the official languages communities by stating that the section is already binding, and that all departments, agencies and institutions of the federal government must enhance the vitality and support the development of the official languages communities. He has a unique opportunity.
Senator Beaudoin: On Thursday, in Moncton, Minister Dion said very clearly that there are certain areas of symmetry in the Constitution, where all the provinces may be equal in theory, but as regards languages, we also have some areas of asymmetry. That is clear and that is true. The proof is that in 1867, only Quebec had the beginnings of bilingualism. In 1870, Cartier hoped that Manitoba would some day be like Quebec. That did not happen.
Minister Dion said that some asymmetry is required for the French language. I conclude that if we need asymmetry for the official languages — because French is spoken by only 2percent of the population in North America and 20 to 30percent in Canada, we must have asymmetry in our legislation so as to promote French. I think this can be justified. I would like very much for a court to state this, or for Parliament to state this. That would be a considerable step forward.
Mr. Arès: I agree, Senator Beaudoin. I would like to remind people that when the people of Canada met in Halifax in 1991, at the time of the Charlottetown talks on asymmetry, the vast majority of ordinary Canadian citizens agreed that there could be asymmetry to favour French in Canada. There is asymmetry through the powers of the Quebec government.
Senator Beaudoin: That is another problem.
Mr. Arès: Canadian society is prepared to accept asymmetry regarding the French language. The parliamentarians discussing these issues at Charlottetown were the people who rejected this asymmetry. Once again, this is a question of political leadership, and often we do not take into account what the ordinary people of this country say. In 1991, they were prepared to accept this asymmetry. I am pleased that Mr.Dion is talking about asymmetry and I think we require asymmetric treatment as regards language. I think we are making progress, but it takes time.
Senator Beaudoin: He said this very well — my colleague Senator Fraser was present as well. His comments were very clear. He said that the French language must be protected because it is in a difficult, minority situation in North America.
Senator Fraser argued the case of anglophones in Quebec very well. I believe this matter is in the Canadian Constitution. Bilingualism rights in Canada have always been asymmetrical. It is only at the federal level that they are equal, at least in the Constitution. At the provincial level, the 10 provinces have never been bilingual. In 1867 Quebec was bilingual, next came Manitoba, and of course in 1982, New Brunswick made a huge step forward when it declared that the two communities were equal. There has always been asymmetry on this matter. I think we must continue our efforts and I am very much in favour of SenatorGauthier's bill.
Senator Rivest: You said that the Department of Justice has said that political will is required to make this binding or mandatory. Do you mean that we must clarify section 41 of the act? The debate will continue. The federal Department of Justice has already said that the political will exists. However, there will always be someone somewhere to challenge this political will. Political will is something that is variable and changeable and of greater or lesser intensity, depending on the individuals involved. However, you maintain that a legal clarification is required.
Mr. Arès: Definitely, Senator Rivest. Throughout the history of our francophone and Acadian communities, it is clear that had there not been legislation and specific sections in the Constitution, we would have had a very hard time surviving until today. Clearly, when rights are enshrined in legislation, we can make huge progress with governments that opposed our development in the past. We support SenatorGauthier's bill S-32. It is needed. As you said so well, there will always be someone to challenge the political will or change it and ensure that something we think is binding is not. At the moment, the Department of Justice is not giving a fair opinion about the interpretation of section41. During the negotiations surrounding the Charlottetown accord, there was a fight over the definition of the word ``to commit.'' A number of people at the table said that this word was too strong and would bind the government. Now we are told the opposite. The word ``commitment'' does not mean anything, it is simply declaratory. So opinions change depending on the needs of the moment. The act must be very clear, if we are to avoid such situations. We support the bill. We would like it to be amended to make it absolutely clear to the Department of Justice and to politicians that this provision is binding. Then there would be no reason to hide behind interpretations which state that it is merely declaratory in nature.
Senator Rivest: You are now talking about the overall development policy. Quebec has not shown exemplary sensitivity to the problems facing francophones in Canada generally.
In the development plan Mr.Dion will be drafting, you could perhaps ask him to include the government of Quebec, which already has some programs for francophones throughout Canada. In this way, he would be able to involve the Quebec government in making available to all francophones in Canada the francophone resources of Quebec, and thus include Quebec in the development plan.
In developing his policy, Mr.Dion could agree beforehand with the government of Quebec about a number of support prograMs In this way, when Mr.Dion provides information about his resources, there would be some federal political will, with a federal program for institutions, and Quebec francophones would already be involved in getting programs underway. Do you think this is an important aspect?
In any case, as far as resources are concerned, teachers are going to be required at some point. We were speaking earlier about school boards and educational support. We are talking about PartVII, but the issue is actually very broad, because we are talking about all sorts of community activity involving seniors, community centres, health care services, children's aid, and so on. These are the sorts of things that will support the viability and dynamism of the francophone community. There are francophone resources in Quebec, and the federal government cannot go over the head of the Quebec government, it must involve it in this process. To some extent, the same goes for New Brunswick, where there are many francophone resources as well.
Mr. Arès: In light of the political differences, I think it would take quite a bit of time to achieve coordination within Mr.Dion's action plan.
Senator Rivest: You could act as a mediator.
Mr. Arès: Yes, in fact I think we do have a role to play as an intermediary between the Quebec government and the federal government, and we play it quite well. We have met with the Quebec Minister of Intergovernmental Affairs on a number of occasions.
Senator Rivest: You may find there is considerable openness on the part of the new minister.
Mr. Arès: In fact we met with him last week in Montreal, with the intention of seeing how Quebec could assist the official languages communities in the various areas of expertise that have been developed in that province. The Quebec officials are prepared to look at this and to promote a broadening of the Quebec government's policy with respect to our community in other areas, such as health. I think we can play the role of an intermediary, and we will do so. We got a good reception from the Quebec government, and we work very well with Minister Dion.
Senator Fraser: I have one brief comment and then a question for Mr.Arès and Mr.Colvin. I will start with the comment. I also listened to Mr.Dion last week, with a great deal of interest. I would simply like to point out that, as far as I am concerned, when he spoke of asymmetry and the various needs of the minority communities, he did not say that the anglo-Quebec community was okay. He simply said that the needs and the problems were not the same. I wanted to make that clear.
Mr. Arès, your proposal for section 41 is quite interesting. It could even be called attractive, but there is something in it that is similar to a concern I had about the bill, as expressed by Senator Gauthier. This is why I am asking Mr.Colvin. When you say that the federal government must take all the necessary steps, it seems to me that the obligation that is created is quite broad. It could go well beyond any very legitimate priority that the federal government might have set. Take, for example, the needs of the homeless, of the elderly, of all of those who are in dire need of assistance. Now, if we say that the federal government must take all necessary steps to help linguistic minorities, that statement is so all-encompassing that, eventually, there may be very little room left for anything else.
Is it because I do not properly understand the scope of the legal language here? Am I exaggerating, or are my fears well-founded?
Mr. Arès: I would ask Mr. Boileau to answer because he is the one who drafted this clause.
Senator Fraser: I would like to point out that I do whole-heartedly share the objective requiring the federal government to help communities. That is not where the problem lies.
Mr. Boileau: You have asked a very relevant question. What we believe is that the federal government must act. The government has an obligation to act. Is there an obligation with respect to the result? That is what we are debating. That is why we say: ``enhancing the vitality of English and French linguistic minority communities'' as well as: ``supporting their development.'' We did not say: ``in order to ensure the vitality'' or ``in order to ensure the development of official language minority communities.'' There is a difference. We tried to be realistic in the wording, and that is why the word was used. Also, that is why the Governor in Council himself could set the application criteria through regulation.
Of course, that would not prevent the regulation from being challenged before a court. But at least, it would be possible, as is done now with the regulation relating to the application of PartIV, where it says, for example, that 5percent of the population, that is, 5,000 people in one region, constitute a designated region. Where did the federal government get these numbers? That has never been challenged. It is a rule of application that limits the scope of Part IV. What we would like to see is more or less the same thing, but with respect to PartVII, so as to prevent it from going off in all directions as you mentioned earlier, so that there would at least be an obligation to act. That is very basic.
Mr. Colvin: I would say that most of the legal measures that we are discussing already exist. Someone who is accused of murder, whether he is in Nova Scotia, Newfoundland, British Columbia, Ontario or Quebec, does have a choice of language. He can be tried in either French or English. That is the Beaulac battle, and it is not a matter of the level of French that is spoken or understood. The person must simply be able to plead and give instructions to his lawyer in his own language.
Which means that the legal system in all of our provinces is already bilingual. When we say that this should be broadened, we do not want to scrap everything and start over, far from it; we simply want to be able to say why not divorce? Why not a bankruptcy? Why not a speeding ticket on the road surrounding Pearson Airport which, theoretically, would not be written in French, because municipalities are not necessarily bilingual in Ontario.
That means that if you get a speeding ticket on the 401 that runs through the middle of Toronto, you will have a choice of the language in which the trial will be held, either in French or in English. However, if this same offence takes place 200 metres further on, on Toronto Airport property, you will not necessarily be entitled to a trial in French. That is why I alluded to Alice in Wonderland.
Senator Fraser: Therefore, if I understood you correctly, if we deal only with the legal system, it would not be such an enormous undertaking to ensure that all of the necessary steps were taken.
Mr. Colvin: That is my opinion. There are things to do, of course, but with today's technology there are many possibilities. We can use the telephone, dial a number and enquire about the serving or filing of a document. The person on the other end of the line need not necessarily be in Whitehorse or Halifax. Technology offers us possibilities that did not exist before. I know that Gérard Lévesque worked very hard, for example, on developing bilingual forms and other aspects as well. He is our walking encyclopedia on linguistic problems within the courts. That is why we have brought him with us today.
Mr. Gérard Lévesque, Assistant Executive Director, Fédération des associations de juristes d'expression française de common law: It took Canada a quarter of a century before allowing an accused to be tried in his own language in a criminal proceeding. The first Official Languages Act included a clause stating that, in a criminal proceeding, for which the federal government had jurisdiction, a trial could be held in the official language of the accused. But since trials in English were available throughout the country, this meant that a trial in French would be available in each province, if that province allowed civil proceedings to be held in French.
The federal government at first thought that the provinces would offer this service in French. The federal government would have then followed suit and made these services available for criminal trials. But that is not what happened. The provinces of New Brunswick and Ontario did take a step in that direction, but not the other provinces. It was necessary to have an incredible number of trials before the right to a criminal trial in the language of the accused became available from one end of the country to the other. There are still a number of problems to work out, but we have witnessed a great deal of progress.
However, our communities, in view of the rate of assimilation that they have been subjected to, cannot wait another quarter century in order to be entitled to divorce or bankruptcy proceedings in French. Divorce is a good example. Before the 1968 Act, it was the Senate which, for one reason or another, heard the couple who were seeking a divorce. I do not think that linguistic problems were an issue at that time.
When Mr. Trudeau, as Minister of Justice, brought forward the Divorce Act, two provinces disagreed on one aspect. This is something that is often done by the federal government, when it wants to draft a bill that will then be managed by the provinces. If the linguistic rights are not dealt with from the outset, minority language communities will be penalized. The federal government could also incur a financial penalty, because the provinces will say: ``You are delegating the management to us, but we want to be paid to do it.''
Two provinces, Quebec and Newfoundland, did not want the provincial courts to deal with divorce. Mr.Trudeau did not force them to agree. The Federal Court would therefore remain responsible for matters relating to divorce in those two provinces. It was only at the third reading stage of the divorce bill that the two provinces that did not want their courts to deal with divorce decided that they did not want to penalize their own citizens, while other provinces would have access to provincial courts. Our fellow citizens would have to go before the Federal Court.
We can see the same situation today. The federal government delegates management to the provinces, without taking care of language rights, as compared to another sphere of responsibility, divorce. People are losing their language rights. How does one get a certificate of divorce in French or in both languages?
Today, the federal government has left the fate of official language minorities in the hands of the provinces. I will give you an example. When someone presents a petition for divorce, both spouses have to sign. In Ontario, all rules of civil procedure are bilingual, but the available forms are in English or in French, but not in a bilingual version. In Toronto, in 1968, I tried to present a petition for divorce in which the French and English were printed side by side. These are forms prescribed by regulation which only need to be signed if there is consent. The court advised me that it could not accept a bilingual, jointly signed form. One of the spouses had to waive their language rights if one was an anglophone and the other a francophone. It did not make any sense. If this is an area of federal jurisdiction, why did one of the spouses have to waive exercising their linguistic rights? The Attorney General of Ontario had to intervene in order to get the court to accept my bilingual petition.
Senator Rivest: How are these petitions presented in Quebec?
Mr. Lévesque: According to a rule of procedure in Ontario, when one files documents in French, you have the right to file them partly or completely in English. This comes in handy if we want to give our clients service in both languages.
As far as the forms are concerned and the right to use French, this will have to be argued about from one province to another if the federal government does not insist that, in these areas, the exercise of language rights must be respected. We will see this on every level. The problem with section 41 is that its minimalist interpretation influences all of Justice Canada's activities.
The federal government is responsible for the appointment of judges to the higher provincial courts, that is to say the Superior Court and the Court of Appeal. How will the government go about appointing an adequate number of judges? Because the Superior Court did not offer bilingual services, bilingual judges from other regions had to travel over a period of six months in order to hear a case held in Sudbury in 1989. It will be the same thing for the Superior Court in London, where there will soon be a trial held in both languages. This is the way we proceed for trials in French or for bilingual trials, wherever bilingual services are inadequate.
The federal government appoints Court of Appeal and Superior Court judges. When we consulted the provinces a few years ago to see if they agreed on the implementation of the Commissioner of Official Languages' recommendations in the report on fair hearings in both languages before the country's courts in 1995, Nova Scotia agreed with the proposal. On the other hand:
[English]
No current member of the Court of Appeal is able to preside at a hearing conducted in French without the use of interpretation.
[Translation]
Therefore the federal government must act. Section 41 of Senator Gauthier's bill brings about a clear obligation to act in the interest of citizens by maintaining their linguistic rights.
[English]
The Chairman: Before I call on Senator Gauthier, I should like to point out to Mr.Arès that, in your brief, you suggest changes to Senator Gauthier's bill as it relates to section 41 of the Official Languages Act. You also suggest changes to subsections 77(1) and 82(1).
You should realize that the Senate is only mandated to deal with what is presented to us, and what is before us is Senator Gauthier's bill that proposes an amendment to section 41. That is the only amendment that we can consider. I do not want you to go away from here with greater expectations than this committee is mandated to do.
I limited the witnesses to 10 minutes each, and I am also tempted to suggest that questions and answers should take no longer than 10 minutes each.
[Translation]
Senator Gauthier: Mr. Boily, you have referred to section 41 as a section that gives the government spending power and does not create any new right. It states that the federal government must ensure the vitality, the development and the promotion of communities, et cetera.
You spoke of those who have rights in the area of education. I spent some 11 years of my life working in this area. Do you have any statistics that show how many people have such rights in Canada, and how many students are attending French schools?
Mr. Boily: We have a study from the Official Languages Commission, done this year by MsAngéline Martel, which shows that 150,000 of our students who have a right to attend French school in minority situations are not doing so. Our educational network includes approximately 650 schools and other institutions of learning. There are approximately 150,000students in the country in this situation. The statistics have clearly and definitely shown that 150,000 of those who have the right to attend our schools do not, for many reasons: a lack of resources, of capacity, the right to attend francophone schools. There are all kinds of challenges and reasons.
Senator Gauthier: Could you send me a copy of that study?
Mr. Colvin: Certainly.
Senator Gauthier: Mr. Colvin, you said that the Supreme Court had recently changed the situation with certain decisions. You mentioned Beaulac, Arsenault and the secession of Quebec, and the unwritten principles. As regards my proposed section 41, I am not naive, I am well aware that it could be amended. I could have written a chapter on the law. I wanted to launch a discussion such as we are having today.
At the end of my speech, when I was presenting my bill, I said that it was rather too complicated and difficult to make this section binding through an amendment, and that we therefore had to ask the government, through a referral, to ask the Supreme Court to tell us if section 41, or if you will the whole of Part VII, is binding or not. Do you agree with this?
Mr. Colvin: Absolutely. It is another means to the same end. I can assure you that our federation and all the provincial associations will stand in line to be advocates in such a case. It is another way of moving forward. I must admit that when I look at the way section 41 is presently drafted, I have difficulty understanding how one could believe that it does not oblige the government to act. We are well aware that a right that is given to a citizen includes its counterpart, the obligation on the part of the government to enforce it. The right to a fair trial seems quite simple. But in reality, this means that the government must have judges who have not already decided the outcome before they have heard the evidence. We are aware of all the rights this involves. I would say that when we are discussing linguistic rights, this means there is an obligation on the part of the government.
Quite honestly, I am always somewhat surprised that section 41 has been interpreted in this way. In Alice in Wonderland, it is mentioned that the law means what it means when I want it to say what it means. This is the kind of thing we are dealing with.
Senator Gauthier: I feel it is somewhat elitist on the part of Justice Canada to say that section 41 is declaratory. It is political, as I have been told recently. I will make a comparison. We are trying to water the plant through the leaves rather than through the roots. I find this worrisome.
You spoke of $20million for the Blais decision on the issue of contraventions.
Mr. Colvin: I believe it was during one of this committee's discussions, and I read the transcript today. That amount was mentioned. I am surprised to see that it would cost $20million to change nothing, to do nothing, except to enforce what exists already.
Mr. Lévesque: If I may add something, the minutes of the last committee meeting mentioned that enforcing that decision would cost $10million; others said $20million. There have already been discussions, and this case went to court because there was no political will to recognize linguistic rights. When the federal government gave the provinces responsibility for the Contraventions Act, they did not think that there would be a linguistic impact. Mr.Colvin and I appeared before the Senate and House of Commons Committee in 1998. We put forward three recommendations to amend the Contraventions Act in order to include a guarantee to maintain linguistic rights in the event that the provinces or municipalities took charge of prosecutions of federal contraventions. Justice Canada continued to say no and wanted to continue using the provinces' justice system, saying that they had no responsibility for this area. We had to bring the case before a federal court, and there was a decision that proved us right.
The second recommendation was that the Standing Joint Committee on Official Languages hold a hearing on the Commissioner of Official Languages' report concerning the fair use of French and English before the courts. There again, the report recommended amendments to federal legislation to better guarantee exercising language rights in Canada, and this has not yet been done.
Finally, our third proposal recommended that the Joint Committee on Official Languages hold a hearing on the subject of the judiciary, because we are having trouble finding an adequate number of bilingual judges.
For the Montfort case in the Ontario Court of Appeal, the Chief Justice had to borrow a bilingual judge from an inferior court, because there were not enough bilingual judges at the Ontario Court of Appeal. We have francophone or anglophone bilingual judges, but they are not appointed in sufficient numbers, so that if someone becomes ill, or retires, or there is a conflict of interest as happened in the case of one of the francophone judges who had family at the Montfort Hospital, we lose our existing linguistic capacity. Recently, the joke was that the Chief Justice would soon have to go to the Small Claims Court in Toronto and borrow a bilingual judge to come and sit on the Court of Appeal. I would have no problem with that, because I sit in the Small Claims Court in Toronto. But this does not give a very good impression regarding the federal responsibility to appoint an adequate number of bilingual judges to the Superior Courts of the provinces.
Senator Gauthier: In 1988, I was in the room when the act was amended or the new act was passed. One of the proposals was that the minister rely on an advisory committee from the official languages communities. In other words, the minister would have an advisory committee to keep him abreast of what was going on and provide a more realistic sounding board than what is happening now. Ministers listen to their advisors, to people in their administration or in their department who at times are somewhat disconnected. That is my opinion. Would you agree that the minister should set up an advisory committee on the situation of linguistic communities living in a minority situation?
Mr. Arès: I believe all departments should have advisory committees. The excellent work done by the Advisory Committee on Health shows, precisely, that when a department is sincerely interested in the needs of communities, excellent work can be done and very good recommendations made to the government. I believe that all departments should have an advisory committee.
As regards section 41, we are being consulted by Minister Dion, for his action plan. We are working with his officials, we share our perspective on a comprehensive development policy, which should be part of the framework, within a strategic development axis. Mr.Dion is showing good faith and he is consulting us. I would like to see this process carried on and extended to other departments, agencies and institutions.
The Canadian Broadcasting Corporation recently set up an advisory committee, largely composed of members from our communities. We have been asking Radio-Canada for this for a long time. These are indications that we are on the right path. I agree that these committees should exist.
Senator Gauthier: Mr. Colvin, I recently received a letter from the Winnipeg Court Challenges Program — and all of the members received a copy of that today — in which they stated that they cannot challenge the ambit of section 41 before the courts. They mention that unless they can find a linguistic right in sections 16 to 23 of the Charter for which section 41 would be a natural expression or extension, they would not be allowed to finance a case that would ask the courts to interpret section 41 of the Official Languages Act.
I was explaining to the committee that we have restricted means, that our human resources are rather minimal. For section41, the Court Challenges Program, established following the Forest decision and to which Senator Joyal contributed, is not available. Do you have a proposal for us?
Mr. Colvin: Mr. Lévesque and I are starting a trial next Wednesday in London, in Superior Court. I am going to ask him to take the floor because he is more familiar with the Court Challenges Program.
Mr. Lévesque: A few years ago, I had the opportunity to chair the Language Rights Committee of the Court Challenges Program. This is the contract that the federal government signed with the Court Challenges Program, which forbids it from funding cases under the Official Languages Act, not only under section 41. It is the entire act. We need a constitutional linguistic provision and not an act. That would be funded. This was the case for section 23 in Manitoba, for example. We asked that the Official Languages Act be considered, but for the moment, the federal government is not obtaining funds. In the contract it states: ``You may not consider this funding''.
Mr. Paul Charbonneau, Director General, Fédération nationale des conseillères et conseillers scolaires francophones: I would invite you to read our brief, in which you will find Mr.Doucet's thoughts on this issue. You mention advisory committees. Recently, we have had school boards set up across the country. With the unwritten principle, the federal government has the right to spend and become directly involved with schools boards. An amended section 41 would allow for a strengthening and a confirmation of this.
The French-speaking communities want to control their own school boards. It has taken some time. I was at the Commission nationale des parents when we were fighting for this. We are not advisors to the federal government, however, certainly not in an official capacity. The federal government bows to provincial jurisdiction in education to negotiate our funding, and they do not consult us in a number of areas.
As regards education, and with the tools you would obtain through an amendment to the legislation, but also through the unwritten principles in the Quebec Secession Reference, I believe that the federal government should decide on the needs and priorities with us. Even if we are here, it is not always the case.
Senator Joyal: I would like to say first of all that I give a lot of credence to development programs that a minister wants to propose and negotiate with advocates and representatives of Canadian minorities, whether they be anglophone or francophone. I myself was responsible for these programs 20years ago. I have seen some of my successors abolish programs that I personally set up and that I believed to be fundamental for the survival of these communities. The Court Challenges Program is an example. It was abolished and then re-established. I hope that the political powers of the day will not be made responsible for the enforcement of basic rights, because we would expose ourselves to all kinds of risks.
Governments are elected, defeated, re-elected, etc. The contingencies are different from one time to another, and it is very difficult to encourage minorities each and every time to claim similar protection or options.
I feel that Senator Gauthier's proposed initiative, that is to have a legal guarantee, is desirable. When one is in a minority, anglophone or francophone, at the end of the day the only guarantee is a legal one. The political powers that be may be more or less understanding, receptive at any given time, but the fact remains that the political power of minorities is extremely limited.
Having said this, I do not agree that there is no decision on the binding impact of section41. There is a decision. Page 90 of the Blais decision of March2001 states:
Consequently, the plaintiff did not convince me that the recent changes in case law and especially the Beaulac, supra decision provided Federal Court with the possibility to intervene, after an appeal launched under section 78(1)(a) of the OLA with regard to allegations about infringement of PartVII of the OLA.
Justice Blais, in my opinion, was fairly clear. Some day, another decision might go further than the Federal Court of Appeal. In the meantime, we must agree that we are not protected by any legal remedy, with regard to the application of Part VII of the act, and more specifically section41.
Like you, I was led to believe that one of the best ways to ensure legal remedy would to amend Part 77 and simply add ``VII'' after Part V of the Act. It was a very simple amendment. We only have to add the Roman numeral ``VII''.
Perhaps Senator Gauthier's approach is more clever and I believe it, has more bearing because in a certain way, it makes the Canadian government's obligation subject to protection under the Charter, section16. I have thought about this approach. Section16(1) of the Charter lays down the principle of equality of both official languages in Canada:
English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada.
Those are the principles. In Bill S-34, we read:
Under paragraph 16(1) and (3) of the 1982 Constitutional Act [...]
Part 41 follows directly on 16(1). In the Charter, section 24 has a provision that was at the very heart of the debate when the Charter was adopted and amended, and the issue was to determine whether the Charter is mandatory or declaratory. Section 24 settles this matter. Let me quote section24:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied [...]
— namely, the language rights under section 16 —
[...] may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
This means that Bill S-32 places the amended section 41 under the provisions of section24 subject to the Court Challenges Program. Is the amendment of Part VII more important as it relates to 77 or 78? As the chairperson said:
[English]
We do have no authority at this point to amend the section you mention in Senator Gauthier's bill. There would be a real legal discussion if we attempted to amend section 41 to incorporate an amendment to section 77.
[Translation]
It might be better to adopt the amendment to section 41 as Senator Gauthier proposes, because it puts us directly under section 24 of the Charter. It puts us under a much stronger constitutional protection than the Official Languages Act, which the Supreme Court recognized as quasi-constitutional.
At the time of the original version of the act, I was the first to challenge in court the fact that the Official Languages Act was mandatory and not declaratory. I stood up against the federal Minister of Justice at the time, and those who were there still remember it.
In fact, would it not be better to place the Canadian government's obligation to protect official language minorities under section 16 rather than section 77? You must have studied SenatorGauthier's text, he who, by the way, is working on amending the Constitution. Some very serious work is being done here, as the Canadian government is being handed the responsibility of supporting official language minorities.
Practically speaking, we are being asked to do something very important today, because we are amending an important element of the Official Languages Act. Section 24 enshrines in the Constitution the obligation to support official language minorities and formally places it before the court.
Mr. Boileau: Senator Joyal raised some excellent points. The FCFA of Canada supports Bill S-32. We proposed amendments for the consideration of the Legal and Constitutional Affairs Committee, or that of Senator Gauthier, but we support Bill S-32.
Our alternative proposals also refer to section 82. To sum up your statements, you mentioned that the Official Languages Act, with amendments to section 41, would be constitutionally protected by section 16(3), with the principle of progressively reaching an equal status for both French and English.
The Official Languages Act was already quasi-constitutional, but, under section 82, it does not recognize that Part VII is a part of this quasi-constitutional protection. Section 41 as amended would remedy this.
To clarify all this even further, we propose that there be no ambiguity and that section 82 be amended by including Part VII. This will certainly raise some legal debate. For instance, we can draw lessons from the Viola decision and conclude that the French Language Services Act, including Part VII, can be quasi-constitutional in nature.
The Montfort decision clearly shows that the French Language Services Act in Ontario has a quasi-constitutional value even though the text does not mention this. Further, Ontario's Attorney General recognized that the French Language Services Act had quasi-constitutional value in Ontario.
Based on this, the mandate of the Court Challenges Program, in view of the contribution agreement signed with the federal government, is a constitutional or quasi-constitutional provision. We made some progress with the parts of the Official Languages Act that are protected by section 82. The Court Challenges Program was able to fund cases that dealt with Part IV, for instance, because it follows the text of the Canadian Charter of Rights and Freedoms almost word for word. Only Part VII is excluded from all this.
In fact, Bill S-32, sponsored by Senator Gauthier, could shed more light on what we already believe to be the case.
Mr. Lévesque: The senator is right to observe that Senator Gauthier was very clever in drafting his bill to modify the Official Languages Act.
If it is important to change this, this is because despite the generous interpretation of language rights in Canada since May 1999 — with the Beaulac decision — it did not have the impact it should have had on departments and especially Justice Canada.
Senator Joyal remembers that when he was Secretary of State, the Court of Appeals of Ontario heard a case on school governance. There were 16 francophone interveners and 2 or 3 against, and Justice Canada had asked to intervene.
There again, we believed that it would intervene in our favour, but after a week of debate, we realized that this memorandum was the most controversial of all. Thanks to the Secretary of State and the Member for Ottawa-Vanier, serious debate was held, and after the hearings, the Minister Justice tabled a supplementary memorandum.
This example shows that the interpretation currently given is minimal with regard to language rights in this country, and we must absolutely change that. At this time, we have a good opportunity to obtain what we thought we would obtain through section 41, with the bill proposed by Senator Gauthier.
[English]
The Chairman: I would thank our witnesses for appearing before our committee this afternoon.
I would remind honourable senators that we will be meeting here again tomorrow morning at our usual time when another panel of witnesses will give evidence. We will also briefly examine the committee budget since that must be passed by the end of this week.
The committee adjourned.