Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 27 - Evidence
OTTAWA, Wednesday, March 6, 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 3:55 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: This meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now met to continue with our consideration of Bill S-32, to amend the Official Languages Act, fostering of English and French.
We have before us today Mr. Newman, who is the general counsel of the constitutional and administrative law section with the Department of Justice and Mr. Tremblay, who is also with the Department of Justice.
Mr. Tremblay, please proceed.
[Translation]
Mr. Marc Tremblay, Senior Counsel, Official Languages Law Group, Department of Justice: Honourable senators, I would like to start by thanking the committee for allowing the Department of Justice to appear before you today on this important matter.
Since 1998, I am Senior Counsel of the Official Languages Law Group of the Department of Justice. This small team of specialized lawyers, most of whom are with me here today, is responsible for providing and coordinating legal opinions and advice on language rights issues under the Constitution Act, 1867, the Charter of Rights and Freedoms, the Official Languages Act, the Criminal Code, and all related legislation of a linguistic nature, be it federal, provincial or territorial.
The group is also responsible for developing and coordinating the Attorney General of Canada and the government's position in language rights cases and providing litigation support. Finally, the group participates in the implementation of the federal government's commitment to the advancement of English and French under Part VII of the Official Languages Act.
Within the Department's hierarchy, the Group reports directly to the Associate Deputy Minister, Mario Dion, who is a member of the Committee of Deputy Ministers on Official Languages and who is also the department's official languages champion.
I am accompanied by Warren Newman, General Counsel with the Constitutional Administrative Law Section. Mr. Newman will address the legislative history of language rights and will set Part VII of the Official Languages Act in its general context. He will bring to the discussion of the nature of the Government of Canada's commitment towards the promotion of English and French the perspective of a constitutional law expert who has worked in the area of language rights over the past several years.
If the committee allows, I will then present the position put forward by the Attorney General of Canada on the scope of Part VII of the Official Languages Act. Of course, it will be a pleasure for us to answer any questions you may have.
Before I turn the presentation over to Mr. Newman, I wish to indicate that our role as legal counsel for the Government of Canada imposes certain constraints. Thus, the legal opinions given by the Department of Justice to various federal institutions are protected by solicitor-client privilege.
I also wish to point out that it is not for us to evaluate whether the enactment of Bill S-32 is necessary or desirable. While the Minister of Justice is responsible generally for the Official Languages Act before Parliament, the Minister of Canadian Heritage is responsible for coordinating the implementation, by federal institutions, of these commitments set out in section 41 of the Official Languages Act. It is therefore the Department of Canadian Heritage Canada that has the responsibility of elaborating the Government of Canada's position on this bill, in cooperation with our department and with Minister Dion as the minister responsible for coordinating official languages matters.
Mr. Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice: It gives me great pleasure to appear before your committee. I have participated in the work of this committee on several occasions, and I have always been impressed by the quality of the debate.
I was privileged to work with Senator Gauthier in his capacity as joint chair of the Joint Parliamentary Committee on Official Languages, an experience I very much appreciated.
I must say that I was responsible for the development of the legislative proposals of the bill in 1988. I attended the debate in both houses and appeared before both committees that studied the new Official Languages Act.
I hasten to note that my participation makes me neither the trustee of the 1988 act nor the guardian of the legislative intent behind the statute, but I may be able to shed some useful light on the interpretation of its provisions.
I will not have time to broach all of the items covered in my brief. I have tried to provide senators with background, starting with the Official Languages Act of 1969, and covering the parliamentary resolution of 1973, the adoption of amendments to the Criminal Code regarding the language of the accused, introduced by the Minister of Justice in 1978, and the enactment of the Charter of Rights and Freedoms as well as the impact it had on the principle of equality of English and French as to their use in federal institutions.
The main purpose of the Official Languages Act of 1988 was to provide a better legislative framework for implementing the constitutional rights and obligations entrenched in subsections 16(1) to 20(1) of the Charter, in other words, the provisions relating to Parliament and its institutions.
In that light, the Special Committee of Deputy Ministers undertook to modernize or update the Act of 1988. The Prime Minister subsequently tasked them with implementing the recommendations.
In my brief, I provide an overview of the Official Languages Act of 1988. I did so because I think it is necessary to place section 41, the reform proposed by the Honourable Senator Gauthier and the amendments of the Commissioner of Official Languages, within the context of the act. It is very important to clearly understand the scope of the various parts of the act. I took the time to point out the links between Parts I to V of the act and sections 16 to 20 of the Charter, starting on page 6, and the fact that these parts include court remedy, with the exception of Part III, for reasons that we can discuss later. They are also protected by a primacy clause.
Parts VI and VII of the Act set out government commitments. The wording of these provisions is completely different from the wording used to create the rights and obligations under the first five parts of the act.
I want to address the nature of the commitment in Part VII of the act. I mention the nature of this commitment in one of the sections of my brief. Section 41 of the act contains a formal statement of policy on behalf of the Government of Canada. That declared policy is to advance Canada's linguistic duality to enhance the vitality and support the development of English and French linguistic minority communities. This commitment is solemn, permanent and visible.
Only a statute enacted by the Parliament of Canada could amend or modify this commitment. As you know, the Minister of Canadian Heritage is responsible for coordinating the implementation of the commitment. Section 43 of the act sets out the specific mandate of the Minister of Canadian Heritage to take such measures as the Minister deems appropriate to advance the equality of status and the use of English and French in Canadian society.
This part is built on the principle of advancement of official languages that underlies subsection 16(3) of the Charter. The implementation of this commitment as well as the specific mandate of the Minister of Canadian Heritage are very broad. Their realization depends not only on establishing and managing priorities and allocating funds and other available resources, but also, to a large extent, on the cooperation of many other actors, which are not all within the legislative and regulatory control of the federal government.
At the time the Official Languages Act of 1988 was introduced, certain provinces questioned the constitutional validity of Part VII, the aims of which go beyond federal legislative jurisdiction. These provinces were reassured as to the validity of Part VII by the fact that it is based on the federal spending power, and because this part of the act is not regulatory, but rather, program-oriented in nature. By way of analogy, I point out — when I prepared by brief for February 21, this was a rather minor matter that has been talked about a great deal since, that section 46 of the Constitution Act, 1982, covers the commitment of the Parliament of Canada and the federal government as well as the provinces with respect to equalization.
I also point out that, in the view of many legal scholars, the commitment is probably not justiciable. Moreover, the Honourable Senator Beaudoin, in his excellent book on federalism in Canada, states that the court may say that the federal government must commit, but it cannot determine the amounts to be spent. That would mean getting involved in the parliamentary sphere with respect to the constitutional commitment.
For my part, I express no view herein as to the scope or possible application of the latter constitutional commitment. I mention it only to demonstrate that a commitment is not necessarily of the same order as a justiciable right or duty.
The first five parts of the Official Languages Act are drafted in terms of legal rights and obligations that are, for the most part, tangible and precise, and thus more properly susceptible of judicial review and control. Part VII, on the other hand, deals with a broad and permanent government policy, the implementation of which requires the input of many actors within federal institutions and Canadian society at large.
The courts are little inclined to conduct a fastidious exercise of second-guessing political decisions allocating resources, as long as decision-makers act reasonably, in accordance with the values that underlie our Constitution.
In administrative law, these matters turn not so much on the question of justiciability per se but more on the appropriate degree of difference to be accorded by the courts to governmental decision-makers. The Supreme Court has adopted a pragmatic and functional approach to determining the appropriate standard of judicial review in a given case.
In the Pushpanatan case, Mr. Justice Bastarache made some observations which appear to me to be particularly apposite when one examines the type of decision-making contemplated by Part VII of the Official Languages Act. The following excerpt is on page 11 of my brief:
Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights between parties, or as entitlements, but rather as a delicate balancing of different constituencies, then the appropriateness of court supervision diminishes.
Mention is also made of certain polycentric policy considerations which involve a large number of interlocking and interacting interests and considerations.
According to Mr. Justice Bastarache, while judicial procedure is premised on a bipolar opposition of parties and interests, some problems require the consideration of numerous interests simultaneously, to concurrently balance benefits and costs for many different parties.
I know that this jurisprudence deals first and foremost with administrative decisions and decisions of administrative tribunals mandated to control them. I am aware that the Commissioner of Official Languages is not, of course, an administrative tribunal but rather an ombudsman, with functions including: to investigate, to report and to recommend.
Moreover, I quote an excerpt from one of the commissioner's annual reports which makes a distinction between the role of the commissioner as an ombudsman and the role of a tribunal which is much more formal. I feel that the unique and flexible and functions of the Commissioner of Official Languages would appear to be particularly apt for the investigation and resolution of issues related to the implementation by federal ministers of broad governmental policy commitments dealing with the advancement of official languages in Canadian society, as set out in Part VII of the Official Languages Act.
To conclude, I want to address certain questions that came to mind when we tried to understand the legislative intent. If Parliament had wanted to create an obligation or a right, why did it not word the act that way? In Parts IV and V, for example, the words ``it is the duty of federal institutions'' or ``it is the duty of the Government of Canada'' were used at least 14 times.
Why did it insist on using the term ``commitment''?
Moreover, why did Parliament not simply add Part VII to the list of parts of the act covered by court remedy? Why did the Right Honourable Ramon John Hnatyshyn, when he was Minister of Justice and during his testimony, all the times he appeared before committee — and he did so several times, including before the Special Senate Committee — never treat Part VII that way? These are questions that need to be asked, and I must add that to claim that Parliament had, by some oversight, forgotten to clarify the judicially enforceable scope of section 41 of the act appears to me to distort the true intention of Parliament at the time of the enactment of the act. This intention is evident from the scheme of the act itself and its legislative history. For the same reasons, to argue that the position of the Department of Justice and the Attorney General of Canada as respects the scope of section 41 is a ``minimalist'' one seems to me to deform the accuracy of this position.
This is not to say that Part VII is but a pious wish, an empty shell. Such disparaging expressions tend to miss the point about the real significance of Part VII.
Part VII is eminently ``political'' in the most noble sense of the term. It reflects the solemn and perennial policy commitment of the Government of Canada. It is a policy infused with a vision of our country that aims to pass on the vibrant and flourishing heritage of our two official language communities to our children and to our children's children. As the Honorable Senator Gauthier stated eloquently: ``When one commits oneself, one keeps one's word''. It is the responsibility of the members of both Houses of Parliament to ensure the respect of this commitment through the reporting and oversight mechanisms in the act.
Part VII is an integral part of the act. It binds the government. Under section 44 of the act, the Minister of Canadian Heritage must submit an annual report to Parliament. Under section 88, Parliament must designate a committee to receive the reports and monitor administration of the act.
Under section 56, it is the duty of the Commissioner of Official Languages to take all actions and measures to ensure compliance with the spirit of the act and the intent of the legislator in the administration of the affairs of federal institutions, including the advancement of English and French in Canadian society. The commissioner is empowered to conduct investigations concerning the implementation of Part VII, either on her own initiative or pursuant to complaints, and to report and make recommendations.
The powers of Parliament, of its senior official and agent, the Commissioner of Official Languages, and of the parliamentary committee, to monitor compliance with Part VII and the commitment of the federal government as regards linguistic duality in Canada, are far from negligible. Chief Justice Dickson of the Supreme Court of Canada had the following to say about similar reporting powers in the Auditor General case in 1989:
... in the circumstances, a political remedy of this nature is an adequate alternative remedy. The Auditor General is acting on Parliament's behalf carrying out a quite essentially parliamentary function, namely, oversight of executive spending...
... Where Parliament had indicated in the Auditor General Act that it wishes its own servant to report to it [...], it would not be appropriate for this Court to consider granting remedies ...
The adequacy of the s.7(1)(b) remedy must not be underestimated.
A report by the Auditor General to the House of Commons brings the matter to public attention. It is open to the opposition in Parliament to make the issue part of the public debate and the public's assessment will also weigh in the balance. Thus, the remedy has an important role to play in strengthening Parliament's control over the executive, in the opinion of Chief Justice Dickson.
In conclusion, Part VII reflects the commitment of the Government of Canada to the promotion of linguistic duality, a fundamental characteristic of our country. It also provides a better legislative framework for the programs of the Department of Canadian Heritage. The effective implementation of the Official Languages Act rests upon a delicate balance between governmental action and administrative, parliamentary and judicial recourse.
Mr. Tremblay: The work of this committee has focused to a large extent on the interpretation of section 16 of the Charter. As a result, I feel that it is appropriate to provide some clarification as to the position of the Attorney General of Canada on subsection 16(1) and (3) of the Charter.
Part VII of the Official Languages Act is an illustration of the principle of advancement of equality of status or use of English and French through legislative means provided for in subsection 16(3) of the Charter. What exactly does this commitment mean legally and practically speaking? In its intervenor's factum in the Montfort Hospital case, a well-known file, the Attorney General of Canada argued that this principle enunciates a very significant rule of constitutional interpretation. Subsection 16(3) provides that nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
A number of people seem to confuse subsection 16(1), which affirms the principle of the substantive equality of existing language rights, and subsection 16(3) of the Charter. Let us set the record straight! In Beaulac, the Supreme Court confirmed that the scope of subsection 16(1) of the Charter is distinct from that of subsection 16(3):
The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected.
The two provisions have distinct meaning.
In the same case, Justice Bastarache indicated that the application of the principle of advancement is illustrated by the enactment of the Official Languages Act of 1988, which goes beyond the constitutional requirements. What is the substance of this principle? Beaulac shows us that the principle of advancement of English and French, which was firmly expressed by the Supreme Court of Canada in 1975, in Jones, recognizes that constitutional guarantees build floors for language rights, not ceilings.
[English]
Some have argued, before this committee and elsewhere, that this principle creates a constitutional duty on the part of governments to constantly and progressively do more and to add to the bundle of rights already granted by the Constitution and the Official Languages Act. Recently, in the Montfort Hospital case, the Court of Appeal of Ontario dealt with similar arguments. The court confirmed that subsection 16(3) of the Charter rests on the principle established in Jones that the Constitution sets a floor, not a ceiling. It went on to add:
However, it seems to us undeniable that the effect of this decision is to protect, not constitutionalize, measures to advance linguistic equality. The operative legal effect of s. 16(3) is determined and limited by its opening words ... Section 16(3) is not a rights-conferring provision. It is, rather a provision designed to shield from attack government action that would otherwise contravene s. 13 of the Charter or exceed legislative authority.
To summarize the state of the law as to the scope and effect of subsection 16(3) of the Charter, we can say that it provides a rule of constitutional interpretation, that it allows the legislator to take additional measures to those already provided in the Constitution. It does not, however, create a duty to take such additional measures nor does it constitutionalize any measures taken in furtherance of its purpose. Nevertheless, Part VII of the Official Languages Act is a legislative measure adopted in the spirit of section 16(3)
Turning now to the matter more directly at issue before this committee — that is, the scope and interpretation of Part VII of the Official Languages Act — the Attorney General of Canada put forth his position with respect to the interpretation of Part VII in the Contraventions Act case. This is part, therefore, of the public record.
According to the Attorney General of Canada in his pleadings in that case, Part VII is the solemn declaration of the federal government's general commitment to enhance the vitality and support the development of English and French minority communities as well as to foster the full recognition of English and French in Canadian society.
Part VII of the Official Languages Act seeks to provide a legislative framework for the federal government's Official Languages Program to fully realize one of the purposes of the Official Languages Act of 1998, as stated in subsection 2(b) of the Official Languages Act. That is to ``support the development of English and French linguistic minority communities and generally advance the status and use of the English and French languages within Canadian society.''
This, as Mr. Newman has previously stated, is essentially a commitment of a political nature. The governmental agencies thus are granted a broad discretion as to the choice of measures taken to meet this commitment by the federal government.
[Translation]
The declaratory rather than mandatory nature of this part arises from the fact that this part does not give rise to a remedy under Part X of the Official Languages Act and that, unlike other provisions of the Official Languages Act that are clearly written in mandatory terms, it does not have primacy over other federal acts or regulations.
Consequently, the Attorney General of Canada indicated that this part of the act, as opposed to other parts of the act, should be deemed to have a moral or political effect rather than a legal effect because it enshrines a general commitment by the federal government, unlike the other parts of the act which create rights and obligations in the strict sense of these terms.
For example, section 6 of the Official Languages Act stipulates that ``all acts of Parliament shall be enacted, printed and published in both official languages.''
Section 21 provides that ``any member of the public in Canada has the right to communicate with and to receive available services from federal institutions...''.
Subsection 35(1) states that ``every federal institution has the duty to ensure...''.
Those are the three types of statutory language used to create obligations under the Official Languages Act.
As Part VII creates a discretionary power, the Attorney General of Canada argued that the court should refrain from judicially reviewing its exercise. Justice Blais of the Federal Court Trial Division issued his judgment on March 23, 2001. With regard to Part VII of the Official Languages Act, he indicated that subsection 77(1) of the Official Languages Act, which provides a court remedy for a breach of the act, does not refer to Part VII:
This deliberate omission on the part of Parliament leads to the conclusion that subsection 77(1) does not allow for an application to be made to the courts for a violation of Part VII of the Official Languages Act.
Second, despite the broad investigative powers granted to the Commissioner of Official Languages:
It seems clear that the court remedies provided by Parliament in subsection 77(1) of the Official Languages Act are much narrower.
Third, the Federal Court cannot intervene, in an application brought by the commissioner under paragraph 78(1)(a) of the Official Languages Act, in respect of alleged violations of Part VII of the Official Languages Act. Justice Blais did note, as highlighted by Senator Joyal:
On the other hand, it should be noted that the Federal Court of Appeal held in Devinat, supra, that applications may still be brought under section 18.1 of the Federal Court Act in respect of breaches of the parts of the Official Languages Act that are not referred to in subsection 77(1) of the Official Languages Act.
[English]
The Chairman: May I ask you to slow down? The translators are having quite a bit of difficulty keeping up with you.
[Translation]
Mr. Tremblay: Justice Blais indicates:
I need not revisit that issue in this case, except to say that the applicant has chosen to use only the procedures set out in paragraph 78(1)(a) of the Official Languages Act and it is therefore in that regard that I must make my decision.
To complete your information, I must point out that section 20 of the Official Languages Act provides that all final decisions of federal courts ``shall be made available'' to the public simultaneously in specified circumstances or, otherwise, ``shall be issued'' first in one official language and then, at the earliest possible time, in the other.
In contrast to Part VII, section 20 of the Official Languages Act creates rights and obligations that the Federal Court has sanctioned in Devinat.
This does not mean that Part VII has no content or does not bind the government. In fact, it is incumbent on each federal institution to consider how and by which means it can best contribute to the attainment of this objective. These same institutions may have to justify their decisions — the act provides the mechanism to ensure that Parliament has the information it requires to exercise its powers of oversight.
[English]
Before closing, it is important to note that the Department of Justice, like all federal institutions, has a duty and the obligation to respect the rights provided in the Canadian Charter of Rights and Freedoms as well as in the Official Languages Act. The department takes all necessary measures to ensure respect among others for the requirements of bilingual legislation, for the rights of Canadians to use either English or French before federal courts and in criminal proceedings, for the right of the public to services from our department in either official language, as well as for the right of its employees to work in English and French in designated regions.
As to the positions taken by the Attorney General of Canada before the courts, our professional ethics as well as the Department of Justice Act require that we put forth the legal arguments that we believe reflect the state of the law in light of the constitutional and legislative texts and the case law.
When this is possible, our interventions in support of the arguments put forth by language minorities are numerous. I have brought copies as examples of our interventions in the Montfort Hospital case and in the Arsenault-Cameron case before the Supreme Court of Canada. These are among many examples of what were received as positive interventions by the Attorney General of Canada.
There will always be differences of opinion as to the correct interpretation to give to constitutional and legislative texts. These differences are in no way attributable to bad faith on the part of governments or of the minority groups, for that matter. In a free and democratic society such differences of opinion are resolved by the courts.
Beyond the obligation set out in the Charter and the Official Languages Act, the Department of Justice, in cooperation with the Minister of Canadian Heritage, fully participates in the implementation of the federal government's commitment under Part VII.
[Translation]
This commitment manifests itself in many different ways, as is demonstrated by the department's action plans. I have included a document that was not in your previous documentation, which lists the serious, formal steps the Department of Justice has taken to meet that commitment.
It is important to understand that the administration of justice is largely under provincial jurisdiction. As a result, the efforts undertaken by the Department of Justice to advance English and French in the administration of justice must rely on provincial cooperation, and the Department of Justice of Canada cannot act unilaterally.
Various proposals that seek to improve to access to justice in both official languages have been put to this committee. I can assure the committee that the department has studied these various proposals and recommendations. Our recommendations will be considered in the context of Minister Dion's action plan, which you are anxiously awaiting.
Senator Beaudoin: I have read your documents with great interest. They are very well done; good work! But there is something that bothers me. The legislator never wastes his breath. Sometimes he speaks very clearly, sometimes he is more vague, but he is there to legislate.
Take section 36, which provides for the entrenchment of equalization in the Constitution. The courts will obviously never tell the Government of Canada how much it has to spend. The same goes for section 41. The federal government has to make a commitment. The court may say it is mandatory, in that the Government of Canada and the provinces must agree on an equalization mechanism. Section 41 provides, in my opinion, quite clearly — I know it is debatable — that Parliament, the government, must commit itself.
Perhaps they can go no further than that. Perhaps they can never say how much money must be spent. But they can at least declare section 36 of the Constitution Act, 1982, and section 41 of the Official Languages Act binding.
I support the proposal of my colleague, Senator Gauthier, because it improves section 41. In my view, his proposal improves section 41 and makes it more binding and enforceable. There is, after all, some requirement under section 41 for the government and Parliament to act. The courts will never go further than that. I agree with that.
They will never go further than that, but at least they will say: under the Constitution, you are required to set up an equalization mechanism, and under the Official Languages Act, you are required to ensure the equality of both official languages of Canada. It must not be forgotten that the official languages of Canada are equal. It is not a matter of numbers, it is the equality of both languages. Since we do not have full equality, subsection 16(3) provides for gradual advancement toward that goal. I agree with that. You cannot change a country overnight.
I feel there is an obligation, but perhaps there is good reason to amend section 41. Commissioner Dyane Adam recommended amendments to section 41. You were there when she proposed them. I do not know whether it is appropriate for you to comment on those amendments. I imagine it is not.
The point is, I am in favour of amending section 41, because even if it is enforceable, it is not sufficiently specific yet. I would like to know what you think about that.
Mr. Newman: If this commitment is not sufficiently specific, could it be enforced? I do not want — I am sure you understand — I cannot really get into a debate on the merits of any particular position, especially with respect to section 36. As you very well know, Professor Hogue, for example, feels that the commitment in question is:
[English]
...probably too vague and too political to be justiciable ...
[Translation]
I am not taking any position on that. That is his opinion, in his text on constitutional law. He may be wrong. As for section 41, we do not dispute the fact that this section is binding, in that it binds the government and should produce effects. It is supplemented by sections 42 and 43, which show that it is more than a preamble or wishful thinking. It is a commitment that has to be met.
As I understand the way things were back then, that wording was chosen, not just in Part VII but also in Part VI of the act, to set out policy commitments that would not be changed at the whim of the government of the moment, but that would be permanent, entrenched in legislation. And reports on investigations, and especially the report to Parliament, are the appropriate mechanism; the Commissioner of Official Languages ensures that this commitment or obligation is met.
As I have tried to show, the very nature of the commitment is so broad: promoting the equality of French and English, not within federal institutions but throughout Canadian society, in the provinces and territories, at all levels, in both government and non-governmental affairs. It would be hard to establish the parameters of such an obligation, if it is an obligation, in a court decision.
That would be my understanding of the intention of government and Parliament when the act was passed. We are merely public servants and lawyers at the Department of Justice. We are not politicians. It is not for us to judge the merits of the proposal by Senator Gauthier or the amendments put forward by the Commissioner of Official Languages. We try to give you a different perspective from what you have already heard, so that the debate is well balanced.
Senator Beaudoin: Take section 27, which says that Canada is a multicultural country and that the Constitution must be interpreted in a manner consistent with that fact. So there is a commitment. The Constitution encourages parliaments to promote.
Justice Dickson very clearly said, in a couple of cases, that the Lord's Day Act was invalid because it imposed a Christian character on Canada. That applies to Sunday observance. He used that for support. I wonder what the Supreme Court would do if it had to rule on the nature of section 41. It might say section 41 is enforceable, or it might not. One thing seems sure to me. The court would try to give section 41 some meaning. When a statement is made in a numbered provision of an act, the intent is to do something positive, something somewhat specific.
For 90 years, the Manitoba Act, which abolished French, was held to be directory, unenforceable, until the Supreme Court said it was enforceable. The judgment of the court is what counts in the end. I think if we can amend section 41, we should. If we cannot amend it, sooner or later, the court will have to decide.
Mr. Newman: I fully understand your point of view. You are always very clear and to the point. In Big M Drugmart, which you referred to, Justice Dickson based his decision on section 2 of the Charter. Section 27, which is a rule of construction, supports that interpretation. As for subsection 16(3) of the Charter, that is a constitutional rule of construction.
Parliament had enacted the Canadian Multiculturalism Act. I brought a few copies. That legislation was enacted at the same time as the Official Languages Act, in 1988. It too contains a series of commitments. They are mentioned in the preamble. It sets out Canada's multiculturalism policy. It also uses the term ``obligation''. This policy requires federal institutions to ensure that Canadians of all origins have equal opportunities, et cetera.
The implementation of this policy is once again the responsibility of the Minister of Canadian Heritage. The minister has to report to Parliament, and the legislation makes no provisions for court remedies.
A court could at some point make some ruling on the scope of one of these provisions. We are not claiming that a legal provision is not reviewable or that the courts cannot comment on a statutory provision. I think that goes without saying.
However, it is quite another thing to say that such a provision must be treated as though it were an obligation. Justice Dickson, in the Auditor General case, said that there was an obligation, and that there was a remedy. But Parliament wanted it to be a political remedy, given the nature of the commitment or matter at issue, which was the political matter of parliamentary oversight of executive spending. We are dealing with spending power under Part VII. Currently, that is what the act advocates. You may decide to change the act; that is another matter.
Senator Beaudoin: In my opinion, it is one way or the other. It is either amend or litigate. I could be wrong. If it is not strong or tough enough, let's amend it. If it is tough enough, let's have that recognized by the courts!
[English]
The Chairman: As a follow-up to Senator Beaudoin's question, has the department, to your knowledge, been involved in a case where a person attempted to enforce his rights under section 41? If so, what position did the department take on the enforceability of that section?
Mr. Tremblay: The department has been involved in cases where these arguments were put forth. In the Contraventions Act case that I discussed earlier, the L'Association des juristes d'expression française de l'Ontario, with the backing of the Commissioner of Official Languages, put forth the argument that Part VII was executory and that we had breached it in implementing the Contraventions Act.
In its review of the argument, the court did not decide on the very issue of the executory content of Part VII. The court decided that it did not have jurisdiction to do so because of the language used in Part VII, because of the absence of a remedial provision in Part X of the Official Languages Act. The court did indicate that there are other remedies provided for beyond the Official Languages Act. However, it is important to make the distinction again that these remedies deal with rights that are provided under other parts of the act as provided.
Senator Beaudoin: Which court?
[Translation]
Mr. Tremblay: The Federal Court Trial Division.
Senator Joyal: Mr. Newman, if the Government of Canada, in its budgetary estimates, with respect to the various programs the Department of Canadian Heritage has to run in order to fulfil its mandate under section 43, were to write down $1 in each column of its budget estimates, what recourse would there be in such a situation?
Mr. Newman: It seems clear to me that the case law of the Supreme Court in the area of administrative law is such that a completely unreasonable, irrational decision could be reviewed by the courts. That is the standard set by the Supreme Court for reviewing the decisions of politicians and officials.
[English]
Judge Binnie has said that there is no such thing as unfettered discretion.
[Translation]
That said, what I am trying to say is that such a remedy is really the exception. Normally, ministers are supposed to act in good faith. The scenario you have described is an extreme. So the real question to my mind is what would happen if there were budgetary constraints requiring across-the-board cutbacks. Some groups might then feel that their rights or interests were breached.
In such a situation, if the government has acted in good faith, what can the courts add? That is my question. What is the point of amending the act? Is it to tell stakeholders or groups that from now on, they can litigate every time? The question, as Senator Beaudoin, is: what will you get? A declaration that the government must commit itself? It is at the nuts and bolts level that things get trickier. It is not about one dollar. It is about a few fewer dollars because of other priorities, all the things you politicians must constantly balance. Do you want that left up to the courts instead of Parliament?
Senator Joyal: If I recall correctly, in the Penetanguishene case, the Harris government in Ontario, which had just been elected on a relatively clear deficit-reduction platform, indefinitely postponed construction of the Penetanguishene school. The parents went to court. The court very clearly said that even if the government was given a mandate to handle the finances in such a way as to reduce the deficit, the fact remains that a democratic mandate from the public is a constitutional obligation that the government cannot avoid. The court made a similar comment in Arsenault-Cameron, a case you are very familiar with, in which the minister from Prince Edward Island made the same argument that the institution that the parents from Prince Edward Island were calling for ran counter to the government's budget priorities; the court nevertheless upheld the parents' right.
Mr. Newman: But in both of the cases you have referred to, unless I am mistaken, the issue was the application of a constitutional right, under section 23. What we are talking about here is a commitment that does not necessarily create the same kind of rights as section 23. At least, that is what I think.
Senator Joyal: That is where our opinions differ. I do say so with all due respect. I have had extensive experience at the Department of Justice Canada in interpreting the Official Languages Act. You recall the first act of 1969, and you refer to it on page 2 of your brief:
... As well, the decisions of the court seemed to be divided on the issue of the true scope and the enforceability of the declaration of equal status set out in section 2 of the Official Languages Act of 1969, as the Joyal and Gens de l'Air cases showed. Once again, mention should be made of the essential contribution ...
This refers to the contribution I made back then. Basically, the same old question keeps coming up: is it binding or declaratory? With all due respect, in 1976, when we were before the Superior Court, the Department of Justice argued strenuously that section 2 was merely declaratory and not binding. It took a judgment of the court on the first Official Languages Act before we finally got section 16 of the Charter. The difference of opinion between you and me is that you construe the Official Languages Act as an ordinary statute.
I am wondering whether you might not give us your view of the case law interpretation given by the Supreme Court regarding the nature of the Official Languages Act. I will give you a hint, as my old professor used to say. Take the judgment in the Blais case. This is a judgment you contested because you were on the side —
Mr. Newman: Now this is the collective ``you,'' I assume.
Senator Joyal: Yes, it is the collective ``you,'' not you personally. But in the Blais case, once again, you were supposed to be arguing the government's obligations with respect to French-speaking jurists in this case. What did Justice Blais say about the Official Languages Act? I am quoting paragraphs 85 and 86 of the judgment:
In its recent decision in R. c. Beaulac, the Supreme Court went so far as to characterize the Official Languages Act as ``quasi-constitutional.''
The judge then quotes from the Supreme Court judgment:
The 1998 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an extension of the rights and guarantees recognized in the Charter [...], it belongs to that privileged category of quasi-constitutional legislation which reflects ``certain basic goals of our society'' and must be so interpreted ``as to advance the broad policy considerations underlying it.''
Which principles for interpreting the Charter must be applied in interpreting the Official Languages Act?
The court said two things: it said that the Charter has certain objectives, that it must be interpreted liberally, without regard to a political affiliation, and that it has a remedial impact for groups that suffer discrimination. These are the three main characteristics for interpreting the Charter.
I am not calling into question your presentation today. It is based strictly on the act. However, it does not take into account what the Supreme Court said as to the particular nature of the Charter. Could you tell us what, in your view, is the exact nature of the Official Languages Act? Section 43 states, and I will read it in English:
[English]
43. (1) The Minister of Canadian Heritage shall take such measure as that Minister considers appropriate to advance the equality of status...
``Shall take.''
[Translation]
There is an obligation there that is in the extension of the Charter.
[English]
Mr. Newman: As the minister considers appropriate, yes.
[Translation]
Senator Joyal: There is some discretion, but it is limited by the objectives of the legislation. And when you interpret Part VII of the act, you must interpret it using the characteristics the Supreme Court applies in interpreting the Charter.
Consequently, you cannot interpret it literally, as you suggest today in your brief. Such an interpretation focuses too much on the details of the various provisions and the background of the legislation. I think your brief should show that the current act is not separate from an evolutionary process that results in the principles acknowledged by the Supreme Court in the Reference on the secession of Quebec, and recognized by the Divisional Court of Appeal in the Montfort case. And what is the fundamental principle? It is the protection of minority language rights. Paragraph 81 of the reference states:
Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference Supra at p. 71. Although Canada's record for upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.
And I would even go so far as to say in the evolution of the interpretation of the Constitution.
Unlike you, I think there is an obligation under section 40(6) and sections 41 to 46, and I think this obligation is justiciable. It is not justiciable because of the way the act is drafted in sections 77 and 78, for the time being. The obligation is justiciable on the basis of the constitutional principles recognized by the Supreme Court and by Justice Blais, when he said that if section 18 of the Federal Court Act had been mentioned, he would have had to rule on the obligation of the Government of Canada with respect to section 41.
[English]
Senator Bryden: Madam Chair, if that is a question, could we give the witness an opportunity to answer?
Senator Joyal: You will have your time for a question.
Senator Bryden: We are here to hear the witness. You are taking half an hour to ask the question. I would like to have an answer from the witness.
The Chairman: Senator Joyal, you have had quite a while to promote your position.
Senator Joyal: I thank you, Madam Chair, for your leniency. I will just ask for the answer to that question, with all due respect to my colleague, Senator Bryden.
[Translation]
Could you come back with a presentation on the nature of the Official Languages Act, in light of the interpretation given in all the cases where the Canadian Department of Justice has been involved?
Mr. Newman: If I might reply now, I will not have to come back with a second study on this matter. Our position has been clear from the outset. The Official Languages Act is a quasi-constitutional act. We have claimed that since the tabling of Bill C-72 by the Department of Justice. In fact, it was the very nature of these constitutional obligations under sections 16 to 20 of the Charter that brought about a reform of the 1969 legislation.
We do agree on a number of points, despite the way in which you presented your argument. I too think that Part VII is part of this quasi-constitutional act, but the fact remains that it is quite clear from the scheme of the act and the background to it, that an act is interpreted first on the basis of these factors. Of course, it is true that an act can be interpreted in the light of constitutional principles. I was the counsel in the Hôpital Montfort case, in the reference on secession and in the Arsenault-Cameron case. I am very aware of the application of constitutional principles whose objective is to protect minorities. The fact remains, as you said, that this part of the act does not in itself create a justiciable obligation. It could happen at some point, with changes to the case law and the application of constitutional principles that a court could interpret this commitment in a manner different from that which we presented. With respect, I do not think that the presentation I just made was arid, legal and technical. In my paper, I gave my assessment of the constitutional nature of the first five parts of the act, and of the quasi-constitutional nature with respect to the provisions that go beyond what is required, according to our best knowledge, by subsections 16(1), 17(1), 18(1), 19(1) and 20(1) of the Charter.
Beyond that, we share the same objectives and viewpoints as regards the Official Languages Act. It is a quasi- constitutional act and should be interpreted broadly and liberally on the basis of its objective and taking into account its preamble. However, it should also be interpreted in keeping with the intentions of Parliament, as demonstrated, and as have been shown by the political players involved and by the scheme of the legislation.
[English]
The Chairman: I will just remind honourable senators that it is now after the time I was hoping to conclude.
[Translation]
Senator Gauthier: I would like to humbly submit — I am a man of the people, not a lawyer — that the minimalist interpretation by the Department of Justice, in fact, gives the federal government the right to contravene the Official Languages Act. Let me tell you why. You may tell me that there would be political repercussions if the Alliance Party, for instance, came into power tomorrow morning. Yes. That is right. What would happen? I am not inventing anything. Their policy is to give control over language policy to the provinces and to take it away from the federal government. You have already alluded to this. You said that we would need the provinces' cooperation and that we would have to negotiate with them. I agree that the enforcement of the law falls under provincial jurisdiction. But I am in the business of politics. I submit that if the Alliance Party, which is the official opposition, came into power, there would not be much left of official languages!
Madam Chair, will the Justice Minister appear before our committee so we can discuss policy with him? This is important. I simply want to make the case that there are important policy issues we must address. We have been told that section 41 is an objective, but that it is political and not binding. It is declaratory.
Mr. Newman drew a comparison between the Auditor General of Canada and the Official Languages Commissioner. But I replied that this was comparing apples and oranges. The Official Languages Commissioner produces an annual report giving the state of the situation. As for the Auditor General of Canada, I know how that game is played because I was involved in it years ago.
When the Auditor General of Canada produces his reports, comments or notices, the opposition traditionally chairs the public accounts committee of the House of Commons. I myself chaired this committee at one point when I was in the opposition. It is the opposition's job to criticize the government and to use the Auditor General's report to get the government to change its accounting methods or systems. But the situation with the Official Languages Commissioner is completely different. The commissioner more or less plays the role of an ombudsman who produces an annual report to Parliament stating whether the legislation has been enforced. The role of the ombudsman is not to investigate whether an organization is using the correct accounting methods or whether Air Canada is failing at its task. She cannot take legal action under Part VII of the act. You said that we can take legal action. But that is not possible unless you have a lot of money and excellent lawyers who cost a bundle.
The political argument does not hold water. In reality, if a future government — say, the Alliance — came into power, things would happen which you and I and members of the committee would not agree with. Please do not invoke political consequences as an argument, because it does not work. Would you like to answer my question?
Mr. Tremblay: I will cautiously address certain issues you raised. You must draw a distinction between Part VII and the fact that it does not provide for legal recourse, and the comparison made with the Auditor General and other provisions of the law, such as Parts I, II, III, IV and V, which are judiciable and provide for legal recourse. The distinction is as follows. Parts I, II, III, IV and V are a repetition and an extension of sections 17, 18, 19 and 20 of the Charter.
They represent the repetition and extension of constitutional rights which, unless they are amended, provide protection and are enshrined in Canada's Constitution.
It is only with regard to that part of the act, which is a ``program'' extension of Part VII, that the comparison is valid.
Mr. Newman: I hope that what I said was not too technical. The Official Languages Commissioner plays both the role of citizen ombudsman and linguistic auditor. She can launch an investigation on her own initiative based on complaints she has received. These investigations are called official language reviews.
There is no perfect comparison in case law and I in no way want to devalue the issue of official languages or say that it is just as technical as a budget review would be in other circumstances.
What I am saying is that Part VII is for the most part based on spending power, that it involves the allocation of resources and that the Official Languages Commissioner plays a role which, in some respects, may be compared to that of a linguistic auditor.
Senator Gauthier: I was there when the law was passed in 1998. Mr. Newman was there as well. I remember what Mr. David Crombie answered in response to a question I put to him. He replied that it was important to understand that the spirit of Part VII was one of encouragement and not of command.
Do you remember this, Mr. Newman?
Mr. Newman: Yes, that was well put.
Senator Gauthier: In 1998, the intent of legislators was to make the act binding, to change the situation, to amend the Official Languages Act of 1969 in order to strengthen it, by excluding legal recourse from Part VII, as Mr. Stéphane Dion said.
The right to legal recourse was removed. As Judge Blais said: ``Do not bother me with your problems. The Official Languages Act does not apply in the case of offences. Rather, refer to section 18 of the Federal Court. This is not my jurisdiction...''
I have read and annotated the Blais decision. Believe me, when you do not have any recourse, you have no rights. This may sound self-evident, but that is how I see it: no recourse, no rights.
Mr. Newman: With all due respect, as far as the Auditor General is concerned, where there are rights, there is recourse. But it is not always a legal recourse. The only thing we are claiming today is that when the bill was passed in 1988, the intent was to create a provision which was non-binding, but which went further than the legal and technical aspects of the act.
The point was to do more. Section 41 promotes the idea that official languages must progress, be promoted and developed. We must follow up on that commitment and turn to the various types of recourse at our disposal. I simply said that it was not a legal recourse.
Senator Gauthier: I hope you understand, Mr. Newman, that I am not attacking you personally.
Mr. Newman: I am relieved to hear that.
Senator Gauthier: In the March 24, 1988 issue, Mr. Crombie said that the government would not satisfy itself with objective statements of principle and that it fully intended to take concrete measures.
Mr. Newman: Yes.
Senator Gauthier: Speaking before the Standing Committee on Legal and Constitutional Affairs, a spokesperson for the Lawyers Association said that, for instance, it was difficult to obtain a French ruling in London, because everything is done in English and that you have to bring a judge from the outside, since there are not enough French- speaking judges.
Do you understand the problem? We are told that we have rights. We do not want to hear empty promises. The three last rulings made by the Supreme Court after the budget cuts were implemented were the Beaulac, the Reference on the Secession of Quebec and Arsenault-Cameron decisions, which changed the decision. What I basically want to do is amend the act to adapt and modernize it.
[English]
Senator Grafstein: I thank the witnesses for raising in a very candid way the difficulties that Senator Gauthier is confronting when he seeks to achieve perfection. The achievement of perfection is a society that is perfectly bilingual. That is the objective of the Official Languages Act. That is the objective of the Constitution. It is the objective to have one day a society that is perfectly bilingual. That would meet the objectives of the act.
Obviously, we are flawed human beings. Many of us will never be able to attain that standard. We must take a look at the act in a careful way to determine whether the minister is in breach of his or her duty.
In my view, there is a misconception by many ministers who have appeared before this committee as to what their duties are. The Minister of Health is responsible for the administration of public health in this country, yet, when glaring gaps in information come to his or her attention, they do not necessarily allow the public to know. While it may be discretionary or mandatory, what is the nature of that duty to let the public know?
It is the same with the Minister of Justice. The Minister of Justice is responsible for the administration of justice, responsible to Parliament and responsible through Parliament to the public. When he or she fails in that obligatory duty — and Senator Joyal pointed it out there are mandatory requirements — what is the minimalist position that would make the minister liable for a failure of duty? We know the political action. The political action is that if minister fails in his or her duty, the minister is, in effect, removed. That is too perfect, so we must look at it in a more delicate way.
In regard to the Montfort case, it was simple. The department took the minimalist position about that initially. They then concluded, as did the courts, that a withdrawal of service was below the standard of duty for providing service in French to the public. To my mind, that was the essence of that case. It was not very complicated: Withdrawal of services falls below a certain standard; it is wrong.
You then lead us to deal with objectives that are very complicated. A political, moral or ethical measurement would be complicated. You have used those arguments.
Again, that is fine. However, how do you measure that? How do you measure the nature of the duty of the minister in legal terms?
The minister has very extensive, mandatory obligations. As Senator Joyal pointed out, it is stated that the minister shall take such measures considered appropriate to advance the equality of status in the use of the English language, enhance the vitality of linguistic minorities, encourage and support the learning of French and English in Canada and foster an acceptance. It is very powerful language. You cannot have more powerful language.
I have a very narrow question: What statistical model, or what calculus can you give us in a legal way against which we could legally measure whether or not the minister has fallen below a standard his or her duty to Parliament to exercise the legislative responsibility that he or she has been given under this statute? What is the statistical model?
It is one thing to say that there is a political test or a moral or ethical test, but what is the statistical model. We know in the Montfort case that withdrawal of services was a breach of duty, breach of responsibility.
What is your test? What is the test of good faith in the exercise of a minister's duties in this instance? That is the point at which Senator Gauthier has been trying to arrive. We know the minimalist; it is nothing. What is the standard of care? What is the duty? What is the bona fides?
Ministers, under the common law, have been advised repeatedly that they must exercise their public duty in good faith, bona fides. That is the standard.
We are scrambling here. Give us some advice as to when the minister falls below a standard of good faith or bona fides with respect to the exercises of his or her duties under the statute?
Mr. Newman: It is difficult for a lawyer to respond to that question because it is a political judgment call, first and foremost.
Senator Grafstein: That was not the situation in the Montfort case. In that case, they came to a conclusion that it was a breach of duty.
Mr. Newman: Yes, but in the Montfort case they looked at a number of things. They first looked at the application of the French Language Services Act of Ontario and the way the services were withdrawn by the health services restructuring commission. They simply did not meet any of the procedures or mechanisms that the Act itself had set out. There had not been the proper consultation. Many administrative guarantees and procedures had not been met in the way in which they went about doing it. They did not take it into account in their mandate, even though it was within their mandate when they looked at the public interest.
Senator Grafstein: To help you with your answer, those acts were all premised on the Official Languages Act.
Mr. Newman: Yes and no. The French Language Services Act of Ontario is based, in some respects, on section 20 of the Charter. There are other provisions in there as well that are based on other provisions of the Charter, including the bilingual enactment requirements.
To say that it is based on the Official Languages Act is not a clear comparison. The first question was a question of administrative law. Applying administrative law principles to the way the health services commission acted, it did not fulfil its mandate in relation to Montfort in a way that properly considered the unique role of that hospital in the minority language setting.
When you ask what standard to apply to the minister — and in this case you mean the specific mandate of the Minister of Canadian Heritage by virtue of section 43 of the act. As you see, there is a long list from (a) through (h) of various measures that the minister may take to advance equality and status of use of English and French in Canadian society, without restricting the generality of this. These are given as particulars of the type of actions the minister may contemplate.
It is true; the minister shall take these measures. In fact, that was a concern in earlier drafts that the word not be ``may'' but rather ``shall.'' However, at the same time, it is tempered that they be measures that the minister considers ``appropriate.''
When the minister of the day in 1988 — Mr. Lucien Bouchard — appeared before the Senate committee, responded well to that question. He responded that the provinces are not at all the same starting block in terms of the equality of the official languages. The makeup of each province is not the same.
Therefore, the ministers must act carefully and with discernment in terms of the application of these measures in order that people do not say that they will do the exactly the same thing in Moncton or Montreal as elsewhere. There are many factors that must be taken into account. Those factors are typically not justiciable, juridical factors, but rather a balance that takes into account social interest, historic injustice, demographics, priorities, and a give and take in negotiating with groups as to what is in their best interest and the collective interest of all. It is very much a political calculus. Perhaps my colleague can comment beyond that.
Senator Grafstein: The same issue confronted Ontario when they tried to deal with gender equality. In effect, it became a statistical model that was developed —case-by-case and office-by-office — based on certain principles.
The lawyers creatively presented the principle, but we must apply a statistical model. They applied it case-by-case, office-by-office.
You saying that since 1969 there has not been, in the heart of hearts of the Department of Justice, a model upon which we can measure whether or not there has been progress or not.
Mr. Newman: I will let my colleague respond. However, remember senator, that as I indicated, this same minister has a great long list of responsibilities in relation to the multiculturalism policy in Canada, as well. I am sure aspects of the broadcasting policy interest this minister.
There are many laws that create these broad policy mandates. These are important laws. I would think that the Multiculturalism Act is important in the same context as the Official Languages Act. Senator Beaudoin mentioned section 27 of the Charter earlier.
The approach will not necessarily be cut and dried. A fair amount of discretion has been left to the minister and the department to design ways of implementing their responsibilities. They are the people who are the experts on the ground than the lawyers are in terms of contact with the communities, their needs and their desires. It is much less a juridical and statistical analysis.
Perhaps it is statistical in terms of implementation these days. I mentioned demographics, but it is certainly not a matter of sitting down and planning out in terms of the legal framework something in the nature of a regulation. I do not believe that has been done. There is what they call, in French, ``un cadre d'imputabilité.'' to which Mr. Tremblay can speak. However, this is a responsibility that you may wish to invite the Canadian Heritage officials speak to.
Mr. Tremblay: That is correct. I would just draw to the attention of the honourable senators something that to me is quite disturbing. This apparent conclusion that nothing is being done to implement Part VII of the Official Languages Act disturbs me. That is simply not the case.
I will respond, in part, to some of the concerns expressed by Senator Gauthier using only my institution as an example. We certainly follow the minimal requirements — which are already quite extensive — of adopting legislation and drafting legislation in both official languages, serving the public in all of our offices throughout Canada in both official languages and allowing our employees to work in either official language here in the National Capital Region and in Montreal. Those are not negligible obligations.
We already do all of that. Beyond that, we do quite a bit. For example, in my group, my predecessor worked for one and one-half years on this text that I recommend to all honourable senators. I will be glad to have copies forwarded to you. It is a survey of all language laws in Canada. There are 398 legal texts, and there are references to all of the case law up to 1998.
We have updated it. It is on our Web site to assist those individuals about whom Senator Gauthier speaks who would like to know their rights and perhaps to exercise remedies if their rights are not being respected.
The federal government is also funding the court challenges program. I do not need to speak very long about that. Senator Joyal is quite aware of that program. We fund it. Some of the associations that came before you in the last couple of weeks, such as the Fédération des associations juristes d'expression française is funded, almost exclusively, by the Department of Justice and by Canadian Heritage.
We do quite a few things. You have a summary of some of our principal achievements. However, by no means all of our achievements were included in my presentation today.
Let us be clear that we are not starting from a zero-based approach. In fact, in my view, that is the principal distinction between the exercise of the statutory discretion and statutory duties in the French Language Services Act in the Montfort Hospital case, and this present situation. We are not confronted by a situation of total non-compliance.
Certainly, this committee would benefit from hearing from our colleagues from Canadian Heritage who could speak much more broadly and generally about the measures taken to implement Part VII.
The Chairman: Thank you very much. At this point, I will cut off the discussion.
I wish to suggest that our witnesses provide some copies of the documents that you have mentioned. The senators can then access them.
You began your presentation tonight, Mr. Newman, with a statement that the Department of Justice legal opinions given to a department are confidential. They are covered by client confidentiality. However, the arguments, Mr. Tremblay, in the case that you mentioned at the very beginning are public document. Perhaps you could provide us with the arguments that the Department of Justice made in that case.
Mr. Tremblay: I certainly will.
Senator Gauthier: I just wish to make a correction to what was said. The Court Challenges Act will not take a case under Part VII of the Official Languages Act. They are forbidden to use any public money for that purpose.
The Chairman: Public money is being used for some things but not for others.
Mr. Tremblay: That was my point.
The Chairman: I thank you very much for coming tonight.
Mr. Newman: It was a pleasure and an honour.
The committee adjourned.