Proceedings of the Standing Senate Committee on
Official Languages
Issue 8 - Evidence
OTTAWA, Monday, September 29, 2003
The Standing Senate Committee on Official Languages is meeting today at 4:08 p.m. to study Bill S-11, An Act to amend the Official Languages Act (promotion of English and French) and to study and report upon the operation of the Official Languages Act, and of 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.
The Honourable Rose-Marie Losier-Cool (Chair) in the chair.
[Translation]
The Chairman: You have received the notice of meeting for today's meeting. On the agenda, you will see that we must conduct two studies: the first part of our meeting will be devoted to Senator Gauthier's presentation on Bill S-11, to amend the Official Languages Act; the second part of our meeting will be given over to the representatives of the Treasury Board Secretariat. Ms. Diana Monnet, Assistant Secretary, Official Languages Branch, will tell us about the operation of the Official Languages Act and regulations and all the institutions subject to the Act.
Without further delay, we are going to ask Senator Gauthier to present his report. First of all, I would like to remind members that, when they have correspondence to send, it is important that they send a copy to our new clerk, Adam Thompson, as the clerk is often the committee's memory.
The Senate Committee on Official Languages is pleased to hear the evidence of Senator Gauthier in the context of the study of Bill S-11. When it comes to defending francophone minority rights, Senator Gauthier needs no introduction because he has proven himself and devoted his entire career to it. We are therefore privileged to benefit by his expertise and all the work he has been able to do.
The Honourable Jean-Robert Gauthier: Honourable senators, I am very pleased to appear here today. I firmly believe that the creation of a Senate Committee on Official Languages is important. More than seven years ago, I proposed that an independent committee be established and empowered to study and report on matters pertaining to official languages. A joint committee unfortunately cannot study a bill since the two Houses have different standing orders and rules with which they must comply.
Knowing the problems of the act's operation and implementation, a concerned parliamentarian may become impatient and somewhat frustrated at his powerlessness to propose legislative changes to the country's official languages legislation. I learned a long time ago that the government proposes and Parliament disposes. I also learned that a parliamentarian must be able to propose positive measures for changes to certain statutes. That's why I've always dreamed of an independent Senate committee. We have it and I am proud of it.
Bill S-11 follows in the wake of Bill S-32, which I introduced in 2001. It was considered by the Standing Senate Committee on Legal and Constitutional Affairs. I attended all the meetings and prepared a summary of all the evidence given before the committee. The result is a fairly large book containing recommendations for improving the original bill, which was Bill S-32.
Committee members were very attentive to the proceedings and made improved suggestions. In particular, I would like to thank the Chair, Senator Lorna Milne, who did a good job and directed our proceedings.
The committee heard some 27 witnesses and held eight meetings, which, in some cases, lasted three hours. So I benefited from the experience of a large number of academic, professional and political specialists in the field of language rights.
Language rights are both complicated and complex. Complicated because Canada is a highly decentralized federation with constitutional peculiarities that would astound the average mortal. Complex as well because some jurisdictions are reserved for the federal government, others exclusively for the provinces.
Canada has two official languages: English and French. Our two languages have equal status and equal rights and privileges as to their use in the institutions of the Parliament and Government of Canada. As you will understand, I am referring to section 16 of the Constitution Act, 1982.
Bill S-11 differs from Bill S-32 in its wording and scope. Clause 1 recalls the obligations of the federal institutions to ensure that positive measures are taken for the ongoing and effective advancement and implementation of that commitment. The word ``positive'' was recommended by Senator Bryden, who said that it was a key word in understanding the New Brunswick act. That's why I included the word ``positive'' in the wording of Bill S-11.
Senator Beaudoin asked whether it would be useful to seek a reference to the Supreme Court to clarify the status of section 41. Senator Fraser suggested a legal opinion on Bill S-32. The committee could still request a legal opinion on Bill S-11 because I would like to know what the lawyers think of it. In addition, Senator Bryden has asked whether it would be appropriate to institute representative proceedings in the courts.
That suggestion poses certain problems today because the Official Languages Act excludes Part VII from court remedies. In fact, section 77 of the Act says that no court remedy may be sought in respect of Part VII. No one may ask the Commissioner of Official Languages or the Court Challenges Program to seek remedy before the courts under the existing Part VII.
However, under subsection 18(1) of the Federal Court, it is still possible to file suit and invite the Commissioner of Official Languages to take part. You need deep pockets and lots of patience to do that. It was recently done in New Brunswick when the members of the Forum des maires de la péninsule acadienne joined forces and appealed from the Food Inspection Agency's decision to transfer certain positions from the north of the Peninsula to the south.
Four years later, we learn that the Forum des maires de la péninsule acadienne won its case in the Federal Court Trial Division, with Judge Pierre Blais rendering his decision on September 8.
I admit I was pleasantly surprised by Judge Blais' decision. That agency has previously been characterized in Parliament as a ``structural heretic.'' That term was intended to mean that the agency is made up of people who have been detached from the conventional public service and who act independently or at arm's length from political power. The agency claimed that it was not subject to the Official Languages Act. The mayors of the Acadian Peninsula proved the contrary.
It was clearly established in the decision by Judge Blais of the Federal Court that the Canadian Food Inspection Agency did not consult the public when it transferred positions from the north to the south of the Peninsula without considering the nature of the office or the services that had to be offered to the public. That transfer has been cancelled and the employees will remain in their positions.
One of the key arguments in the Forum des maires' presentation was that those people could not work in their language in their new positions in the south either. It was then claimed that this directive violated the Official Languages Act.
I submitted the question to the Senate. In my September 16 statement, on which the minister commented, I sought to determine whether Parliament intended to appeal from that decision by the Federal Court Trial Division. My question has remained unanswered thus far. We must, of course, remain patient.
The government took two or three years before considering the contraventions question. When the Federal Court rendered its decision, an extension of the judgment for another year was requested.
There's a tendency to take the official languages issue lightly. That practice must stop.
Whatever the case may be, the decision is now case law and we are not about to forget it. That decision concerns Part VII, the government's commitment to the obligations of the federal institutions to serve Canadians and to ensure that the spirit of the Act is complied with. That decision proves that it is possible to impose penalties on those who offend the Official Languages Act, even though section 41 appears to be declaratory and null and void in the government's view. It is possible to resort to section 18.1, but that type of remedy is lengthy and costly.
As long as the government claims that Part VII is declaratory, managers — or officials, if your prefer — in the federal institutions will continue to think and act as though the Official Languages Act were merely an inconsequential statement of good intentions.
Whatever the case may be, the debate is under way. If Bill S-11 is passed, we will have an official languages tool that will enable us to assert our rights.
One of the main arguments used by some ministers regarding my proposal is that it will increase the number of court cases. So I've suggested that a study be conducted to examine the situation since the Charter was passed in 1982.
Twenty years ago, Lucien Bouchard was Secretary of State. In response to a question put to him during his testimony before a Senate committee, he said that section 41 created obligations for the government. That answer convinced me. Shortly thereafter, however, I realized that no political will was being shown. Since then, since 1982, I have not stopped writing to the Justice Minister's officials to determine their interpretation of section 41.
Where it says that the Government of Canada is committed to the advancement, development and promotion of both official languages in the country, is that merely a statement of good intentions or a firm commitment?
The present Act dates back to 1988. The previous Act dated from 1969. In the interim, it was decided that a thorough review would be conducted of the Act. In my opinion, that review was beneficial and made it possible to clarify a number of aspects. Bill C-72 was passed in 1988, 15 years ago now. Would it not be appropriate to re-examine that act?
It is not fair to the communities to persist in saying that we have certain obligations toward them, when we do not have the means to put those obligations into practice.
Over the years, I have observed that the executive, or Cabinet, has interpreted that solemn commitment as declaratory in nature or without any legal weight. All Justice ministers have repeated the same message. Following extensive consultations with senior officials, legal experts, persons in the academic and university field, it was confirmed for me that section 41 was executory and binding.
The wording is clear. We can examine Bill C-25. That bill states once again that ``the government is committed.'' That wording is always used.
So why, when it comes to official languages, does the government make a commitment and not keep its word? I intend to raise this question in the debate on Bill C-25. Is this merely a statement of good intentions or a firm commitment? And yet the language is clear: a commitment is a commitment. That expression also appears in French.
[English]
A commitment is a commitment; ``the government commits to...'' That is pretty strong, I think.
Alliance Quebec was the main spokesperson for the English community in Quebec in 1987-88, when this new law was adopted. It had, you will remember, a plateful of challenges with the provincial government at that time. Furthermore, the Official Languages Act Commissioner stated in his report in 1988-89 that ``in at least 50 per cent of the federal institutions the 1988 Official Languages Act has had little impact.'' He added that ``draft regulations had not been tabled in Parliament during the year of 1989'' covered by his report and that ``language laws in Alberta, Saskatchewan and signage law in Quebec have occasioned strong and legitimate reactions.''
We still do not have regulations for Part VII the Official Languages Act as it stands. A law, as you know, without regulations, is somewhat of an oxymoron. Part VII, specifically clause 41, have never had regulations. We had the people from the Northwest Territories before this committee. They complain that they cannot get any action from their government because there are no regulations to the Official Languages Act of the Northwest Territories. There are directives but they are not the same as regulations. A directive is an internal bureaucratic rule and a regulation flows from the power of the legislation that has been adopted.
Until March of this year, when the government published its action plan, there were no directives or regulations. I must say that, to his credit, Prime Minister Chrétien and his cabinet, under the direction of Minister Dion, presented Canadians with an important commitment — and I stress the word ``commitment.'' The new momentum for Canada's linguistic duality is to set goals and objectives — and I know the book by heart. It gives us a measure of the government's direction.
In 10 years, one-half of high school graduates will speak both official languages. That is an objective — a goal — but whether we will reach it, I do not know. It all depends on how we implement the action plan. That is important; this committee exists to ensure that the government has its feet to the fire once in a while so that they know we want action and not just words. There will be a change of government and who knows what will happen then. Some very positive things were said in that action plan.
[Translation]
Coming back to my subject, Bill S-32 was based on section 16, which concerns the equality of English and French. Since the Charter was passed in 1982, there have been 730 section 15 cases concerning equality rights, 30 section 23 cases on education rights and five section 16 cases, as I've just mentioned.
I am told we are going to abuse the system, that this will increase the number of court cases; history does not prove that, on the contrary. Five cases in 20 years. Each of those actions was brought by the official language minority communities, and they won. It seems to me there must be a lesson in that. It cannot be said that there will be too much ``judiciarisation,'' or legal action. I do not like that term; it's a neologism.
Senator Beaudoin: It's a very good word in law.
Senator Gauthier: It's a word that's used like a hammer blow.
I did my research and made it public on April 3 in a debate in the Senate on second reading of Bill S-11. In clause 1, subsections 2 and 3 are proposals the Commissioner of Official Languages made during the debate on Bill S-32.
I listen when an officer of Parliament — there are five of them and you know who they are — makes recommendations to Parliament. I am attentive because they are specialists. One of those five officers is concerned with human rights, another with Elections Canada and another with the books.
When Ms. Fraser comes to Parliament and tables her audit reports, she speaks loudly and people listen to her. Why do we not listen to Ms. Adams, the Commissioner of Official Languages, when she comes to speak to us? I listen to her.
I included subsections 2 and 3 in clause 1. I simply repeated its wording. It must be understood that this is an important question. In the wording of my Bill S-11, I have excluded the Senate, the House of Commons and the Library of Parliament. Subsection 3 states:
The Governor in Council may make regulations in respect of federal institutions, other than the Senate, the House of Commons or the Library of Parliament, prescribing the manner in which any duties ...
I said to myself: ``They will not make me work hard for that one.'' You will remember that, in 1988, I was among those who pushed as hard as possible for the Senate, the House of Commons and the Library of Parliament to be included in the definition of federal institutions.
The Conservative government of the time agreed to provide a definition in section 3 of the Official Languages Act which includes Parliament. That's all right. You are no doubt wondering how I can exclude Parliament. I believe in the division of powers. I believe that the executive cannot give Parliament orders. If you read the wording:
... prescribing the manner in which any duties of those institutions under this Part are to be carried out.
I did not want the government to start by telling Parliament how to do its job. I exclude them from the question of obligations, and we encounter them all now, that is the Senate, the House of Commons and the Library of Parliament. We are ensuring that the two official languages are respected.
This stretches parliamentary privilege, a fairly well developed concept, in the case of Mr. Vaid, the driver of the Speaker of the House of Commons, who is suing the Speaker for dismissing him, in his view, without cause. There's also the Quigley decision. Parliamentary privilege is used to say that Parliament is not required to abide by its own laws. I am referring to the Standing Orders. In my opinion, the Vaid and Quigley decisions are another matter, but parliamentary privilege is used to justify a position. There's also a distinction that must be drawn.
The Senate, the chamber named, must represent this country's regions and minorities. The House of Commons is the chamber elected to democratically represent the interests of the majority, not the minority, but the majority. It's always the majority that dominates in the House of Commons, but not necessarily in the Senate. I am pleased to see that the Senate is finally taking care of the minorities.
We have an official languages committee and a human rights committee. We must be able to encourage those committees to develop expertise in the areas of human rights and official languages.
In clause 2, which is more specific and replaces subsection 43(1), I add one word: ``appropriate ``. As you see, it's underlined in the text. It states:
43(1) The Minister of Canadian Heritage shall take appropriate measures...
That's a recommendation by the lawyers because it was easier to understand; so I inserted it. The presentation by the Department of Justice jurists and legal advisors was interesting. They were clear, consistent and very faithful. Warren Norman and Marc Tremblay are not unknowns. They have great expertise in the language field. They told the Legislative and Constitutional Affairs Committee that Part VII contained commitments on the government's part.
In their view, the wording of Part VII is programmatory, not regulatory in nature. I did not understand what ``programmatory'' meant. I think it's a neologism. It means that, in program matters, the government ensures that needs are met.
Part VII is a manifestation of the principle of advancement, by legislative means, toward equality of status of the two official languages. That's clear. The principle, stated in subsection 16(1) of the Charter, offers a very important interpretation that creates thresholds and minimums for language rights, not ceilings. I will explain.
First, my comment on the statements or testimony of the Justice Canada lawyers may be summarized as follows: The presentation was valid, proper, technical and defensible, but — and I emphasize the word ``but'' — they did not take into account recent minority rights judgments by the Supreme Court and other courts. There is general agreement that the Official Languages Act is a quasi-constitutional statute. However, jurists have never discussed the Supreme Court's opinion in Reference re Secession of Quebec, that is the four unwritten principles. They've never addressed them. And yet those principles exist.
The Montfort Hospital question is a reality. There too, there was a minimum right to health services in a hospital. Authorities in Ontario wanted to eliminate them. The courts said: No, there's a minimum below which you cannot eliminate other rights. That seems quite clear to me.
The Supreme Court of Canada stated the four principles, with which you are familiar, for interpreting language rights. The interpretation of Part VII, in my view, must be viewed in an evolving dynamic culminating in the principles recognized in Reference re Secession of Quebec and in the judgment by the Divisional Court of the Ontario Court of Appeal recognized in Montfort.
In short, there is no statistical model for evaluating the government's commitment. There appears to be a minimum below which it cannot go. The closing of Montfort Hospital and the Federal Court decision are examples of that. Recently, in the Forum des maires de la péninsule acadienne decision, Judge Blais said that, no, that could not be done. The positions had to be left in place to serve the members of the public so that they could work in their language and receive services in their language: all the positions could not be moved to the south, or else there would have been no more services in French in the north.
These communities are important. I believe this will set legal precedents. My instinct tells me that people will definitely continue asserting these rights in other regions of the country. Perhaps our legal advisors at the Department of Justice should get with it and realize our language rights are evolving. These minimalist interpretations must stop. They always fall to the lowest point. They always say that legal action cannot be brought to enforce these obligations. If we have to do it, we will. It's becoming exhausting.
Last, clause 3 of my Bill S-11 is further to a recommendation by Senator Joyal, supported by a number of my senator colleagues and a number of witnesses. This question concerns court remedies and the importance of ensuring that court remedies are available in respect of Part VII and, in particular, ensuring that communities are provided with support and encouragement by offering them the assistance of the Court Challenges Program, which is administered from Winnipeg. For the moment, that program cannot be used to defend our rights with respect to Part VII of the Act.
We cannot apply to a court for an interpretation of section 41. Section 41 has never been interpreted by the courts. There's no provision for that in the Act, in section 77. If we give the Act some teeth, if we pass Bill S-11, we will put in place a system that will permit a greater democratization of rights, a capability for the individual to rely on the majority, using those funds, to defend his or her rights before a court. This is a fundamental matter in any democracy.
I have gone the legislative route by introducing Bill S-11. I am aware of the difficulties. I am especially aware that the process is slow. This bill was introduced in the House in December 2002. It's now September 29, and we are beginning to study the bill in committee. That's not quick. People are wondering what's happening. There's a lot of work to do.
I do not know this bill's destiny; it's unknown. What will happen? I do not know. All I know is that the issues are complicated. The official languages field is not a trivial matter. It's not something that can be easily set aside. It's complicated and very complex.
What's a complicated and complex question? It's a pile of stones. It's complicated. If you take the same stones to build a church or a building, the stones become complex because they are part of an organized whole. Once a framework is provided for them, things will work. We will have a better Canada.
The Chairman: Thank you, Senator Gauthier. As I listened to you talk about the Official Languages Act, I was thinking that you knew this issue better than, or at least as well as, we knew the answers in the catechism when we went to school. You know the official languages file very well.
Senator Beaudoin: You know I share the opinion of my colleague, Senator Gauthier. However, there are two or three points which should be corrected for the record.
I do not know who said that no one can apply to a court to determine whether section 41 and other sections are executory or declaratory. Who said that could not be raised in court? That makes no sense. The question as to whether a section is executory or declaratory can always be raised before a court of law. In our constitutional system, the constitutionality of a statute can always be questioned. The Supreme Court will tell us whether we are right or wrong.
But no one, no parliament, no legislature and no act can prevent anyone from questioning the constitutionality of a statute. And I remember very clearly that, a few years ago, there was a bill blocking access to the courts and it was obviously defeated in the Senate. I do not know who said that.
I prefer not to know that person, but that makes no sense. You can always raise a question. You can always challenge an act. And even if it is stated in an act that you have no right to challenge Part VII, that means nothing. I mention that for the record and I absolutely want it entered in the record.
Second, who said that regulations were needed under Part VII to gain access to the courts for this purpose? The answer is very easy. Is Part VII executory or not? Whether or not there are regulations changes nothing. It may help to have regulations. I think that Part VII is executory.
You can always ask the courts whether this part is executory or declaratory. You can always question the constitutionality of a statute before the courts. No parliament, no legislature can say in an act that you have no right to apply to the courts because that's part of our constitutional system. We in Canada have control over the constitutionality of statutes. That must be very clear. Anyone can say anything — that unfortunately happens — but this point is established with certainty.
As to regulations under Part VII, my colleague has referred to that a number of times. If we have regulations, we can say that they are executory or not executory, but, if we have no regulations, we cannot apply to the courts. That makes no sense; we can always plead before the courts. There are statutes that have no regulations and there are statutes that have regulations. That's very clear.
As to court cases and case law, why do people say that costs money? That's quite strange because it is not true. Lawyers fees may be high in certain cases, the operating fees of the greatest doctors in Canada may be high as well, but, if you save a life, if an act is validated or not, that's worth a certain fee.
In addition, however, we've had some 120 Privy Council decisions on the division of powers. We've had 450 judgments by the Supreme Court of Canada on the Canadian Charter of Right and Freedoms. Did that cost money? Yes, but the constitutional case law of the Canadian Federation is being built, and, as a result, we in Canada have a great democracy. That's worth a few lawyers' bills.
I cannot understand why these kinds of arguments are raised. It's not Senator Gauthier who raises them, on the contrary. The four or five principles of the Quebec secession reference are valid. You are entirely correct. They are federalism, constitutionalism, minority rights and the rule of law; that's our country and we are one of the great democratic countries in the world.
Last, Judge Blais just ruled in the Forum des maires de la péninsule acadienne case that sections 41 and following are imperative, unless the Supreme Court rules to the contrary; an excellent decision in my view.
So you are going to tell me: why do we have so much trouble adopting bilingualism in the country? It's unfortunate; what are you going to do? Some people are not interested in bilingualism and find arguments against it. Some people are interested in bilingualism and defend it.
Two things are very important in our country. We are in Parliament in order to legislate, to decide whether the laws are within provincial or federal jurisdiction. If we do not agree, the Supreme Court will decide whether it's federal or provincial.
Second, we legislate and the laws must be consistent with the Canadian Charter of Rights and Freedoms. The Supreme Court decides whether they do.
This is one of the best systems in the world. I know no better. Whatever person X, Y or Z says is worth what it's worth, but, if the Supreme Court rules, it is the supreme tribunal. In medicine, if I am suffering from something, I will not ask my neighbour what he thinks about it. I will go see doctors, like Senator Keon, experts. There's no other system. It's one or the other.
I wanted to put my comments on record. There are always debates that constantly come up again, arguments that are put before us but that are false. When it's debatable, I listen to both parties; when that's not the case and the court has ruled... That's our legal system. There is no other. If you find a better one, bring it on, you will be a millionaire in two days, but there are no others.
Senator Gauthier: Senator Beaudoin's legal expertise is greater than mine. You say that the statutes can be put before the courts for remedy or interpretation. I entirely agree. The problem is not that, but rather section 77 of the Official Languages Act. If you are not rich and cannot afford the services of a law firm, you can go to the office of the Commissioner of Official Languages and state your case. If your argument is covered by Part IV, V or VI of the Official Languages Act, you will have the support of the Office of the Commissioner of Official Languages. However, if the matter concerns Part VII of the Act, the commissioner cannot apply to the courts. She cannot use public funds to help you.
Senator Beaudoin: If the commissioner cannot, legal aid can and legal aid exists in all provinces.
Senator Gauthier: It's not that she does not want to, she cannot. You cannot even apply to the Court Challenges Program.
Senator Beaudoin: That does not prevent me from knocking on legal aid's door, if I am poor, and contesting the matter.
Senator Gauthier: You are an Acadian from the Peninsula and you lose your job; where do you go to assert your rights?
Senator Beaudoin: There are legal aid offices in all the provinces.
Senator Chaput: Funds were cut a few years ago and it's virtually impossible to obtain legal aid.
Senator Beaudoin: Funds should be invested in legal aid. You cannot prohibit people's access to the courts. It costs money, yes, let's go to legal aid. If there is not any, legislators should change the law and invest in legal aid to help people who cannot afford it. No one has the right to say: ``You cannot go to court.''
Senator Gauthier: You have to have deep pockets and lots of patience to convince a court of an existing right. How do you apply the regulations of Part VII of the Official Languages Act? We do not know. We simply know that an important report was tabled by Minister Dion last March. In your view, will Minister Dion be subject to a court challenge if he does not keep his word or meet the objectives stated in his report?
Senator Beaudoin: No, it's a political report.
Senator Corbin: I am a bit mystified by Senator Gauthier's position. He is the bill's sponsor, but is he a member of the jury or a lawyer in his case? He asks Senator Beaudoin questions. Are we going to view matters on balance? Will he remain a witness or can he exercise his prerogatives as a committee member? I would like you to clarify the situation.
The bill, as worded in clause 2, amending subsection 43(1), currently reads as follows:
43(1) The Minister of Canadian Heritage shall take appropriate measures to advance the equality of status and use of English and French ...
I put the emphasis on ``advance.'' Is that what you want? Advance is another temporizing measure, whereas you told us that you were trying to ensure equality immediately. Is it not a bit contradictory to retain the word ``advance'' in your bill? If that's not the case, why keep it? We have been advancing for 34 years and we are still not advancing quickly.
The Chairman: You can answer the question as a witness and sponsor of the bill for clarification purposes.
Senator Gauthier: As the sponsor of this bill, I play my role as a senator who is concerned with the regions and minorities.
Senator Corbin: That's not the question.
Senator Gauthier: I am a member of other committees as well which are concerned with finance, management, regulations and so on. I have no conflict and no trouble introducing a bill which improves an existing act. That's my job and my role as a legislator. I am simply seeking the support of my peers to amend a bill that is important for me.
As to the wording of clause 2, amending subsection 43(1), advancing equality is an objective that we've had for a number of years. We want to convince government authorities that we have needs and that we have problems in our communities. We are told: ``Be patient, we are going to go about it slowly.''
At the start of my remarks, I said that we were a decentralized federation. In education, we've had serious problems that have gradually progressed. In a recent case on the schools question in Nova Scotia, one judge rendered a decision saying: ``Yes, they have the numbers and the numbers warrant.'' The judge requested a report on how to implement the order in question. The answer was given that it was progressive. The judge said that he reserved the right to examine that progress. The case is in appeal. The government says that it is not for the judge to monitor the progress that the Francophone minority in Nova Scotia makes or will make. I do not have the answer; I am not a lawyer.
I know that health and education are not federal jurisdictions; I recognize that. But I am a citizen of Canada. I have the right — I've been involved for 40 years — to assert my ideas and defend my opinions. When I say that Canadian Heritage shall take appropriate measures to advance equality, that means that it will engage the necessary measures, financial or otherwise, and the political will, and that will improve the fate of minorities.
Senator Corbin: I agree.
Senator Beaudoin: That's section 16 of the Constitution.
The Constitution is even more important than the Official Languages Act. It is more important than a minister's report. It's the basis. Read subsection 2 or 3 of section 16.
Senator Corbin: I am going to come back to this because the English text of clause 1 also states ``of the effective advancement and implementation.''
That idea does not appear in the text. These are deliberative terms. I believe we should examine this further.
I am not talking about Senator Gauthier's personal role in this committee. He is the sponsor and witness of this bill. In procedural terms, there are things requiring clarification. You cannot be judge, a member of the jury and a lawyer. The committee's role must be distinguished from that of its sponsor. Otherwise, there's going to be confusion. That is not a personal attack on Senator Gauthier.
Senator Gauthier is not the only one to defend the rights of the minorities in Canada. Let's not be mistaken. The Senate planned to establish an official languages committee well before Senator Gauthier's arrival. Let's not get carried away.
Senator Comeau: I'd like to return to the question Senator Corbin asked on section 43. I am dissatisfied and uncomfortable with the answer you gave, Senator Gauthier, regarding the appropriate measures to advance equality of status and use.
I believe it would be preferable to say ``take appropriate measures to ensure equality rather than the advance toward equality.'' It seems to me we are saying that we are going to go step by step.
Senator Gauthier: It's a step-by-step process. Witnesses came and testified before the Legal and Constitutional Affairs Committee and suggested that wording. I accepted it because it's more complete.
Senator Comeau: Other witnesses may enable us to understand the validity of that argument.
Have there been any attempts to determine whether section 41 of Part VII is mandatory or declaratory?
Senator Gauthier: There's never been a decision by any court on the matter, except recently, in New Brunswick; Judge Blais of the Federal Court said that the Canadian Food Inspection Agency could not eliminate or transfer positions. As a result, they reduced service to the public and prevented people from working in their language.
I am not questioning the court's decision. And I do not know whether the government can appeal from it. I asked the question in the House and the minister did not answer me.
I would also like to answer Senator Corbin.
The Chairman: Have you finished, Senator Comeau?
Senator Comeau: Yes, I only had one or two questions.
Senator Gauthier: Senator Corbin said I was getting carried away, but I am not. There was no Standing Committee on Official Languages in the Senate at the time. There is one now. The Senate was a member of the joint committee, but only from 1985 or 1986 on. Senator Corbin was the committee's chairman at the start.
The Senate is currently concerned with official languages because it has an independent committee. That's correct. I never said that I was the one who made that decision. It was the Senate that made the decision. My colleagues approved my initiative as they approved those of many other senators. Promoting what you believe is not getting carried away. The Senate has an obligation to take care of the linguistic minorities involved.
Senator Chaput: I have a comment on subsection 43(1), that is the new version of the bill containing Senator Gauthier's amendment, as opposed to the previous version. The French version of the Act uses the phrase ``pour favoriser la progression.'' In my view, that's a weak phrase. Now we are using the term ``pour assurer.'' The verb ``assurer'' is stronger than the verb ``favoriser.''
[English]
Senator Keon: It seems to me that proposed subsection 77(1) simply meets your third objective of court remedy in respect of any breach of Part VII of the Official Languages Act. I cannot see what difficulties could arise out of having that replace the existing subsection 77(1).
Perhaps I am missing something but I cannot see what difficulties could arise. It simply adds clarity to the situation. Is that correct?
Senator Gauthier: Thank you for your support, because that is exactly what I want. Right now, the wording of clause 77(1) excludes the Official Languages Commissioner and excludes people from getting the financial assistance of the court challenges program. We are not allowed to use public monies under that program to enter into a legal situation under section 74.(1), et cetera.
My proposal flows from the previous committee of Bill S-32 and Senator Joyal, in particular, supported by several academics from the University of Ottawa. It is also supported by a couple from Toronto, who said that we should put it into clause 77(1) to allow the Commissioner of Official Languages to enter into legal challenges when the law is not respected and to allow Canadians to use public funds through the court challenges program to make their case known and defended in court.
Senator Keon: It truly could not lead to any abuse other than it provides clarity and, perhaps, greater access to the courts. Is that correct?
Senator Gauthier: That is correct. I also believe that the history does not support the increased legal procedures. We had more than 700 cases under section 15 of the equality of rights — sexual or other types of discrimination. There have been 730 cases, I believe, in the last 20 years. We had some 30 cases under section 23, which is the school question in many provinces. To get the provinces established and enforce compliance, they had to be sued, unfortunately. Alberta was the first case on that; others followed.
On the health side, the Montfort is a typical case of minority rights being withdrawn. They said, ``No, you cannot do that. There is a floor you cannot go under.'' That stands to reason. The majority looks after itself. The minority must rely on the courts sometimes to help themselves get the required justice that they look for.
[Translation]
Senator Léger: Why is the Standing Senate Committee on Official Languages studying these matters? In light of the discussions this evening, a legal vocabulary is involved here. Should the Legal and Constitutional Affairs Committee not be considering this bill?
The Chairman: Senator Gauthier previously presented Bill S-32 to the Committee on Legal and Constitutional Affairs, which studied it. They heard witnesses, and the House was dissolved. The bill died on the Order Paper>. Senator Gauthier started over in the House with Bill S-11, the same bill that was referred to the Official Languages Committee.
Senator Gauthier: In 2001, the Standing Senate Committee on Official Languages did not exist. There was a joint committee, and I could not present a bill to it. That committee did not have the necessary powers. To do so, the two Houses must coordinate their actions so that this bill is passed on second reading simultaneously so that we can refer it to a joint committee. We cannot have a bill that's been passed on second reading in the Senate when the House of Commons has not done the same.
Senator Léger: Today I am hearing a matter of vocabulary.
The Chairman: More than that.
Senator Beaudoin: I have the answer. Subsection 16(3) is the Constitution of Canada. It's not an act; it's more than an act. The present Charter does not limit the power of Parliament and the 10 legislatures to advance the equality of status and use of English and French. That solves the problem in my view. When he says that he wants to move toward advancing the equality of the two languages, subsection 16(3) says it. That's enough for me.
You are right, Senator Corbin, it takes time. In constitutional law, sometimes it takes time. Equality between men and women occurred 100 years after Confederation. That's terrible. It took nearly 100 years to give Aboriginal people the right to vote and 1,900 years to abolish slavery.
The Chairman: Senator Léger was wondering why we were debating this in our committee.
Senator Beaudoin: We cannot always be in the Legal and Constitutional Affairs Committee.
The Chairman: When we formed the Standing Senate Committee on Official Languages in 2001, our mandate was to study bills.
Senator Gauthier: The Committee on Legal and Constitutional Affairs held eight meetings and met more than 27 witnesses. It did its work properly. The parliamentary session was adjourned and resumed the following fall. So the committee's work was erased as though it had never existed. I came back with the improved Bill S-11.
Senator Beaudoin: We referred to subsection 16(3). I did not invent it.
The Chairman: This completes the first part of our study of the bill. Tomorrow, the Subcommittee on Agenda and Procedure will meet to hear the various witnesses from the departments or other organizations. We will ask the bill's sponsor to suggest witnesses.
Senator Corbin: At the same time, could you clarify the situation with regard to the status of sponsor and witness?
The Chairman: Yes, I've written it in my notes. It's obviously easier when the bill comes to us from the House of Commons and the minister is the bill's sponsor. I believe that some senators have introduced bills and have been witnesses in the study of those bills.
The meeting was suspended.
The meeting resumed.
The Chairman: It is now a pleasure for us to welcome Ms. Diana Monnet, Assistant Secretary of the Official Languages Branch. Ms. Monnet is accompanied by Mr. Gérald Groulx, Program Officer with the Official Languages Branch, and Ms. Andrée Perrier, Senior Counsel.
Ms. Monnet has a presentation. She will talk to us about regulations and how those regulations must be applied. Then we will move on to the question period.
Ms. Diana Monnet, Assistant Secretary, Official Languages Branch, Treasury Board of Canada Secretariat: Madam Chairman, it's a pleasure for me to speak to you about the project to review the application of the Official Languages (Communications with and Services to the Public) regulations.
[English]
Our goal is to explain the process known as the ``compliance review of the official languages regulation,'' on the basis of the data from the 2001 Census; to receive your comments; and to better understand your concerns. As requested by Ms. Lucienne Robillard, President of Treasury Board, this review is transparent. The official languages minority communities were consulted and are being consulted throughout this exercise. I will speak to this in more detail later in my presentation.
[Translation]
At the outset it should be stated that offices that have service to the public obligations by virtue of specific provisions within the Official Languages Act will see no change to those obligations. Those obligations are not subject to the population rules. The census data will not affect any federal office.
[English]
Before giving you more details about this exercise which is underway, I would like to elaborate on the rationale for the official languages regulation and on its application.
[Translation]
As you probably know, the Official Languages Act, adopted in 1988, reflects section 20 of the Canadian Charter of Rights and Freedoms, which defines the delivery of services in both official languages in terms of three key concepts: the head or central office, significant demand and the nature of the office.
More specifically, section 22 of the Official Languages Act provides that ``every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head office in either official language, and has the same duty with respect to any of its other offices or facilities (a) within the National Capital Region; or (b) in Canada or elsewhere, where there is significant demand or communications with and services from that office or facility in that language.''
The Official Languages Act stipulates that in prescribing the circumstances in which there is significant demand, the Governor in Council may have regard to: the number of persons composing the English or French linguistic minority population of the area served, the particular characteristics of that population, the proportion of that population to the total population of that area, the volume of communications or services provided by an office using each official language and any other factors considered appropriate.
[English]
The act also states that in defining the nature of the office, the Governor in Council will have regard to such criteria as the health and safety or security of members of the public, the location of the office or facility, and the national or international mandate of the office.
[Translation]
The regulations complete certain key provisions of the 1988 Official Languages Act, in the sense that they amplify certain provisions for the act, particularly those concerning federal offices where there is significant demand in both languages and offices whose mandates justify the provision of services in both languages.
Thus the regulations specify the circumstances in which persons have rights and federal institutions have obligations. The regulations protect the right of members of official language minority communities to receive federal services in their preferred official language.
In fact, the approach taken in the context of the regulations makes it possible to ensure that the vast majority of Canadians can receive services from federal institutions in the official language of their choice. Thus the regulations are an important complement to the Official Languages Act. They are a concrete expression of the government's commitment to support the development of the official language minority communities in accordance with Part VII of the Official Languages Act.
[English]
Regarding the application of the regulations, I would like to stress the fact that the regulations apply consistently to all federal institutions subject to the Official Languages Act. Of course, since the Act already requires federal offices in the National Capital Region, and heads or central offices of federal institutions to serve the public in both official languages, the regulations do not apply to those offices. They have obligations that flow to them directly from the act. You were provided with the CD ROM that explains the principles and conditions relating to the application of the regulations.
[Translation]
As well, you have been given two tables, one of which is a synoptic table of the official languages obligations for service to the public, and another containing a series of questions to be answered by deputy heads in order to determine their obligation to provide service to the public.
We prepared these tables in order to simplify and clarify regulations which, in themselves, are very complicated and complex. This guide will help the institutions to better understand their obligations.
In these tables, the light brown bars indicate obligations that flow directly from the Official Languages Act; the green bar indicates obligations related to the nature of the office; and the red and blue bars indicate obligations related to significant demand. The same colour code is used on both tables.
It should also be noted that the order in which I have just presented the colours to you is the order in which deputy heads must consider each of the questions so as to determine whether their organizations have service to the public obligations. The process stops as soon as there is an obligation.
For example, to determine whether an office has a service to the public obligation, the deputy head must first consider whether the office in question reports directly to Parliament, whether it is located in the National Capital Region, whether it is a head or central office. If the answer to any of those questions is yes, the office systematically has an obligation to provide service in both official languages. If it is no, the deputy head proceeds to the next question.
The deputy head must then ask whether the office has a special nature. In other words, are its services related to signage concerning health, safety or security, or are they national or international in nature or is the office a national park? If the answer is yes, the office systematically has an obligation to provide services in both official languages. If the answer to the question on the nature of the office is no, the deputy head must move on to the questions related to the special rules for significant demand.
Does the office provide specific services, for example services to travellers. If it does, the obligation may be systematic or conditional on the demand for the services, depending on the individual case.
Last, the deputy head must answer the questions related to the population rules. These rules require consideration of the number of persons in an official language minority population, the percentage that population represents in a Census Metropolitan Area — that is, a major urban centre — or in a Census Subdivision — that is, outside major centres, in small towns and rural areas —, services considered to be key for the official language minority communities, the number of offices providing the same services — the proportionality rule —, and the region served by the office of the federal institution — area of service.
[English]
Because these rules include provisions based on the data from the most recent decennial census, federal institutions must now reapply these rules using the data from the 2001 census. This is done through an exercise known as the compliance review of the official languages regulation.
To better understand this exercise, I would refer you to the presentation document that you have been given. We have tried to set out in the deck that you have the different steps of the exercise. With the permission of the Chair, I will move into that part of the presentation.
[Translation]
The official languages regulations form the instrument for giving effect to certain key provisions of Part VII of the Official Languages Act. The regulations state that ``significant demand'' is to be defined on the basis of the data from the most recent decennial census.
[English]
On December 10, 2002, Statistics Canada released the 2001 census data on the language composition of Canada, and on the first official language spoken. Since February, 2003, the institutions subject to the Official Languages Act have been using these data to determine whether the service offered at their offices or service points should be provided in both languages by virtue of these regulations. Once this review is complete, the language obligations for some offices and service points could change.
Today, we are concentrating on the nature of the exercise and the nature of the regulation, not on the results.
[Translation]
I will talk very briefly, on page 2, about the Official Languages Act and the Official Languages (Communications with and Services to the Public) regulations. I will then go on to outline the role played in this review by the Treasury Board Secretariat's Official Languages Branch, briefly touching on the consultation process now under way and highlighting some pivotal dates in the overall review.
On page 3, in all, there are some 181 institutions with 12,379 offices and points of service. That shows you what a complicated exercise we are conducting at this time. Part IV of the Act affords individuals a right to federal services delivered in the official language of their choosing from the head or central offices of the institutions and any other office of those institutions where there is a significant demand or where justified by the nature of that office.
Accordingly, some 1,433 offices and facilities are not covered by the Compliance Review of the regulations since their obligation to provide services in both official languages stems directly from the Act itself. This includes head or central offices, offices located in the National Capital Region and offices directly answerable to Parliament.
In the 10,946 other offices and facilities, the obligation or non-obligation to provide services in both official languages stems from the provisions of the regulations, and they are included in this review. Generally speaking, then, all institutions with regional operations are covered by the review.
[English]
The adoption of regulations is made by the Governor in Council and the advantages of this choice are that the government rather than the courts has defined the extent of the public's right to service and has established the scope of federal institutions' obligations. There are many rules in the regulations, which I will present in their order of precedence.
The rules related to the nature of the office, regardless of the level of demand, are the first category. They are defined on the basis of four components: public health and security, such as a clinic at an airport; the location of an office, such as a national park; and national or international mandates, such as an embassy; and other circumstances, such as toll- free long distance services.
Rules on significant demand comprise specific rules and general rules, commonly called the ``demographic rules.'' In other words, the rules on the nature of the office take precedence over the rules for significant demand. The questions in order lead you to that conclusion. Within the area of significant demand, the specific rules take precedence over the general rules.
[Translation]
On page 5, significant demand encompasses two sets of rules: specific and demographic. Specific rules are based on non-demographic criteria and other factors and can reflect four situations: travelling public, facilities; travelling public, routes for transportation services, for example; communications and air and marine services; services provided at entry points to Canada.
The specific rules apply in circumstances where an approach based on the mere presence of a local minority population is not appropriate, for example, services for the travelling public.
These rules take certain ideas or factors into account, such as passenger traffic, the size and/or proportion of the minority, and census concepts, namely Census Metropolitan Areas and Census Subdivisions. In certain circumstances, assessment of demand must be made.
For census purposes, for example, Statistics Canada carves the country up into Census Metropolitan Areas (CMAs) and Census Subdivisions (CSDs). CMAs are urban centres with over 100,000 people.
[English]
One factor that needed to be considered in developing the regulations was that they had to benefit the greatest number of minority populations — nearly one million each of English-speaking and French-speaking Canadians in minority communities. To do this, it was necessary to consider the characteristics and distribution of the two minority groups; the size of the linguistic minority population in the area served by an office or facility; the particular characteristics of that population; and the proportion of the minority to the total population in that area. It was also necessary to consider the volume of communication or services between an office or facility and the public, and any other factor considered appropriate.
When the regulations were drafted, an examination of the distribution of Canadian linguistic minorities showed that 86 per cent of anglophones in Quebec resided in large urban centres, whereas 42 per cent of francophones outside Quebec lived in large urban centres. There was a significant difference in where the populations were located, which required the regulation to become more complex if it were to cover as many of our minority communities as possible. This concern was kept in mind.
Today, these rules cover government services available to 90 per cent of the members of the minority French- speaking community, compared to 86 per cent in 1991, and 94.8 per cent of the members of the English-speaking minority compared to 94.1 in 1991. A significant proportion of the minority communities is covered.
[Translation]
The demographic rules are based on Statistics Canada census data for the first official language spoken. The rules involve various concepts, such as minority numbers and percentages, key services, for example those of Heritage Canada, the Public Service Commission, some services such as Canada Post, employment centres, the income security program, the taxation service and some RCMP detachments, the calculation of proportionality when a number of offices are offering the same services, and the service area, that is to say the territory covered by an office, which will necessarily extend beyond the CMA or CSD in question. We obtain the number and percentage of the minority in an office's service area by totalling minority populations across the territory served by that office.
When the service area calculation does not produce an obligation, the regulations will in some cases call for an assessment of the demand.
I am a very visual person and the best way for me to explain the very complicated review under way is that we have a map with the demographic data, and, for each of the departments, we have a map of Canada with the boundaries of the service areas. We put that together and we do a comparison between the demographic data and the service areas and calculate the obligations of the department in question within the service areas.
On page 8, you have the compliance review, which will take place in three stages extending over a three-year period: application of the demographic data from the 2001 census, implementation of Treasury Board directives and assessment of demand.
Stage 2 lasts until the fall of 2003, so we are still working on the review and will finish the work this fall. It involves about 87 per cent of the offices and facilities covered by the review. Stage 2 will be completed during the winter of 2003, and the demand will be assessed in 2004 or 2005 to reflect the provisions in the regulations.
You have a schedule in your kits showing the various review stages and timetables. The schedule is a working tool and the timetables are subject to change.
In addition, the regulations provide for an assessment of service demand in cases where the demographic data do not produce an obligation to provide service in both official languages or where those figures are not relevant.
According to the Treasury Board directives on the assessment of demand, the results of this calculation are valid for 10 years The validity period expires in 2003 or 2004 in accordance with those directives.
Thus, the schedule before you shows the key dates for the review. Activities are organized in three stages: application of the rules to the demographic data, implementation of Treasury Board directives A, B and C, and assessment of demand. For more information, you can consult the Web site or the CD-ROM we distributed to you.
The review's results with regard to the demographic rules will be known this fall. We expect most of the results for the assessment of demand to be known by March 2005.
Let's turn to page 9.
[English]
During this review, the Official Languages branch assisted. As you can imagine, departments needed assistance with this exercise. I am sure you are thinking how complicated this is; I can assure you they had the same reaction. In January 2003, from the data files provided by Statistics Canada on the first official language spoken, we created electronic tools to enable us, in February, to send to all concerned institutions an interim profile for the compliance review.
regulations along with other reports and tools — for example, the maps of the service areas and specific offices — were given to them so that they could verify. These tools assisted them in conducting the compliance review. We held training sessions because this is not an easy or simple exercise. We went to more than 80 institutions and we focused on how to apply the demographic rules.
From April until now, institutions have been returning the results of their analysis of the impact and we have been providing assistance and general guidance to whomever needs it. Our review of the results of the first stage of the exercise is almost completed.
When it is completed, we will be informing the president and secretary of the Treasury Board and, as well, the representatives of the minority community. There is a special committee whom we keep advised.
[Translation]
At the request of the President of the Treasury Board, we convened a discussion group to revise the official language regulations in 2002. This group is made up of representatives of the Fédération des communautés francophones et acadienne, the Quebec Community Groups Network, the Office of the Commissioner of Official Languages, the Office of the President of the Treasury Board, the Privy Council Office and Canadian Heritage.
[English]
The mandate of this group is primarily to examine the impact of the census data on federal offices and service points, and to analyze how to update the implementation of the regulation. The group is also examining the nature of the regulation itself but we are concentrating right now on applying the demographic data.
The group has already met five times and will have subsequent meetings as soon as we are ready to present the results of the final analysis. The next meeting is scheduled for the end of October.
By virtue of my commitment to them, we will be sharing with them the results of the exercise before the results are made public. This is in order to take into account the concerns of the community as we move through the exercise.
There is no obligation for service that will change until Treasury Board has confirmed the accuracy of the analysis done. Institutions are obliged to come back into us to verify or to say where they differ from the initial analysis. Once confirmed, the new obligations are to be implemented with due diligence.
We will keep the communities advised, as I said, through the committee and their concerns will be considered all through this exercise.
[Translation]
The Chairman: Now let's move on to the question period.
Senator Comeau: I listened closely to your presentation, but you dealt with very complex questions in your documents.
There used to be a very large Acadian population in Prince Edward Island, Newfoundland and Nova Scotia. With the increase in the anglophone population and the arrival of immigrants in those regions, people gradually adopted the English language, and those francophone communities were very quickly assimilated.
For example, I know of a small community which used to be completely Francophone when I was young. Two years ago, I went to that region and addressed a young woman. That woman spoke to me in English. I asked her if she spoke French. She said no. I assumed that one of her parents was Anglophone. She said that her parents were both Francophone. Then I asked her why she did not speak French. She said that no one in her generation speaks French.
That example reveals a distinct assimilation in that region. Moreover, the 2001 census does not reflect the Canadian population. You see Chileans, Somalis, Chinese, ethnic communities of all kinds, except Acadian. The first European communities who came to Canada are not even identified in the census.
Under your regulations, are there any measures that you could take at the Treasury Board Secretariat to recognize the historic contribution of the Maritime Acadians? For example, in Prince Edward Island, at the time of the next census, there will be 5,000 Acadians, and they are not even identified. Are there any regulations at the Treasury Board Secretariat that recognize the phenomenon of Acadian anglicization over the years? In the regions of Newfoundland and Prince Edward Island, we will soon have to stop offering services in French because demand will no longer warrant it. How do you respond to those populations?
Ms. Monnet: From the data of the 1991 and 1992 censuses, we see a decline in the Francophone population. In Prince Edward Island, that decline is very small, and the number of francophones has not fallen below the allowable limit.
Senator Comeau: In a future census, we will see that the number of francophones has fallen below the allowable limit, and Prince Edward Island will then have the status of a unilingual Anglophone province where services in French will cease to exist. Is that what's in store for Prince Edward Island?
Ms. Monnet: We will have to wait and see the breakdown and analysis of services. In fact, there has not been that much slippage. This time at least, we should not expect major losses of service in Prince Edward Island. We were afraid there might be losses, but the figures were more positive.
You asked the question on what we can do to help the communities more. First we are going to look at where services can be provided, and, if there have been losses, we are going to study that situation very closely. We are going to see whether there are not other ways to help the community. But we should not jump to any hasty conclusions either. The government's obligation, its duty in fact, is mainly with respect to Part VII; it especially must do what it can.
Senator Comeau: It's not even mandatory; these are expressions of good will. We are currently studying a bill that could solve this problem, but the government feels it depends on its good will; it's not mandatory; it's declaratory. Even there, there's nothing.
Ms. Monnet: There are nevertheless efforts sponsored by Canadian Heritage, which coordinates the activities of the departments and agencies in town. I am not telling you that we could not do more, but efforts have been made to help the communities.
Senator Comeau: Since the Acadians were excluded from the last census, do you have any ways of identifying Acadian groups that no longer speak French, or will the census instrument have caused some harm?
Mr. Gérald Groulx, Program Officer, Official Languages Branch, Programs and Liaison, Treasury Board of Canada Secretariat: To my knowledge, we do not have any ways of identifying those groups. It will have to be up to Statistics Canada, which will probably be able to do it.
Senator Comeau: The first group of Europeans established in Canada, francophones from France, became Acadians. They are not even identified in the census for the purpose of examining the rate of assimilation that is currently occurring in the Maritimes. Perhaps we could ask the Treasury Board Secretariat to put pressure on the Chief Statistician by the time of the next census to ask him to take his work seriously and to identify groups such as the Acadians.
The Chairman: I have a supplementary question on the demographic face of Canada. The first official language spoken criterion is used; is that still an adequate assessment criterion? I believe Statistics Canada uses it.
Ms. Monnet: In fact, there's an algorithm — we brought copies in case you asked questions. There is a series of questions for which it is established which is the first language spoken. To come back to that point, I am told that the ethnic groups cited are counted. We have someone who can help us on that subject.
Senator Comeau: The Acadians are not there. There are some 20 groups, whose names I do not remember.
Ms. Monnet: Madam Chairman, with your permission, I would like to introduce Michael O'Keefe, from the Privy Council Office, who is familiar with the Statistics Canada data and who has agreed to help us if necessary.
Mr. Michael O'Keefe, Senior Policy Analyst, Official Languages, Intergovernmental Affairs, Privy Council Office: The census asks a question on ethnicity. Ten answers are automatically cited; they are the 10 answers most frequently given in the last census. At the end of that list, space is left where people can state other choices. Acadians do that, and we know how many persons have chosen to do so.
Senator Comeau: Wait a minute; all the other groups are identified, except the Acadians, who have to identify themselves.
Mr. O'Keefe: There are exactly 10 groups identified; they are the 10 groups most frequently identified in the last census. For example ``Quebecer'' is not included as an answer, despite the fact that many Quebecers answer ``Quebecer''. ``Acadian'' is not included because they are not among the first 10. That being the case, we do count all the answers and we receive more than 100 answers in the census on ethnicity. It is entirely possible to get those figures; of course, people tend instead to choose the answers that are in front of them, and people of Acadian origin often answer ``French'' because that's one of the answers most frequently given, but people can include other answers. We know how many people wrote ``Acadian'' in the census, and we can get those figures.
Senator Comeau: So that's your way of proceeding. All right. We will come back to that.
Ms. Monnet: That has no impact on the interpretation of the regulations. It's a census and demographic question. To answer your question on the regulations, that does not influence the decision under the regulations. To assist you, we gave you the method described in the regulations for determining the first language spoken. With regard to what we can do for the Acadians or other minority communities, when you asked the question, I should have talked about the Action Plan for Official Languages, which entails an enormous effort to help the communities.
Senator Gauthier: Are the regulations ready? You've consulted the communities.
Ms. Monnet: On the application of the regulations, yes.
Senator Gauthier: In actual fact, there is currently a situation in which many of our public services which fall under your control and under the regulations in question are being privatized. How many government employees have we lost in the past five years, who were privatized and whose services were assigned to other organizations? How many government employees are no longer under your authority?
Ms. Monnet: The vast majority are still considered as federal institutions; so Part IV of the Act and the regulations apply. In future, if there are others, there is a policy on diversification of service delivery methods.
Senator Gauthier: You are absolutely correct, Ms. Monnet, but they do not know or refuse to recognize it. In Windsor, when the statistics came out, I was contacted by people from there because someone said that, if the francophone population of Windsor fell below 5 percent, bilingual services at Canada Post would be eliminated. I called Canada Post, and I was satisfied to hear that there was no question of eliminating bilingual services. But Radio- Canada and other media services were spreading the rumour that services were going to be restricted if the population declined. I received a satisfactory letter from Mr. Ouellet, saying that the services were not going to be eliminated.
The Food Inspection Agency on the Acadian Peninsula said that it was not subject to the Official Languages Act or to the Treasury Board regulations because it was an independent agency. There are a lot of those agencies now. Those people think they are no longer under your authority, but you've confirmed for me that they are. Is that not correct?
Ms. Monnet: Yes.
Senator Gauthier: The courts say so as well.
Ms. Monnet: They are still subject to the regulations and the Official Languages Act. As to the policies, that's another matter. They must nevertheless comply with the spirit of the Treasury Board policies. Since we are not the employer, the ``how'' can vary from one agency to another, but they are very clearly subject to the Act and regulations.
Senator Gauthier: Will you state that, in any decentralization or privatization, you will ensure that federal public services continue to respect both official languages?
Ms. Monnet: A policy on alternative service delivery provides an appendix with all the stages that should be followed and questions that should be asked on official languages. We refer to that official languages policy at a number of points in the text where we describe the stages. I can assure you that the official languages and the obligations of the institutions are very prominent and include an obligation to consult the communities.
Senator Chaput: My first question concerns the method used to assess demand for services. One of those methods is a question asked concerning the language spoken in the home.
I am very concerned about some of the questions asked by Statistics Canada. In Manitoba, where I come from, at least 60 per cent of youths started out from exogamous unions, in which one of the two spouses did not speak French. Statistics show that, where the mother does not speak French, that language is used very little in the home. Conversely, where the mother speaks French, French is more commonly used. In response to the question concerning the first official language spoken in the home, these youths will check off English, which reduces the number of Manitoban francophones. These results may be deceiving because these youths use services in French, use French in the schools and hospitals, for example, since French is still a spoken, living language in Manitoba, but it's not necessarily the first language spoken at home because one of the two parents does not speak it.
Who at Statistics Canada is responsible for revising these questions which have been asked for so long and which may no longer be relevant or, even worse, may be harmful or discriminatory with respect to the francophone minority?
Ms. Monnet: That question was raised a number of times in the committee I referred to attended by representatives of the Office of the Commissioner of Official Languages and the minority communities. We are trying to complete the review in order to determine its impact on the communities. If there is an impact, we will study the various ways to help the community or we will come up with attenuation measures.
We reserve that question for the future. In the case of potential losses, we are going to see whether another calculation could have helped in other circumstances. It's a hypothetical question for which we are awaiting concrete results before asking the question as to what the result would have been if the calculation had been different. Your concerns are similar to those that have already been conveyed to us.
Senator Chaput: My second question concerns the boundaries of service areas. The federal government changed the boundaries of the service areas in Manitoba seven or eight years ago.
Mr. Groulx: It's the federal institutions subject to the Act that will decide what the service areas of the offices in question will be.
Senator Chaput: Some service areas were changed 10 years ago. Accidentally or otherwise, I do not know, fairly large francophone communities were divided through the creation of new service areas, where offices offered bilingual services. As a result, the majority collapsed because one part of the Francophone community went to one side, where there were a lot of Mennonites, for example, and the other part, 50 per cent, went to the side where there is an Anglophone majority. That weakened us once again in terms of percentages, sufficient numbers in order to receive services in French.
I am thinking of Senator Beaudoin, who said that it's not a question of numbers, but of equality. We have two official languages and they are equal, but I often get the impression that it's a question of numbers in this case.
Ms. Monnet: That's precisely the kind of thing that concerns us. We see whether the division in certain cases can harm the community. If that's the case, we intend to review the situation with the agency or department in question. We are working on it, and that's partly why it takes so much time to analyze it all. Before concluding that there has been a loss, you have to do some serious homework. We are trying to analyze the example that you raise.
Senator Beaudoin: I am pleased that you raised the question of the equality of the two official languages; I always emphasize that. All my life, I've heard about ``where numbers warrant.'' That's still the case in some places, but the two official languages are equal. That should never be forgotten. It's not a question of numbers but a question of equality. But then there's section 23, which states, with regard to schools, that the ``where numbers warrant'' rule still applies.
Ms. Perrier, you are a lawyer. What's your reaction to Judge Blais' judgment, which clearly states that Part VII, or at least section 41, is binding? As a legal expert, do you take that into account or is that a matter of only passing importance? I worked at the Department of Justice many years ago. I was one of the legal advisors, as I was at the House of Commons as well, and every time a major decision was made, we were interested in it and we talked about it. Is that still the case?
Ms. Andrée Perrier, Senior Counsel, Legal Services, Treasury Board of Canada Secretariat: It's still the case. You know that a lot of consultations are held when a decision of that kind is made. That's precisely true in this case. The Attorney General is reviewing that decision and we are still within the deadlines for appeal.
All I can tell you is that the decision is being reviewed. It's not something of no importance, which is going unexamined.
Senator Beaudoin: That impresses you. It responds to something because I've heard that, for a number of people, sections 41, 42 and others are not executory, that they are only declaratory. If they are declaratory, we will attend to them when the time comes. However, if it's executory, that must be taken into account. I hope that decision will not be isolated.
And if the federal government ever appeals to the Court of Appeal and the Supreme Court, we will see what happens. All my life, I've always adhered to the principle that the decision of one court is very important, but, until the Supreme Court has ruled on it, it's not as important as that.
But it's still important. Look at the Montfort case; there's been no appeal. In Manitoba, a lower court held in the early 1990s, when it abolished French, that the decision was unconstitutional. Two courts have said the same thing, but no attention was paid to the matter. And it was not until 100 years later than an extraordinary man, Mr. Forest, pleaded across Manitoba. He lost everywhere. He came to see me in Ottawa; we knew each other a little, by chance, a very happy chance. That remarkable man changed history. I said: Go to the Supreme Court. He said: Yes, but that's expensive. I said: That's quite true; it's very expensive. But he won nine to zero. That's something.
That's why I say I am in favour of legal action. If we francophones had not won before the courts of law, we would not have come as far as we have today. Either we convince the politicians to act, or we use the justice system. And the justice system is still the strongest. Because it's hard to forget a court decision.
That's why I ask you the question. You tell me — and I am pleased to hear it — that you are taking it into account. You are going to decide whether or not to appeal. Appeals are important. Look at the marriage question now in appeal; a major decision has been made.
I raise the subject because it's very important if we decide to appeal or not.
Since we won, I am not losing any sleep; I figure: we won with Judge Blais, but, to promote the equality of the two official languages, it's very important to consider section 16.
When you tell us, yes, we are taking in into account, we are interested in it, you put that in the bank and you think about it. So much the better; at least we have a decision in our favour.
Ms. Perrier: It has not gone unnoticed.
Senator Léger: I am going to start with my third question in case I do not have the time to ask the first and second.
I believe we have statistics that will enable us to determine whether services are provided. Those statistics were established at the outset in order to achieve linguistic fairness in the country. I find it hard to believe that a community that has enjoyed services in French should be deprived of them because of statistics. The 5,000 figure was selected as a basic criterion for offering services in French. It should be one person. Surely Canadians are all equal, English and French. Will legislation be required to prevent the elimination of vested rights? Never.
The Chairman: That was your first question. Ms. Monnet, do you wish to answer?
Ms. Monnet: I am going to try. The regulations seek to define what is meant by the concept of ``significant demand.'' You are not the only person who feels we should perhaps be more generous. Ms. Robillard has said she is open to considering the possibility of change, but first we have to complete the current review.
I told you we will pay careful attention before deciding whether there has been a loss, in cases where losses are possible. We are reviewing the service area, we are consulting the community, we are assessing whether there are other ways of doing things. However, it must not be said either that there will always be services where there used to be services. Circumstances change. If an entire community moves away — consider the example of a military base — it's normal for service to change or be integrated.
We are trying to proceed with as much rigour as possible taking into account the community's needs.
Senator Léger: There's no difference in Canada with respect to the place where you are. All these subdivisions, numbers, percentages, I hope they will help English and French be equal. That's a lesson I've learned; I will not forget it. If I go to Nunavut, am I still in Canada, even if I am alone? It seems to me that the Act was supposed to bring us to a point where everything was normal across the country.
All this beautiful work must cost money. That's all right; as you say, we have to pay. But are we moving forward? Is this making Canada even more bilingual and equal across the country?
Ms. Monnet: To be able to provide service everywhere, we are working with the regulations as set out and decreed. We are trying to apply them with as much fairness and generosity as possible by consulting the community. Everywhere, no, but 90 per cent of francophones do have access to a service in their language, when you use the regulations, when you apply them based on the 2001 data, and 94.8 per cent of anglophones. That's not everywhere, no.
Senator Léger: Those are the regulations today. With the massive influx — and it will increase — of Aboriginals and all the immigrants, it's understood that the basis will no longer be French or English; it will be another language.
It seems to me that, if everything was English or French in the country, that would in no way prevent them from coming to Canada. English or French: that's the last of their worries. They want to enter our country.
What are we doing today or tomorrow with this mosaic — as Sheila Copps had said — which is the very definition of Canada?
Ms. Monnet: You have a partial answer in the action plan that was announced by the Prime Minister on March 12, with the efforts of the Department of Immigration to welcome immigrants, to attract them and to encourage them to live in the minority communities.
An effort is being made in accordance with our action plan in the schools, with young children, so that more young Canadians have the opportunity to learn both languages. These are two different approaches, and we are trying to take your concerns into account for the sake of young allophone immigrants.
Senator Corbin: I do not know very much about computers, and I admit to a certain ignorance. I was looking at the back of your 16-minute CD. Let's talk about regulations respecting services to the public in both official languages. Why did you publish an English version and a French version? Why not put them on the same CC-ROM? This morning I was looking at the CD-ROM by Yo-Yo Ma which lasts 72 minutes. You've made two separate CD-ROMs for a bilingual country. What interests me is the result. Does the office report directly to Parliament? Yes, you go to the right. No, you go down. This reminds me of the game of Monopoly. Understanding you is more complicated than that game. It's not clear, even though we are all visual.
Ms. Monnet: It's quite complicated. We tried to simplify with a visual concept, but these are still complex regulations.
Senator Corbin: You have to concentrate. What have been the results to date? Are more Canadians being served in the language of their choice than 10, 20 or 30 years ago? The Official Languages Act has been in existence for 34 years. I am not saying that all the regulations have been around for 35. Improvement efforts have been made over the years. The same question requires us to look at the other side of the coin.
Do more government employees speak both languages? In other words, are we making real progress? We have to consider the fact that there are many more bilingual employees than necessary in some departments and not enough in others.
Ms. Monnet: As regards the access right, I gave you the figures a little earlier. If you apply the regulations, you see the figures increase. There has been theoretical progress on demand for access to services. As to the service itself, I believe there has been progress as well. I do not have figures going back to the first act, I could look for that information and pass it on to you.
I can tell you that 84 per cent of government employees hold positions of responsibility in public services and are capable of providing that service. Is that adequate? No, it should be 100 percent. We are making efforts in language training. We are revising our policies at the Treasury Board to improve performance in that area.
Senator Corbin: A final word to support the arguments of my colleagues, senators Comeau and Léger. Last week, in the Transport Committee which is undertaking a study on the Canadian media, we heard from representatives of the Competition Bureau as witnesses. When the Competition Bureau and the Competition Tribunal examine a new acquisition which could result in a monopoly, they never take into account what's already acquired. What's done is done. The past is the past.
That thinking should apply to the Acadians' situation. They were here. Whether they are partially or totally anglicized, it seems to me that, under the Official Languages Act, access to and provision of services should be offered actively. They have a priority right. They were here.
Perhaps it's not up to government officials to put in place measures that respect the foundations of Canadian society. However, it is definitely up to officials to hear what we say to transmit our comments to their minister so that politicians make those decisions.
The Chairman: That's very true. They were here. If they were unfortunately anglicized at one point, it's a question of survival because these services were not offered.
Senator Corbin: The governments did not do their job.
Senator Chaput: This is not a criticism, but I want to share a comment with you. When you talk about applying regulations, you use a certain vocabulary and talk about assessing numbers and then applying. Every time the question of generosity comes up, the hair stands up on my head. I figure it's a question of right, of equity. I do not want to see myself as a minority to whom people are being generous, when it's my right.
Senator Comeau: I'd like to come back to the groups identified in the census. The comment was made that Quebecers are not on the list, so why include Acadians. I hope you will examine that observation very closely. Quebecers do not have the same problems protecting their language and culture as the Acadians. It's often easier to be a francophone in Quebec City than in Pointe-de-l'Église or Cape Breton in Nova Scotia. I want you to remember that. If someone makes a comment to you and Acadians have to be added to the list, it should be opened up to all the other groups. Acadians are a very particular group who have suffered an unacceptable rate of anglicization. My comments are very serious, so study them.
Ms. Monnet: We will do a follow-up.
The Chairman: I thank all the witnesses. We will closely monitor the various stages in this regulatory review. We will ask you to appear at the final stage. You will no doubt have to identify the increase in services that has resulted from that assessment.
The committee is adjourned.