Proceedings of the Standing Senate Committee on
Official Languages
Issue 4 - Evidence
OTTAWA, Monday, February 24, 2003
The Standing Senate Committee on Official Languages met this day at 4:04 p.m., to study and report upon the operation of the Official Languages Act, and regulations and directives made thereunder, within those institutions subject to the act, as well as upon the reports of the Commissioner of Official Languages, the President of the Treasury Board and the Minister of Canadian Heritage.
Senator Wilbert J. Keon (Deputy Chairman) in the Chair.
[English]
The Deputy Chairman: It was the wish of honourable senators that the proceedings today be recorded, and perhaps broadcast. We did not have approval at the end of the last meeting for this, so I would raise this matter now before we commence our meeting. Unfortunately, as events have transpired, I suspect we cannot not have either broadcasting or recording now for the early part of the meeting. I did want to raise this matter and ask the committee members whether they wanted to make an effort to have this done.
Senator Gauthier: Mr. Chairman, we have authority to televise our proceedings. We also have the ability to translate and interpret the proceedings. I tried to reach both the clerk and yourself this morning, but could not. I am somewhat upset that we do not have an ongoing policy of televising our proceedings. I understand that this room is not equipped to accommodate that, and I have asked the Standing Committee on Internal Economy, Budgets and Administration to look into this.
Currently, if we do not request it, the proceedings will not be televised. I believe that we should televise our proceedings as a matter of normal practice. I recognize that 4:00 p.m. is not the best time to make this request because the members of the media all have gone home, but at least our proceedings will be recorded. We can use that later to help people better understand the issues the committee is studying. I am upset that we do not have the television cameras here today. I am not concerned about the recording because that is done automatically. We will all have access to the transcript of the proceedings tomorrow.
Honourable senators, I move that, unless otherwise indicated, the policy of our committee be that we televise all committee meetings.
[Translation]
Four o'clock is not peak time. The journalists have already left. If we do not want people to know what we are up to, then we should meet in the afternoon.
I think we should consider holding these meetings at a more reasonable time, not at the end of the day, but earlier in the day.
[English]
The Deputy Chairman: Senator Gauthier, I am sorry that things have not transpired according to your wishes. At the end of the meeting today, I will ask for a resolution to have the next meeting recorded, then the committee members can debate and, hopefully, approve that. Then it would be straightforward from there on in.
Senator Gauthier: You may have misunderstood me. Out proceedings are automatically recorded. I am asking that the TV cameras be allowed in here. I believe that, in December, the committee adopted a motion to televise our proceedings.
[Translation]
It is quite common. It is something that we should be in the habit of doing. I think we need a higher profile.
[English]
The Deputy Chairman: I was referring to television recording of our last meeting. I will raise that subject at the end of the meeting, if that is acceptable to you, Senator Gauthier.
[Translation]
Senator Lapointe: At the last televised meeting, you said that it had been denied. Did I understand correctly?
[English]
The Deputy Chairman: At this point in time, we require approval at the end of each meeting to televise the next meeting. We did not have approval at the end of the last meeting to televise this meeting, but I will address that at the end of the meeting today.
Senator Lapointe: Were you given a reason for that?
Senator Gauthier: Mr. Chair, on that point, I believe we have a standing order to the effect that we can televise. The clerk, with the authority of the chairman, must advise whoever is responsible. I do not believe we have to repeat that process for every meeting.
The Deputy Chairman: Senator Gauthier, when the committee discusses that this afternoon, that could come to pass, however, at this point in time, we do not have approval to televise.
Honourable senators, Senator Losier-Cool is still convalescing and has asked me to replace her again today as the chair.
[Translation]
The Deputy Chairman: She will be back on March 24, for the next meeting.
[English]
Today, our meeting will be shorter than planned. At our last meeting on February 10, the committee voted to invite representatives from the Department of Justice and from the Fédération franco-ténoise. Both organizations agreed to send representatives, and we were to have with us today two senior officials from Justice Canada.
The federation, however, called us last week to cancel their appearance. Even though they initially agreed to appear, they were unable to be available on such short notice.
Furthermore, the federation advised us that they did not see any urgency to appear before the committee, since their lawsuit was still pending before the territorial Supreme Court, and since amendments to the territorial Official Languages Act would not to be tabled until March 3. The federation, therefore, extends its apologies to the committee and has offered to appear before us at a later date.
We tried to schedule another witness for the second half of our time today, but were unable to do so.
At today's meeting, therefore, we shall hear from only the Department of Justice. We have with us today Mr. Marc Tremblay, General Counsel and Director, Official Languages Law Group. He is accompanied by Mr. Warren Newman, General Counsel, Constitutional and Administrative Law Section. I understand that neither of you gentlemen wish to make opening remarks.
Senator Beaudoin: On a point of order, Mr. Chairman: We have one thesis that will be dealt with today. We need to hear the other side. I do not want to start the meeting today without knowing if we will hear the other point of view. We have two points of view. I would like to know if we will invite the other party to this matter to appear before us at a later date.
The Deputy Chairman: Senator Beaudoin, we will certainly invite the other party. Regrettably, they chose not to appear today. It appeared to me, as far as I understood, that they were concerned about the matter being before the courts. They are quite agreeable to appearing later on.
Senator Beaudoin: We have been most prudent in our recognition of the doctrine of sub judice. We obtained a declaration and an opinion from the office of Mr. Audcent. It is clear that the Parliament of Canada, the Senate and the House of Commons, when dealing with a case that is not criminal law, can certainly deal with the applicable principle of law. I have that opinion and, if necessary, I will refer to it.
Since we will hear the representatives from the Department of Justice, we will also hear from the representatives of the Fédération franco-ténoise. However, we will do that at a later date so that there is no problem of sub judice. We certainly have the right, as one of the three branches of our government, to carry out our duties as a committee.
The Deputy Chairman: I agree, Senator Beaudoin. The issue is not with the committee. The invitation was extended. The Fédération franco-ténoise declined our invitation, but have committed to come at a later date.
Senator Gauthier: Did you speak with them?
The Deputy Chairman: No.
Senator Gauthier: You stated that the matter is before the courts and that is why they did not come. I do not understand. That is not what they told me.
The Deputy Chairman: I did not speak with them, Senator Gauthier, so I would stand on what you have said. However, they did decline to come.
Senator Gauthier: Who spoke with them?
The Deputy Chairman: The clerk.
Senator Gauthier: What were the instructions to the clerk? Am I correct is saying that he was to invite them?
The Deputy Chairman: Yes.
Senator Gauthier: Once we extend an invitation, people generally come. I know for a fact that the expenses incurred would have been high, because they happen to be in the Northwest Territories. This organization does not have much money. However, I told them that we would pay their travelling expenses to Ottawa if they decided to come.
[Translation]
The Fédération des francophones hors Québec or the Fédération des communautés francophones et acadienne is located in Ottawa. They would have appeared, had they been invited. I was not consulted and I am a member of the committee. It would have been considerate, if the Franco-Ténois felt they were unable to come to Ottawa, for the clerk to call me or another member to ask us if we had other suggestions to put forward for witnesses. As Senator Beaudoin has said, we will only be hearing one side of the story. I want to hear the other side, I want to hear from those who are experiencing the situation and those who are having problems with official languages. I have the feeling that we will have no other choice. You say that they may be interested. I think the committee is interested. If we are not, then that is a sad story indeed.
[English]
It is a sad state of affairs if we have to say it is not proper for us because it is before the courts. That is not a valid argument because the matter is not before the courts. As far as I am concerned, I am speaking with parliamentarians here, and I want to know what is going on, as much as I would like to know what is going on elsewhere in the country. I think the clerk must be more responsive to the needs of this committee.
The Deputy Chairman: Perhaps I, too, should have been more responsive. I thought they were acting in a reasonable manner. They declined to come today, but they volunteered to come at a later date. I thought that would be satisfactory.
Senator Maheu: Mr. Chairman, was the Fédération franco-ténoise aware that we would pay their expenses? The clerk is indicating that they did know we would pay. Thank you.
[Translation]
Senator Comeau: I do not want to delay this discussion any longer, because we have witnesses. We should not take too long to deal with one subject. We must not blame the clerk who was simply acting on behalf of the chairman. He called witnesses to ask them if they wanted to appear before the committee. If they refused, then that is the end of it. If we are unhappy with their response, it is up to the senators, and not the clerk, to encourage witnesses to appear.
Senator Gauthier: I am saying that in this case, the clerk should have tried to find other witnesses to appear.
Senator Comeau: Well, we start with the chairman, and if he is not satisfied, then we continue.
Senator Lapointe: We have witnesses from the department who are waiting. Any discussion concerning committee business should take place after we hear these gentlemen.
[English]
The Deputy Chairman: Senator Gauthier, would you like to question the witnesses?
Senator Beaudoin: Do they not have a presentation?
The Deputy Chairman: They have no statements.
Mr. Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice: Honourable senators, having listened to this discussion with some interest, it might behove me to preface our remarks to you in some context.
[Translation]
We were invited to appear before the committee. We are not here with legal counsel, because we do not normally discuss litigation while it is before the courts. We are appearing as witnesses before this committee in our capacity as officials from the Department of Justice. We have some knowledge about the facts surrounding the situation in the Northwest Territories and the use of official languages. We do not intend to enter into a debate in the presence of other counsel, with the Franco-Ténois or any other parties to the case. According to our understanding of the issue, this could be considered contempt of court, and at the very least it would not be right for us to plead the case before it is adjudicated by the relevant tribunal.
[English]
The Deputy Chairman: It was my understanding that you wished not to make statements, but to answer questions.
Mr. Marc Tremblay, General Counsel and Director, Official Languages Law Group, Department of Justice: That is correct, honourable senators.
The Deputy Chairman: Would you like to begin, Senator Gauthier?
Senator Gauthier: Thank you, Mr. Chairman.
[Translation]
Senator Gauthier: I am interested in the use of official languages in the Northwest Territories. I do not really care about lawyers or legal cases. What I want to know is how the people living in the territories are treated, where, according to what I have been told, an act was passed in 1984. You may say that I am mistaken. The Conservative government of Mr. Mulroney had proposed that an agreement be signed with the territories concerning official languages.
Am I right so far?
Mr. Newman: Yes.
Senator Gauthier: I was there, but I do not remember all of the details. I was the official languages critic for the Liberal Party in the House of Commons at the time.
I remember full well having asked questions about the agreement with the territories. I was told not to worry because they had undertaken to adopt an official languages act in the territories which would be comparable, similar to the one we had in Parliament, the one that was amended in 1988. Mr. Newman will remember that.
In 1988, Parliament adopted a new Official Languages Act. In the Official Languages Act, at clause 3 — I might be mistaken, I am quoting from memory — it is clearly stated that the Northwest Territories are excluded from the Official Languages Act. I should quote the text. This is from clause 3:
... does not include any institution of the Council or Government of the Northwest Territories or the Yukon Territory or of the Legislative Assembly or Government of Nunavut or any Indian band, band council or other body established to perform a governmental function in relation to an Indian band or other group of Aboriginal people.
I had asked the following question at the time: Are we allowed to do that? Are we — a responsible Parliament having signed an agreement with one or a number of territories — allowed to include in a federal act, an exclusion from that legislation? I was told not to worry.
In 1988, the act was amended. I found that somewhat difficult to accept. I will tell you why. In the Canadian Charter of Rights and Freedoms, in clauses 30 and 32, it is clearly stated, and I quote:
30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.
32.(1) This Charter applies
(a) to the Parliament and Government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and the Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
What takes precedence? The Official Languages Act or the Charter? Does the Charter say that they are related to the Official Languages Act or does it say that they are excluded? I submit that the Canadian Charter of Rights and Freedoms takes precedence and that this Act, in clause 3, is unconstitutional.
Do you have an answer, Mr. Tremblay? Am I mistaken on this?
Mr. Tremblay: I understand the historical landscape that you have presented. As to our legal conclusions, I would say that, in part, the issue will be examined by the territorial Supreme Court. We will have to wait much longer to have a broader contextual answer. For the meantime, the Official Languages Act of Canada, as with all other acts, is presumed to be constitutionally valid.
As to the application of clause 20 of the Charter, to various legislative measures, if we assume, for the purposes of the argument, that clause 20 of the Charter applies to the Northwest Territories, the means taken by the government or governments to implement the provision can vary, in all legitimacy; that illustrates the fact that we have before us, and is also a rather direct parallel.
From 1982 to 1988, before the new Official Languages Act was passed, we could never say that the federal government was in violation of the Charter. However, six years have passed since that legislative instrument was updated. Various means can apply. The parallel example that I wanted to put forward is the one provided for in paragraphs 1 and 2 of clause 20 of the Charter. One clause applies to the federal government while the other one applies to New Brunswick. Each one has adopted different legislative instruments. Not long after 1982 — in fact, New Brunswick kept its 1969 act until last year — after the adoption of the Charter, New Brunswick decided to use legislative means. It may not be the same, in our minds, as a conclusion to the effect that the Charter was not being respected.
Let us say that the Charter applied to the Northwest Territories — this matter is before the Northwest Territories Supreme Court — the means taken by the government or governments for implementation could vary quite legitimately. An official languages act for the Northwest Territories would be in accordance with the provisions of the Constitution, if it were to apply.
Senator Gauthier: Clause 20 supersedes clauses 30 and 32, if I understand what you have just said?
Mr. Newman: Clauses 30 and 32 apply to the scope of the Charter. Clause 30 stipulates that the provisions relating to the provinces also cover the territories. For example, we cannot say that the legal guarantees within the Charter do not apply to the Northwest Territories in the same way as the guarantees apply to the provinces. Clause 32 ensures that the legislative or governmental powers, whether it be in Parliament or the provincial legislatures, would not escape the application of the Charter. This also includes the territories. There are no loopholes. I do not believe that clauses 30 and 32 settle the matter regarding the application of clause 16(1) of the Charter or clause 20(1) of the Charter as they relate to the territories. That is another issue, that is to say, whether or not the territories are institutions of Parliament or of the Government of Canada for the purposes of these sections of the Charter. The matter is now before the courts. The aim of clause 3 of the Official Languages Act, 1988, was precisely to determine the application of this federal legislation by listing most of the institutions to which the act would apply, including departments, crown corporations and federal government agencies.
There are reasons, however, for exempting the territories for the purposes of the act. At the time, Bill C-60, the Official Languages Act, 1988, amended the Northwest Territories Act to entrench or include an order relating to the official languages in the Northwest Territories. One cannot take away from or reduce this amendment without the approval of Parliament. So there is a fairly watertight protection of the official languages in the territories. As my colleague as said, if, one day, the courts decided that the federal linguistic guarantees in the Charter were to also apply to the territories, there are various means within the Charter to apply these guarantees. One of these means would involve an order relating to the Northwest Territories, and order relating to official languages, that they call their Official Languages Act.
Senator Gauthier: You raised the issue of clause 16.
Mr. Newman: Yes.
Senator Gauthier: We are all legislators here. But we are not legal experts. I would like to understand how the application of an act, the Official Languages Act in the territories, has given rise to so much criticism about its implementation. I can read you quotes, as I am quite familiar with the issue.
Canada's Official Languages Act applies to all of Canada, as in clause 3, with the exception of the territories. The Northwest Territories would like to have a comparable and similar law, but this is not the one. You know that as well as I do. There are no regulations. An act without regulations is not very strong. There are guidelines. I will give you a definition of a guideline. There is a difference between a regulation and a guideline. An act without regulations is toothless. You might say that clause 41 of the Official Languages Act has no regulation, and that is true. There have been no regulation for 15 years, and that is also true. I do not agree when you try to tell me that a territory has one type of status while a province has another. I recognize the fact that provinces have constitutional rights. To my knowledge, the territories do not. They exist by virtue of an act of Parliament. That act can be repealed at any time.
I wonder about the situation as it now stands in the Northwest Territories: it is almost impossible to live in French because the government does not provide any services in both official languages. The government is not properly applying the Official Languages Act. Their act cannot be compared to ours. I will explain the facts as I understand them. Correct me if I am wrong. I cannot accept what you say in your brief to the effect that the territories are a type of province, a junior province.
The territories are not provinces. Mr. Newman can defend his point of view. The Charter of Rights and Freedoms was passed, I voted against it. Mr. Newman knows that. Why did I do that? Because my rights were being quantified. In a part of the province where numbers warrant, rights would be available. I did not think that was right. Must we count the hearing- and vision-impaired? No, not in my country. We all have equal rights. Clause 16 states that the laws apply equally to each one of us.
People in the territories are complaining and they are not here. I would like to help them. Canada's Parliament has that obligation — and even more so the Senate — because we represent the regions. We are the federative chamber in this Parliament. The other chamber is elective. We were not elected but we are here to represent the regions and the minorities, whether they be physical minorities or others. I think that this is a serious political, if not legal problem. That is why I wanted to hear what you had to say today.
Mr. Newman: I would like to correct something, I do not believe that our counsel have pleaded that the Northwest Territories were a quasi-province or a junior province. I believe that one of the judges in the Saint-Jean case had described the territories in that way, but again, we would not be comfortable debating the status of the territories. A Federal Court decision signed by Justice Décary deals with the status of the territories from a constitutional, legislative and political viewpoint. The Federal Court of Appeal does indeed state that the territories do not enjoy the same status as a province. However, on the legislative side, the government had given the territories the same attributes as a true responsible government and conferred upon them all executive, legislative and judicial powers that the Constitution allowed Parliament to delegate, through the Northwest Territories Act. Even though Parliament reserved the ultimate control, the Northwest Territories Act can still be amended. Nevertheless, the Federal Court of Appeal clearly states that the territories are closer to provinces than to municipalities and they are not simply agencies of the federal government.
It is true that the territories are a creation of the federal Parliament but that does not mean that they are agents of the federal government. There is a difference between the legislative control exercised by Parliament over the territories and the governmental control of the federal government over the territories which is much less obvious today because there is a tendency to respect the territories' responsible government, pursuant to their political evolution.
I wanted to make that clarification with respect to the status of the territories. The Federal of Court Appeal decision is publicly available. That does not settle the issue relating to the implementation of the Territories Act and the Official Languages Act in the territories. As to the effectiveness of the legislation, the act does provide a mandate for an official languages commissioner as well as legal recourse before the Superior Court of the Northwest Territories. If a regulation is needed for the implementation, I believe that Mr. Tremblay would be better able to discuss the possibility of amending the act. There is a committee in the territories that is examining possible improvements to the act and its implementation. I believe that all of our actions so far involve ensuring that the territories be accountable for their own official languages act as well as its implementation through effective relief mechanisms.
Senator Gauthier: Since you have raised the issue, Judge Décary spoke on behalf of the majority on the Federal Court. The reason that he said that the Federal Court did not have jurisdiction was because the territories were not a federal institution. That is what he wrote.
Mr. Newman: Let us just say that it is not a representative of the federal Crown per se.
Senator Gauthier: I am talking about institutions. Section 3 deals with and defines federal institutions. Mr. Newman, you know this as well as anyone else, but we are the ones who insisted on the fact that Parliament, the House of Commons, the Senate and the Library of Parliament be defined as federal institutions under section 3.
Mr. Newman: Yes.
Senator Gauthier: How can a federal institution create something which does not devolve from this institution? I do not understand! I am no legal expert, no more than is Senator Lapointe, but I would like to understand how you get around being defined as an institution.
Mr. Newman: Parliament can introduce legislation to create Canadian business organizations, for instance, but they are not instruments of the federal government. It can create entities through legislation which are not necessarily accountable to government departments. Parliament can subject these entities to the Official Languages Act if they fall under Parliament's jurisdiction. Parliament could have opted to apply either the Official Languages Act directly, or other measures, but Parliament chose to augment the territorial agreement and legislation on official languages by enshrining it. That way, it was still possible to back out without Parliament's approval. Parliament chose this option in 1988.
Senator Gauthier: The agreement between the territories and the federal government was made in good faith. The territories were to adopt official languages legislation similar to the federal legislation, with regulations. But they did not do so; they adopted directives. These are administrative, but not binding. Mr. Tremblay, perhaps you can give me a definition of regulation or directive. My definition is not the same as yours.
Mr. Tremblay: I will use yours. I will admit that legislation, regulation, directives and administrative policies follow an increasing order of obligation, meaning that the courts can more easily rule on legislation than on an administrative policy. This is the range of instruments a government may use to govern efficiently.
But that is a far cry from saying that a jurisdiction has breached the law by passing legislation without adopting regulations, even though, under the legislation, it had the power to make regulations.
For instance — I do not want to expose my client, the Government of Canada, to risks, but there are dozens of regulatory powers under the Official Languages Act of Canada. I could give you several examples. The first one that comes to mind is the regulatory power contained in subsection 11.3 of the act.
The governor in council may — perhaps it is because it is the first regulatory power contained in the act — through regulation set the conditions in which the above-mentioned categories of agreements must be bilingual.
But there are no such regulations. There are about a dozen regulatory powers, but only one has been applied. This does not mean that the provisions contained in the law have not been upheld. If they have not been upheld, the legislative provisions create rights and not regulatory provisions.
I understand by what you are saying that, with regard to the territories, your concern is that they did not regulate the conditions in which they must provide bilingual services to the public. The regulations did not define the meaning of ``where numbers warrant.'' But the federal government has, in a clear and specific manner. You can consult a list of federal institutions on various websites which name the specific offices of a federal institution which, under the regulation, must provide service in both official languages.
We do not have regulatory clarity because no regulation was adopted by the territories. But a tribunal — in this case, the Supreme Court of the territories, which would hear the matter and is in fact seized of the issue — would examine the provisions of the territorial Official Languages Act, as it is currently called, to determine whether the right to use the language of one's choice in debates, the right to service in English and French in the central administration's offices, and the right the use French or English before the territorial courts are, in fact, upheld, as well as the right to use French or English in designated offices, that is, where numbers warrant.
If you look at sections 8, 9, 10, 11, 12, 13 and the following ones of the territorial Official Languages Act, you will note a parallel between the provisions contained in the Charter. But this does not mean they apply. Territorial lawmakers included rights which are similar to those contained in sections 16 to 20 of the Charter and incorporated them into an act which provides for legal recourse and which, in the eyes of the Canadian Parliament, has a privileged status. We enshrined it, to use a word which not all legal experts like. This means that if the provisions are not duly applied, the federal government may intervene.
A legal expert would say the legislation contains rights and that it can be interpreted by the courts, which would rule whether they are being upheld or not. Is an act inferior to a regulation? The general consensus is no. An act is more powerful; in the constitutional hierarchy, it is the second-most important instrument after the Constitution.
Senator Gauthier: Mr. Tremblay, I understand what you are saying, but you did not answer my question. There is no definition of office, nor of ``where numbers warrant''. This is a rehash of the debate we had in Parliament when Senator Murray was chairperson of the Official Languages Committee. The fifth report came out around 1976 or 1977. This goes back a long way. Fifteen or nineteen years later, we still do not have regulations describing which rights apply.
We are blithely told it is no problem: ``where numbers warrant'', but we will issue directives to that effect. Hold on to your horses! This is precisely why francophones cannot get government services in their mother tongue. They are told: ``Sorry, we don't speak French here!'' It is wrong for this to happen in Canada, my homeland. We have an Official Languages Act and it has to be strong.
Senator Beaudoin: I just wanted to come back to the overall context. I have read the Appeal Court ruling. The Federal Court of Appeal said it was not empowered to hear the case and that you had to go before the Territorial Court. I read every word written by Judge Décary. I found his ruling very interesting. None of his legal arguments took me by surprise, but the ruling was based on procedure. It was not a ruling on the substance of the issue.
We could discuss this for months, but the fact remains that the court did not rule on the merits of the case. There is agreement on this. No lawyer could disagree. It is a well-argued ruling. Even when he was referring to the territories, the judge said that the court was not empowered to rule on the merits of the case made by francophones living in the Northwest Territories. At the application stage, a court must decide whether federal laws and orders are valid. I agree with that, but one question remains: Does section 3 of the Official Languages Act give effect to and fulfil the obligations contained in section 16 of the Charter?
The most important thing here is not the Official Languages Act, though it is well drafted, it is the Charter, which is the Constitution. Section 16 states that we have two official languages. Nobody questions this. Under section 16, French and English have equal status. Bravo! That is terrific.
When you drafted the Official Languages Act, you included definitions in section 3. You said that the territories were not federal institutions. This obviously lies at the heart of the debate. There is no point in beating around the bush, this is where the definition lies. Every legal expert agrees that the provinces have powers by virtue of the Constitution. Every legal expert agrees that the territories have powers by virtue of Parliament. Do not talk to me about quasi-provinces or the like. Territories are territories and provinces are provinces.
Did this Official Languages Act have the right to state that the territories are not federal institutions? I realize that opinions are divided on this matter. We could debate the issue for hours. Tell me: if they are not federal institutions, what are they, then? They are neither municipalities, nor are they provinces. According to Le Petit Robert, the word ``institution'' means ``creation.'' In the Senate, we worked on this definition. I was told ``Mr. Beaudoin, they are a creation of the federal government, but they are not federal institutions.''
So, tell me what they are! It is clear they are not provinces. It is clear there are not municipalities. They clearly have many powers, but where did these powers come from? From Parliament, not from the Constitution. I know I will not convince you of this. I also do not want to get into a debate on the issue, because it will end up before the courts. Lawyers will go on for hours until the Supreme Court makes its final decision. But there is no other way, because we need to know what these three federal territories are. There are 10 provinces which have the right to amend the Constitution in cooperation with the federal government. The territories do not have the power to amend the Constitution in cooperation with the federal government. So, they are not the same.
That is the final debate and I will not touch it because I realize they are two competing theories: yours and that of the francophones living in the Northwest Territories.
Judge Décary did excellent work; it was terrific, a small novel. I found it very nice. He upheld section 3. He was perfectly right in doing so. Every law is deemed valid unless it is struck down by the courts on constitutional or legal grounds. I agree with that. Section 3 exists. On its face, it is surprising, but there you have it. Therefore, it is legal. There are two theories.
You say not only that it is legal, but constitutional as well, since it is based on section 16. My problem is this: if the territories are not federal institutions, what are they then? The question has yet to be answered. I hope one day someone finds the answer.
You have taken your case before the courts and I do not wish to interfere. I am a legal expert and respect those principles.
The Parliament of Canada has the right to talk about the Constitution. If we do not have that right, what are we doing here? We have a Canadian Charter of Rights and Freedoms, we have a federal system, we respect the powers of the provinces, we spend all our time debating these issues.
If we were dealing with a criminal trial, I would not be here. I would have said it was none of our business. Only a court may rule on whether or not a man or a woman is guilty of a crime.
But we are not dealing with criminal law, but constitutional law. We have a role to play; however, we are only playing it with one party. I do not want us to get involved in this debate. I know what you will say, I know what francophones living in the Northwest Territories will say.
At one point, the ultimate question will be whether or not we have complied with article 16 of the Canadian Charter of Rights and Freedoms. In linguistic terms, are both languages equal?
It has been said that these are not federal institutions. We have set up a system and it is presumed to be valid.
I am wondering how you can conclude that they are in compliance with article 16 in every respect. Where is the equality for francophones in the Northwest Territories? That is what concerns me.
I know that there are no legions of francophones. It is not a question of number. These are equal languages. This has been argued before the Standing Senate Committee on Official Languages and it is still being argued. I will leave the rest up to the courts. I cannot be accused of intervening in the trial, I am not intervening.
Furthermore, I know how to read the Constitution and it seems to me that this article 16 is not entirely respected in section 3 of the Official Languages Act. That is my argument. I will either win or lose. I hope that, as was the case in the Forest decision, I will lose at one level and win at the Supreme Court. I do not know. That is the dilemma. It is good that we are discussing the matter at the Senate. It cannot be said that the senators have not done their homework. We do do our homework. We are interested in constitutional issues.
The Supreme Court will have the last word. It will decide whether or not we are wrong or whether or not you erred. I have nothing further to ask you. Indeed, I am not going to ask you anything because, since I know your situation, I would be doing the same thing as you are doing.
At one point the court is going to have to decide. Only the court can decide on this matter. Unless we can convince you that you have erred. This debate will wind up before the courts.
As legislators, we must say what we think about the main principles. Do you agree? You were going to say no. I will, however, ask the question all the same.
Mr. Newman: On several occasions, you asked: if the territories are not federal institutions, what exactly are they?
I am not going to ask the question as to whether or not section 3 of the Official Languages Act respects article 16 of the Canadian Charter of Rights and Freedoms as such. As you said, the matter is before the courts. The status of the territories flows from the Constitution just as the status of the provinces comes from the federal government. Section 4 of the Constitution Act of 1871 covers the territories. It states that the Parliament of Canada can, from time to time, draft provisions concerning the peace, order and government of any territory that does not form part of a province. That is the status of a territory. It is a geographical place that is not currently part of a province.
The Constitution gives the Parliament of Canada the authority to legislate with respect to the governance of the territory.
Is that very different from the power that the Constitution gives the Parliament of Canada to legislate for Sable Island?
That does not necessarily change the way that this legislative power is carried out, no more so than it necessarily changes government entities into federal departments. This may occur, but not necessarily so.
Senator Beaudoin: The provinces derive their powers from the Constitution. Provinces are sovereign in their legislative fields of activity. Just as the federal government is sovereign in its own sphere of activity.
The territories have delegated powers but they are not sovereign powers. This is a word that we forget about. They are not sovereign. This is not the Crown. These are significant delegated powers. We were right to create territories. I am in favour of the Yukon and Nunavut; these are not provinces. Provinces are sovereign in their sphere.
What is federalism? The federal government is sovereign in its sphere of activity and the provinces are sovereign in theirs. The three territories are not provinces.
They have significant and attractive powers. I voted in favour of Nunavut I would do so again. These are delegated powers. This is so true that, tomorrow morning, we could change the Nunavut Act. Nobody is challenging that.
Could we change the Quebec Constitution? Should we try to see if we can? A province is sovereign in its sphere of activity. It derives its powers from the Constitution. The territories have significant powers, they are very useful, I like these powers but they are not sovereign. Parliament continues to be sovereign in its sphere of activity.
Parliament can create territories. If it wants to, it could create 10 others. However, the territories do not have the right to amend their constitution. Provinces have this right. So I will ask the following question: If they are not federal institutions, what are they? They are not provincial, they are not municipal, what are they? They are federal. It is so simple!
They are federal because they are not sovereign. They are powerful. I agree. I congratulated the government when it created Nunavut because that helps us extend our empire to the North Pole and we can say that this is Canadian land. Bravo! Congratulations!
I am compelled to say that I do not see how we can say that it is not federal. If we can change the Nunavut Act, it is because it comes under the jurisdiction of our federal Parliament.
I agree with you and I am not saying that section 3 is invalid. It is presumed to be valid. But, in my opinion, we could prove — and this will be up to the court to decide — that it does not comply with article 16.
I believe that article 16 is much more important because this is the Constitution. There are two important things. The provinces must respect the Constitution, and the federal government must respect the sharing of powers. Both must respect the Charter because it is our Constitution.
When you create legislation such as Canada's Official Languages Act, you must abide by clause 16, which covers linguistic equality. I know that this is not easy and I also know that Canada's history shows that it takes time to convince everybody to adopt bilingualism everywhere, but it is our duty to defend this Constitution.
Mr. Tremblay: Our previous responses go as far as what we are able to present to you today. Like you, I would say that today we will not really be able to persuade you with respect to the validity of our argument.
To conclude the debate, obviously there is a very interesting theoretical debate underway which is of interest to lawyers in particular. If we were to presume that your argument was valid and would be supported by the courts and we concluded that clause 16 applied, we would still have to demonstrate that the Official Languages Act territorial ordinance did not meet these same clause 16 requirements. This territorial ordinance with respect to official languages also benefits from prima facie validity.
On the one hand, if we were to draw a parallel between the provisions of the Charter and the territorial ordinance and Charter provisions and the 1969 New Brunswick Act — it did not have regulations and, to my knowledge, the new version still does not include enforcement regulations — and, on the other hand, if we were to compare the federal legislation, its scope and practical applications with respect to clauses 16 to 20 of the Charter, the New Brunswick legislation with respect to clauses 16 to 20 of the Charter, and the territorial ordinance with respect to clauses 16 to 20 of the Charter, we would see that there is a lot more similarity than what is currently being implied.
Section 16 of the Charter talks about equality of status. Section 8 of the Northwest Territories Official Languages Act talks about equality of status; equality of status, and equal rights and privileges as to their use in all institutions of the legislative assembly and government of the Territories. Section 17 talks about debates and other proceedings of Parliament, while section 9 stipulates that everyone has the right to use any official language in the debates and other proceedings of the legislative assembly. Section 18 talks about statutes, records and journals of Parliament.
Section 10 of the territorial act states that acts of the legislature and the records and journals of the legislative assembly shall be printed and published in English and French.
If we draw this parallel, we can see — and this is what I want to draw to your attention — that the provisions of the Charter are reflected in the provisions of the Northwest Territories Official Languages Act.
Are they as complete as they should be? Should anything be added? A lot of questions arise with any piece of legislation, with regard to the existing constitutional order. The courts are there to play that role in light of the appropriate facts.
The fundamental question that arises — and I fully understand all senators' concerns in this regard — is as follows: can the Northwest Territories actually have access to services in both official languages? That is the fundamental question.
If not, there are recourses to remedy the situation. This can be demonstrated in the appropriate arena, but that is still a long way from the second stage which is to show that the territorial act is not consistent with the Charter. Doing so is perhaps not necessary for Franco-Ténois to achieve their objectives.
Senator Beaudoin: I am a good sport, I am prepared to wait. I am prepared to accept the decision brought down by the courts. I simply want to point out that there are two points of view. Bear that in mind. If we make a mistake, the court will put us back on the right track. I believe in the principle of law. I believe in decisions in constitutional law. They are like the Bible to me. It seems to me that it is our duty to say what we think, without infringing on any legislation or principles.
Senator Chaput: I would like to make some points and share them with the working group and our guests. I agree when we say that Parliament can and must talk about the Constitution. We are talking about our country, and it is unique because there are two official languages. That is one of the differences between Canada and other countries.
We respect the rights of the provinces, and at the same time, the Senate is the watchdog for minorities. I am a member of a French-speaking minority from western Canada, and we have always had to fight to obtain services in our language. Why do we still have to fight?
The Senate must continue to closely follow what is happening. The Senate must listen and ensure that it is aware of what the two parties are advancing. That is why it would have been so important to listen to the Franco-Ténois.
The court will decide. When you are a member of an official-language minority and you are continually in court to decide questions of law that affect the provinces, it requires a lot of time and energy. That is reality.
I have one last comment. I clearly remember what happened in French-speaking Manitoba and in western Canada, and I am still under the impression that we get hung up on definitions. We get hung up on definitions and we have to go to court for a decision. In this case, it must be decided whether we are talking about a territory or a province. And for the length of time that takes, it holds up our rights and contributes to assimilation.
That reminds me of the time, some years ago, when we were determining whether or not a woman really was a person. When it was determined that a woman was a person, women obtained the right to vote, but a lot of time was wasted. Today that seems ridiculous to us because it does not make sense.
It is the Senate's responsibility to act as a watchdog and it must continue to do so. Franco-Ténois are entitled to exercise their rights and obtain services in French at home.
[English]
The Deputy Chairman: Thank you, Senator Chaput. I can assure you that we will be hearing from the francophones as soon as they are comfortable with appearing before the committee.
[Translation]
Senator Comeau: Entities are being created by the executive branch of government and by parliamentarians. I am talking about foundations. One group of foundations is not subject to the Official Languages Act, whereas the other group is. The foundations created by Parliament are subject to the Official Languages Act, whereas the ones created by the executive branch are not.
By drawing this parallel, could we say that the Northwest Territories are creations like these foundations and that they do not need to be subject to the Official Languages Act?
Mr. Newman: On the issue of entities created by Parliament, Senator Gauthier also said that section 3 included the Library of Parliament, the Senate and the House of Commons. There was a debate in the Senate and among legal advisers in the Senate at the time, as to whether the components of Parliament were institutions of Parliament or whether the institutions of Parliament were simply creations of acts of Parliament rather than components within the same Parliament. A decision was made for the purposes of the Official Languages Act in 1988, although in terms of constitutional principles, this debate could still take place.
Bear in mind that the Northwest Territories are evolving in several ways, as is the rest of the country. We know that the Northwest Territories will never be a province without a constitutional amendment. But that has never prevented Parliament and the federal government from delegating powers to the Northwest Territories for good governance and for enforcing the principles and conventions of responsible government in the Northwest Territories, so that the NWT is not subject to the administrative stewardship of the federal government as if it were a teenager or a child. Considering that, what is the ultimate objective?
It is true that the Northwest Territories have delegated powers. And until a judicial committee of the Privy Council made a decision, it is also true that jurisprudence stated repeatedly that the provinces exercised powers delegated by the Parliament of the United Kingdom, like the federal government. It was only when the courts said no — even if the Parliament of the United Kingdom could have amended our legislation against our will, not in terms of conventions but strictly legally speaking, until 1982 — that things changed. The U.K. did not do so, because we respected the conventions of responsible government. The reality that provinces were sovereign in areas under their jurisdiction was respected, and the same was true of the federal government. We had the Statute of Westminster, and the like, recognizing these conventions that stipulated that the Constitution of Canada would not be amended without the consent of Canadians.
The Northwest Territories exercise delegated powers, but does that mean that the territories have the same status as federal departments or as federal crown corporations? That is why some people say that there must be a certain amount of flexibility. For the Official Languages Program to work properly in the Northwest Territories, many people will say that it should not be dictated from Ottawa, through federal legislation adopted in Ottawa, but instead based on legislation that the Northwest Territories will implement.
Guidelines were established in the Northwest Territories Act to avoid any slippage. However, at some point, the Northwest Territories will have to take responsibility for official languages. They did so by adopting their own Official Languages Act, and by adding amendments to include a commissioner of official languages and court recourse. That did not exist previously. They did not ask Ottawa for permission to add these provisions.
We must look at the situation from both sides. It is one thing for us to say that we are the Senate—I am a firm supporter of the Senate as well as minorities—but there is the principle of subsidiarity. The Northwest Territories should be in a position to know how to implement their own programs. If that does not work, there is recourse.
Senator Comeau: No one is suggesting that the Northwest Territories should receive directives from the federal government. Instead, we should be absolutely sure that section 16 of the Charter is enforced by the Northwest Territories.
Yes, things have evolved, but regardless of that, the NWT is still a creation of the federal government. Although the federal government has delegated powers to the Northwest Territories, it cannot delegate constitutional responsibilities to an entity it has created.
The responsibility for section 16 rests with the federal government. The federal government does not have the right to delegate this clause, unless there is a constitutional amendment. I am not a legal expert, but I do my best to understand the Constitution. I agree with you in regard to the changes that have occurred. The Northwest Territories is an entity created by the federal government, which does not want to give the Northwest Territories directives, but if a constitutional responsibility exists, it cannot be delegated.
Mr. Newman: First of all, we do not exactly know if constitutional responsibility under section 16 applies to the Northwest Territories. If that is the case, if delegation is effective and is such that we cannot back down legally or legislatively speaking, several arguments could be made with respect to implementing section 16 that have never been explored in detail to date, because it was not necessary. We hope that it will not come to that. In your mind, as someone who is not a lawyer, you have imagined the possibilities for improving linguistic rights for the Northwest Territories, and we agree that there are several ways of proceeding so that progress is made.
Senator Léger: Yes, I have always thought that legislation followed attitudes and did not precede them. I respect legislation.
I am a parliamentarian, as you said earlier. It seems as if some people want to establish legislation as clearly as possible before looking at the attitudes, as though the legislation could forcibly lead to a change in attitudes. Is that the case? We want to speak both languages equally in the country, I am proud of that. I believe we must do our work. There is room for each issue and each issue has a place. I believe that.
As legislators, do we in the Senate, in the government — I know that it is as if we have reached the end of our efforts to convince people to change their minds — turn to legislation to force them to do so? That is what I am afraid of, that was my first point.
Attitudes precede legislation, and we must continue to push. Perhaps legislation can help us, that is the reason for all of this legal work. I thought that came afterwards. The attitudes are very, very well entrenched.
Senator Beaudoin, I learned something from your remarks, and senator Comeau addressed the same topic in a different way. Institution equals creation, have I got that right?
For my ears as an artist, creating, creation, but not creature, I will talk about that later — is the opposite of an institution. To me, institution means legislation. It is closed, everything can be proven. A creation is eternally open. Something is being created. Creating is always an open process, it is always changing, as you are. But to me, the word ``institution'' involves rules; we are an institution, the government is cumbersome, it is heavy, the Senate, rights, privileges, I hear that left and right and it is tiring for me. As for the word ``creature,'' a woman is a creature and therefore a possession. You never said ``creature,'' you talked about creation. That is not what you said, because the word ``creature'' implies ownership. Could you clarify for me what you mean by institution equals creation?
Senator Beaudoin: Instituting, at least in law, is like creating. I will not touch on the arts, I adore the arts, there is nothing more beautiful. For the arts, that is perhaps not true. Beethoven was a creator, Mozart was a creator, but there are not many like that.
The federal government can create a territory by way of legislation. For me, that is a federal institution. During debates, people have said to me: Mr. Beaudoin, a creation and an institution are not the same. That is true, artistically speaking.
I do not know if that answers your questions; artistically speaking, you are perfectly right. If you create a play, if you write a novel, for example, Victor Hugo, Chateaubriand are creators. In this debate, that is not how the word institution must be interpreted. When a province creates a municipality, it is a kind of creation, that is certain.
The province gives it powers, it says: Montreal, you have the right to do this or that. As for the federal government, it creates territories, but these are organizations that are created. Now, if the court reaches a different conclusion, which I highly doubt, then we will see.
Senator Gauthier: If I have understood you correctly, the Northwest Territories is a large municipality? That is my first conclusion. Secondly, before amending or repealing the Northwest Territories Official Languages Act, the Parliament of Canada must make a decision, must give its support or its approval, yes or no?
Mr. Newman: Yes, for any amendment that reduces responsibilities.
Senator Gauthier: At some point, we will be forced to examine the matter. I was educated by a former member who was involved in the issue of Alberta and Saskatchewan when these provinces were separated from the territories. My grandfather often talked about the difficulties surrounding this decision. People were displaced and ignored. French was dealt quite a blow. Saskatchewan and Alberta adopted legislation that made it virtually impossible to access the courts in French and to have access to legal documents. You are more familiar with section 133 of the Constitution than I am. I do not want that to occur in the Northwest Territories. Do you see what I mean?
My approach is to be a little bit more cautious. I have colleagues who have not warmed up to the topic and who thought we would be discussing the legal issue; I said we would not. I was involved in the issue surrounding the Montfort Hospital, do you remember it? I raised the matter about 12 times in the Senate. Even though the case was pending, I raised the matter in a Senate committee and in the Senate. I agree with Senator Beaudoin, if we follow that rule, we will not be able to discuss anything here. I insisted that you appear, and I am happy, because you have to some extent clarified the debate as far as I am concerned.
I want to ensure that Franco-Ténois will be able to come here and air their grievances, if I can put it that way. I could read some excerpts for you. The Fédération des Franco-Ténois concluded that to date, the implementation of an adequate regime to ensure respect for official languages in francophone communities has failed. This is not the court speaking, it is francophones from the Northwest Territories. I have heard this criticism. We have a problem in the Northwest Territories.
The delivery of government services in French, either in person or over the phone, is at best inconsistent and sporadic. Official government publications are often not available in French, despite the formal statutory obligation. I hear and read this criticism constantly.
There is a problem in the Northwest Territories. I am not talking about whether it is an institution or not. I have thought that it is an institution for a long time, but I will leave it up to the courts to decide.
If the federal court sees fit to not hear the Franco-Ténois, it is because, according to legal opinions, they were not included in the expression ``Her Majesty the Queen in right of Canada.'' You are familiar with the expression. What does that mean for a layman?
Mr. Newman: The Federal Crown of the executive branch of government.
Senator Gauthier: I do not know if what we are currently talking about comes under the federal or the territorial government. This letter simply indicates that the Northwest Territories was not included in the definition of Her Majesty the Queen in right of Canada. That is the answer I was given. It annoys me, because I do not know what that means.
Mr. Newman: Mr. Beaudoin would be in a better position to answer your question. In Canada, there are two crowns, federal and provincial. The government representing Her Majesty at the federal government is Her Majesty the Queen in right of Canada and when Her Majesty is represented by one of the provincial governments, it is Her Majesty in right of a province, like Alberta or Manitoba, for example. It is a somewhat formal, stalked phrase that means: the government.
Senator Beaudoin: I agree.
Senator Gauthier: I understand, it is logical. It holds water.
Senator Beaudoin: That is the argument I raised earlier. In a federal system, the crown is provincial and federal. Each one is sovereign in its own sphere. Her Majesty is the Sovereign. I wanted to take this opportunity to say that both witnesses are excellent legal experts.
You talk about changes in the Northwest Territories. I understand that, but if we ever want to give the three Territories provincial status, which will be possible some day, a constitutional amendment will have to be adopted. I want that to be recorded and emphasized on the record. It requires a constitutional amendment.
Senator Gauthier: Earlier on, someone referred to section 3 of the Official Languages Act, the section that excludes the Northwest Territories from the definition of a federal institution. A question was raised as to how that could be interpreted in light of section 16 on equality. This is a good debate. If it is not a political debate, I do not know what it will be. You told me that the courts will decide. I told you at the outset that section 3 was unconstitutional, based on my understanding of sections 30 and 32 of the Charter of Rights and Freedoms. You replied that you were unsure, and I understand you. Do you have any additional information for us on that?
Mr. Tremblay: As for the constitutionality of section 3, we have already expressed the Government of Canada's position. Section 3 is consistent. What I would say, however, is that it clearly stipulates ``for the purposes of this act.'' For the purposes of the Official Languages Act, federal institutions are the institutions as defined that are listed and dealt with. It is for the purposes of this act.
This act thus has certain purposes and other acts have other purposes. The fact that the scope has been defined in the Official Languages Act does not necessarily mean that everything is there. Not everything is required to be there. There are other ways of complying with the Constitution if, as you wish, the court were to clarify this matter and conclude, for example, that section 16 applies to the Northwest territories. However, there are other ways of complying with this constitutional requirement, including legislation, which is just one possible approach among several. Moreover, the issue is political in many ways. As I already mentioned, Parliament defined what it wanted to include for the purposes of this act in the Official Languages Act.
Could it have done something else in the areas under its jurisdiction? Yes, there are always other matters that can be dealt with. There are very few pieces of legislation, fortunately or unfortunately, which are complete and carved in stone. If the political will were there to do something else, obviously within areas under federal jurisdiction, the federal government would have some leeway.
Senator Gauthier: Is the Official Languages Act quasi-constitutional, Mr. Tremblay?
Mr. Tremblay: Indeed.
[English]
The Deputy Chairman: Thank you very much, Mr. Tremblay and Mr. Newman, for your patience, as well as for dealing with an issue that is somewhat difficult for you at this time. We deeply appreciate the time you gave the committee. I think it was a most beneficial exchange. There will be more work done on this subject very soon.
Mr. Newman: It is always a pleasure and an honour to appear before your committee and to debate these issues.
The Deputy Chairman: Senators, we have an important meeting scheduled for March 24. Senator Losier-Cool will be back in the chair.
Senator Gauthier: I understand that on March 12, the Minister of Intergovernmental Affairs, Stéphane Dion, and the Prime Minister will present their action plan.
[Translation]
We should invite Mr. Dion to explain his action plan at the earliest opportunity, on March 24, a few days after its official presentation. This would be a joint committee meeting with invited MPs, held in a room that is a bit better suited for receiving a minister than this one here. He would accomplish two things at once; he would be testifying before both the Senate and the House of Commons Official Languages Committee. That would be constructive.
We need to establish some stringent standing orders so that there will be no confusion as to who will chair. We are the Upper Chamber. The Senate is doing the inviting, and, in my opinion, the Senate should co-chair the meeting with the MPs. We shall not be staying in the background. We should, Mr. Chairman, proceed with this proposal.
[English]
The Deputy Chairman: Senators, at Senator Gauthier's suggestion, I did discuss this with Mr. Belanger, the chair of the committee from the other place, and it was suggested that there could be a joint meeting on March 24. However, the minister will be meeting with Mr. Belanger's committee on the March 17, so the invitation from the Senate committee was extended to him to appear on March 24. Perhaps Senator Gauthier has an update on this.
As far as the conduct of the meeting is concerned, Mr. Belanger felt that, if there were a joint meeting, it should be chaired by the other place and that the people from the other place should have the opportunity to ask questions first. Senator Gauthier expressed the opinion to me that, since this is the senior chamber of Parliament, the meeting should be at least jointly chaired if not chaired by the Senate committee chairman. That matter has not been resolved.
My latest information is that the minister will appear before the committee of the other place on March 17 and before this committee on March 24.
[Translation]
Senator Léger: I do not understand. We wanted a separate Senate committee and now we are talking about establishing standing orders to determine who will be speaking first or second. I really do not see where you are coming from anymore.
Senator Gauthier: Senator Léger, we have never had standing orders for a joint committee. I tried to have such regulations put in place for years and I never succeeded. Parliament resumes its activities on March 17 and I was told that the minister was available on March 24. I suggested March 24 because I thought that the ministers would not want to come here on March 17.
Now I am told that Mr. Mauril Bélanger has invited Minister Stéphane Dion to appear on March 17. I do not see any difficulties in having people from the other place join us for this meeting.
Senator Léger: Your argument pertains to dates. Mine pertains to the fact that we are meeting as a joint committee and I do not agree.
Senator Chaput: I am new to the Senate and have not experienced a joint committee. But to keep things simple, since we really do want to hear the minister and ask him questions, I think that only the senators should hear him on March 24. That is my suggestion.
Senator Maheu: I agree.
Senator Lapointe: I agree.
Senator Beaudoin: This will be a separate meeting?
Senator Comeau: Absolutely.
[English]
The Deputy Chairman: There seems to be a consensus that it would be best to have the minister appear before this committee on March 24; is that correct?
Hon. Senators: Yes.
[Translation]
Senator Gauthier: Today is February 24 and we are talking about a meeting that will take place in a month's time. The joint committee used to meet twice a week. Now it is meeting only once a month. It does not make sense. The issue at hand is far too important and warrants more than one monthly meeting.
Senator Maheu: There is a reason for that.
Senator Beaudoin: I am sitting simultaneously on the Senate Human Rights Committee and the Official Languages Committee. I can tell you that I am always running.
[English]
The Deputy Chairman: Honourable senators, may we deal with the question of the meeting on March 24 and then come back to the frequency of meetings?
There is also the question of television coverage, and we would need to have a vote on that today.
[Translation]
Senator Gauthier: This is not serious. One meeting per month is clearly inadequate.
Senator Comeau: I move the motion.
Senator Chaput: We have not yet dealt with the issue of broadcasting.
[English]
Senator Beaudoin: We have two propositions on the table.
The Deputy Chairman: No, we have one. We are talking about the meeting on March 24. I will come back to Senator Gauthier's proposition.
Senator Beaudoin: We agreed on the date of March 24.
The Deputy Chairman: We need a vote for television coverage of that meeting. We have a mover.
The Deputy Chairman: We appear to have a consensus.
Senator Beaudoin: For or against?
The Deputy Chairman: Everyone in favour of television coverage?
Hon. Senators: Agreed.
The Deputy Chairman: That is taken care of.
Senator Gauthier: You do not need a seconder in a committee.
[Translation]
Senator Lapointe: Can we vote? Is the committee making a majority or a minority decision?
Senator Beaudoin: Of course.
Senator Comeau: There is a consensus.
Senator Maheu: There is a consensus.
Senator Lapointe: Would you please put the question of televising debates to a vote?
[English]
The Deputy Chairman: I will put the question. Those in favour of televising the meeting, please say ``yea.''
Some Hon. Senators: ``Yea.''
The Deputy Chairman: Those opposed to televising the meeting, please say ``nay.''
Some Hon. Senators: ``Nay.''
Senator Léger: I may want to abstain since I believe that we have not discussed it enough. I would vote ``nay.''
The Deputy Chairman: We have a very close vote here. We will record the vote because it is close.
Senator Beaudoin: Has the vote been taken?
[Translation]
Senator Lapointe: I will give you my opinion.
Senator Beaudoin: I would really like to hear Senator Lapointe's opinion.
Senator Lapointe: Senators Léger, Chaput and myself are new members of this committee. I note that it is always the same two individuals who predominate. This is their privilege and I do not envy them in the least since they have a great deal of experience. One is a very highly respected legal expert and the other is an ardent advocate of the French language.
Given the circumstances, what would the people who don't say anything because they are new to the file look like? I am not talking on behalf of the experts. Personally, I think that we may look like imbeciles on television, as we wait for an opportunity to ask a question which, in addition, may sound ridiculous. If I had asked a question earlier, it is highly likely that I would have put my foot in my mouth. That is why I did not ask a question.
I strongly believe that constitutional matters are of no interest to anyone except for those people who are directly involved in the file. I also think that if a debate becomes too complicated, the average Joe will not be able to follow it on the parliamentary channel. For debates of general interest, I would be in agreement.
If you want a debate amongst experienced people, tell me, and I will not attend the committee.
Senator Léger: I agree with Senator Lapointe that this is not at all about transparency. I was appointed senator to represent minorities and that is what we are doing, without being big experts. However, a lot of things do turn into big issues and I cannot get involved in that. The whole country does not have to know that. I often find that all we do here is argue.
I see no interest in having the entire country witness the squabbling that goes on at the House of Commons. I do not agree.
Senator Comeau: I fully agree with Senator Lapointe. I was reluctant to ask legal and constitutional questions this afternoon. However, the Dion plan is a ministerial plan, it's a bit different.
Senator Léger made a very good point; our committee must study this matter meticulously. Recently, the committee has gone off in a direction that I did not expect. At times there is squabbling, decisions are made when some of us are not here. I am fully aware of the fact that those who are absent are always in the wrong.
Two weeks ago, I had to have surgery and I was not able to get to the meeting. However, I read the minutes and they confirmed that the viewpoint of those who do not show up never prevails. I accept that.
However, we must be very careful not to make decisions that may harm the smooth operation of the committee. This committee could work very well. We could do some good things. But if we make decisions that lead to squabbling, decisions where some members are not involved, where we find out that the decision has already been made, that due process has not been followed, we will wind up with a committee that does not work.
We must be cautious. We have headed off in the wrong direction. There have been some interventions and decisions that could jeopardize the smooth operation of the committee. I would like this committee to work. I was strongly in favour of establishing this committee because the other committee was not operating well. Let us not wind up with a new Senate committee where the same things may happen.
[English]
Senator Maheu: Having sat on both committees and having seen what has happened and what can happen, I would be against televising all of our committees. I would, however, be in favour of televising the appearances of ministers, of Ms. Adam, the Commissioner of Official Languages and very special guests.
[Translation]
As for our regular meetings, I agree with my three colleagues who have spoken. Too many things have happened for it to be published every time.
[English]
The Deputy Chairman: At the next meeting, when Senator Losier-Cool will be here, some real time must be devoted to a discussion of process. The opinion appears to be divided. Perhaps we should revisit whether we televise Minister Dion's visit or not. The vote was very close.
Senator Lapointe: I suggest that we ask our chairman, Senator Losier-Cool, her opinion on that. She may prefer to delay or she may want a decision. That is intended to be an insult to our Deputy Chairman, it is just that we should not take a decision of that importance without our chairman being advised.
If she wants our meetings to be televised, then that is fine. I am neither against nor for it. Mr. Dion and Ms. Copps will both be appearing. I do not believe this is a matter of interest to the public.
The Deputy Chairman: The recommendation of Senator Losier-Cool to the committee is that the visit of Minister Dion be televised but that, at the end of each committee, a decision be taken as to whether the next committee meeting will be televised.
Senator Beaudoin: This is a very special meeting. We have technical issues to discuss, as well as the question of the trial and the legislative and juridical processes. Rarely do we have discussions like that here. To my knowledge, it is once in every five or ten years. Perhaps our next meeting should be conducted as we have done today. I have nothing against televising our proceedings, but I can understand the concerns of some honourable senators. Perhaps, in a case like this one, where the subject matter is very technical, we should not televise our meeting. I am of the view that in normal circumstances we should televise our proceedings.
The Deputy Chairman: Senator Losier-Cool, the chair, has presented a good solution, at least for the time being. We should decide at the end of each meeting whether we want to televise the next one.
Senator Lapointe: I am in total agreement with that.
The Deputy Chairman: That brings us back to the meeting of March 24. We need a decision about televising. The chair is in agreement with televising. Is there agreement to televise?
Hon. Senators: Agreed.
The Deputy Chairman: We have agreement on that.
We must move now to the subject of the frequency of meetings. I recommend that this subject be deferred until the meeting of March 24 when the chairman will be here.
Senator Gauthier: If we continue to put this issue off, it will be Easter and we will be into the spring session without a decision. I do not agree that we should put this issue off. We have important issues before us. The minorities asked for these issues to be looked at by the Senate, and this committee must comply with its mandate. People have voiced their objections. However, I do not agree that we should hold one meeting a month at 4:00 o'clock in the afternoon. That is a farce. Some people want this issue settled.
The Deputy Chairman: Honourable senators have heard the strong opinion that we should discuss this right now and not wait until March 24. I will invite discussion about the frequency of meetings.
[Translation]
Senator Lapointe: The current situation is rare. The chair of this committee has had an accident, she is absent. She is coming back on March 24. I think that we should wait until the chair comes back before making any decisions on the frequency of the meetings.
Senator Comeau: I agree. I feel that our chair should be involved in this important decision. The chair comes from New Brunswick and this is not easy.
This is all right for people who live in Ottawa or who live half an hour away. It takes me seven hours to travel to my office, in Ottawa. Do you understand? Think about it a little bit. Seven hours, that is a little bit different.
Senator Gauthier has suggested that our meetings be held earlier in the day. That is all right when you live in Ottawa, when you are seven minutes away. If the weather is good, it takes me seven hours to get here. But with winters like the one we have just experienced this year, we are not talking about seven hours but 10, 11, and even 12 hours to get to Ottawa. I have to leave my family on Sunday in order to be here by 4:00 p.m. on Monday. I am sorry, but there are other things in life aside from spending my day travelling on Sunday in order to attend meetings of the Official Languages Committee. I realize that the committee is important, but Sundays are sacred to me. We should think about this. Our chair is in a similar situation and she must have something to say on the issue.
[English]
Sen. Maheu: I totally agree with Senator Comeau.
[Translation]
Senator Losier-Cool is already feeling bad because she has missed meetings due to her accident. We should wait for her to come back on March 24. I have some comments to make on the issue and it does not matter to me whether or not I do this today or at the meeting on March 24. However, I would prefer our chair to be here.
Senator Chaput: I would like to show some respect for the chair who is not here today and I would prefer to wait until she is in attendance to discuss the matter with her. I honestly believe that the Official Languages Committee should meet twice a month. The subject is very important.
I come from Manitoba and, in order to attend the Monday meeting, I have to leave my home on Sunday evening. I am prepared to do this every second week because this committee is very important. I am also prepared to wait until the chair is in attendance so that we can discuss the matter with her.
Senator Lapointe: Senator Chaput, was it explained to you that, in the case of weekly meetings, one out of the two meetings is mandatory? If you want to attend two meetings per month, you can do so.
Senator Chaput: I was not aware of that
[English]
Senator Léger: I am definitely in favour of waiting for Senator Losier-Cool, for the same reasons that have been given.
Senator Beaudoin: It is not a problem for me.
The Deputy Chairman: That makes five senators who wish to wait for the appointed chair to be part of this discussion, so the matter is closed.
The committee adjourned.