Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 31 - Evidence, April 17, 2002
OTTAWA, Wednesday, April 17, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-32, to amend the Official Languages Act (fostering of English and French), met this day at 4:30 p.m. to give consideration to the bill.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.
[English]
The Chairman: Today, we will be hearing from Alliance Quebec, represented today by Mr. Brent Tyler, Mr. Ted Cash and Mr. Andrew Male.
Mr. Brent D. Tyler, President, Alliance Quebec: I understand that some senators remained in the Senate Chamber to mark the twentieth anniversary of the Charter, which is an auspicious event.
Our particular concern today relates to sections 16 and 23 of the Charter, which deal with linguistic duality.
I will start by telling you what we will not talk about today. In the time available to us, I would like to focus on what we will talk about. We will not talk about areas of provincial jurisdiction, the imposition of French, and restrictions on English in commercial advertising and in the workplace under the charter of the French language. We will not talk about access to English schools. We will not talk about access to English health and social services. We will concentrate strictly on areas within the jurisdiction of the federal government, that is to say, the Official Languages Act and what we perceive to be its lack of implementation in the Province of Quebec. We will mention, in that context, the proposed amendment of Senator Gauthier.
We agree wholeheartedly with the underlying intent of the amendment, that is, to increase the enjoyment of minority language rights in areas of federal jurisdiction. However, we believe that the amendment, in its current form, especially the failure to define measures necessary to ensure vitality and development, et cetera, will be ineffective.
To put this in context, I would refer to what the Société des Acadiens said on the subject of Canada's linguistic duality. The society said:
Linguistic duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history. The constitutional language protections reflect continued and renewed efforts in the direction of bilingualism. In my view, we must take special care to be faithful to the spirit and purpose of the guarantee of language rights enshrined in the Charter.
There are three important sections in the Official Languages Act, which we will survey for you. They are, first, language of work in Part V of the act; second, sections 34 to 38 which include sections on language requirements of positions; and, third, equitable participation of English-speaking and French-speaking people in federal institutions in the country.
It is important for you to appreciate that there is only a recourse to court available for items one and two, that is to say, language of work and language of work provisions. There is no recourse in the existing version of the act for a violation of the equitable participation provisions.
Further, section 82 of the act provides that the equitable participation provisions have no primacy over other legislation, contrary to the rest of the act, which does provide for primacy. There is no remedy for a breach of the equitable participation provisions.
Under the act, only the commissioner has a recourse. She can report to the Treasury Board under section 63; she can report to the Governor in Council under section 65(1); and she can report to Parliament under section 65(3).
The only commissioner to have done anything about the inequitable participation of English-speaking Canadians in federal institutions in Quebec was D'Iberville Fortier who, in his report of January 1987 to the Governor in Council, stated that:
...the regrettable fact is that Anglophone participation continues to decline in overall terms. Statistics taken from annual reports of the Public Service Commission indicate that, even in the bilingual regions of Quebec, where Anglophones account for nearly 20 per cent of the population, Anglophone participation fell from 8.7 per cent in 1980 to 7.1 per cent in 1986. That is what Mr. Fortier said 15 years ago. According to recent figures it is around 5 per cent, and I will get into more detail on that later.
What is interesting about this report is the expression by the commissioner of the day of how impotent he felt about the problem that was in front of him and the inadequacies of the act. He said:
The action taken by the central agencies and the various federal organizations, which had been warned of the situation several times, was neither adequate nor appropriate. This is especially true if one considers the extent of the problem to be corrected and the continuing trends that must be reversed if Anglophone participation in the federal public service in Quebec is to attain an equitable level.
It is not the purpose of this report to lay blame for this situation on any particular institution. Rather, the Commissioner has the duty to indicate that, unless more energetic action is taken, the present trend may soon become irreversible and could lead to linguistic polarization which, in turn, could hinder the provision of services in accordance with the spirit and letter of the Official Languages Act. Under the circumstances, having exhausted all of the other recourses at his disposal, the Commissioner respectfully asks the Governor in Council and the President of the Treasury Board, what measures they intend to take to correct the situation revealed in the present report.
That was 1987. Since then, the situation has only worsened. In September 1999, Alliance Quebec made a complaint, along with Alan Greer, a postal worker for Canada Post in Montreal, to the commissioner involving language of work, language of work positions and the lack of equitable participation. It took more than two years for the commissioner to prepare a report. On the issue of equitable participation, this is what the commissioner had to say in the report that finally came out in October 2001, more than two years later:
We expressed concerns about the overall under-representation of Anglophones in federal departments and agencies in Quebec which currently stands at approximately 5 per cent. (The 1996 Census found 12.6 per cent of the population in Quebec to be English-speaking.) The long-standing issue of Anglophone under-representation in federal institutions...was examined in a study by the Public Service Commission. Its report entitled Anglophone participation in the Federal Public Service in Quebec was published in 1999.
The conclusion with respect to the post office, underscoring the need to raise anglophone participation from its current rate of 3.7 per cent towards one approaching that of the general population in Quebec, was that Canada Post was asked, in very specific terms, to, by November 16, develop a three-year action plan with measurable indicators and strict time frames to increase anglophone participation at all levels in the organization of the Montreal region for the period 2002-2005. This was supposed to be in place and announced by January 1. Nothing has occurred since then.
Finally, in the conclusion of the commissioner's October 2001 report, we see the following comment:
...we found significant deficiencies in the corporation's application of the OLA. Our findings lead us to conclude that there are instead systemic barriers.
Then there is a long section at the end of the report where she, too, expresses her frustration at the lack of adequate protection for these types of recourses in the Official Languages Act. In reference to Canada Post Corporation, she concludes:
CPC still has a long road ahead to render its offices in Montreal, home of the largest linguistic minority in Canada, conducive to the use of both official languages. We intend to follow matters closely.
We, as the complainant, and Alan Greer as the co-complainant have heard nothing from the commissioner about the implementation of her report.
I should like to stress the importance of the appropriate unit for comparison purposes in determining equitable participation. We submit that the appropriate unit is the Greater Montreal Area, which also happens to be the unit that Statistics Canada uses to compile statistics. In other words, we do not think that the appropriate unit is the province as a whole.
In the report, the province is described as having federal departments and agencies with 5 per cent anglophone participation. The post office is described as having 3.7 per cent overall in Quebec.
Twenty-four per cent of population of the Greater Montreal Area is English-speaking. We believe that, instead of targeting the general population of anglophones in the general population of Quebec, we should be using the Greater Montreal Area. That is the appropriate point of comparison and the appropriate unit of comparison. That makes the discrepancy between percentage of participation in the public service and percentage of the population even more glaring.
Our question is: How many reports, recommendations and blown deadlines will there be before this law is respected? Meanwhile, what happened to Alan Greer? He was fired in February, fired for basically being a whistle- blower and pointing out that Canada Post was not respecting its obligations under the Official Languages Act.
Here I will let my colleague Mr. Labbé describe to you the saga of Alan Greer.
Mr. Jacques Labbé, Chairman, Political Action Committee, Alliance Quebec: Mr. Greer started working with the post office in 1989. Mr. Greer's father is black, his mother is French Canadian and he is perfectly comfortable in both languages.
In 1994, Mr. Greer attempted to write a letter to the post office in Ottawa. His manager told him, ``You have given me a letter in English, rewrite it in French, I will not send it for you.'' This is when he first realized that he was not allowed to use the English language.
After some investigation, Mr. Greer realized that his job, which was delivering packages to people's homes, like many other of the jobs, had been designated ``French essential.'' This was one of over 100 complaints that he made to the Official Languages Commission. Virtually all of them were founded.
Thankfully, today, many of those corrections have been made. The Official Languages Commission said that you could be English-speaking or French-speaking to drive a truck, to deliver packages, to sort mail, to be a mechanic, to repair a flat tire, to change oil, or to do whatever is needed to keep the fleet running at Canada Post. The only problem that exists now is that we need to get Canada Post to actually hire anglophones to do this work.
Once Mr. Greer made complaints, he started to be harassed. Forty-five times his paycheque did not arrive on payday, when other employees were getting paid. On over 30 occasions his overtime claims were denied.
In September 2000, Mr. Greer started getting suspensions and letters in his file. The only recourse he had was to file grievances and to test the accusations or refusals of overtime through the union. Twenty of his overtime grievances have been decided so far, all 20 in his favour. Yet, he was fired for a 20-minute overtime claim that they said was fraudulent. Each suspension that has been decided, and many have yet to be decided, have all been decided in Mr. Greer's favour. He has won 25 grievances out of 25. However, because it takes two or three years for grievances to be decided, a dossier is built up, and Mr. Greer has no opportunity to erase it.
We have been able to find about 12 different employees in the same type of situation, that is, they have a clean work record for three or five years, and then they are identified as having filed a complaint with the Official Languages Commission, or as a supporter or witness for someone such as Mr. Greer. Suddenly their work records show suspensions or they find letters in their files to let them know that they are being watched closely. The type of message that is given is: ``We know you are not one of us.''
A recent news article described a gentleman from Canada Lands who supposedly blew the whistle on things that happened a few years ago. I understand why he waited until he had the security of his pension before he came forward. Instead of coming forward at the time incidents were happening that he felt were incorrect, he kept quiet and he waited until he retired. That is what happens. When you see what happened to Mr. Greer, you can well understand why this gentleman was smart enough to do that.
Unfortunately, I have not seen any goodwill from Canada Post. In 1999, they knew they were being investigated for improper anglophone participation. We have had no indication of any kind that, from 1999, when they knew the investigation was starting, until the time the report came out two years later, in October 2001, of any attempt on their part to make a change. As Mr. Tyler said, they have now been asked to implement changes and here we are, four months into the New Year, and we see no sign of any change.
I would urge honourable senators to do whatever you can to help this the Greer family. Alan Greer has a wife and child. He has lost his job and, because he was fired, he loses the pension contributions of his employer. I do not know if he will be eligible for Employment Insurance. These are the type of situations that face these people who blindly or naively had confidence in our country and in our lives and went through the process. They were told to file a grievance and, if they won their grievance, they could expect that the employer would make the necessary corrections so that they would not have to file a second or third grievance. In fact, it has escalated to the point where 100 grievances have been filed over a period of six or seven years.
Mr. Tyler: Alliance Quebec makes funding applications to the Department of Canadian Heritage. We have traditionally played the role of watchdog when it comes to the implementation of obligations under the Official Languages Act.
This year we also made an application for funding. We were asked by Canadian Heritage officials to remove from our funding application the following description in our activity sector:
Research and assess application of the Official Languages Act to ensure compliance with the regulations by federal government institutions.
It was made clear to us that this had to be removed from our funding application for the next fiscal year, starting April 1. I leave it to you, honourable senators, to draw your own conclusions about that request.
One of the guidelines we should like to propose to honourable senators when contemplating amendments to the Official Languages Act is the Helsinki process, to which Canada is a full partner. This is an association of civilized countries, a sort of buddy system, which has extensive rules on how minority language communities should be treated. In the time available to us, I cannot go into any detail. However, in our brief, we will set out in greater detail the Helsinki process. Essentially, the Helsinki process recognizes that there are internationally respected norms and standards for the treatment of minorities. When honourable senators look at how to amend the Official Languages Act, we respectfully submit that this accord would be a fruitful source of inspiration.
We should also like to propose what we consider to be practical amendments. First, provide recourse in the event of a violation of Part VI of the act. At present, there is no judicial recourse for a violation of the provisions on equitable participation.
Second, we could provide for the protection of complainants such as Alan Greer by introducing a rebuttable presumption of unjust dismissal where a worker has made a complaint and the commissioner is investigating. This kind of presumption of unjust dismissal exists in labour legislation extensively at the federal and provincial levels. Essentially, it means that, where an employee has made a complaint and the commissioner is investigating and that person has been fired, there is a presumption in the employee's favour that he or she was fired because of the exercise of their rights under the Official Languages Act. The employer would then have to prove that there was another just and sufficient cause. This is not unknown in law by any means. That is an amendment that we believe would have protected Allan Greer to a great extent, certainly more than the abysmal protection that exists in the current version of the law. As it is now, Alan Greer is fighting for his job in court.
The attitude of the Commissioner of Official Languages is still under investigation, after all these years.
We are not in favour of increased powers for the commissioner. The commissioner's office, occupied by successive commissioners, has acted as an enabler. It has acted in such a way as to allow federal institutions to continue to violate the act rather than respect it. We have no doubt about the good faith of the current commissioner, no doubt at all, but we have serious doubts about the bureaucracy underneath her, which is required to ensure respect of the act.
I will give you an example of inadequate recourses. Under section 62(2) of the act, an employee who has been harassed for exercising his rights may make a complaint to the commissioner. What can the commissioner then do? She can make a report to the Treasury Board. Can the employee get his or her job back? No. We just add on to the piles of documents that have been generated by the commissioner with no effect on the ground. Obviously, that has been of no help to Alan Greer.
The bottom line for us honourable senators is simply this: Without the necessary political will to have federal institutions respect their obligations under the act, then the situation of official language minorities will not improve.
You can amend the act in the way proposed by Senator Gauthier. However, in our view, unless there is political will from the top to respect the provisions of the Official Languages Act, then our lot as official language minorities will not be improved. It takes political will, and we see none at the present time.
I have described to you our circumstances and the decrease in the level of participation of English-speaking people, which I should point out to you, is half the level of participation of francophones.
Those are our representations, and I look forward to your questions.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: I apologize for not having been here at the beginning of the session and for keeping you waiting. Four members of the committee were speaking on the Charter of Human Rights in the Senate chamber this afternoon, and I was last on the list.
Mr. Tyler: Madam Chair, we are at your disposal.
[Translation]
Senator Rivest: Truthfully, anglophone Quebeckers, whether they live in Quebec City or in Ottawa, do not have a public service mind set. For example, in the Quebec public service, anglophone Quebecers are woefully under represented. I believe the representation rate is a mere one or two per cent. Is that correct?
Mr. Tyler: The rate currently stands at .7 per cent. The difference is that at the federal government level, we have the Official Languages Act. In theory, the legislation is supposed to help us, correct? There is nothing equivalent to that legislation in Quebec.
Senator Rivest: In Greater Montreal, anglophones account for 24 per cent of the overall population. Is that correct?
Mr. Tyler: Yes.
Senator Rivest: Are we talking about English-speaking residents?
Mr. Tyler: You know as well as I do that criteria selection can affect the overall numbers. I believe the figure quoted in the commissioner's report is 12.6 per cent, whereas according to the 1996 census, 8.8 per cent list English as their mother tongue, whereas 10.8 per cent claim to speak English in the home.
Senator Rivest: What is the figure you quoted for the federal public service in Quebec?
Mr. Tyler: Five per cent. At Canada Post, the figure is 3.7 per cent.
Senator Rivest: You are right to say that a correction is in order in terms of the representation or participation of anglophone Quebecers in federal institutions in Quebec. To give us some idea of the extent of the problem, do you have any figures for the other provinces? In Ontario, for example, since the francophone population is much smaller, what is the level of francophone participation in federal institutions? What about in New Brunswick?
Mr. Tyler: I cannot give you exact figures. I can tell you that from a comparison standpoint, the problem of equitable participation is twice as acute for anglophones in Quebec as it is for francophones outside Quebec.
Senator Rivest: In terms of their participation in federal institutions?
Mr. Tyler: Yes, according to the Commissioner of Official Languages.
Senator Rivest: Why is that?
Mr. Tyler: That is a good question. I wish I had the answer. The problem is that in his report, the commissioner referred to systemic barriers. I would imagine that this is the reason. Even taking into account the cultural differences, would this explain the gap?
Senator Rivest: No, that is not a reason. As you said, there is legislation on the books. Without actually supporting the terminology used in the drafting, you have expressed support for the overall bill that we are examining, a bill which comes to us officially from government authorities. People are at a loss when rights guaranteed under the Official Languages Act are violated. Some ministers or individuals here in Ottawa have said: ``If language rights are subject to broad judicial control, the result will be numerous challenges.'' The argument put forward is that the process will become open to judicial control and that associated measures will become too costly. How do you respond to this contention, in spite of the official position on the matter? When someone asks ``Where is the beef?,'' there is no one around to provide an answer.
Mr. Tyler: I would be very happy if there were some other way to give the legislation some teeth and to ensure that its provisions are respected. However, I do not see any other way. In my opinion, some measure of judicial control is required. If a person exercises his rights under the Official Languages Act and files a grievance, and if the commissioner investigates the complaint and the person in question is fired, that person can go to court to argue a presumption in his or her favour. The employer will need to prove that the firing was justified, and not related to the employee exercising his rights.
Senator Rivest: Employees may invoke other reasons. Let us suppose language use was a job requirement. Harassment, for example, can affect working conditions. The grounds for an employee grievance can be varied.
Would this not fall outside the scope of our laws and labour standards?
Mr. Tyler: I do not think it would.
Senator Rivest: Do you have other examples?
Mr. Tyler: Yes, there is the Quebec Labour Standards Act.
Senator Rivest: Does it provide for a presumption?
Mr. Tyler: Yes. If a person does not get paid, files a grievance and is dismissed in the interim, the legislation provides for a presumption in the employee's favour. That is standard procedure.
Senator Rivest: At this time?
Mr. Tyler: Yes. All provincial labour relations acts and all labour codes, even the federal one, provide for a presumption in the employee's favour. This is not out of line. Perhaps it could be viewed as such because we are talking about language. However, as I said earlier, when citing other examples, language is not the issue here. The issue is harassment because of a person's sexual orientation or because of some other reason.
Senator Beaudoin: You stated that what was lacking was political will and that Bill S-32 would not resolve the problem. If, on the other hand, this bill was adopted, section 41 would certainly take on a new dimension, in the sense that it would become executory. If that is the case, whether or not the political will exists, there will be a requirement in place to abide by the terms of executory legislation.
Mr. Tyler: In my opinion, this provision is not sufficiently concise. The courts will need to intervene to define the expression ``take the necessary steps,'' because it fails to give federal institutions clear guidelines.
What exactly is the meaning of ``take the necessary steps''? We have some concerns about this expression. We support all attempts at making the legislation more executory rather than declaratory in nature. We do not wish to be perceived as critics of the amendment, because we support its intent. However, we do have some questions about more practical matters and about how this amendment will improve the situation of our official language minority communities.
Senator Beaudoin: You have some doubts because you are unclear as to how the word ``necessary'' will be interpreted.
Mr. Tyler: I have some doubts because as I see it, the federal government and federal institutions in Quebec have behaved deplorably. The figures I quoted earlier amply attest to that fact. If the political will is lacking, even if we feel the proposed amendment is a step in the right direction, no concrete changes will occur. That is where we have a problem.
Senator Beaudoin: If the proposed amendment to section 41 does not change anything for the better, then what must we do? We cannot do more.
Mr. Tyler: Yes, you can. For instance, you can provide some recourse for organizations like ours in cases where Part VI of the act is disregarded. As it now stands, the act does not propose any remedy when Part VI is contravened, even for the commissioner, with the possible exception of contacting the government and writing reports. Reports have been drafted in the past. Enough is enough. We need the option of being able to challenge any violation of Part VI of the act in court. That would be a practical amendment. Another amendment would be to allow for a presumption in the person's favour. These are practical amendments that would benefit both communities.
Senate Beaudoin: In terms of recourse, are you talking about a legislative amendment?
Mr. Tyler: Yes. This would require amending section 77 of the act to allow a party that has filed a grievance and received a report to turn to the Federal Court to seek an effective remedy. That would mean orders such as the ones mentioned in the conclusion to the commissioner's report cited earlier.
[English]
The Chairman: Mr. Tyler, before you go further, perhaps I should clarify what this committee can and cannot do. Senator Gauthier's Bill S-32 does not deal with Part VI of the act.
Mr. Tyler: That is the problem.
The Chairman: Yes, so we cannot delve into any other part. We cannot go beyond this bill. That is what Senator Beaudoin was saying.
Mr. Tyler: I understand, but my point is, if you are considering amendments that will have what we feel a useful effect, this is an illustration of an amendment that we think would be more useful than the one you are considering.
Senator Beaudoin: Madam Chair, I would not object to another amendment, if necessary. If, after your testimony, we find that we should amend another part of the act, I would certainly be in favour of that.
The Chairman: Carry on, Mr. Tyler.
Mr. Tyler: I had nothing more to say in answer to Senator Beaudoin. I tried to answer his question fully.
Senator Moore: I am sitting here on this, the twentieth anniversary of the Charter of Rights and Freedoms, and I find the story about Mr. Greer to be quite incredible.
Mr. Tyler: We do too.
Senator Moore: I just cannot believe what I am hearing.
I also find incredible what was suggested by Heritage Canada respecting your application for funding. Could you repeat the phrase in your application that you were asked to remove?
Mr. Tyler: I would be delighted. This was in our original application when it was filed by the deadline in December 2001:
Research and assess application of the Official Languages Act to ensure compliance with the regulations by federal government institutions.
Subsequent to the filing of our application for program funding, we were approached by employees of the Department of Canadian Heritage and directed to take that out of our funding application, which we did.
Senator Moore: Had that phrase been included in previous applications?
Mr. Tyler: We have always played a role in ensuring that the federal institutions in the Province of Quebec respect their obligations under the Official Languages Act. It came to us as a huge surprise that this request was made of us.
Senator Moore: That is not what I asked you. I want to know was that phrase in your application in the year before, the year before that, and the year before that?
Mr. Tyler: I would have to explain to you that there is a new funding paradigm now — results-based management. Therefore, our funding application was totally transformed. I can tell you that as a matter of fact we were funded before for this very activity.
Senator Moore: Were you funded for that activity?
Mr. Tyler: Correct.
Senator Moore: Who told you — I want names and correspondence tabled — to take that out?
Mr. Tyler: I can tell you that Beverley Caplan of the Montreal office of the Department of Canadian Heritage spoke to Lynn Roy, our Director of Communications, and directed Lynn to remove this from our application.
Senator Moore: Was there an implication that if you did not you would not be successful?
Mr. Tyler: You are probably not aware of the fact that we are the only group in the Province of Quebec that has had our funding cut not once, not twice but three times.
Senator Moore: Was that done by Heritage Canada?
Mr. Tyler: Yes. Therefore, we were sensitive to conducting ourselves in any way that would result in a further cut of our funding, so we took it out when we were so directed.
Senator Moore: You took it out. Was your application then successful?
Mr. Tyler: We have not been advised yet. Our fiscal year started April 1, and we have yet to receive any approval of our application for program funding, even though the fiscal year has already started.
Senator Moore: In the past, when did you receive a response for your application? Was it prior to the commencement of your next fiscal period?
Mr. Tyler: In the past, it has always been a problem. Sometimes it has gone as late as June. One regional association in the Province of Quebec last year, CASA, had to close its doors for two months because of the delay.
Senator Moore: What is going on here? Is someone trying to force you out of business?
Mr. Tyler: It would be unfair to speculate. I can tell you that we are the only group that has been cut — not once or twice, but three times. We are the only group that takes an advocacy position with respect to issues relating to the English-speaking community, in terms of going to court. For example, when the Quebec government failed to implement the health care access plans in accordance with its statutory obligations, it was Alliance Quebec that took it before the courts. Of course, the Quebec government adopted all the plans before we got to the courthouse.
We see our role as being that of an advocacy group where interests affecting all of the English community are involved. However, we are one regional association among many others. We are the largest. We have 80 per cent of the English-speaking population within our territory.
Senator Moore: You were told to take that phrase out, but that is still part of your mission, which you intend to carry out, I presume.
Mr. Tyler: For me to be here, for example — Mr. Labbé is volunteer leadership — and for us to incur expenses, we must, in this age of due diligence, show at the end of year that we spent the money where we said we would. If this is not in our funding application, we must then raise the money to pay for today from other sources, such as membership and private fundraising.
Senator Moore: Even though this statement of your mission was taken out of your application, you still intend to proceed in that manner; is that correct?
Mr. Tyler: Absolutely. We will just find another way to fund it. We have to continue.
Senator Moore: Are they saying that, if you do anything with respect to ensuring that the Official Languages Act is applied, if you undertake any activity in that vein, any funding necessary for that activity will be cut?
Mr. Tyler: Because they are not giving it to us for that activity, they asked us to take it out.
Senator Moore: However, you are incurring expenses by being here today.
Mr. Tyler: Correct.
Senator Moore: I think this probably falls under the umbrella of the statement you were told to take out.
Mr. Tyler: I would say that it clearly does.
Senator Moore: It looks like it to me.
You are making your application for funding. At the end of the year you submit your report on your activities.
Mr. Tyler: On a quarterly basis we are required to do due diligence; in other words, to show Canadian Heritage that we have spent the money where we said we would.
Senator Moore: If you put in your quarterly report that you were here doing this activity and incurred certain expenses, am I correct in saying that those expenses would not be covered?
Mr. Tyler: We would have to find private funding to cover them. That is right. That is what I am saying.
Senator Moore: That is unbelievable in this country at this time.
Mr. Tyler: We will be happy to document it chapter and verse.
Senator Moore: I have heard enough.
The Chairman: Senator Moore, I would point out that this committee does pay the expenses of witnesses who appear before it, but only one in each group.
Senator Moore: That is not the issue or the point, but I appreciate your comment.
Senator Gauthier: The Quebec Community Group Network...
[Translation]
Senator Gauthier: Are you familiar with the Quebec Community Group Network?
Mr. Tyler: Very much so.
Senator Gauthier: Are you a member of this organization?
Mr. Tyler: We are members, like all members who receive funding from Heritage Canada.
Senator Gauthier: Does the Network serves as the umbrella organization for Quebec anglophones?
Mr. Tyler: In the case of Alliance Quebec, the President is the organization's spokesperson on the subject of funding. No one else can speak for the members of Alliance Quebec, except for the President or the person designated by our Board of Directors. When Mr. Maynard addressed the committee in his capacity of President of the Quebec Community Group Network, he was certainly not speaking for us.
Senator Gauthier: Was he speaking for the Quebec Community Group Network?
Mr. Tyler: We have not given him any kind of mandate to speak on our behalf. He has a mandate to negotiate funding with Heritage Canada.
[English]
The amendment that I propose in Bill S-32 to the Official Languages Act was supported by Mr. Maynard. Do you not support it?
Mr. Tyler: I do. It is in the right direction.
Senator Gauthier: Your first comment was that it was ineffective. What do you mean by ``ineffective?''
Mr. Tyler: It is a step in the right direction. I agree with Senator Beaudoin's characterization that it does move in the direction of executory rather than purely declaratory affirmation. It is not meant to be a criticism. We are a lobby group. We are here to make ``revendications,'' and one of the revendications that we are making is that we feel that other amendments would be more effective in terms of helping members of official minority communities on the ground.
Senator Gauthier: I think we all agree with you that this is not a perfect bill. It could have more of an omnibus approach. If we amended the act to include Part VII , Part VI, into the...
[Translation]
The aim was to make the legislation more executory. Some witnesses, although not Mr. Maynard or yourself, were critical of the proposal, citing that it would make the provision subject to greater judicial control. Do you understand what I am saying?
Mr. Tyler: Very clearly. Senator Rivest expressed a similar concern.
Senator Gauthier: Section 15 of the Charter which provides for equality before and under the law has had an impact since 1997. In recent years, there have been 2,500 court challenges associated with section 15, 15(1) and 15(2), and approximately 20 challenges related to section 23 and education rights. However, you do not wish to address that issue.
Mr. Tyler: Not before this committee.
Senator Gauthier: Approximately 10 cases pertain to section 16, but none to section 41, because it is not subject to the jurisdiction of the court. I agree with you in so far as Part VI is concerned. Currently, if you avail yourself of the services of the Commissioner of Official Languages, you cannot bring your grievance before the courts. However, you can take the matter before the Federal Court, pursuant to section 18 of the Federal Court Act.
[English]
It takes a lot of cash and good lawyers to do it. None of us, neither you nor us — and when I say ``us'' I talk about the English-speaking minority of Quebec — has the means to do that. It would be too expensive.
Mr. Tyler: I agree.
Senator Gauthier: All I am trying to do with my proposal is to make the Official Languages Act executory in terms of its policy. Part VII establishes the government's policy, its commitment, and Parts VI and Part VII have the same, or nearly the same, wording.
Mr. Tyler: Yes.
Senator Gauthier: Part VI reads: ``The Government of Canada is committed to ensuring...''; and Part VII reads: ``The Government of Canada is committed to...''
It is committed to many things, except that it fails to respect that commitment, in my opinion. I was trying to put a bit of a twist in here to indicate, ``You must exercise this obligation.''
I was here in 1988, when the law was amended and the new act was introduced. I heard the minister responsible for that act tell me clearly in both official languages...
[Translation]
The act imposes certain obligations on the government. I felt the interpretation was justified, but such was not the case. A few weeks later, the Minister of Justice appeared before a Senate committee and stated that section 41 of Part VII did not impose obligations in the usual sense of the word. Rather, it establishes certain commitments on the part of the government, and is more declaratory than executory in nature. That is what the minister said.
Since then, every single Minister of Justice has repeated the same thing. I did everything I could. I brought the matter before the Federal and Supreme Courts. My arguments were dismissed by both institutions. I concluded that if there was no possible way of interpreting the legislation to make it executory, then a political solution had to be found. I proposed a very simple amendment. The wording is not much different from that of the original provision. All I am doing is making it clearer and more explicit. The government has some serious obligations. I misunderstood you when you said the proposed amendment was ineffective. I just may take your suggestions for improving the bill under advisement.
[English]
Perhaps, with your help, we can make it better with your help, but I cannot do it alone.
[Translation]
Mr. Tyler: That is the reason why we are here. I did not want to give you the impression that we disagreed completely with your motivation and reasons for moving forward with this amendment. Your intentions are laudable and we will stand by you 100 per cent. We merely wanted to share with you some observations and to suggest some possible amendments.
Senator Gauthier: If you want to talk about equitable representation, I am more than willing to discuss the subject. I have been involved in this issue for many years. Equitable representation has been a problem in Western Canada, with less than 1 per cent of francophone Canadians employed in the federal public service. Problems have also surfaced in Quebec. I have been saying this for years, but there have been no tangible changes. Right now, equitable representation is a problem in every part of the country, including Ontario, with the exception of the National Capital Region. The situation in Montreal is disastrous. Earlier, you quoted the representation level as being at 5 per cent. I think the representation rate for anglophones is even lower in that region.
Mr. Tyler: I was merely quoting the commissioner's report which talks about a participation rate of 5 per cent in federal departments, not participation in all federal institutions.
Senator Gauthier: These figures are available upon request from Treasury Board. We can send you a copy of this information tomorrow morning.
Mr. Tyler: I assume the commissioner has access to the same documents.
Senator Gauthier: Yes, but she is always a year behind. We can get that information to you tomorrow.
[English]
We expressed concerns about the overall under-representation of Anglophones in federal departments and agencies in Quebec which currently stands at approximately 5 per cent.
[Translation]
I believe it is on page 19 of her report.
[English]
Senator Gauthier: I understand, and I sympathize with you. I am saying that you are taking this out of context. The Chair made it clear to you that we cannot start talking about Part VI and its difficulties regarding equitable representation. We are talking about Part VII and section 41. I am an ordinary Parliamentian. I cannot present a global, comprehensive bill. I am not the government. I am hoping that, with your comments and those of other witnesses, the government will get the message and will come forward with an amendment that will be reflective of not only your comments, but also those made by the others in this room. That is my hope.
Mr. Tyler: That is presumably the goal of the process.
The Chairman: Thank you, Senator Gauthier.
Senator Joyal: Welcome, Mr. Tyler. I apologize for not having been in attendance for the first part of your presentation. I was speaking on the debate on the twentieth anniversary of the Charter.
I had the opportunity to read reports of various initiatives that you have undertaken, either personally or on behalf of groups, in respect of linguistic rights in Quebec. How many court cases are you involved in presently?
Mr. Tyler: I would have to divide it up into various sectors. I can tell you that we have seven cases now pending before the Quebec Court of Appeal dealing with the issue of education. We have an application for leave to appeal to the Supreme Court in the question of commercial signage, outdoor signs. We have cases involving Web sites. In the Province of Quebec, the Charter of the French Language imposes the use of French on the Web. That will be rendered on May 23 of this year. I am sure I am missing some.
We have a number of cases in development. We have a case involving the language of work provisions in the Charter of the French Language. We represent a group of francophone parents, eight families involving 20 children, who are seeking access to English schools not based on the Canadian Charter but on the Quebec Charter of Rights and Freedoms. That is more or less a rapid survey of our cases.
Senator Joyal: I understand from the list that most of those cases deal with provincial legislation and not federal legislation.
Mr. Tyler: Correct, which is why, in my introductory comments, I said that I wanted to concentrate on areas of federal jurisdiction, particularly the Official Languages Act, because that is what the amendment that Senator Gauthier has proposed involves. I limited myself in my presentation to that.
Senator Joyal: I understand. Have you been involved in the past in litigation or involving the Official Languages Act or the Canadian Charter on section 16 in relation to the federal government? I am putting aside section 23.
Mr. Tyler: Of course. We always raise linguistic duality in our cases. I would cite the example of the business called ``The Lion and the Walrus'' in Knowlton, an area which is equal English and French. As you know, the law in Quebec provides for marked predominance, so that French must be twice the size of all other languages combined.
It is frustrating because, in almost every case, we made applications for funding to the Court Challenges Program and, with the exception of litigation involving section 23 and access to English schools, we have been refused in every single case by the Court Challenges Program.
Senator Joyal: If I understand, your alleged rights are under the Charter, not under the Official Languages Act.
Mr. Tyler: Yes. I am familiar with the jurisprudence and the incredible step forward that the Supreme Court took when they repudiated the previously restrictive interpretation of language rights and said that language rights, in all cases, must be interpreted and applied in such a way as to foster the development and vitality of official language minorities.
Senator Joyal: In relation to this act, as the chair mentioned, we have a term of reference from the Senate that deals specifically with section 41, which Senator Gauthier seeks to amend. In your evaluation of the act, what are the essential weaknesses in it as they affect your practise on a daily basis? It was adopted, as Senator Gauthier said, in 1987, but going back to 1969, in your practise of the act on a daily basis, what do you see as the main priority for change? In other words, in the context of the various provisions of this act, if, as Senator Gauthier mentioned, the government would be receptive to the idea of doing a re-evaluation of the act after so many years of implementation, what are the essential elements that should be addressed?
Mr. Tyler: I mentioned two when you were not in the room, but since you asked me the question, I will repeat those. There should be some recourse for a violation of Part VI of the act dealing with federal participation. Right now, all that the commissioner herself can do is report to the Treasury Board, report to the Governor in Council, and report to Parliament. She, herself, cannot even go to the Federal Court. There must be recourse.
The statistics complied by the Office of the Commissioner of Official Languages show that the percentage of anglophones was, to use his word, ``regrettable'' in 1987 and 15 years later, it has only gotten worse.
If the federal government, through political will from the top down, will not do anything about it, then by providing a recourse to people like Alan Greer and to organizations like ours, we could go to the courts. We could take the obligations in Part VI and have the Federal Court define them and impose affirmative action programs where necessary, much like the conclusions in the report of the commissioner in the complaint Alliance Quebec made, as follows: By a specific date, develop a three-year action plan with measurable indicators and strict time frames to increase anglophone participation at all levels in the organization of the Montreal region for the period 2002 to 2005.
If I could go to the Federal Court and say, ``Judge, this is the conclusion. Order the Canada Post Corporation to do this,'' we might get somewhere. However, right now, all that the commissioner can do is report, tell us that the investigation is ongoing, and then report some more. We have received many reports. Quite frankly, we think it is time to move on and make some changes on the ground because, if you look at the trends, the situation will only worsen.
Senator Joyal: Since you have so often been a petitioner in Canada, in the broadest sense, provincial and federal, how do you assess the conclusion of the Supreme Court, that francophones in Canada are a minority, and that the court recognizes that might entail initiatives that hurt the principles of a ``free and democratic society''? Of course, the sign legislation is one example of such an initiative, and the Supreme Court has spoken on it in previous cases, as you know. What is your evaluation of the balancing of that, and that, I would say, applies mutatis mutandis to the anglophone community in Quebec? How would you define the appreciation of the court on that?
Mr. Tyler: There is one thing that I do not think the Supreme Court did say. In The Lyon and the Walrus case, the current Supreme Court may, if it decides to hear us, have an opportunity to clarify what the court meant in 1988 when it talked about this range of options between marked predominance and joint views. That reference to marked predominance was made in obiter. It was not part of the rationale of the court. Much has been said about that, and I could spend three hours answering you, but I will try to be concise.
If, indeed, the Supreme Court is interpreted to have said in 1988 that the Charter rights of Canadians living in Quebec can be restricted to a greater degree than the Charter rights of Canadians living elsewhere, then that decision must be repudiated because it is inconsistent with our treaty obligations.
We presented evidence in court. There is not a liberal democratic country in the planet with our treaty obligations, an enshrined Charter of Rights that requires the official or national language be twice the size of all other languages combined. It is absurd, ridiculous and an embarrassment to us all, in my view. It would be simple to have a solution, which would meet the requirements of the vast majority of Quebecers, and that is to say require French on outside signs, because of the consideration of the visage linguistique, but allow other languages of equal size to be present. Otherwise, we will have a ridiculous situation. Montreal will have the only Chinatown on the planet that is not Chinese.
There is a way of accounting for the fact that we do have, in the province of Quebec, the only jurisdiction in the continent with a francophone majority. It represents two per cent of the population of the continent as a whole, and we will always require language legislation in the province of Quebec.
Having said that, the question is this: What kind of legislation must we have? There are solutions staring us in the face. I just mentioned one with respect to signs.
With respect to schools, we should require citizenship. In other words, an immigrant that comes to Montreal or anywhere in Quebec who wants to immigrate to this country, and the province of Quebec in particular, knowing the rules, until such time as the children are landed immigrants, will send them to a French school. Once they are landed immigrants, is it not the hallmark of a liberal, democratic country to treat its citizens identically and convey to them the same rights and obligations and duties? Yet, in the province of Quebec, we seem to have allowed, in our intellectual discourse, for the possibility that Quebec is somehow different, and I have had judges —
Senator Rivest: Distinct.
Mr. Tyler: I think I have heard that word. However, distinction and particularity cannot be used as a justification for human rights violations. You cannot live in the province of Quebec as long as I have — I have spent my whole life there with the exception of a few years — without understanding that Quebec is different from other provinces, but that does not mean the Charter rights can be enjoyed differently; otherwise, we have Animal Farm rights where some Canadians enjoy all of their Charter rights and equal protection, but because we are English Canadians in Quebec, Gwen Simpson and Wally Hoffman can be prosecuted for having Canada's two official languages on a sign. To me, that is an embarrassment to all Canadians. It is time we changed that.
Senator Fraser: There are two areas I would like to explore with you. What proportion of total funding for Anglo groups in Quebec — and by ``total,'' I include ministerial special authorizations — goes to Alliance Quebec?
Mr. Tyler: I want to make sure I understand your question.
Senator Fraser: I am referring to all the dollars that go from the federal government to Anglo groups of any kind.
Mr. Tyler: I can only give you an answer based on the envelope that we get in the context of the official minority language programs.
We received last year — we do not know what our funding will be this year — $634,000. The envelope to the Quebec Community Group Network is, I believe, $2.5 million, but I can check that for you to make sure I am not giving you the wrong figure. That what I believe it is.
Senator Fraser: Did your $634,000 come out of that?
Mr. Tyler: Yes.
Senator Fraser: Did you not receive an extra grant?
Mr. Tyler: Not in this fiscal year. In the last fiscal year, the previous president, after another budget cut, was able to negotiate $300,000 for a separate, one-time only, non-recurring project. We had to absorb a $300,000 loss in the last 12 months of our fiscal year ending March 31.
Senator Fraser: Alliance Quebec's membership is complicated. How many paid-up individual members do you have?
Mr. Tyler: As we speak, and we are at our most hectic time, we have annual general meetings at all of our chapter levels and membership boosts considerably. However, when I was elected as interim president in August, we had 2400 members.
Senator Fraser: How would that compare with the situation of five years ago?
Mr. Tyler: Five years ago it would have been about the same, but there was a time in the heyday of Alliance Quebec, in the 1980s, when our membership was as high as 18,000 or 19,000. We had 25 employees with a budget of $2.5 million. That was when Alliance Quebec enjoyed the status of being an umbrella group, and that has been superseded by the Quebec Community Group Network.
Senator Fraser: Do you still have, in addition to individual members, group members?
Mr. Tyler: We have strategic alliances and we have been basically forced, by history and by the preference of Canadian Heritage, to fund the QCGN. We have decided to restrict our statement of membership to our individual, personal, paid-up members, so that now we are at 3400. Since I was elected it has increased by 1,000. I fully expect it to increase by 1,000 to 2,000 over the next year.
Senator Fraser: The group members reached that decision or Heritage reached it for you, after there was some haemorrhaging of certain groups.
Mr. Tyler: Exactly. When William Johnson was elected three years ago, a number of groups decided his attitude was too confrontational — and I am paraphrasing here.
Senator Fraser: I am sure he would agree with that — a discussion of his critic's position.
Mr. Tyler: As a result, many people severed their institutional relationship with us. We decided recently to constitutionalize that and eliminate any reference to it in our own constitution.
Senator Fraser: Thank you.
I will not turn to this bill. Unlike some folks, I have no problem at all with judicializing obligations under the Official Languages Act and with providing legal recourse. I can sit still for a strong argument if it is necessary. I have, however, expressed to a number of witnesses some concerns I have about the precise formulation of this bill as presented.
Mr. Tyler: Yes.
Senator Fraser: That is particularly so, given that it is explicitly tied to the Constitution. My particular fear is that you say this is, in essence, a constitutional requirement or undertaking. You continue and say that the Government of Canada shall take the measures necessary to ensure the vitality and the development of the language minority communities. This is such a sweepingly broad instruction to the government that it could reasonably be interpreted as pre-empting almost any other government obligation in terms of budgets.
I do not know the Statutes of Canada by heart, but I would be surprised if there were many instructions that were so sweeping in nature — no reasonable limits and not subject to the discretion of the minister.
You have some experience in pleading these cases in court. Would you not see this, in this instance, as a massive invitation?
Mr. Tyler: I see that the amendment, as proposed by Senator Gauthier, would require the courts to give substantive content to what is meant by the phrase ``shall take the measures necessary,'' because it is not defined in the statute. Who will do it? The courts would necessarily have to do that. What barometer would they use? How would they decide what is a reasonable, necessary measure?
Senator Fraser: It does not say ``reasonable and necessary,'' it just says ``necessary.''
Mr. Tyler: That is true. I mentioned before your arrival that the lack of precision is a potential problem, not only the point you are raising but, for example, how does a responsible government looking at budgetary constraints decide to allot resources? It also raises a problem for the judiciary. What guidelines will the courts adopt to try to make sense of what constitutes compliance with this law? This is a proposed piece of legislation. There are two problems arising from the imprecision of the words that are used.
Mr. Labbé: May I comment?
The Chairman: Honourable senators, allow me to introduce Mr. Jacques Labbé, Chairman of the Political Action Committee.
Mr. Labbé: If I were to use the example of Canada Post, I could perhaps see the Government of Canada telling Mr. André Ouellette, who happens to be a signatory of the Official Languages Act, that he has six months to show some kind of positive changes in the Greater Montreal Area. If he does not, maybe someone else should be put in the position of President of Canada Post who will implement the changes necessary, without having to go to court.
Senator Fraser: Would you not, for example, think that this, as written, would oblige the government to act? For example, in the case of a rapidly dwindling English community around Lac Saint-Jean, would the government not feel obligated to provide funding for daycare or for old age homes?
Mr. Tyler: No. In fact, it would not withstand judicial scrutiny for one second. If that were the necessary, logical implication of the text, it would be struck down. It cannot amend the division of powers. It cannot do that.
Senator Moore: I will be brief. What was the dollar figure on your application to Heritage Canada this year?
Mr. Tyler: I believe that our total budget was $880,000 and of that we expected to receive $634,000. Perhaps I should explain why that is. Canadian Heritage takes a single budgetary envelope, pops it in the middle of the table and then allows members of the QCGN to fight among ourselves over the apportionment of the pie. In other words, the very people we are supposed to be cooperating with and working with, we are at loggerheads with. That is why we have been cut. We are the largest group, and it does not take a rocket scientist to figure out that the budget can be cut and distributed to other groups. That is exactly what has happened three times.
The Chairman: Did your peers cut your budget?
Mr. Tyler: Our peers vote and make recommendations, but the buck stops on the desk of the Minister of Canadian Heritage. At any time she could have said, ``No, this is unfair.'' We asked her to do that, but she did not. Rather, she acted on a recommendation of this group, which was unfavourable to us.
Senator Moore: Do you have 3,400 members now?
Mr. Tyler: Yes.
Senator Moore: How many people belong to the Quebec Community Group Network?
Mr. Tyler: That is a complicated question.
Senator Moore: Are you one of them?
Mr. Tyler: Yes, we are the largest one, with 85 per cent of the English-speaking population in our territories. There are six regional associations: the Outaouais Alliance, which includes the Ottawa Valley and the Pontiac; the Voice of English Quebec, VEQ, based in Quebec City; the Townshippers, which is a group for the Eastern Townships; CASA on the Gaspé coast; the Coasters from Madeleine Islands; and I am missing the last one.
There are also central groups such as the Quebec Farmers and the Quebec Young Farmers. It is interesting that Alliance Quebec, with 11 chapters, one youth commission and 80 per cent of the English-speaking population in our territories has only one vote at the QCGN, whereas the Quebec Farmers and the Quebec Young Farmers each has one vote.
Senator Bryden: Do you not have any young people in your organization?
Mr. Tyler: Yes, we have, but our entire organization has only one vote. We are contemplating this scenario: If we were to break up into 11 smaller groups, we would then have 11 votes. When you try to build coalitions and organizations that coalesce interests, it does not seem to be very consistent to us.
Senator Fraser: As I see it, 3,400 people do not make up 80 per cent of the English-speaking population of Quebec, in case people are not familiar with the demographics.
Mr. Tyler: I did not mean to give you that impression.
Senator Fraser: You meant that you have members in districts where 80 per cent of Quebec Anglos live.
Mr. Tyler: Those not recognized by Canadian Heritage as representing the Greater Montreal Area. We are it for the Greater Montreal Area, the Abitibi, the Saguenay, St-Maurice and the Upper and Lower Laurentians.
Senator Moore: You mentioned a figure of $634,000. What is your total budget for the year?
Mr. Tyler: It is $880,000.
Senator Moore: Is that your total?
Mr. Tyler: The difference, in terms of our budget — because we do not know how much we will receive — is made up by membership fees and private donations. That is what we are hoping to get. We are being very optimistic in our private fundraising expectations. In reality, we will raise about $80,000 or $90,000. If the money from Heritage were to be maintained, we would be looking at a practical operating budget of $720,000.
The Chairman: Thank you very much Mr. Male, Mr. Labbé and Mr. Tyler, for appearing before us.
Before we leave, senators, we have a budget to pass. Our suggestion for a special study has been approved. The Standing Senate Committee on Legal and Constitutional Affairs has been authorized to examine and report on the implementation of statutory review provisions contained in selected legislation relating to legal and constitutional matters. We must report no later than December 20, 2003.
The steering committee has come up with a proposed budget of $2,000. We are asking for the approval of this committee to pass our budget.
Senator Fraser: I so move.
The Chairman: All in favour? Carried.
I will present it to the Standing Committee on Internal Economy, Budgets and Administration.
The committee adjourned.