Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 29 - Evidence
OTTAWA, Wednesday, March 13, 2002
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 3:44 to study Bill S-32, an Act to amend the Official Languages Act (fostering of English and French).
Senator Gérald-A. Beaudoin (Vice-Chairman) in the Chair.
[Translation]
The Vice-Chairman: We will use a round table format, and I would ask our witnesses to try to keep their presentation to six or seven minutes, because there will be a great many questions. I will now turn the floor to Professor Magnet.
[English]
Mr. Joseph Magnet, Professor, Law Faculty, University of Ottawa: Honourable senators, it is my honour and my privilege to attempt to be of assistance to you.
I must note my respect for Senator Gauthier. He has waged a long and honourable battle in the cause of advancing the rights and status of official language minorities. Bill S-32 continues this struggle. Its cause is just; its intentions are noble.
I will address these four issues. First, is Part VII of the Official Languages Act, and especially section 41 thereof; is it executory or declaratory? Second, is the intention of Bill S-32 to modify the existing regime? Third, does Bill S-32 accomplish its intention? Finally, I will suggest some amendments that may further the intention of Bill S-32 as I understand it.
I will begin with the question of whether section 41 is executory or declaratory. This is language that arises out of Senator Joyal's famous case, Joyal c. Air Canada, a 1976 decision of the Superior Court of Quebec. In this case, Senator Joyal, then a Member of Parliament, and 40 pilots, impugned the validity of an internal Air Canada policy that prohibited the use of French in operational and navigational flight deck communications. The Commissioner of Official Languages intervened in this case to support the broad proposition that section 2 of the Official Languages Act was more than declaratory of political intent.
The proposition was that section 2 of the Official Languages Act was executory, by which it was meant that it was justiciable, that a right of action in the courts could be founded on the basis of section 2 and a legal remedy could be built to further its purposes. In this case, section 2 could resolve the dispute over the prohibition of the French language in these operations of Air Canada.
Chief Justice Deschênes sustained that challenge; and, six years later, on the eve of the Charter of Rights and Freedoms, a split Quebec Court of Appeal reversed. Chief Justice Deschênes said that section 2 was executory, which is now the contested proposition that is before this committee with respect to Part VII of the Official Languages Act.
In 1969, there was an intent to project the French language fairly, equally and equitably throughout the federal administration. This would take some time and a commissioner, an executive and administrative instruments were set up to make this happen on a reasonable timetable. The pace was to be controlled by this machinery and not by the court saying, ``Well, you should go faster or slower or do this or that.'' It was declaratory of a particular purpose and the political branches were to dictate the pace.
The Quebec Court of Appeal disagreed with Chief Justice Deschênes that this was something in which the courts could interject a different pace or different considerations for the implementation of equality between the two language communities.
Section 2 of the Official Languages Act was entrenched as section 16 of the Canadian Charter of Rights and Freedoms. It appeared in a different context as section 16. There was no commissioner or executive machinery. Instead, the declaration that section 16 of the Charter made about the equality of English and French was subject to an enforcement clause at section 24 of the Charter of Rights and Freedoms, which seems to suggest that the courts superintend the declaration of section 16. Presumably, this stripping away of the executive machinery, making it subject to an enforcement clause in section 24, should have resolved the controversy.
That it did not is because of the twist that the Supreme Court of Canada took in the late 1980s in the Société des Acadiens du Nouveau-Brunswick and MacDonald cases. In those cases, the Supreme Court of Canada said that the language rights that we have here are minimal. They are subject to a political process. We can see this in section 16(3) of the Charter. It is not for the courts to start adding requirements or setting the pace. This is basically for the political branches.
Although not in so many words, the majority of the court in these two cases made quite clear to those of us reading between the lines, that section 16 in the Charter was subject to the same fate as section 2 of the Official Languages Act, as interpreted by the Quebec Court of Appeal. It was declaratory, it was political, and the courts were not to butt in.
In 1988, Part VII came into being. Part VII seems to be implementing machinery for section 16 of the Charter. The question is raised whether Part VII in section 41, with its declaration in the Official Languages Act, is different. Is it executory? Can rights of action be found within it?
Senator Gauthier has interjected Bill S-32 into this debate, with the intent, as I understand it, to clarify what the Superior Court said in 1976. These are executory provisions. If the political branches are a little slow or if some are impatient or think that the political branches' dilatoriness is not justified, a complaint can be made in the court, and the court can, in proper circumstances, say, ``The pace is too slow, the extent of penetration of institutional protection is not broad enough,'' and the court can correct and chide and supplement by giving a remedy in the same way that Senator Joyal had asked in 1976.
Some say — and I know that Senator Beaudoin is of this opinion — that this executory force is already in section 41 and that rights of action can now be found within it. Many are of that opinion, particularly because of the change in the jurisprudence in the Supreme Court of Canada. I know you have heard much about this in your deliberations. You have heard about Beaulac. I will remind you that Beaulac says that language rights that are institutionally based require government action for their implementation and therefore create obligations for the state.
Based on this kind of language, and also the court consigning the jurisprudence of the late 1980s — Société des Acadiens du Nouveau-Brunswick and MacDonald — to the scrap heap of constitutional law, it is thought that this now settles the debate. I suppose that this puts Bill S-32 into some new light.
I am not so sure it completely resolves the debate, however, because the court in Beaulac is talking about language rights that are institutionally based, requiring action for their implementation. I understand ``institutionally based'' to mean rights based in the political institutions, the courts, the legislatures, and the bureaucracy, which are governed by sections 17, 18, 19 and 20 of the Charter.
It may be that the rights that are based in Part VII — particularly section 41 — are not institutionally based. Therefore, it may be that they are not executory again. I do not think I need to conclude that because Bill S-32, the proposition before you, means to conclude this debate by giving executory force and right of action in the court.
Senator Gauthier has been quite clear about the intent of this bill in testimony before you.
One problem that Bill S-32 may encounter is that it relies on section 16 to draw its strength. It makes a specific reference to it. It says, ``In accordance with subsections 16(1) and (3), the Government of Canada shall take the measures necessary...''
It may be that the spirit of the 1980s will return in the Supreme Court of Canada. This proposition, whether or not section 16 is executory, has not been squarely put. When that proposition reaches the Supreme Court of Canada, those of us who think that it is executory may be disappointed. If that is so, is Bill S-32 sufficiently clear, since it draws the spirit out of section 16? If section 16 is found to lack executory force, would section 41 of the Official Languages Act, drawing on that spirit, have executory force itself? Perhaps it would not. I do not think that the language is necessarily clear on that point.
For this reason, to ensure that Senator Gauthier's intent is completely expressed in Bill S-32, I would propose some additions to the language that is before you with Bill S-32. I have circulated a copy of these amendments, and perhaps I can take a minute and comment on them.
I would suggest that proposed section 41 become proposed section 41.(1) in the bill. To supplement it, I would suggest this language — in other words, the debate is the following: Is section 41 executory or declaratory? Section 41.(2) says that section 41.(1) is executory. This lays the debate to rest.
The Deputy Chairman: It is clear.
Mr. Magnet: What does it mean? Section 41(3) and 41(4) offer clarification of that proposition. This is something else that has been debated. Section 41(3) states:
Federal institutions are required to implement the commitment in s. 41.(1) with all deliberate speed, subject only to such reasonable exigencies, provided by regulation, as can be demonstrably justified in a free and democratic society composed of two official and equal linguistic communities.
The point is that if there is to be some derogation or taking away from this spirit, it must be provided by some regulation, and that must be justified according to this recognition that we have two official and equal linguistic communities. I would think that the court would develop a justification such as section 1 of the Charter, a high standard of justification on evidence.
To complete this thought about declaratory or executory, section 41.(4) states:
Any person aggrieved by the failure of a Federal institution to respect its obligations under this section, after having exhausted all other remedies under this Act, may apply to the Federal Court Trial Division for such remedy as that court considers appropriate and just in the circumstances.
Again, this adds the detail that has been debated in the last 15 years on this question. In other words, it is executory in the sense that a person can go to court to say that government institutions are not proceeding quickly enough and they are not going far enough. A court could consider that.
However, before doing that, the requirement of section 41.(4) is that the administrative branches do their work first. In other words, that there be investigation by the commissioner of the filing of a report, and so on, which is now contained in the Official Languages Act. After all, why do we have this machinery? It is because we think it is useful. Let it do its work. If a person feels some area has not been penetrated by official bilingualism, then the court is there to consider whether not reaching that corner or not going that fast is demonstrably justified, considering we have two equal and linguistic and official communities.
This is my attempt to assist you to try to clarify the thoughts in Bill S-32, as I understand them. I am ready to take your questions.
The Deputy Chairman: We will hear from all the witnesses before we proceed with questions.
[Translation]
Mr. Julius Grey, Associate Professor, McGill University: I have given you an outline of my remarks and a copy of my presentation to the Larose Commission last year. As far as language rights in Quebec go, my presentation to this commission still reflect my views.
I am sure we all agree with the essential nature of bilingualism and the equality of the two languages. There is no Canada without bilingualism. The country would not be the same. In the 19th century, the two languages were not equal, and they did not enjoy constitutional protection, except to a fairly limited extent. Today, this is an essential feature of Canada.
I would like to emphasize the findings in the Mahé and Beaulac cases, in which it was found that the act has exactly the same impact in Quebec and elsewhere. On a number of occasions, the Quebec government has tried to put forward the view that the act should apply particularly to the protection of French. I will discuss the interpretation of the act later in my remarks. In Quebec, as in the rest of the country, French must be promoted. Part of my remarks will be a defence of the thesis regarding the protection of French. In Quebec, the English minority must be protected, and in the rest of the country, the French minority must be protected.
These are distinctions that must be made with respect to the measures required to ensure the vitality and development of the anglophone and francophone minority communities. The measures are different in Quebec. We must recognize that. In the rest of the country, there are very few francophone institutions. In Ottawa, the government tried to close down the region's francophone hospital. The courts prevented this from happening.
In Quebec, on the other hand, the institutions exist. The problem in Quebec is not the establishment of institutions. In terms of institutions, members of the minority group in Quebec have the same rights and opportunities as the majority. I am referring to education, health, particularly in Montreal, in areas where the minority community lives.
There is a problem in Quebec, which is partly real and partly psychological. It is a perception on the part of the minority that it is not being treated fairly. That is partly true and partly false. In the 1970s, there was a process of catching up, which was a type of discrimination. This could be termed affirmative action. Today, this is less true, but from time to time, we still see some traces of an unfair policy which means that there is not enough integration of the two language groups. In Montreal, the two groups live in the same way and are relatively bilingual. However, they do not know that the two groups are exactly identical. I live in both groups. I see no difference. One day, I go to a party where the language spoken is French, and the next, I go to another party where the language spoken is English.
In Quebec, we have to apply the measures designed to integrate anglophones into the population, and defend their rights against the remaining traces of discrimination. Everyone must understand that there is no major injustice, and that there are some things that the federal government could do. For example, there is injustice in the public sector, not only in the provincial public sector, but also in the federal public sector, because the minorities are under-represented. These individuals think they do not have the same rights as others, which is just as serious as it would if it were true. We must destroy this impression, which has no basis. Consequently, different measures must be introduced in Quebec and the rest of the country. That must be understood.
Promoting the knowledge of the minority language by members of the majority community is one of the common measures that must be part of any federal plan. It is not just the development of the minority or majority communities that must be fostered. In Montreal, Ottawa or Moncton, that is not the greatest problem. There is some knowledge in those areas, but outside of them, both the anglophone and francophone majorities in other parts of the country are not familiar enough with the other language.
The protection of communities depends on knowledge, an appreciation of the richness and cultural value of the other language by the members of the majority. If we help individuals in the majority community become bilingual, we strengthen the minority and their ability to live in their own language, to be appreciated and to be integrated into the majority, regardless of which community is in the majority or the minority. There is a common aspect for the country as a whole: promotion of knowledge of the minority language by the majority community.
I will now turn to a topic which seems controversial, but is essential, the protection of French. As you know, I have represented clients in cases involving the defence of English in Quebec. This was not out of contempt for the language that remains my mother tongue. However, since the French language is fragile, specific measures must be taken to strengthen the vitality and promote the development of the two minority groups. The use of French must be strengthened throughout the country.
We must be involved in the international movement to protect French, through French cinema and French culture. We must ensure that the predominance — megalomania is pointless, Canada as a whole cannot turn around the world trend — and the protection of French throughout the country is an essential feature that is absolutely not contrary to the rights of the anglophone minority in Quebec. This anglophone minority can be promoted and strengthened, and its importance acknowledged. It is important to say this, because the census shows a drop in the percentage of francophones in Canada. If this continues, it could become disastrous for the bilingualism policy, and, therefore, for the very identity of Canada, which depends on bilingualism.
We cannot have a Canada that is just English or just French. We need a bilingual Canada. The protection of French is essential. The protection of French could be mentioned as a specific objective.
I have a criticism about the wording of section 41. Instead of referring only to the measures necessary to ensure the vitality and development of the minority communities, it should refer as well to individuals who want to use both languages.
Let me give you an example. Most Quebecers consider me an anglophone. I am an avid consumer of French cultural products in Montreal. It is not just a community issue, but an individual one as well.
It would have been a good idea to introduce a clause. That is my fault. I did not take the trouble to do so, because my colleague, Professor Magnet, drafted an amendment. However, I think the recognition of individual rights, and rights to integration, is an important objective, so that Canadian citizens can identify with the two communities — or more — at the same time, whether they speak English or French.
In other words, bilingualism is not just a community issue. I think that outside Quebec, the francophone community must be protected. I have no doubt about that, but I think it goes beyond that. The success of the bilingualism policy depends on the presence of a number of individuals whose identify with both languages. These are people whose linguistic identity is not entirely truly or well defined, or who may change this identity at various times in their life.
It is an excellent idea to have this clause which, to some extent, is binding. We must have measures in place, and we must acknowledge that they are not the same in Quebec, however, their importance is the same.
I think we must stress programs to teach the minority language, the protection of French, and the individual aspects, which may not have been given enough protection, even though the last sentence corrects this omission somewhat.
Mr. André Braën, Professor, Faculty of Law, University of Ottawa: I was honoured twice by the Parliament of Canada this week, because yesterday, I was also invited by the Joint Committee on Official Languages to make a presentation on section 41. I think that some of the members present today were at yesterday's meeting as well. I will therefore try not to repeat myself too much and I will make a shorter presentation.
One of the criticisms of the original Official Languages Act, which was passed in 1969, was the lack of a clear commitment within the legislation, regarding the Government of Canada's responsibility to promote the two official languages and to promote the development of the two official language minority communities in Canada.
The 1988 Act, more specifically Part VII and section 41, are, to some extent, a response to the earlier criticism. As drafted, section 41 can be interpreted in two ways. Some may see it as an invitation to the government to be involved in promoting the two official languages and the development of the official language minority communities. Others may see it as an obligation on the part of the Government of Canada to take action in this area.
As regards the federal administration, there is some ambiguity with respect to this interpretation. The Office of the Commissioner of Official Languages published a study on Part VII in 1996, which showed, on the basis of a survey, that senior public service officials had a dual interpretation of the commitment set out in section 41.
Is it an obligation or merely an invitation? The Contraventions Act case which was brought before the courts not so long ago, illustrated the ambiguity arising out of the government's attitude, and, more specifically the attitude of the Department of Justice and Attorney General of Canada, in this regard.
In some cases, it is mandatory, and in other cases it is not. It is a political principle — nothing more. The executive is now uncomfortable with this. In legal terms, a provision such as section 41 presents some challenges as well. If we look at the approaches put forward by the Supreme Court of Canada, it is possible to read section 41 in a very liberal, generous way, and say that the government is required to do something. The government must take action. At the same time, there was another approach, based on a political compromise, which gave a completely different reading to section 41.
In legal terms, the Supreme Court of Canada has clarified this area a great deal, particularly in the Beaulac case. We now know that the language provisions must all be read in a generous and liberal way, based on the fundamental characteristics of Canada, namely linguistic duality. This is based on the principle of equality set out in section 16 and on the principle of protection of minorities, such that in legal terms, it would be very difficult to try to show that this section 41 contains a genuine commitment on the part of the government.
In any case, Bill S-32 put forward by the Hon. Senator Gauthier has a tremendous advantage in this regard. It clarifies the issue in legislation. Clarification of a provision such as section 41 may be done by the courts, but, if Parliament chooses, it may also be done by means of legislation.
Bill S-32 clarifies the nature of the commitment placed on the federal government and these institutions as such. But will the bill put an end to the debate about the objective of section 41? That is a different matter. As drafted, the proposal contained in the bill does place an obligation on the Canadian government to take the necessary measures. It also gives the government a very broad discretion.
Clearly, there is an obligation to take action, but what does that mean in real, concrete terms? Will this put an end to the debate? A number of people have complained about the government's lack of action in this area, but I am not so sure. The fact is that it is up to the Parliament of Canada to decide whether it is appropriate to prescribe in a more detailed, descriptive manner the steps the government should be taking to promote the official languages and develop the official language minority communities.
[English]
Ms Ruth Sullivan, Professor, Law Faculty, University of Ottawa: I appreciate this opportunity to address the committee. I should point out that I am not an expert in linguistic rights. To the extent I do have expertise, it is in the area of legal drafting and statutory interpretation, and it is from that point of view that I will be commenting on section 41 and the proposed amendment to section 41.
I would like to be able to say that I feel section 41, as currently drafted, is executory and that any doubt about it would be put to rest by the proposed amendment. Unfortunately, looking at this from the point of view of statutory interpretation, I cannot make those statements. I very much support the spirit of the proposed amendment and the initiative of Senator Gauthier. However, I feel some doubt about the likelihood of success.
As I read section 41 as currently drafted, it is not executory. Any court looking at it from the point of view of statutory interpretation would be hard pressed to treat it as an executory provision.
If you read it in the context of Part VII as a whole, you have a declaration of principle that does not indicate who is responsible in section 41 for implementing the principle. Section 42 is almost equally as vague. Section 43 gets down to brass tacks. Section 43 identifies a particular minister who has particular responsibilities to carry out the commitment that is set out in section 41. It is noteworthy that the language of section 43 tracks the language of section 41, making it just about impossible to suggest that section 41, as is, does anything on its own. It seems to me that it is section 43 that will give teeth — to the extent that we have teeth — to section 41.
It is discouraging that section 43 confers a huge discretion on the Minister of Canadian Heritage. The Minister of Canadian Heritage shall take such measures — a legally enforceable obligation — as that minister considers appropriate to carry out the goals that are set out in section 41. This means the minister gets to decide what executory content will be given to section 41.
There are other things to be referred to as well, such as the marginal notes. The marginal note for section 41 says ``government policy.'' Section 43 says ``specific mandate of the Minister of Canadian Heritage.'' Looking at Part VII as a whole, I believe that it would be surprising for a court to conclude that section 41, as currently drafted, is executory.
We have a proposal, then, to try to cure that serious defect in the Official Languages Act as it currently appears. Certainly the language of the proposed amendment — ``shall take the measures necessary'' — is the language of legal obligation, but I still feel considerable concern about the enforceability of it because it is so vague. It will be very difficult for a court to decide on its own what measures are necessary to achieve that very large and vague goal.
Furthermore, no legal subject is mentioned as the person who has the responsibility. Even though we have moved from the vague language of the ``the government is committed to'' to the language that ``the government shall'' do something, it is still not clear what the government must do. I find it very hard to imagine a court accepting that it could formulate any specific measure that the government would be obliged to take. I cannot imagine a court interfering with such a clearly political type decision.
My own view accords with that of Professor Magnet, that is, if this is to be effective, some additional amendments would be necessary.
Certainly by way of consequential amendment, section 42 should be changed. It currently refers to the ``commitments'' set out in section 41. That needs to be changed to refer to the ``obligations'' referred to in section 41.
I would have thought that, at the very least, the report that the government must submit under section 44 must be more than just a report of what it has done. There should be some obligations there for the government to set out what plan of action it has taken during the course of the year to implement section 41, what appropriations it has made to support those programs and what regulations it has made to support those programs.
Another possibility would be to introduce a regulation making authority to support the general obligation set out in proposed section 41. I certainly would support Professor Magnet's suggestion that a provision permitting individuals to go to Federal Court to complain of lack of action would go a long way toward making it genuinely executory. I believe that is the key rather than declaring it executory. If it is still so vague, I do not know what the courts will execute. They must have some notion of what the specific content of the obligation is, and section 41 does not do that. However, giving persons an action to go to court and propose a particular plan goes far toward making it executory.
I have some concern about the word ``necessary'' in proposed section 41, because I think that makes it even harder for the courts to enforce it than something vaguer promoting it. Ironically, ``necessary'' means you must decide whether a particular program is necessary. Who will make that judgment? A much easier judgment would be to say that the courts have to decide whether a particular program promotes the goal. That would mean the government must do something, and that something must promote these goals, but we would not have to go so far as to say that that particular program was necessary to achieve those goals.
Therefore, while I very much support the spirit of this, I think it needs some tinkering before the goals will be achieved.
[Translation]
Mr. Roger Lepage, Lawyer, Balfour Moss: I will be testifying as a legal practitioner.
I have represented a number of members of the francophone community in Saskatchewan, the Northwest Territories, Yukon and Nunavut. I want to talk about section 41 of the Official Languages Act, once again from the point of view of a legal practitioner. In my view, section 41, 42, 43 and 44 are problematical because they lack clarity.
At the moment I am looking at Ms Sullivan's comments, because I filed a legal remedy in Yellowknife on behalf of the Fédération des francophones des Territoires du Nord-Ouest and on behalf of individuals who maintain that it is impossible to receive services in French and the NWT. Such services should be available, even though the territory comes under the exclusive jurisdiction of the federal government in accordance with section 4 of the 1871 Constitution Act.
There was a statement affirming that it is impossible to speak French in dealings with head offices in the NWT. We took legal action against the Government of the NWT and against the federal government, and we maintained that the latter is responsible for language rights in the three territories.
We also argued that Part VII of the Official Languages Act obliges the federal government to ensure that the language rights of people living in the NWT are respected. In its answer of January 28, 2002, the federal government alleged in its defence that Part VII of the Official Languages Act was simply a political position, that it did not guarantee any rights.
For its part, the Government of the NWT was of the same view and maintained that Part VII was a ``motherhood statement.'' Thus francophones are forced to wonder what the Official Languages Act means for them.
In any case, this is not the only problem in the NWT, because the three territories were specifically excluded from the federal Official Languages Act.
In 1988, an Official Languages Act was developed for the NWT. It is supposed to be more or less identical to the other legislation, but it is not.
As a lawyer, I think that ultimately the courts will find that section 41 is binding. However, in the meantime, people have to go right up to the Supreme Court of Canada to defend their rights. We tried to do this in the Federal Court, at the trial level. The Federal Court said that we had to go to the Supreme Court of the NWT, and the Federal Court said the same thing. So we had to start all over again.
It is very difficult for francophones to know where to turn when they try to defend their rights. Once we went to court in Yellowknife and were told that the Official Languages Act did not apply to us. Second, even if this were true, we were told that Part VII is merely declaratory — it expresses a political wish. In fact, the position taken by the federal government in other areas is quite similar. We take the position that the three territories are federal government institutions under sections 16 and 20 of the Charter. Sections 16 and 20 apply to federal government institutions. In its defence of January 28, the government said that the three territories are not federal government institutions and that they are now distinct governments, which are completely independent of the federal government. Consequently, sections 16 and 20 do not apply to them. So you see the problem this causes for the people who have taken legal action. They are told that they are in the wrong court, and then that they are in the right court, but that Part VII of the Official Languages Act and section 20 of the Charter are meaningless, because the territorial governments are not institutions of the federal government.
The federal government argued in the Federal Court that, under section 4 of the 1871 Constitution Act, it has the right to establish a territorial level of government and to delegate full responsibility to it, just as it would if it were a province, and that the three territories are therefore now ``provinces.'' When we ask whether they are part of the federal Crown or the provincial Crown, we are told that they are in a grey area between the two, and that they should not try to answer this question. That places the francophones in the same grey area, in which we do not know whether to turn to the federal government or to the territorial government to have our language rights upheld.
We maintain that these are two hands belonging to the same body. The federal government is the body that established this ``offspring'' in the north. It cannot simply say: ``I divest myself of my responsibilities as well,'' but that is what is happening.
If we look at what the federal government is actually doing in the area of language rights, we see that the politicians absolutely must clarify the legislation. As a legal practitioner, I do not want to have to go to the Supreme Court of Canada every time I try to defend people's language rights. I agree that sections 41 to 45 are ambivalent. They must be clarified. I support Senator Gauthier's effort.
I have just heard Professor Magnet's position for the first time. This is the first time that I have heard someone say very clearly that this section is binding, and that a procedure must be established to enable people to defend their rights if they are not respected. I prefer to go to the Federal Court if necessary. I also like retaining recourse to the Office of the Commissioner of Official Languages, because it is its responsibility to do this work. The tiny francophone community should not have to see every time whether it can get enough money to go to the courts to defend their rights.
I do not want to have to rely on the recent decisions by the Supreme Court of Canada to provide a broad, liberal interpretation of the provision. I do not want to always have to go back to the 1867 Confederation Agreement to say: ``On the basis of that, judge, you should interpret the provision in a broad and liberal fashion so as to promote the advancement of my community.'' I prefer to have politicians take a stand and have clear legislation on this matter. I congratulate the Senate for studying this issue. I have noticed that the federal government is hesitant to work on this, and, in the meantime, francophones are being caught between the two levels of government.
We saw what happened in 1988 in Saskatchewan and Alberta. At the same time as the federal government was passing the famous Official Languages Act, French was abolished in Saskatchewan and Alberta in order to overturn the decision in the Mercure case in the Supreme Court of Canada. Did this not run counter to the development of a francophone community? I can do nothing under sections 41 and 45, because I do not have the rights I need.
The Vice-Chairman: We will now move to the question period. Of course, we will bear in mind the point you have raised. Clearly, the act applies to the territories. Section 30 of the Canadian Charter of Rights and Freedoms says so very clearly. Is it not a court judgment that says the opposite?
Mr. Lepage: No, it is the defence filed by the federal Department of Justice on January 28, 2002.
The Vice-Chairman: That is rather surprising. We will take this legal, constitutional point into consideration.
[English]
We have made a great deal of progress in that the first witnesses who appeared before us dealt with the question of whether it is executory, declaratory or neither.
At the second phase, we studied Senator Gauthier's amendment and we will continue with that. We then had the amendments of Dyane Adam, the Commissioner of Official Languages. We now have the amendments from Professor Magnet, and others. Mr. Grey is in favour of an executive clause. Professor Braën has made comments on the meaning of proposed section 41.
I suggest that we stick to the question of whether it is executory or not, or imperative or declaratory. At the same time, we will take into account that other amendments have been made by expert witnesses.
[Translation]
Senator Rivest: If we were to settle whether or not the section is binding, this would clarify both Senator Gauthier's proposal and that put forward very clearly by Professor Magnet and others from a legal point of view. This would put an end to this futile debate.
The surprising thing is that the Department of Justice is arguing the opposite of what I understand to be the political will — namely the genuine promotion of our linguistic duality.
If the federal Department of Justice is really convinced that the section is not binding, the government should correct this, because these measures are necessary for the communities.
In concrete terms, what must be done to meet the binding obligation contained in the provision? Professor Magnet suggested an approach based on section 1 of the Charter, regarding reasonable limits. In our legislation on education or health, I imagine it is stated somewhere that the government must take the measures necessary to ensure the good health and education of its citizens. Are there any ways of evaluating the services provided by the government to ensure people's health and education? To your knowledge, is there such a provision in the legislation?
Mr. Grey: We have the Indian Act and we have our aboriginal people. The provisions of the Charter do not take anything away from the principle of multiculturalism.
We cannot eliminate all the ambiguities. We cannot have a code that will state ahead of time what is required to promote the various communities or individuals, particularly if the situation varies throughout the country. We cannot prevent people from turning to the courts. We could specify that the appropriate court is the Federal Court or the Superior Court in each province, but that does not change the fact that legal action would be required.
We could add some clarification about the nature of the measures. I was interested in Professor Sullivan's idea about removing the word ``necessary,'' or rather to say ``necessary or useful.'' This leaves the choice up to the court, but we understand that the government enjoys some discretion here. The measures would have to be unreasonable, inadequate, or completely lacking in good faith. The clause could be used to cancel negative measures, for example, in the case of cuts to the budgets of all French schools in a particular location.
These are things we can do: specify which court has jurisdiction, eliminate the word ``necessary'' and add some examples of measures, such as individual measures. I wanted to make some proposals about individual and institutional measures and draw up a list which is not comprehensive, but merely provides some examples. However, in the world in which we live, it will always be possible to turn to the courts.
Senator Rivest: You add a reference to individuals, not just to minorities. Legally, what would be the consequence of adding this reference, which is of concern to you? You say that bilingualism is not only institutional, and that it does not apply only to minorities. That is important, but in the context of section 41, what are the legal consequences?
Mr. Grey: In the list of measures, clear mention could be made of promoting programs for the majority community to learn the minority language. In such a case, the government would be acting in bad faith if it did not provide a reasonable amount of money to facilitate such language training programs. The amount would not be specified. It depends on the budget, which varies from year to year. There could also be a clear reference to integration, and it could be said that the measures would not necessarily be the same in all parts of Canada. This would strengthen individual integration measures in Quebec, where they are required, and institutional measures in Saskatchewan or Alberta, where there is an obvious lack of francophone institutions.
What I said is particularly relevant if we decide to draw up a list of examples, as a guide, to illustrate what types of measures the government could take.
Senator Rivest: As a guide.
The Vice-Chairman: You wish to comment on the word ``necessary,'' Professor Sullivan.
[English]
Ms Sullivan: You raised a question about what happens with the Canada Health Act, education legislation, and so on. The answer is that the acts contain a scheme. It is fairly typical of the Official Languages Act — and all large institutionally founding acts — to have general principles. Specific measures for implementing them follow.
The problem with Part VII of the Official Languages Act is that we followed that pattern, but the implementation is pathetically weak. Section 41 sets out the general principle. Section 43 provides the scheme for implementation, except there are no teeth in it. With all due respect to my colleagues, I do not think that this can ever be determined to be executory by the courts until something is done about section 43. I cannot see the courts telling government, ``You must spend this amount of money doing this particular measure,'' when section 43 clearly confers discretion on a particular minister to make those political decisions. I cannot see that happening.
Senator Bryden: Mr. Chairman, I know that you are well known for your conciliatory nature. However, I think you went overboard somewhat in your introduction when you said that we have come a long way in resolving whether or not section 41 is executory or declaratory. If we took a poll, we would find that it would be evenly split probably three ways. It is wonderful to hear the clear thinking of Professor Sullivan. I say clear because it agrees totally with my interpretation.
We have heard from witnesses who have said what you and I have said quite clearly. We have heard witnesses say that we do not need the amendment because if we could just get it to the Supreme Court of Canada, it would be quite clear that it is executory and it is simply a matter of the court saying ``Go and do it.'' Then there are those who, like Professor Magnet, say that it is executory. However, we should add three more paragraphs to ensure that it is.
In a sense, that is still very much where we are.
The Deputy Chairman: I did not say that we reached the goal.
Senator Bryden: I wish to raise a couple of specific points, one being the direction that is given, Professor Magnet, in your proposed amendment to the action to be taken or that the court could enforce. For example, under proposed section 41.(3) of your amendments you state that federal institutions are required to implement the commitment in section 41.(1) with all deliberate speed.
What will a court accept as ``deliberate speed''? I know that there is a definition of a ``reasonable man'' in circumstances. There are some interpretations that have caused difficulty because they use the phrase ``all possible actions.'' However, I have never seen an interpretation of ``deliberate speed.'' Could you tell me what would constitute ``deliberate speed'' in the implementation of this mandate?
Mr. Magnet: The words ``deliberate speed'' come out of the jurisprudence of the United States Supreme Court, which has a 50-year pedigree of promoting desegregation of segregated school systems. I think it means as quickly as is reasonably possible.
Senator Bryden, I think the confusion to which you are alluding, properly, comes not from speed or the acceleration toward the goal but, rather, from what has to be done.
Professor Sullivan alluded to this, and I have sympathy for the view that she has expressed. I am less categorical, perhaps, than she is. The committee has heard testimony about it, so I do not need to belabour the point. There are the administrative law principles, that what ``discretion'' means is guided by the objects and purposes of the act. You have objects and purposes set out in the beginning of the Official Languages Act. In a way, there are objects and purposes in section 41.
In 1971, the committee had before it a legal opinion by then Professor Michel Bastarache. As a result of this administrative law principle, he thought that section 41 was executory and that the objects and purposes of the act would provide the content that Professor Sullivan said was absent. That was his view and, perhaps, it may still be his view.
We can debate this if you wish, but I wanted to make this commentary on some of the things that may be necessary. My colleague thinks we should have institutions and Professor Sullivan thinks we need specific content, and others think we must do specific things. Mr. Lepage has said that it is difficult for the small communities to do things.
We do not really know what it takes, in the case of the communities, to enhance their vitality. Sometimes we are very surprised. For example, in Cheticamp, Cape Breton Island, there is a francophone community of some 200 families. Clearly, within the jurisprudence of the Supreme Court of Canada, under section 23 of the Charter, they have a right to a French-language school. They must live with their neighbours. Although they have this right, they are not really willing to ask, despite the court challenges program making the money available to go to court and to force implementation. The may say, ``We do not have the money to go to court.'' The court challenges program is happy to throw money behind it. The community may say, ``It is difficult to be French here with our neighbours and we do not want to rock the boat too much.''
How do you enhance the vitality of that community so it exercises its right to raise their children in French, to have a French school? How do you get the community to say, ``We will push this thing. We will get along with our neighbours, but we will do things in a deliberate way and at a reasonable speed and with determination''? I am not sure of the answer. However, one of the beautiful things of giving a right of action in court is that the community can find the default there and articulate what needs to be done.
You might be surprised by what the community thinks is necessary. I was surprised by the Montfort Hospital case. That is a good constitutional and administrative law principle, that the vitality of the francophone linguistic community of Ontario must be considered in hospital restructuring. That surprised me. It is for the communities to articulate.
The ``deliberate speed'' language gives urgency. The court right allows novel implementation, novel machinery and novel thinking to be pleaded in filling out the general language of some of these provisions.
I take your point that the language is not clear, that it cannot be executory because the machinery is not there, et cetera, but there is a strength also in the ambiguity over which you seem to be labouring.
Ms Sullivan: It is not that we have section 41 in isolation. Section 43 provides machinery to implement section 41. That is not the problem. I am concerned about vague language in conjunction with specific language that says, ``The way we will implement the commitment set out in section 41,'' and it says it expressly, ``is by having this minister come up with plans that in his or her opinion are appropriate.''
Absent section 43, I have no trouble with what you are saying. I think section 43 gets in the way in a manner that concerns me.
Mr. Magnet: The same point could be made about the Montfort Hospital case. You have a precise scheme of linguistic rights and you have machinery. You have schools and services. You have rights to speak in court and rights to speak in the legislature. To argue for some vague, general right pursuant to the Montfort Hospital case, on Ms Sullivan's reasoning, ought not to be admissible.
Ms Sullivan: I do not find those cases analogous at all, I am afraid.
Mr. Grey: The difficulty is this: We can never predict every type of problem that will arise. Certainly, no government will ever pass a law that says that any group that thinks it has a right can get it from the court, and the courts would never interpret it that way.
What we are left with is this: There is a positive duty on the minister to do certain things. If a group believes that the minister has not done it or has not done it reasonably or not done it in good faith, then they will have redress to the courts. The court will give deference to what the minister does. Otherwise, it constitutes government, and they do not have the facilities or the research staff. They cannot, by themselves, impose a solution.
However, that does not mean that the courts will not intervene in circumstances where the government has not acted adequately, or has been acting for budgetary reasons only or has been acting to please a provincial government that does not want to enhance a minority. Courts have often stepped in to set aside decisions made or not made administratively. The difference with this law is that they will not only be able to set aside decisions and regulations — perhaps they can do that already in many ways — they may be able to issue a mandamus or an order to adopt a reasonable policy in cases where an absence of policy is proven.
Senator Bryden: Professor Sullivan added to her statement by saying that it is it not just the problem with sections 41 and 42, it is that section 43 does say what will be done, and it gets in the way.
My point is it does get in the way and, with all due respect, it gets in the way on purpose. I believe that to say ``This is a political decision'' is to say it is a matter of public policy. Whatever government was responsible for making Part VII so much different from the wording that imposes the obligations and the duties in Parts IV, V and VI, clearly indicating that this is a matter of public policy that is dealt with by Parliament and by cabinets. That is the jurisdiction. If, indeed, the Minister of Canadian Heritage who ``shall'' take certain steps, does nothing, then I think you are correct. You can go to court and get a mandamus, or whatever, to compel her to do something.
However, this list clearly indicates to me that there is an approach for the advancement of these areas, for the enhancement, for the encouragement, for the development, and it is done administratively at the discretion of the particular member of the executive who has been named. It is not by accident, in my opinion, that it is so different from the enforceable sections that are in IV, V, and VI.
Mr. Magnet: I believe you and I agree in principle; we are quibbling about the price here. You are saying it is executory; if the minister does nothing, the court can step in. I agree with you on that. Our only quibble is if the minister does nothing. Would we still agree? Are we still in disagreement about the price? If the minister does something that, in the opinion of the community, as supported by evidence, fails to advance the vitality, are we now in disagreement? The question is the circumstances where the court can step in. I think we have agreed that the court can step in under certain circumstances.
[Translation]
Mr. Braën: The point of Bill S-32 is to clarify the statement provided for under section 41 and to underscore the compulsory nature of what it contains. Perhaps it was deemed necessary to do this because of the lack of action or ambiguity apparent in the bureaucracies of federal institutions.
It is not just a matter of ensuring that the commitment under section 41 is something compulsory, but also to ensure that something is actually done. In that case, the legislator can entrust the government with a mission — as section 41 does — that focuses the exercise of this mission by granting a regulatory power, that is, sets out immediately that for this purpose, the Governor in Council adopts or must adopt regulations. You have a list that is part of section 43 that can be used as clarification.
This is one way to ensure the binding nature of the bill, but also to ensure that the government is being monitored and that it does not have all its discretionary powers removed. This is one way to make sure that this discretion will be exercised within very specific limits.
The Vice-Chairman: Section 43 remains.
Mr. Braën: Section 43 refers to administrative measures and there is a significant difference between a regulation and an administrative measure.
The Vice-Chairman: We know that and we often point it out.
Senator Gauthier: I appreciate the testimony of our five witnesses today which, in my humble opinion, is useful and important. As Mr. Braën was saying, the situation must be clarified. I am not a lawyer and it is not my job to take care of the wording, but I have problems as a citizen.
Right now, Part VII cannot be invoked before the courts with the help of the Official Languages Commissioner. Therefore, section 41 is excluded. It was suggested to me that I go before the Federal Court, which I already knew I could do. I could do it today if I had the necessary funds and good lawyers who support the cause I am defending.
Mr. Braën alluded to the fact that since 1988, successive governments have always interpreted section 41 as being declaratory. There are consequences that result from this minimalist interpretation. All the departments say: ``This is not executory, do not bother us with the need to support economic, social and cultural development and health care programs.'' We are told that the federal government is under no obligation to do this and that we should go and see the provincial stakeholders. We are constantly being sent from one entity to another.
Part of Yves Séguin's report talks about equalization payments and is based on section 36 of the Constitution. If you compare the wording of section 36 of the Constitution and that of section 41 of the Official Languages Act, you will see that they are extremely similar.
The Government of Canada is committed to enhancing ..., fostering —
This being the case, I fail to understand how we can interpret a section of the Constitution by granting billions of dollars to the provinces and then turn around and state that section 41 is declaratory. Mr. Braën has alluded to the fact that this might be a matter of regulation.
This issue is so complex that the Prime Minister had to put another minister in charge of coordinating the work. Right now, there are two ministers looking after this issue. The Associate Minister, Mr. Stéphane Dion, promised a plan of action in the form of regulations or perhaps in the form of financial aid.
How can we explain to people that on the one hand, in a section of the Constitution, the word ``committed'' is given all due importance through the granting of $18 billion to the provinces, and on the other hand, section 41 is simply considered a policy statement and that we must not ask for too much?
Perhaps Ms Sullivan could answer this question.
[English]
Ms Sullivan: Every provision must be read in its context. Section 41 is part of Part VII of a statute, not a constitutional document. It is quasi-constitutional, so we must give it a broad reading.
As Professor Magnet pointed out, we have a mechanism for enforcing the Constitution against the government that is part of our Constitution Act. We do not have such a mechanism built in to the Official Languages Act. That goes before the ordinary courts and the ordinary principles of statutory interpretation will apply. As I apply those principles to Part VII, I must look at section 41 in light of sections 41 to 45. I see an integrated scheme. I look at the marginal notes and the way the language of 42 and 43 tracks 41 and I predict that the courts will treat it differently. It is because the context differs.
The most powerful principle in statutory interpretation is scheme analysis. You do not look at provisions in isolation; you look at them in the context of how they will work together to achieve the goal. Section 41 operates as a policy or a purpose statement, which is quite common in drafting now. What follows are ways of implementing that purpose. If I were a court were looking at this, I would say Parliament has come up with an implementation scheme and this scheme is set out in section 43. It is not the court's role to supplement that and fill a gap in the legislative scheme.
Mr. Grey: Against that is what happened with article 3 of the Immigration Act. It contains all these pious wishes. The purpose of this act is to control criminal international activity to fulfil Canada's humanitarian obligation. Various people, including myself, try to invoke article 3 but the Federal Court always says, ``No you cannot bring in a relative from abroad under section 3.'' It is not specific; the rest of the act does it.
Suddenly, the Supreme Court, in Baker, took section 3 and applied it in a radical way. In other words, in a proper case, when a court gets angry — especially the Supreme Court of Canada — it will suddenly pull that section out and hit that government over the head with it.
The Deputy Chairman: We raised that problem when we studied the Immigration Act — namely, the famous section 3. I am glad to hear you referring to it.
Ms Sullivan: I do not understand why we want to wait for the odd case. Why do we want to go to the Supreme Court of Canada? Why not draft it so that we do not have to go to the Supreme Court of Canada? If the point here is to amend Part VII so that it does what we want it to do, there is no need to rely on this. Get rid of section 43.
Senator Gauthier: I tried to do that in the court. I was not even heard. I tried to go to the Supreme Court of Canada under section 41. They would not even hear me.
Ms Sullivan: Why are we making these piecemeal changes? Why not redraft it properly so that it is clear? I suggest that we are not even close to that. The problem is section 43. I agree that you could do an end run around it, but why? Why not just redraft section 43 so that it no longer gives that kind of gross discretion to the minister? Why not impose a duty on the minister in section 43?
Mr. Grey: There would be one problem, I think. If you present the House of Commons with a very complex bill that gives an absolute remedy in the Federal Court that the government cannot control, they will not pass it. If you given them a law that says that you are under an obligation to do it, that it is a way of saying we favour bilingualism, they might pass it. Five or six years later, the Supreme Court might put some teeth into it.
I sympathize with the position that the people should not have to go to the Supreme Court and I am well aware of what it costs to do so. However, I do not think there exists a way of drafting a law so clear that it cannot end up in the Supreme Court of Canada. Of course it will end up there. However, you could include a few specific things. I do not think you need do away with section 43. You need only add a few specifics things to section 41, and that will be an example.
Senator Gauthier: The main reason we are looking at Bill S-32 now is that I am fed up with the judiciary. I could get nowhere so I decided to go to my own forum, the political one. That is what we are doing here today, and I thank you very much.
[Translation]
Senator Joyal: I still think that, at the outset, we must redefine the basic elements of the legal, political and constitutional structure of language rights. In 1985, in the Mercure ruling and in the follow-up to the reference on language rights in Manitoba, the Supreme Court of Canada stated that language rights are essential to the viability of the nation.
[English]
If I understood Mr. Grey, without those rights there is no future for the nation. That is a pretty strong political judgment or appreciation of the reality in Canada.
Later in the Beaulac case, it was stated that the Official Languages Act is a quasi-constitutional statute and should be interpreted on the basis of the Charter. I understand that to mean that the act has three objectives. It is purported. It has a very clear objective. It is remedial means, which must correct a situation that has aggrieved some people. Third, it must be interpreted liberally. Those are the fundamental principles of interpretation of the Charter applied by the court to the Official Languages Act.
A door is open or closed; there either is a constitutional obligation or there is none. In my opinion, some constitutional obligations are very clearly stated in either the Charter or other statutes that Parliament of Canada adopts from time to time. Others lend themselves to a certain amount of appreciation based on time. However, they are at least an obligation. Essentially, there is an obligation.
I believe that that obligation is twofold. It is either an obligation to avoid taking negative steps to hurt the overall objective of the protection of rights or an obligation to take positive steps to enhance the objective. I think it is twofold.
[Translation]
In this debate on sections 41 and 43, in my opinion, we are still dealing with the vagueness of the definition of the government of Canada's obligation. This vagueness was probably deliberate at the outset. We have heard representatives of the Department of Justice tell us that this was all political. Senator Gauthier cited testimonies by Minister Crombie and Minister Bouchard — at the time, he was Secretary of State responsible for program enforcement — and they both said that these were obligations. The were two ways of interpreting what Part VII of the act meant.
The fact remains that this is a quasi-constitutional obligation and that the courts will interpret them liberally, so as to repair the deficiencies or difficulties that endanger the survival of these languages in Canada.
In the context of the census results on language that we will be getting soon — according to yesterday's newspapers, Statistics Canada will publish the results on language on December 10 — the Canadian government's obligation with regard to the viability of the nation will take on a very different meaning. And the fact remains that there is still a constitutional obligation. But what is the nature of this constitutional obligation?
As a professor, how would you define it, given the evolution of language rights in the courts since 1976, since we have started fighting before the courts to try to put our finger on what level of protection is afforded the minorities in Canada?
What is the nature of the constitutional obligation of the government of Canada to ensure the viability of the nation with regard to language rights?
Mr. Grey: I would say that reasonable measures must be taken and in good faith. Given the situation, the court will not be able to say that the minister was wrong because he did not do what the judge thought was more appropriate.
Because of the sometimes technical nature of the evidence brought forward by an expert witness, if the judge concludes that the measures taken were not reasonable under the circumstances, he will say that it is unreasonable if, for instance, it can be demonstrated that French is disappearing very rapidly in Alberta or elsewhere. The court can intervene if the measures are not taken in good faith, but that can never be proven. Similarly, if we do not address the real issues, if the measure is taken for a purely budgetary reason, if the language aspect was not genuinely taken into consideration or if something was done simply in response to political pressure — a province does not want to promote the rights of the minority — the court can take action. But the court will not substitute a point of view on what is more appropriate today. Should we be spending $90 million or $100 million? If the court was to tackle that kind of problem, it would soon be overwhelmed. It will examine both points of view. Is this reasonable and was it done in good faith?
Did the government consider genuinely relevant issues or other issues?
[English]
Mr. Magnet: I was very impressed with the eloquence with which you made the point. Having had responsibility as a minister of the Crown for the communities, you appreciate perhaps better than I — and perhaps better than many — that the communities are at different stages of development.
What are the measures? The measures are to enhance the vitality of the English and French linguistic minority communities in Canada in supporting and assisting their development. That is quite a question. There are many communities in Saskatchewan and Alberta, as well as Franco-Ontarian communities, with upwards of half a million people, that have had the experience you mentioned. Measures were taken not to enhance, but to attack their vitality; their language was prohibited as a language of education with regulation 17. That went on for a generation. Here in the City of Ottawa, schools were subject to that. A famous school on Murray Street, in the market, was the subject of many cases.
One imagines that having that experience within memory, a significant amount of vitality was sapped out of that community. You asked what measures are necessary to enhance the vitality of that community, for example. That is a very interesting question.
Education is a provincial responsibility under the Constitution. Are we therefore justified in thinking that Ottawa has no responsibility to enhance the educational vitality of that community, having been subject to that?
The Jones decision from 1975 reinforces the thought that this is a provincial responsibility. Perhaps section 41 does not run there. Jones said that language is not a specific subject under the Constitution. There are linguistic aspects to the different things.
Jones is interesting because it is more than a quarter of a century old and occurred before the renovation of the Official Languages Act, in 1988. Jones is prior to the Charter and the renovation of the constitutional language rights in 1982. Jones never said that is all there is to the division of powers. Jones sustained the Official Languages Act as constitutional. The act now includes measures to enhance the vitality of communities. Does that mean that Ottawa is powerless to enhance the vitality of the community?
I would put it this way: The community of Franco-Ontarians of whom we speak was taken backwards for a generation by repressive measures — albeit at the provincial level. Is Ottawa without power to take measures to bring those communities up to where they would have been but for these measures? I do not think so. There is a power in the federal government to do that as a matter of division of powers. That power must be read in light of the quasi- constitutional commitment in section 41.
What measures are necessary? It is necessary to look carefully at what is wanting with respect to the vitality of that community, taking into account that schools are critical to development.
The community would have to articulate the specifics. We would have to hear each affected community, school board and school in Ontario. Then, having had a plan of action from the community as to how to restore, enhance and promote its vitality, given what went on.
Could nothing be done? Could a court not breathe life into this matter if a government could not act? First, The Government of Canada could act on such a plan. If government said that it is a provincial matter, section 41 would become executory at that point. Some of the amendments offered would make it clearer.
That is how I would respond to your question. It must be determined community-by-community, default-by-default and measure-by-measure to imbue those communities with what is necessary for their vitality.
Senator Joyal: Professor Sullivan, in the judgment of Judge Blais in the ticket cases in Ontario, Judge Blais said quite clearly, at paragraph 91:
[Translation]
It is important to note, however, that in Devinat the Federal Court of Appeal ruled [...]: that recourse under section 18.1 of the Federal Court Act is always possible for non-compliance with parts of the Official Languages Act not provided for under subsection 77(1) of the Official Languages Act.
[English]
In other words, according to the Federal Court of Appeal, there is recourse for a violation of obligations that is not covered by section 77 of the act.
If a judge, in a judgment as plain as this one, says clearly that there is a recourse to the court as a result of this obligation, the court would not have invited the general public to address itself to the court if the court was of the opinion that there were no obligations.
Ms Sullivan: Section 43 creates a different situation. I am not suggesting that proposed section 41 does not impose obligations on the government, because it clearly does. The language is the language of obligation.
However, what worries me is that this seems to clearly contemplate that there is a mechanism for carrying out this obligation. Section 41 does not mention which part of the government or minister is responsible. Section 43 tells you which minister. Section 41 does not give you a notion of what might be necessary; section 43 gives you a list of examples of what might be necessary.
What worries me is that a judge looking at this would say that what Parliament contemplated was that this obligation should be implemented through section 43 by measures taken by the Minister of Canadian Heritage as mentioned in section 43 and that that exhausts the obligation imposed by section 41.
I am not saying that has to happen or that a court could not find a way or reasons around that. It seems that is the most obvious way to respond to Part VII.
Senator Joyal: I am not so sure about that. The objective stated in section 41 is general in the way that it invites the government not to do anything that would hurt the community. I would put it in the reverse. Section 43 says, ``the minister shall.'' In other words, the minister must take some initiative.
We all agree that if the Minister of Canadian Heritage spends one dollar in her yearly estimates on the support of official minorities in Canada that could be open to challenge in court.
Section 41 is much more general. As an illustration of this, in my own humble opinion, when the federal government restructured its services to fight the deficit — as it did in the last eight or nine years — the government hurt the minorities. The government hurt the use of English for the anglophone minorities within Quebec and French for the francophone minorities outside of Quebec.
The President of the Treasury Board said recently that they made some mistakes when they did that because they simply cut across the board and did not measure the impact. They did not realize that those initiatives that were good in a budgetary aspect were bad in terms of support. He said that they would not do that in the future.
Ms Sullivan: I agree with you that section 41 could conceivably be used to attack a government action. My huge doubt comes from it being a source for imposing an obligation on a government to take an action. If government did something that harmed minorities, I would not have that much trouble agreeing with you that a court might enforce it.
I understood us to be talking about positive measures. I feel quite doubtful that section 41 could found an order of mandamus as opposed to perhaps striking down an action that the government had taken as being contrary to section 41.
The Deputy Chairman: We have perhaps three possibilities. We could leave 41 as it is. We could amend 41 as Senator Gauthier and some of you are proposing. Professor Magnet, you propose further amendments to section 41. We could go to court.
However, I agree with Professor Sullivan that it is probably easier to amend 41. It may be much faster and less expensive than going to the Supreme Court. However, we have to do something.
I am always surprised when we use in French the word ``s'engage'' for the ``péréquation'' in section 36 of the Constitution Act of 1982. We spend billions of dollars on this. Apparently, it is not a problem. There is no doubt in my mind that the Official Languages Act is a quasi-constitutional statute. However, the act uses the same word: ``s'engage.''
If we follow the meaning of words, we must come to the same conclusion. There is some obligation in section 41. It is true that it is very general, but because it is general does not mean that it is not mandatory.
[Translation]
Mr. Lepage: A court would read Part VII in its entirety. It would not read section 41 in isolation. It would base itself on decisions handed down since 1986, that contain broader and more liberal rulings. Now they look at the objectives and the historical basis, that is the confederative pact which states that the principle that underlies the Constitution is the protection of minorities. This is a principle of interpretation which would mean that the Supreme Court of Canada would rule that this is an obligation, that it is binding, were it called upon to do so. That is what I believe after having read all these decisions. However, we still have a long row to hoe before we get to that point. There are problems. The law is not clear. As someone who must represent members of the community, I am asking the politicians to clarify the document.
I agree with Professor Grey that there will always be instances where we have to get clarification from the courts. This is a living organism. We have to let it live. However, I believe that Senator Gauthier is on the right track when he proposes that this section be amended to have it state clearly what is necessary to help the public. The law exists to help the public, not lawyers.
However, amendments should not stop at section 41. I do not like the words ``considers appropriate'' in section 43. It is so discretionary that if the government spends a dollar, the court could say that this is sufficient. This discretion must be somehow circumscribed. That is why I support the amendments proposed by Professor Magnet.
Mr. Braën: The purpose of section 36 of the Charter was to give a constitutional basis to the equalization payment rule. In my opinion, the commitment referred to in section 41 is of a different kind. The principle of the equality of the two languages — status and privileges — the principle of progression toward this equality is written into the Canadian Charter of Rights and Freedoms. Section 41 must be interpreted in terms of these provisions. If it exists, it is because in practical terms, we have not achieved equality. We have observed inequalities. This is why we are asking the government to move forward.
For instance, you were talking about the quasi-constitutional nature of these provisions. According to section 88 of the act, what we find in Parts I, II, III, IV and V of the act supercede any other provision of any federal legislation. Section 41 was omitted. Part VII was omitted, and so forth. There may be something that results from that.
Regardless, I maintain that section 41 states an obligation to act. But even from a legal standpoint, if this obligation to act is recognized by a court, it will not go so far as to issue an order of mandamus. As Professor Grey stated earlier, a court will deem that it is not up to it to decide on the measures that must be taken in order to promote the equality of the two languages. The game will be a long one if the ball is being tossed between a government that does not want to do anything on the one hand and a court that says that it is not up to it but rather up to the government to do something.
The Vice-Chairman: What you are saying is true, but a court of justice cannot replace Parliament. It is not up to the court to say how large an equalization payment should be or what should be done regarding section 41. However, the court can say: ``The legislator made a commitment.'' The rest goes back to the political arena, but at least the court can decide that it is executory.
Mr. Braën: Yes, but we will be no further advanced. In terms of concrete measures to be adopted, it is not the role of the court to substitute itself for the executive. As Judge Blais stated, under section 18(1) it is possible to intervene and control government discretion, but solely with regards to legality or illegality. Here again, the court will not substitute its own opinion about something such as whether or not some cutback which may have harmed linguistic minorities is a good or bad idea. It is not up to the court to do that. It only controls legality.
The Vice-Chairman: Let me get back to the first point. This does not give the court the power to legislate instead of Parliament; that is true. But at least, it tells Parliament: ``You must take action, you must do something.'' Then it goes back to the political arena.
Senator Joyal: Mr. Braën, you must admit there is a nuance here in what you are saying. In Ontario and in Prince Edward Island, in the case of the Penetanguishene School amongst others, the court has already ruled that the decision of the Ontario finance minister to not include in his budget an expenditure for the construction of a school was not acceptable. That school had been deemed necessary and met the condition of a sufficient number of parents — the expression that Senator Gauthier uses — despite the fact that the Ontario government had a popular mandate to improve public finances, therefore a ``democratic mandate'' to take specific action, it could not defer the budgetary expense of building the school. The Supreme Court reiterated similar principles in the case of Prince Edward Island. There is a subtle difference here in the sense that the court was not substituting itself for the government of the day, be it provincial or federal. It seems to me that a government cannot make decisions that are unfavourable to the protection of language rights.
In a case such as this one, we are quite clearly dealing with a ruling which immediately challenged the language rights of the francophone minority in Penetanguishene or Summerside, on Prince Edward Island.
Mr. Braën: In the area of school-related issues, it is much easier for a court to act in this way. This is really a case of a breach of rights being sanctioned. I do not think that section 41 can lead us to conclude that a francophone from the province of Quebec would have better access to English-language training, et cetera. In terms of sanctioning or upholding rights, it is much easier for a court — as was done under section 23 of the Charter — to give some direction and to indicate whether legislators are responsible for deciding how the management of education should be carried out. It is much easier for the courts to take action after the fact. You are all probably aware of the case which is now before the courts in Nova Scotia, in which a trial judge ordered the Nova Scotia authorities to provide francophone parents and children with French-language education. He went further still. He ordered the provincial authorities to report to him from time to time to allow him to ascertain whether they were indeed complying with his ruling.
This part of the judge's ruling, relating to the implementation of rights — and I say again rights — was appealed and struck down by the Nova Scotia Court of Appeal. This case will undoubtedly go before the Supreme Court of Canada. Under Part VII, do persons under the courts' jurisdiction have rights, or is there merely have an obligation on the part of the government? The two things are quite different.
Senator Joyal: There is one thing that we should understand here. Language rights and education rights are not absolute. They are part and parcel of a community. If the community dies out, rights no longer mean very much. We speak about rights from a theoretical point of view. However, the two areas can be divided.
If we want the institutions that Professor Magnet spoke about earlier to survive, there have to be francophones in certain areas and anglophones in other areas. As soon as a community dies out, rights become a completely theoretical issue.
Senator Grey: Well, I think we could look at a couple of analogies here. The Supreme Court, in the case of homosexuals, has not said exactly what rights Alberta should provide. In the Brand case, the court merely stated that: ``Alberta may not exclude them from the Charter.'' More interesting still is that in the Eldridge case in British Columbia, the refusal of interpretation services for the hard-of-hearing was struck down. However, the court did not say: ``The province must spend such and such an amount on interpretation. The province must have three interpreters in every hospital and one in every health centre.'' The court merely stated: ``The province's policy of not providing interpretation services is illegal.'' The British Columbia government was obliged to take the necessary steps to comply with a Supreme Court ruling. The same situation applies here. The courts will not say: ``Spend $1.2 million.'' It will merely say: ``What was provided was completely inadequate.''
The Vice-Chairman: We have been looking at this issue for two hours now and I think that we have looked at every angle of it. I would just like to thank our witnesses. We had a very interesting and very useful meeting.
The committee adjourned.