Proceedings of the Standing Senate Committee on
Official Languages
Issue 14 - Evidence
OTTAWA, Monday, October 27, 2003
The Standing Senate Committee on Official Languages met this day at 5:25 p.m. to study Bill S-11, An Act to amend the Official Languages Act (promotion of English and French).
The Honourable Rose-Marie Losier-Cool (Chair) in the Chair.
[Translation]
The Chair: Today we will be hearing from the Commissioner of Official Languages, Ms. Dyane Adam. Ms. Adam, it is a pleasure for us to have you back and I would ask you please to introduce the persons who have accompanied you?
Ms. Adam: This bill is very important because it will allow us to clarify Part VII of the Official Languages Act and ensure that the government will abide by its commitment with regard to the promotion of English and French. As a matter of fact, I have been recommending for two years in my Annual Report that the Act be so amended. So I of course welcome this new initiative by Senator Gauthier.
As we know, this bill is a successor to Bill S-32, which was brought forward in 2001. I had in fact appeared before the Senate Standing Committee on Legal and Constitutional Affairs to express my position on that bill, and I am pleased to note that Bill S-11 takes into account the three recommendations I made at the time to enhance Bill S-32. As it is worded, Bill S-11 clarifies the scope of Part VII of the Official Languages Act. It makes clear the binding nature of the commitment in Part VII by imposing a duty on federal institutions in a more explicit manner. It provides for the authority to make regulations so as to ensure that an appropriate system is put in place to implement the Official Languages Act, and it provides for access to legal remedies pursuant to Part X of the Official Languages Act.
In my opinion, Part VII already imposes a binding duty on the federal government. However, this opinion is not shared by all and, in the absence of unanimity, the courts sometimes find themselves with the responsibility to define its scope.
The federal government's duty will be made clearer by the wording proposed in the bill. Moreover, the government will be able to define the manner in which that duty is to be carried out, which gives us reason to hope that an appropriate system will be put in place in cooperation with the official language communities.
Finally, I believe that legal remedies are necessary. When legislation imposes an obligation, it must be accompanied by a remedial power allowing the courts to supervise its implementation. For example, recognition of the minority language education right in section 23 of the Charter has resulted in several proceedings to ensure implementation of that right by provincial governments that had not fulfilled their obligations. If the minority language communities had not been able to turn to the courts to ensure compliance with section 23 of the Charter, they might not have their schools today.
[English]
As I have already stressed, the time has come to take action. For several years I have noted, with regret, a certain stagnation and ambivalence within the federal administration with respect to Part VII of the Official Languages Act.
The federal apparatus does not know what is expected of it, and sometimes has a tendency to act slowly when faced with ambiguity. As a result, the official language communities are disillusioned because they expect more from a government truly committed to promoting their development.
I am thinking, among other things, of the recent judgment in the case involving the Forum des maires de la péninsule acadienne, in which the Federal Court criticized delays on the part of the government.
There is, of course, the recent and long-awaited governmental Action Plan for Official Languages. However, it focuses on some key institutions, whereas all federal institutions in various areas should be given clear direction about their obligation. That is why I feel that the government's action plan could not be fully carried out without clarifying the scope in Part VII of the Official Languages Act. The government must proceed with the wind in its sails and take action by eliminating the ambiguities that are reining in the enthusiasm for federal action.
Legislative action seems the appropriate course to correct this situation. In my view, enacting Bill S-11 would lead to a better understanding of the duties imposed on the government by Part VII and would improve the government's performance in carrying out its commitment.
I congratulate again Senator Gauthier for having brought forth a bill with much substance, and which I am happy to support. This is an ideal opportunity for the government to demonstrate its renewed commitment to development of official languages communities, as indeed the Action Plan for Official Languages says so well. I quote:
Vibrant minority official language communities that are proud of their identity and their culture and able to attract new members constitute an asset for the country as a whole.
In my view, enacting this bill could help official language communities overcome many challenges and strengthen their development. In so doing, we will benefit not only these communities but also all of Canada.
I will be pleased to answer any questions.
[Translation]
The Chair: I now give the floor to Mr. Hilaire Lemoine, from Canadian Heritage.
Mr. Hilaire Lemoine, Director General, Official Languages Support Programs, Department of Canadian Heritage: Honourable senators, first allow me to thank you for this opportunity to tell you about a certain number of major achievements by various sectors affecting official languages and also to tell you about the mandate of Canadian Heritage. My presentation will be similar to that of the Commissioner and will outline a number of successes in the context of the present version of Part VII.
I have three general comments to make by way of a preamble. First, in the present context of Part VII of the Official Languages Act, Canadian Heritage has made major progress on official languages. Second, it is important to note that the official language minority communities are satisfied with the new accountability and coordination framework of the Action Plan for Official Languages, which should contribute to greater compliance by the government with its commitment to the communities vitality and development. Third, Canadian Heritage must rely on many partners to achieve its objectives. It cannot be held solely responsible for certain areas of jurisdiction belonging to other levels of government.
Now let us review some of the achievements recorded over the past 10 years. They are well known, but I believe it is important to review them in the present context.
With regard to education, let us compare the present situation to that of 10 years ago. Schools management now exists in all Francophone communities outside Quebec and, of course, in Quebec. There are more than 670 French- language schools outside Quebec. The registration rate at those schools rose from 56 percent of entitled children in 1986 to 68 percent in 2001. There is a full system of colleges in Ontario, such as the Cité collégiale, Collège Boréal and its campuses.
[English]
More than 14 community schools have been constructed in Quebec for the English-speaking community, in addition to the development of Heritage College, which is across the river from us, and a distance education network for smaller schools.
[Translation]
We are talking about 20 community school centres.
[English]
There are more than 325 students in immersion programs. There is $2.7 million for French language education.
[Translation]
Education is a good example of partnership, and it is important to raise a few points regarding services offered to the minority by the provincial and territorial governments. In the past three years, there has been a French-language services office in British Columbia and in Alberta.
The eighth conference of Ministers of Francophone Affairs was held in Winnipeg a few months ago. Saskatchewan announced a policy on French-language services there. The French-language Services Act was passed in Prince Edward Island a few years ago. We witnessed pronounced support for the implementation of the new Official Languages Act in New Brunswick — among other things, municipal bylaws were translated in Moncton. Other achievements include support at the City of Ottawa for offering services, and the creation of a national health training centre, which will become the Health Consortium under the aegis of Health Canada.
I would like to emphasize the following with regard to support for community development. Over the years, there has been a quite pronounced increase in awareness by a certain number of key ministers which have an important role to play with regard to the communities. This has given rise to the creation of ministerial committees. They exist in health, human resources, citizenship and immigration. Canadian Heritage recently established this kind of committee together with the two minority communities.
You have heard about the multipartite agreement on culture with the Fédération culturelle canadienne française, where all cultural sectors — theatre, media arts, visual arts, song and music — are represented through the various portfolio agencies. A Francophone Network of America now links 18 Francophone and Acadian community radio stations in six provinces and two territories. We have three Jeux de la Francophonie canadienne, the Institut de recherche sur les minorités linguistiques at the University of Moncton, 30 departments and agencies designated as key institutions, of which the CRTC is the most recent. In addition, 14 departments have signed IPOLC memoranda of understanding, which represents approximately 60 new federal government programs serving the minority communities. This represents more than $40 million, since June 2000, in the context of the IPOLC agreements, of which $11 million comes from Canadian Heritage alone. So you see the leverage effect thus obtained.
With regard to linguistic duality, another important part of the department's mandate, 82 percent of Canadians, including 91 percent of those 18 to 24 years of age, support the federal government's official languages policy. In 30 years, the percentage of bilingual Canadians has risen from 12 percent to 18 percent, an increase that may appear modest. However, we note much more encouraging progress among young people, where the bilingualism rate has risen to 24 percent among Anglophones 15 to 19 years of age. These figures give us an idea of what the future holds.
Another example of linguistic duality is the work done by Canadian Parents for French. A few days ago, they published their latest report entitled ``The State of French Second Language,'' an interesting way to remind the federal and provincial governments of their commitment in that area.
This past summer, more than 12 cities took part in the event ``Français pour l'avenir,'' which involved students, workers and a number of private sector companies in developing language learning and knowledge.
The development of an innovative French second language instruction model was designed: French intensive, which is a kind of alternative to immersion.
In closing, I will discuss the evaluation of our programs. Some committee members have asked us whether the Department of Canadian Heritage evaluates its programs. I am pleased to tell you that we have been in evaluation mode for two years now. We are being examined from all sides: a major evaluation of education programs, an evaluation of our community support programs and another evaluation, currently under way, of provincial government services to the communities.
The questions asked in those evaluations are: Are our programs still relevant? To what extent have they achieved desired results? Do the programs employ the best means to show the effectiveness of achieved results? Evaluators from outside the department conduct these evaluations.
More than 1,200 participants, groups and community groups took part. There were control groups and a number of findings. I will send you a copy of that evaluation. It appears from that evaluation that the programs have made it possible to achieve real progress in education, service and community development.
The beneficiaries acknowledge that, without the support of the Department of Canadian Heritage's programs, it would have been impossible to maintain minority community life and to make progress in education, both in the minority language and in second language instruction. The evaluators also mentioned that improvements are also necessary in order to further clarify objectives and measure progress achieved more accurately.
In conclusion, senators, I have tried here to show that, in its present form, Part VII has made it possible to achieve very clear results. It makes it possible to change cultures and to establish ongoing and structured relations between the communities, the departments and the various levels of government, which are in place to serve the communities.
[English]
The Chairman: Now, from the Treasury Board of Canada Secretariat, we will hear from Ms. Monnet, who is Assistant Secretary, Official Languages Branch.
[Translation]
Ms. Diana Monnet, Assistant Secretary, Official Languages Branch, Treasury Board of Canada Secretariat: Honourable senators, thank you for inviting me to speak to you about Bill S-11, amending the Official Languages Act to prescribe the enforceability of the federal government's commitments to the official language minority communities.
I understand that the objective is to enhance the Government of Canada's commitment to linguistic duality. The TBS stands firmly behind this objective which we have long supported through our actions which are becoming more and more targeted.
First of all, I have to say that I will leave it up to the Department of Justice to comment on the declaratory or binding character of Part VII of the Official Languages Act.
Now, I would like to describe some ways in which the Treasury Board Secretariat has shown concrete support for Part VII. The Treasury Board is responsible for Parts IV, V and VI, while it contributes as a central agency to the implementation of Part VII.
The TBS supports the government's commitment that is described in Part VII of the OLA through its review of institutions' submissions for Treasury Board approval. The Official Languages Branch, working with TBS program analysts, analyses the impact of institutions' initiatives in order to examine that official languages consideration are covered and optimised. We can ask questions, or even recommend funding conditions, particularly with regard to service to the public, language of work and equitable participation but also with regard to the development of official language minority communities.
Often, our work starts before a submission reaches Treasury Board, because our advisers are in regular contact with official languages staff in departments and with their peers in the TBS. This ongoing contact allows them to join in the process as the submission is being developed.
[English]
The action plan for official languages has allocated $14 million over five years to implement the Official Languages Innovation Program. These program funds target activities proposed by federal institutions and regional councils to boost the official languages program.
While the innovation program does not provide direct funding to the official languages minority communities, this year, many of the projects recommended under the regional partnerships fund involved these communities or took them into account.
Attention is attracted to this aspect by making clear that consultation with or involvement of the communities would add to the value of the projects presented.
[Translation]
The Government of Canada's commitment to enhancing the vitality of the official language minorities and fostering the use of English and French in Canadian society is explicitly stated in the Act.
All departments must conduct an ongoing review of their programs and services to find ways of improving their service to Canadians, including alternative or innovative ways of delivering service.
The departments must closely examine the impact that a new service delivery mechanism could have on official languages obligations and commitments, with a focus on the communities.
[English]
On April 1, 2002, the Treasury Board adopted the Policy on Alternative Service Delivery. The official languages are an important and integral component of the policy, which demonstrates the Government of Canada's commitment to strengthening respect for the spirit and intent of the Official Languages Act.
In addition, the official language minority communities must be fully consulted prior to any decision to adopt an alternative service delivery mechanism that could impact on their development.
This statement is made explicit in Annex C to the policy. Moreover, this annex sets out five guiding principles related to the specific objectives to be covered by the case analysis that departments must submit to ensure respect for Canada's official languages.
A set of instructions complements the Treasury Board policies and was developed to help institutions conduct their case analysis and establish their consultation plan.
Among other things, institutions are required to ensure that participation rates are broadly representative of all parties directly affected by the issue, including the minority communities, and to involve participants in the process at an early stage so that they can influence the decision-making in its formative stages.
[Translation]
As part of their mandate, the Official Languages Champions are expected to play a leadership role among their institutions' executives in order to promote integration of official languages considerations in all their institutions' strategic activities. In addition to the obligations relating to service to the public, language of work and equitable participation of English-speaking and French-speaking Canadians in the Public Service of Canada, the Champions also see to it that their institutions' policies take into account support for the development of the official language minority communities. By taking advantage of all the resources their organisations offer, the Champions work to raise their institutions' awareness of the importance of respecting the rights and obligations recognized under the Official Languages Act and the aspirations of the communities.
The local minority communities are invited to the annual meetings of the departments' and Crown corporations' official languages advisory committees and to the meetings of the Official Languages Champions. Four times a year, a local community is invited to one of our meetings. During those visits, the communities tell us about their objectives and challenges. They make presentations to the Champions and the directors of official languages.
In addition, 13 Federal Regional Councils operate in accordance with local circumstances and needs. These Councils are made up of senior managers and they all participate, to varying degrees, in information sharing and support activities. The Councils operate a number of subcommittees, one being an Official Languages Subcommittee. The mandate of these Committees covers all parts of the Official Languages Act, with a particular emphasis on development of the local official language minority communities.
We rely on the Councils a great deal, and will continue to do so in the future, to be a sounding board for the communities' challenges and needs. The Treasury Board is responsible for the policies arising from Parts IV, V and VI of the Official Languages Act. However, by virtue of its authority under the Financial Administration Act, the TB must ensure that the objectives of Part VII of the OLA will be considered by federal institutions when they grant funds to non-governmental volunteer agencies. This policy promotes the recognition and use of both official languages in Canadian society by providing that funds will be awarded subject to the recipient's meeting certain conditions in relation to official languages and the needs of the official language minority communities for services to and communication with the public.
In conclusion, and without taking a position for or against S-11, it is hard to tell what this bill would add to the work and how it would impact the major objectives of the TBS in terms of projects, analyses and coordination without an impact analysis, guideposts or a definite idea of how the government plans to implement and evaluate implementation of these obligations as they relate to other priorities. Nevertheless, I can assure you that in any event, the TBS is firmly committed, and will continue to be committed, to enhancing, to the fullest possible extent, the vitality of the official language minority communities.
Senator Comeau: For a number of us, Part VII is binding and not just a good intention. This will clarify the will of parliamentarians at the time the bill was conceived and introduced. From what I can see, the presentations of Mr. Lemoine and Ms. Monnet mainly clarify the work of the Treasury Board Secretariat. Many of us are pleased with the work done by Canadian Heritage and with the considerable progress made in recent years by Canadian Heritage and the Treasury Board Secretariat.
However, Ms. Adam has made a very good point. If it had not been for section 23 of the Charter, we would probably still not have access to our schools, which are still lacking in a number of regions of the country. That is very recent. It shows the possible reason why the parliamentarians at the time would have liked Part VII to have some teeth, not just good intentions.
I was a member of Parliament at the time and I had that impression then. We should have asked slightly tougher questions. At the time, the members had the impression that it was binding, imperative; that is what We are now trying to do with this bill.
Ms. Monnet, did you conduct a preliminary evaluation of the costs of the involvements, in the case the bill became reality?
Ms. Monnet: In terms of costs, no. We tried to see in terms of responsibilities of the Treasury Board Secretariat. I must admit we still have a lot of questions.
Senator Comeau: However, if all the departments are subject to Part VII of the Act, which requires them to respond as though it was mandatory or imperative, there should not be any additional costs, should there? If all the departments that conduct annual evaluations do their job right, there should not be any additional costs. The bill would be another tool to make it clear that it is now recognized that this is binding. As you have not done your job so well in the past, you do not have to worry.
Ms. Monnet: I did not say I was worried, but we did not start calculating the costs in terms of follow-up, as to what the scales or guideposts would be. We have not got to that point yet. We would have to see how we would implement the Act once proclaimed, if that was the case.
Senator Comeau: It would mainly be after the regulations are in order and clarified.
Ms. Monnet: It is a bit premature for us to start calculating costs.
Senator Comeau: You said you were opposed to that. I also understand that Mr. Lemoine simply evaluated the work that Canadian Heritage was doing right now.
Mr. Lemoine: Indeed, the work that is being done in the present context of Part VII.
Senator Chaput: I feel as though I am preaching to the converted. The Treasury Board Secretariat, the Office of the Commissioner of Official Languages and Canadian Heritage have been allies who have helped us promote Canada's two official languages.
Mr. Lemoine, I am still amazed at all the work done by the federal departments at the interdepartmental level, despite the fact that the section is not ``binding'' as we understand that word.
In my view, Senator Gauthier's bill adds what we should see in this section. We are making the federal departments and institutions even more accountable. They have a responsibility, and they must be accountable. We have amended a word in the responsibilities of Canadian Heritage giving it more teeth, and providing the hammer that was necessary and that we did not previously have. I know you have not worked very hard.
We have often heard that there was no obligation in the Act. But I feel that the addition of Part VII is a tool that will help you even more to do the work that you have to do. Canadian Heritage will support you in the work you are doing with the other federal departments when you have to convince them to take part in promoting vitality in a very concrete way.
Do you also view Bill S-11 as an additional instrument to enable you to do a better job? In the departments, in employment and everywhere, the person makes the difference. As long as you have the right person, things work out, but the day that person leaves, you need a binding act in case you do not have the right person. I would like to hear your comments.
Mr. Lemoine: The Department of Canadian Heritage has always adopted more of an incentive than a coercive approach with the departments and the provincial and territorial governments. The reason is quite simple. At the start of my presentation, I said we were working with partners. Some of them have a constitutional responsibility within their own jurisdiction. It is ultimately up to them to deliver education services.
We have noticed that, over the past five or eight years, the approach We have advocated to the departments has required an enormous amount of patience and ``arm-twisting,'' if I can use that term. I believe we can speak frankly here. That approach has resulted in what I would call lasting results. It is not easy to change cultures in the departments, and this approach has made it possible to do so. The day you have not changed the culture, regardless of who is in the department, I believe the culture will remain and that is a bit the approach that has guided us from the start.
Of course, the introduction of the accountability framework provides us with new support and reinforces our ability to act. It puts us in direct touch with the departments that will be central departments. We believe this assistance supports the approach we have adopted to date, and we believe that will help us.
I would like to see what has been done and how it is been done. Much of the results must be attributed to the approach that has been adopted.
Ms. Adam: I would like to make a comment. I believe that the approach that Canadian Heritage has adopted is revealing of the situation in which the federal administration finds itself, that is to say that there is no shared recognition by all the federal institutions that they have an obligation to act in this area. Since Canadian Heritage is responsible for coordinating the institutions' efforts to develop the communities and promote linguistic duality, it finds itself in a situation where it has to use more incentive, since there is no recognition by the institutions.
At that point, the danger would be perceived as being more coercive. In my opinion. Canadian Heritage would be much better equipped to work with the federal institutions in its role as coordinator because one matter would already have been settled: all the federal institutions are required to act to further the objectives of the Act. Canadian Heritage could sit down with those institutions and see how they would go about doing that, in the context of their programs and their activities. At that point, this dimension would be eliminated and Canadian Heritage would no longer need to court the institutions or even invent programs such as IPOLC to encourage the departments to invest.
We give you 50 cents, you give us 50 cents. I can understand that that approach is used at other levels of government, but I find it problematical within the federal administration.
[English]
Senator Keon: Ms. Adam, I interpreted your presentation to indicate that you are completely supportive of Bill S-11. Is that correct?
Ms. Adam: Yes.
Senator Keon: Mr. Lemoine, I am not sure whether you are completely supportive of the bill. Is there anything in the portion of clause 43(1) as amended that bothers you?
Mr. Lemoine: I do not wish to respond at this time, because my colleagues from the Department of Justice will be addressing that particular issue.
Senator Keon: Fair enough. Thank you.
[Translation]
Senator Léger: I do not understand why the Treasury Board Secretariat and Canadian Heritage cannot state a position now. The Treasury Board Secretariat has not developed a budget and Canadian Heritage is telling us about all the work that is been done. No one is questioning the work done, but I am surprised.
Why can we not be clearer?
Ms. Monnet: In a moment you will have clarification of Justice Canada's position on the bill. Hilaire and I have tried to show that, even without an obligation, many things are being done and there will be more in future. We are very much emphasizing that because we believe it is very important for the departments. A movement is under way and we want it to continue.
Senator Léger: Am I to conclude that Bill S-11 would help you? In other words, would this act help the institutions make the Act binding?
Mr. Lemoine: I am going to make a comment that will answer your question in part. We think that the accountability framework put in place by the government will definitely help us. We also think it is probably easier to make a change of culture — and I very much emphasize that — in the federal administration, if we can do it using an approach that is more an incentive approach. What I tried to illustrate was that, until now, there has been a certain amount of evidence showing that there has in fact been progress. And we are relying enormously on the new accountability framework which reinforces obligations, which, of course, recalls the responsibilities of all the departments, which also reinforces the accountability mechanisms of those departments and, as I said earlier, provides the federal administration with a set of measures and major partners, as they are called at the Department of Canadian Heritage. I rely on the Department of Justice, the Treasury Board and the Privy Council to support us in our approach. We would like to see the result of these new mechanisms before saying anything further.
Senator Léger: What I hope is that Bill S-11 supports you in your approach. I do not want to rule out the incentive approach, as you said. I hope that Bill S-11 will help you go further.
Ms. Adam: I would like to remind the senator that the accountability framework of the Action Plan for Official Languages concerns a certain number of federal institutions. The Official Languages Act applies to all federal institutions. We are talking about a lot of departments, but we forget that more than 150 agencies, departments and institutions are subject to the Official Languages Act. For me, it is also important that the entire federal administration be mobilized on this issue. We are talking about Canada Post, VIA Rail, in short, We are talking about agencies that are not necessarily departments, that are not necessarily close to the employer, like the Treasury Board. In my view, we must definitely send clear signals to the federal administration as a whole. That is the benefit of Bill S-11.
Senator Beaudoin: My question is for Ms. Monnet and Mr. Lemoine. I read my colleague's bill, and I do not see how it cannot be concluded that everything is binding. If the text of section 43 is not binding, there will never be anything binding on the planet. The Minister of Canadian Heritage shall take appropriate measures to advance the equality of status and use of English and French and so on. What is your reaction? I am going to put the same question to my colleagues at the Department of Justice. They have an interesting viewpoint too. But what is yours? It seems to me it is clearly binding.
Mr. Lemoine: Once again, I would prefer to let our colleagues from the Department of Justice answer that question.
The Chair: On that, I think we have to conclude this part of the round table with Senator Gauthier.
Senator Gauthier: I have a comment. I am at the ``why'' level of the question. The officials are at the ``how'' level of the question. Ms. Adam, I exclude you.
When we talk about federal institutions, We are not just talking about departments. In the federal agencies, there are more employees who are subject to Ms. Monnet's act than there are in the public service. And that is What is troubling me a bit. At the Department of Canadian Heritage, it is all right, we see those people every day. At the Treasury Board, as well, we also have easy access. Where we do not have access is in the federal institutions, which are subject to the Official Languages Act, which say that they are not bound by Part VII of the Official Languages Act. I can provide you with as much evidence of that as you want.
This is the example that must be given to the departments and agencies, but especially to What is called the institutional heretics, the people who are not subject to the Treasury Board, which have an agency independent of the government and of Canadian Heritage, and which answer the questions we ask them when they want. That is what enables the Canadian Food Inspection Agency to do what they have done on the Peninsula in New Brunswick, to move and change positions at will, and say they are not subject to the Act.
Now here is my question with regard to ``how.'' I acknowledge that a serious effort has been made in the departments. I know Mr. Lemoine and Ms. Monnet well. I know that they speak sincerely. It must be understood that we want to set an example at the federal level by clearly stating in the Act that you cannot adhere to the spirit of the Act. I will not back down from that. I was here in 1988. That was my conclusion as official languages critic at the time, that Part VII of the Act was binding. I can show you my correspondence since then; I have a lot of it. All the Justice ministers have told me that it was declaratory. The departments that hear from the Justice Minister — a fairly senior department, at least that is what they think — that the Act is not binding, that it is a statement of principle well, wait a minute! That is where I think I am being a pioneer in saying ``no.'' We are going to try to put some teeth into this Act. And that is what I have done with Bill S-11.
I will not ask any questions; I have none. Ms. Adam, your testimony was very good. Ms. Monnet, Mr. Lemoine, thank you. I am at the ``why,'' not the ``how'' level.
The Chair: It is my turn to thank you and we will immediately move on to the other members of our round table, who come to us from the Privy Council Office and the Department of Justice.
Senator Lapointe: I want to apologize for being late. I left the Senate when I was told there would be a second vote. I did not want to leave because the second vote was close, 35 to 27. So I want to apologize for arriving late.
[English]
Ms. Anne Scotton, Director General, Official Languages, Privy Council Office: Thank you. I am pleased and honoured to be here in the presence of senators who are so interested in the questions that we in our office are so interested in.
[Translation]
First I would like to talk to you about the Action Plan for Official Languages, as announced in March of this year.
The Government of Canada's action plan provides for investments of $751 million in three priority areas. First, in education, that investment will be designed to fund minority language instruction in order to implement section 23 of the Charter of Rights and freedoms. Second, it will target second-language instruction to assist young Canadians in benefiting from Canada's linguistic duality. That instruction is an asset for the labour market and labour mobility.
Second, in community development, that investment will be designed to improve access to public services in both official languages, particularly in the areas of health, early child development, justice, the new economy and immigration, with emphasis on certain initiatives that the communities diligently claim. A number of departments and organizations are contributing to this action plan, including Health Canada, HRDC, Industry Canada, Citizenship and Immigration and Canadian Heritage, not to forget one of the key partners.
The third contribution is probably one of the most important components: an exemplary public service. One part of the plan concerns delivery of services to Canadians in both official languages, the participation of English- and French- speaking Canadians in the federal government and the use of both official languages in the work place.
I would like to talk to you about an instrument that will make it possible to link key elements, a kind of general of application guide, an instrument which, in a single document, describes the official languages roles and responsibilities and coordinates the various stakeholders.
Why this kind of accountability framework? In consultations with many stakeholders, including the members of this committee, the government concluded that the obligations and commitments of the federal institutions had to be clarified, that a more coherent approach had to be developed to ensure implementation of the official languages program as a whole.
The accountability framework was designed to support the institutions with statutory responsibilities provided for by the Treasury Board, the Department of Canadian Heritage and the Official Languages Act. The framework was also designed to ask the Department of Justice and the Privy Council Office to give the institutions more elaborate and sustained advice on language rights and to ensure better horizontal coordination. The purpose is to promote a work team so that officials are more aware of the requirements of the Act, are able to take official languages into account at the very start of the policy and program development process and are able to evaluate the potential impact of their initiatives on the linguistic minorities.
What does this accountability and coordination framework contain? Briefly stated, articles 3 to 10 describe what the term ``accountability'' means in Parts I to V of the Official Languages Act. Those parts concern, among other things, the debates and parliamentary proceedings, legislative instruments and the administration of justice. They create rights granting entitlement to legal remedy. Articles 11 to 15 contain provisions respecting employment equity, advancement within the federal institutions and labour representation. They describe the role of the Treasury Board, the Commissioner of Official Languages and the parliamentary committees responsible for monitoring compliance with those provisions.
Articles 16 to 31 concern Part VII of the Act and contain the framework's fundamental elements: the solemn commitment mentioned earlier, the terms of implementation including the roles of all the institutions with respect to the official language minority communities, the institutions concerned by the 1994 Accountability Framework and the role of Canadian Heritage and the Treasury Board. Everything is described clearly in a single easy-to-use document.
Articles 31 to 45 outline horizontal coordination and communication. Article 32 states that the framework preserves intact the statutory responsibilities of all federal institutions, including the Department of Canadian Heritage and the Treasury Board Secretariat Canada.
Articles 33 and following describe the support mechanisms and new responsibilities, including that of the minister responsible for official languages, supported by his colleagues, by the Committee of Deputy Ministers and, obviously, by the Official Languages Branch in Intergovernmental Affairs at the Privy Council Office.
I draw your attention in particular to the enforcement provisions described in article 17 of the framework. Under those provisions, the institutions are required to take official languages into account in all their planning. Reference is made to employees' awareness of minority community needs and to analysis of the potential impact of their policies and programs at all stages of consultation with all publics concerned. Reference is also made to the need to show how community needs have been examined and considered.
The existence of a framework for all institutions and the fact that it appears in a single accessible document clearly demonstrates the importance the government attaches to linguistic duality. Using the framework and sharing this information will foster a common understanding and mutually reinforcing measures throughout the machinery of government.
The purpose of the framework is to inform not only government officials and employees at all levels, but also Canadians and, more particularly, the official language minority communities. In addition to reminding everyone of their responsibilities under the Act, the framework adds new responsibilities to more effectively integrate the ``official languages'' dimension in planning. Its purpose is also to facilitate participation in horizontal coordination efforts and a coordinated evaluation of the Action Plan. The framework describes the tasks of the various players who share the coordination role, the minister responsible, his colleagues, and a Committee of Deputy Ministers. It facilitates promotion of an information and solution exchange culture between the government departments and agencies.
We are still watching for lessons learned that can be shared.
The ministerial consultations that were held on October 6 In Ottawa are an example of high-level dialogue that must be established between the linguistic communities.
These consultations and the transparency that results meet the parameters of good governance called for by the Government of Canada's results-based management. The strategy is focused on results for Canadians and the commitment to keeping citizens' interests in mind during the planning, implementation and evaluation of initiatives.
The accountability and coordination framework has implications not only for the minister responsible for official languages, the Privy Council Office, the Minister of Justice, the Minister of Canadian Heritage and the President of the Treasury Board, but also for other players and for the machinery of government as a whole.
That means that the government will be monitored even more closely. This new transparency will facilitate the commitment of the communities, parliamentary committees and backbench MPs and will fuel an ongoing dialogue with the Commissioner of Official Languages.
On the whole, the government's accountability is maximized for development of the results-based management and accountability framework and is applicable to the entire action plan, in addition to the individual executives of the departments concerned. Far from duplicating oversight functions in each sectoral department, this comprehensive framework will highlight the interactions among all the parts of the action plan and, on the whole, it represents a development of concerted effort and accountability and mutual support.
Mr. Marc Tremblay, General Counsel and Director, Official Languages Law Group, Department of Justice: Honourable senators, witnesses from the from the Department of Canadian Heritage, the Treasury Board Secretariat and Ms. Scotton from the Privy Council Office who preceded us today have already said a great deal about the extensive resources deployed by the Government of Canada to ensure the implementation of the statutory commitment provided for in Part VII of the Official Languages Act.
As legal counsel of the Government of Canada, Mr. Warren Newman and I do not have much to add to what has already been said. We will limit ourselves to providing information on context, then try to answer your questions to the best of our knowledge, within the limits of our areas of responsibility.
It is worth pointing out and recalling that Mr. Newman and I appeared before the Senate Standing Committee on Legal and Constitutional Affairs in March 2002, when that committee was studying the previous version of Bill S-11, that is to say Bill S-32.
During that appearance, Mr. Newman discussed the legislative origin of language rights and placed Part VII of the Official Languages Act in its historical context. I presented the position of the Attorney General of Canada on Part VII.
We do not think it helpful to reiterate our remarks today. We have submitted copies of our notes for evidence to the clerk so that they can support the committee's work. I would like to add that the Minister of Justice, the Honourable Martin Cauchon, also appeared before this Senate committee to reiterate the government's position on the legal scope of Part VII. The minister stated, and I am going to quote a passage from his remarks which sums up the government's position:
It is evident from a reading of the Act as a whole that Parliament clearly wanted to distinguish the first five parts of the Act, which set out rights and duties, from Parts VI and VII, which set out governmental commitments.
[...]
This legislative intent is evident from three things. Firstly, the language used in Part VI is a language of promotion that is very general. This contrasts with the one used in Parts I to V, which clearly sets out rights and duties in very precise circumstances.
Secondly, although Parliament decided to recognize the special nature of the first five parts of the Act, by providing, in section 82, a primacy clause to the effect that the provisions of Parts I to V prevail ``over any other Act of Parliament'', Part VII does not take precedence over other federal statutes. Lastly, the judicial recourse to the Federal Court created by the Act is limited to Parts I, II, IV and V.
Parliament thus chose to exclude Part VII from the judicial recourse. For all these reasons therefore, my department has always been of the view that this Part of the Act is not judicially enforceable.
Minister Cauchon added that that conclusion did not mean that Part VII remained merely wishful thinking, a hollow shell, or that there was no effective remedy with regard to the implementation of that part of the Official Languages Act. In fact, that part of the Act is binding on the government and parliamentary, administrative and governmental remedies do exist to ensure it is complied with.
Again in April 2002, the Minister of Justice stated that the government was exploring additional instruments to enable us to better exploit the potential of section 41 and Part VII as a whole. Since then, there have obviously been major developments. First, the Government of Canada introduced its Action Plan for Official Languages in March of this year.
As Ms. Scotton stated in her address, the Action Plan contains an official languages accountability and coordination framework whose purpose is to exploit the potential of section 41 and Part VII as a whole more effectively to represent the expression used by Minister Cauchon.
The Department of Justice has an important role to play in the implementation of that framework, together with the other departments that have appeared before you today, to ensure better coordination of official languages issues and a more effective decision-making process.
The members of this committee know that there have already been certain case law developments since we appeared in March 2002. Ms. Adam, as well as some committee members, referred to the decision in Forum des maires de la péninsule and the Canadian Food Inspection Agency rendered on September 8 last.
For the moment, what I would say to you in that regard is that the Attorney General of Canada is of the view that clarification must be obtained from the Federal Court of Appeal as to the legal scope of Part VII and as to the judgment of the Federal Court's Trial Division. A notice of appeal was filed on October 8, and this case affords us the opportunity to obtain long-awaited clarification on the scope of Part VII of the Official Languages Act.
The role of the Attorney General of Canada in a matter such as this is to ensure that the federal institutions are able to determine with certainty what Part VII of the Official Languages Act requires. This is a legal issue which in no way reduces the Government of Canada's commitment to vitality of the official language communities in Canada.
Moreover, the new accountability framework very clearly sets out the responsibilities of the ministers and officials with regard to Part VII. Since the matter is before the courts, and out of respect for the judicial process, we cannot discuss this case in further detail.
As legal counsel of the Government of Canada and as government officials, we are also subject to certain constraints and are therefore unable to offer the committee legal advice on the possible effects of the bill or to comment on the bill's desirability. Subject to those limits, we will be pleased to answer your questions.
Mr. Warren J. Newman, General Counsel, Administrative and Constitutional Law Section, Department of Justice: Honourable senators, as Mr. Tremblay has pointed out, I previously submitted a document, notes for evidence, at my last appearance for another Senate committee. It was a series of notes on the Official Languages Act as a whole. I will try to place Part VII within the legislative framework in which the Act was passed.
At the time of Bill C-72, I was working as the Official Languages Act project leader. I tried to take a historical and legal view of that important piece of legislation.
Having said that, I am here to answer your questions together with my colleagues. I would like to take advantage of my brief preliminary remarks to return, with your permission, to two questions that were put to our colleagues from the Treasury Board Secretariat and the Department of Canadian Heritage. Senator Gauthier had rightly said that there were some questions concerning the ``how'' and others on the ``why.'' There are questions that are the responsibility of officials of the other administration, which are mainly ``how'' questions: how do we implement a policy, legislative or otherwise, decided by MPs and representatives of the Senate?
The ``why'' questions concern the political will and questions that are really the domain of politicians. That is why I would like to recall the principle of public service neutrality and impartiality. For government officials to play their role with politicians, they must absolutely be able to advise them, but not necessarily to take sides, particularly not in public, in any case, on their own aims with regard to bills. We are after all only instruments of the political will. Having said that, we can move on to the questions.
Senator Beaudoin: I have the greatest respect for jurists, being a jurist myself and having worked at the Department of Justice. I understand your viewpoint and I respect it utterly. There is one thing I have always told this committee, and it must be said again: the Official Languages Act is an act above the others and the other acts must comply with it.
But what we forget to say is that there is something above the Official Languages Act: the Constitution of Canada. It is section 16 of the Charter of Rights and Freedoms that says that. I have only good things to say about the Official Languages Act, but it is not the Constitution. The Constitution goes further than the Official Languages Act. And, according to section 16, I repeat, the two official languages are equal.
Section 16 states very clearly that we must move toward equality of the two official languages. As the Constitution is above the Act, which is already very much above the other acts, I am obliged to admit that even Parliament and the federal Cabinet are required to comply with the Constitution. It is not I who say that; that is been in our Canadian constitutional system for 130 or 140 years.
I figure that if the two languages are official, if they are equal, we have to translate that equality in our laws, and We are compelled to ensure that the two languages are official. I gave a lot of opinions when I was working at the Department of Justice, and you give an opinion to the minister. That is very good, and the minister does the political part of that. That is what you have to do at one point. What you are telling us is very well said and very well done, but we have to go further than that. I am not afraid to go further than that. I think it is my role as a senator to say what I think. I think that when the two languages are not equal in practice, an error is being made. We are required to do everything to give them equality. The equality of the two official languages is a lot to achieve.
When I read section 41, I never state the insult that it is there for no purpose. It is there for a reason: we at least have to aim for the equality of the two official languages. That is what has to be understood. This is the Constitution of a country. Nothing is ever perfect, but you have to move toward equality. It is like equality in men and women. The Constitution says they are equal; if they are not, we have to make them equal. It is as simple as that.
The two languages are equal; we have to make them equal in practice. I cannot not agree with what Senator Gauthier is doing. The thrust of Bill S-11 is toward equality. I say: so much the better. His bill is interesting. The least we can say is that we want equality of the two languages, and where they are not equal, we must make them equal. Do not forget that. All matters pertaining to official languages at the federal level come under the Constitution, which is at the summit of all that, even higher than the Official Languages Act. I do not think we have the choice: we have to move toward that. I understand that politicians are not always able to go that far in practice, but, as a jurist, I am compelled to say that they must not be afraid to do so. We must move toward equality.
A bill such as Senator Gauthier's is definitely acceptable and adds something. It is consistent with section 16 of the Charter of Rights and Freedoms. We have no right to go against the Constitution. We have to go with the Constitution. People say that it makes no sense, that you cannot change that in one year, two years or three years. I say the officials are right on that. That is definitely not possible. However, we must head in the direction of the possible.
We had the same debate regarding the Northwest Territories. I know perfectly well that the territories will not be perfectly bilingual tomorrow morning. Perfection does not exist. However, I do know that we have to head in that direction. Equality between men and women is the best example. Women were definitely not treated fairly for centuries and millennia, but that is over. We were barbarians at the time, but We are starting to be less barbaric now and we practise equality.
Mr. Newman: I believe we agree with Senator Beaudoin. Linguistic equality is protected by section 16 of the Charter, more specifically by subsection 16(1) respecting the federal institutions. Subsection (3), which concerns advancement toward equality, reads as follows:
Nothing in this Charter (the Charter of Rights) limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
The Official Languages Act, 1988 makes it possible to do two things. It makes it possible to comply with subsection 16(1) of the Charter, particularly with respect to the first five parts of the Act. That also tends toward a progression toward equality of the official languages in other areas. Some areas are federal government jurisdictions, while other require close cooperation with provincial, municipal and territorial authorities.
Part VII of the Official Languages Act is consistent with the advancement toward equality of English and French. As to whether Part VII should be reinforced with other provisions, I believe that is a question for political authorities.
Mr. Tremblay: I would add that the present Part VII is a manifestation of the implementation of subsection 16(3) of the Charter, the notion of authority to add a constitutional minimum. The purpose of subsection 16(3) was a constituent's reminder to legislators that, when sections 16(1), 17 and following of the Charter were enacted, Parliament in no way wanted to prevent advancement by additional legislative measures in the province's areas of jurisdiction.
Part VII — it is in the Act — is part of this continuity of statutory measures designed to effect the advancement toward equality of status. However, the distinction between it and subsection 16(1), which entrenches in the Constitution the declaration of equality of status of the official languages originally made in 1969 is important, and Mr. Newman referred to it. In that declaration, it is stated that English and French are the official languages of Canada and that they have equality of status and equal rights and privileges.
In the Beaulac decision, the Supreme Court held that that provision applied to existing rights, to the provisions of the Constitution that create rights. The Court tells us that, when we introduce institutional bilingualism, before the courts, for example, that means equal access to services of equal quality. The Supreme Court tells us not to link those two provisions. It tells us that the links that were established between the two are incorrect, that they are two separate provisions. In reading them, one comes to the conclusion that, if we do not immediately achieve the perfect equality to which you referred, we are violating the Constitution. Since there is this distinction between the two provisions, where a language right exists, it is actual equality, the Court tells us, and it is equality now.
However, when it comes to advancement, other courts have addressed the fact that this enabling power did not attribute rights, that there was no obligation to do so. Since it is an enabling power and the aim is to achieve equality, it is implicit that we are not there yet. When we take measures designed to achieve that laudable and noble objective of equality of status, we go about it step by step with progressive measures.
It is important to draw a clear distinction between these two provisions. The parts of the Official Languages Act that create rights create rights that are now executory. They must now result in an equal application, equal access to services of equal quality; that is what the Supreme Court has said. That must be kept separate from powers that are attributed. Bill S-11 is drafted in that spirit.
Senator Beaudoin: You say we do not have perfect equality; that is true. Perfection does not exist, but we must aim at perfect equality. I am saying we have an obligation. If we have an obligation, that means that the act requires it, and if the act requires it, the act is binding. You cannot get out of it.
I have seen no one who has managed to prove that that is not true. A requirement is a requirement. We do not have it right away; I agree with you and that will take years. I always draw the comparison with equality of men and women because that is still going to take some time, unfortunately. But We have made immense progress.
In my opinion, one of the most politically important things in Canada is the equality of the official languages. That is what will remain part of the legacy of certain first ministers. It is political, but sometimes politics is not bad.
The Chair: Mr. Newman, when you appeared before the Committee on Legal and Constitutional Affairs concerning section 41, you spoke of the scope of the expression ``is committed.'' When we say that the federal government ``is committed,'' is it more or less obliged?
Mr. Newman: ``The government is committed'', in section 41, must be read in the context of the Act. If you look at the first five parts of the Act, every time the legislator wants to create a strict legal obligation, it states ``it is the duty of federal institutions.'' When we come to Parts VI and VII, because the two contain commitment, the wording is different from that in the first five parts of the Act.
Once again, the word ``commitment'' must be read bearing in mind that it is the first five parts of the Act that are concerned by the Act's primacy clause. Furthermore, those parts of the Act, except the part on the administration of justice, are subject to the court remedy of Part X of the Act.
So if you read the commitment or undertaking in that context, the government must undertake to move toward equality, not only in cooperation with the federal departments and coordination within those departments, but for the purpose of achieving results in Canadian society as a whole.
That is a political commitment, but a policy contained in an enactment which makes it a solemn commitment, a permanent commitment that will not change with successive governments, but which is deeply rooted in an act which itself is quasi-constitutional.
Apart from those points, it is hard to talk about the word ``commitment.'' I do not believe the term implies the same kind of obligation as in the first five parts of the Act. Part VII of the Act nevertheless contains certain obligations, including the obligation to submit an annual report on progress achieved. These are definitely duties and obligations that must be enforced. Moreover, the commitment must be enforced or caused to be enforced. That is done through the primary stakeholder, which is the Department of Canadian Heritage, with the accountability framework of the government and the central agencies, and through the Office of the Commissioner of Official Languages, of the Commissioner who has a number of audit and monitoring powers on Parliament's behalf. Your parliamentary committee also has a role to play with respect to the Official Languages Act to ensure the commitment is complied with and implemented.
That is how I understand the term in the context of Part VII of the Official Languages Act.
Senator Gauthier: My question is for Ms. Scotton. How many employees are there in the federal institutions subject to your accountability framework?
Ms. Scotton: In the federal institutions as a whole?
Senator Gauthier: Yes. Are there 300,000 or 350,000?
Ms. Scotton: There are 300,000 or 350,000. All employees are concerned.
Mr. Tremblay: The expression ``federal institution'' was used by political decision-makers when they adopted the accountability framework. That expression appears in the Official Languages Act and is defined by the Act. It includes a whole variety of departments, agencies, Crown corporations and boards which exercise statutory powers, which through application, includes other acts.
Senator Gauthier: In all, how many employees are subject to it?
Mr. Tremblay: I cannot say, in a broad, liberal manner, how many employees work for the government in the broadest sense. There are a lot of them.
Senator Gauthier: My next question is for Mr. Newman. With respect to Part VII, We have addressed all the aspects of the question on a number of occasions. The wording you use is the same as that used in section 36 concerning equalization: ``The federal and provincial governments are committed to promoting equal opportunities.'' The section could be entitled ``Official languages and regional disparities or inequalities'' and it would probably be the same thing. You see virtually the same wording.
You said that political will is needed. I share that view with regard to politics and the why of the question.
One of the problems, for a legal layman like me and many others, is to understand legal jargon.
You use the wording in section 36. How many billions of dollars are spent on equalization every year? If political will were not exercised and equalization payments were cut to some of the provinces entitled to those payments, tempers might rise. That kind of situation would be quite harmful for Canada. When we talk about linguistic equalization and equality, as raised by Senator Beaudoin, how is it that the same is not true?
Equality is not interpreted in the same way. And yet, in 1988, when Mr. Warren and I were present, we were told that political will is a political language. That principle was of course adopted by politicians. However, a commitment is a commitment.
Mr. Newman: Allow me to refer you to page 9 of the brief I submitted to you, where it concerns section 36 of the Constitution Act, 1982, to illustrate the term ``commitment''. Obviously, the commitment made in section 36, according to the eminent authors, including Senator Beaudoin and Professor Hogg, states, even within the Constitution, that the governments cannot be compelled to spend and Parliament to grant funds on the basis of the interpretation given of section 36, because it is a commitment in principle, as stated in subsection 36(2). Parliament and the Government of Canada make the commitment in principle to make equalization payments. That does not mean that the payments will not be made. As you said, billions of dollars are spent to comply with that commitment. However, in the current state of the law and case law, section 36 cannot be argued before the courts to compel Parliament or provincial legislators to spend more or not to step back when there is a budget deficit. So this is a commitment within the Constitution.
Senator Gauthier: I entirely agree. However, I am a politician, and I do not understand. The Forum des maires de la péninsule acadienne had to appear before the courts. It was then stated that, in accordance with the spirit of the Act and section 41, there are obligations toward the minorities. It was said that there would have to be consultation when positions were abolished and that we were prevented from speaking our language. In invoking subsection 18(1), the Federal Court — Trial Division ruled in favour — because it is possible to argue subsection 18(1) — and the courts rendered a judgment in favour of appealing from that decision, as you did with contraventions, and as you did with many other things. I do not blame you. However, ordinary mortals like me do not understand why you are suddenly dead set on questioning four or five positions in the Peninsula. It is the principle that counts. Judge Blais was clear and precise, and you are appealing.
Senator Beaudoin: They are entitled.
Senator Gauthier: We are asking for clarification. These are the words that were used: ``we need clarification,'' under section 41, subsection 18(1) or Justice Blais' decision.
The Chair: I would like to add a point that no one's raised. Why do not the Department of Justice and the other departments appear to agree that section 41 is binding? Is it a question of costs? Senator Gauthier mentioned money. Is it a lack of flexibility? What is the reason?
Mr. Tremblay: I am going to start with the Forum des maires question. Out of respect for the courts, I must speak prudently with regard to what was said before the courts.
Senator Beaudoin: You are entitled to speak; you are in the Senate.
Mr. Tremblay: Indeed, I said that the Attorney General of Canada was going to seek clarification of that judgment for the same reasons. We are consistent with a number of remarks that were made here today, including those by Ms. Adam. We are saying we want to clarify the scope of Part VII. One way of doing that is for Parliament to adopt a language to clarify what otherwise might not be clear. It is the bill you are studying today. It is up to politicians to discuss the benefits of passing it.
Another way to clarify statutes is to call on the courts. There is a hierarchy of courts: trial courts, appeal courts and the Supreme Court of Canada. It is entirely legitimate for the government to go and obtain a judgment that would clarify those questions.
Now let us look at what intention the Government of Canada indicated when it adopted its accountability framework. Ms. Scotton's objective is to ensure that Part VII is well understood: that the needs of the communities are well understood, that monitoring is done and that the issues in a federal institution are identified. With regard to the core of central institutions such as Canadian Heritage, the Treasury Board Secretariat Canada, the Department of Justice and the Privy Council Office, once the issues have been identified through work by committees, the Commissioner of Official Languages, the media and legal challenges, in short, through a full range of measures, that accountability framework makes it possible to put the question back where it belongs, in the hands of the politicians who must decide on the implementation of that commitment.
Forecasts are made to determine how to organize the consultations. That is the coordination aspect: how to bring the information to the table, and then how to forward those questions first to a committee of very senior officials, deputy ministers, and, ultimately, to the government ministers responsible for the implementation of that commitment. That is essentially the answer to both your questions.
We want clarification, and, pending that clarification, the accountability framework and implementation methods selected by the government at least provide us with ways of ensuring that Parliament's intent is respected, in this case in the context of the implementation of Part VII.
The Chair: I thank Messrs. Newman and Tremblay and Ms. Scotton. Since our next witness, Mr. Colvin, must catch a plane at 8:15 p.m., I now invite him to speak.
Senator Beaudoin: First I would like to make a correction on one point. When you say that the court cannot say that they have to pay, that is incorrect. For equalization, the court can say that they are required to pay, but the court cannot say the amount.
The Chair: Mr. Colvin, over to you.
Mr. Tory Colvin, President, Fédération des associations de juristes d'expression française de common law: Thank you for inviting me. I have to argue in French before a court in Kitchener tomorrow morning. I have a brief presentation, but we can proceed directly with questions if you prefer. I have previously made two presentations before your committee, and most of the senators are quite well aware of the position of our federation and of the jurists associations across the country.
Senator Beaudoin: With regard to jurists in Canada, we are divided on a single point: commitment. Some jurists say that, in section 36, the government commits itself to equalization. Many jurists say that that means the court can say there is an obligation, but that it cannot say the amount because that is a matter for Parliament and legislators. And yet it could say that there is an obligation to give something, but that that must be decided by Parliament. There are some jurists who say that that is what that means. Others say that that is not clear enough, that it is therefore not an obligation. I would like to hear your opinion on the subject.
Mr. Colvin: An obligation simply means that you are obliged to act. Is section 41, as drafted, obligatory? Yes, in my opinion. It is an obligation, which means one must act.
Senator Beaudoin: But cannot the court go further than that?
Mr. Colvin: No, unless perhaps — and I do mean perhaps — the way of acting renders the obligation to act null and void.
Senator Comeau: The Commissioner of Official Languages told us this evening that it was binding. Representatives of the Attorney General tell us that it should be put before the court for final determination. There are two ways to settle the problem: go to court or pass the bill brought forward by Senator Gauthier. The easiest way would be to support Senator Gauthier's bill, which clarifies the entire question.
Could improvements be made to Senator Gauthier's bill that would meet the need to make section 41 binding?
Mr. Colvin: I believe that is the solution. We supported Senator Gauthier's last bill. Some amendments have been introduced and they are excellent. We support them. Do we have to go to court and argue the case? I am a lawyer, so the more we argue in court, the more money we earn.
Senator Comeau: That is the reason why I am not all that interested in going to court. It would be a good sign of respect for the minority communities in Canada for the government to say one day that it supports this bill. Rather than react, we are proactive, and Senator Gauthier has an excellent bill.
Mr. Colvin: Absolutely. If this bill becomes law, when we argue language cases to protect the minorities and to protect vested rights, instead of having Justice Canada as our adversary, we will have them as allies arguing at our side.
Senator Comeau: What an argument! You have not convinced me of the utility of this bill, and I am going to support it.
Senator Gauthier: You went to court with the Contraventions Act. You won. Congratulations. That is a development that was important for us in Ontario. Why did not you help the Forum des maires de la péninsule acadienne when they went to Federal Court over section 41? Is there a reason?
Mr. Colvin: I must admit I have been aware of that case for only a few days. One of my colleagues was telling me about it. In the coming weeks, I intend to examine the case more closely, and we could seek intervener status. I am sorry, that is ignorance on my part. I apologize for it.
Senator Gauthier: I would be very pleased if you did that. I was here in 1988 when the present act was passed. I remember a question put to the minister responsible, Lucien Bouchard, who was Secretary of State and the man responsible for that bill. He was asked what the word ``committed'' meant when it was said: The government ``is committed.'' He answered that it created obligations for the government. I said: That is very good; that is what I want. But the war was not over; it started up again with the Department of Justice, which said that it was declaratory.
The Chair: Mr. Colvin, we wish you good luck. We will take a five-minute break, then Mr. Arès will make his presentation.
(The meeting was suspended.)
(The meeting resumed.)
The Chair: We will now hear from Mr. Georges Arès, President of the Fédération des communautés francophone et acadienne du Canada.
Mr. Georges Arès, President, Fédération des communautés francophone et acadienne du Canada: Honourable senators, allow me first to thank you for your invitation to appear before you today. I will start by reading a few passages from our brief, then make a few comments on remarks made by the witnesses heard earlier today.
First of all, let us talk about the federal government's action plan. That action plan has been added to the federal government's official languages policy. It is an invaluable instrument which has already begun to change our way of working with the federal government, and We are currently working with the government to implement it. However, the action plan does not have the force of a legislative guarantee. It is that guarantee that the bill currently under study provides us.
I do not want to diminish the importance of the Action Plan for Official Languages. As the Commissioner of Official Languages regularly mentions, it is important to change the federal government's approach to official languages, and the government must encourage the provinces and territories to do the same. However, the government's official languages policy as a whole must be based on a solid legislative foundation to ensure it lasts.
The Federation perceives these two instruments as being complementary. Bill S-11 reinforces the operation of the action plan and leads us to believe that it will contribute to the development of the communities for years to come.
As stated in every one of my speeches for several years, the Federation has been seeking a genuine policy for the comprehensive development of our communities for more than 25 years now.
At this point, allow me to make a few comments on the remarks We have heard. I appreciate the tenor of Senator Gauthier's remarks. Some talk about the ``how,'' others about the ``why.''
Why should not there be a comprehensive policy for the development of our communities that is deeply rooted in the legislation of this country? I ask myself the question why some do not want our communities to be developed as much as possible by the federal government? I recognize that the Department of Justice claims that the wording of Part VII is declaratory and not executory. This comes back to a question of political will. But where is the political will? If changes must be made to Part VII, let us make those changes and demonstrate political will.
The federal government's action plan is like an admission that Part VII must be executory and that it was not, in the opinion of the ministers of Justice. With the action plan, it is being admitted that it must be executory. We also need what the act contains to ensure the development of our communities. Consequently, the action plan has been developed and its implementation is being delayed. However, the action plan is still very fragile. The political will in this case is not rooted firmly enough for the future.
In the case of a change of government, what will happen if a minister is not as sympathetic or as positive as the present government? That is the source of our concerns. Why not go all the way and recognize that the action plan is an update of section 41, that it is necessary for the development of the official language communities in this country, that it must be rooted for the future by means of an amendment to the Official Languages Act, such as that proposed by Senator Gauthier. Where is the obstacle? Only the political will. It is not the Minister of Justice that will lay down that kind of restriction, but it is the political will.
The political will is there to say that what exists is insufficient because community development is not being done well enough. I acknowledge that some progress has been made. However, would not we be further ahead today if we had had a comprehensive policy, rooted in the act, starting in 1988, or even before that, backed by all the force of the federal government, with political will descending down into the departments implementing a comprehensive development policy for our communities?
In conclusion, we believe that this question is complementary.
The action plan is very important, and the accountability framework is as well, but we have to go further and ensure that it is in the Act for the years to come so that it is not subject to political will.
Mr. Dion said it quite clearly in his speech in Toronto last year, that it is preferable for governments to act rather than to be taken to court. I agree with that entirely. But sometimes it is necessary to go to court. Ms. Adam referred to that when she talked about section 23 respecting schools management, saying that, if it had not been written in the Charter of Rights and Freedoms, we would not have it. Senator Comeau referred to that as well.
It is important that it be written down. That is why governments make laws: to ensure that things are not easy to change. It fully demonstrates the government's political will. So if the political will is there, go ahead with it. It will resolve matters once and for all. There will be no further reason to obtain opinions from the Department of Justice saying that it is not binding but rather declaratory. There will be something new. They can examine that.
Senator Comeau: I wanted to know this evening whether we had to act with respect to Bill S-11. From what I was able to understand from the officials' evidence, their interpretation is that it is not executory, so We are going to make it executory with Bill S-11. That is it. It is a political question now. It is up to us politicians to see to that. It is time it was binding, and that is all.
The Chair: Does someone else wish to add something?
Senator Chaput: You explained it very well, Mr. Arès, and I thank you for that. That supports what the francophone communities in Western Canada told us. We have just come back from a tour in Western Canada. As much as they appreciate and are pleased with the Dion plan — which is supposed to be another support — they have certain concerns as to whether that can continue. In the way you explain it, I completely agree, and that allays the communities' concerns.
Senator Léger: It is incredible how there can be two interpretations. Mr. Arès, it seems to me you take the concrete view, and it is binding, as binding as we can make it. That is the concrete view. But when you come to laws, you would think that is very far from reality or from implementation. Why?
You, in other words, you are experiencing it, but it is as though we were not necessarily experiencing the reality We are living through. Is that it?
Mr. Arès: I did not understand. Is there a question?
Senator Léger: In other words, do you find there is a difference or a gap between what is experienced and what is going to be legislated?
Mr. Arès: There is definitely a gap between the two, especially in the communities in Western Canada, Nova Scotia and the Territories. The situations experienced by those communities are very hard. If you want to legislate certain things, it will take more than legislation, it will also take the political will to act, to assist those communities. It is not clear in all cases that that support is there. That support has been very apparent in the past, with the exception of certain departments, including the Department of Canadian Heritage. We can see that certain departments are starting to realize that they have to do certain things, but it is not easy to make them understand that. Sometimes it would be necessary to take a department to court to get an order from a judge directing that department to do its duty. Sometimes certain governments and departments want a court order and they hide behind it. That might have been the case in certain provinces over the schools management question. It could be more easily defended in public if there is a court decision. Sometimes it would be very helpful to have a court decision in order to advance matters. That is another reason why there should be a certain judicial remedy in Part VII of the Official Languages Act: some ministers could hide behind a court judgment and say they have no excuse.
Senator Léger: Could you enlighten me a bit? If I understand correctly, the legislation we just spoke of is not sufficient? Political will is necessary. Then there are the courts. I thought that the purpose had been achieved with the act, but it seems that we can have an act and there is no political will to implement it?
Mr. Arès: But political will changes, and that is why we need both.
Senator Léger: But legislation does not change.
Mr. Arès: No, and that is why we need legislation. Political will can change, and it changes often. We know that. So we need both. We need good legislation, but, if you do not have the political will, that will not go very far.
Senator Léger: Because there will not be the political will to implement the legislation?
Mr. Arès: Correct, yes. Or else they will have an interpretation as a result of which it will not be thoroughly implemented.
Senator Gauthier: For how many years have you been President of the Fédération des communautés francophone et acadienne du Canada?
Mr. Arès: For three years.
Senator Gauthier: I offer you my sincerest congratulations. You are doing a good job. I have a pointed question. The Forum des maires de la péninsule acadienne won at trial, but an appeal has been instituted from Justice Blais' decision. Has the Fédération considered seeking intervener status in that case? That is the heart of the matter, in my view. The purpose would be to know how exactly to interpret the will of the act and section 41. Subsection 18(1) was used in order to go to court, but ultimately it is section 41 that is at issue, that is to say the duty and obligation of the departments to ensure they consult and work with the official language communities. Will the Fédération intervene?
Mr. Arès: We have not yet considered that question. We have no legal counsel for the moment, since we lost him to the Commissioner of Official Languages. I believe we will have to inquire and get legal opinions on the case. As you say, that is the heart of the matter and we would definitely like to intervene. I think we can go to court if we want, but I agree with what Mr. Dion said, that it is preferable that governments act, that the government acts and that we do not wait for the Mayors case to be appealed and go to the Supreme Court. Let us act now. The political will must be set in motion so that we do not need to go to court.
That is a good answer to give Mr. Dion. I asked him why section 41 should not be binding, he answered that it would cost billions of dollars and that we would always be in court. But if the political will is there, we will not need to go to court.
Senator Gauthier: There have been 550 cases since section 15 of the Constitution of Canada was enacted. Since 1982, there have been 23 or 24 cases in the courts concerning section 23, only five concerning section 16. Who is abusing the privilege? Certainly not the official language communities!
Mr. Arès: No, it is not in our interest to constantly go to court. That is not what we want. We want to work with the governments in place.
I will give you the example of the work done with the Government of Alberta. Once the Alberta government accepted the Supreme Court's decision in Mahé, we worked very well with that government to implement schools management. That was the best implementation of schools management in the country. That is how we want to work with the Government of Alberta. It is been nearly 10 years since there was a dispute with that government. That is the way to work with governments, rather than to be constantly taking them to court.
Sometimes we have to resort to the courts because we come up against a political wall. So we use the other option that we have in a democracy, the option of going to court to ensure that the government acts in the way it should act.
We prefer to work with governments. We worked very closely with Mr. Dion to develop the Action Plan. He afforded us very good opportunities to provide opinions on the way to proceed. We worked well with Mr. Dion and we very much appreciate that. It was not necessary to take the President of the Privy Council to court to have him develop an action plan. That is our preferred work method, but we will go to court if necessary.
Senator Gauthier: I am from Ontario; you are from Alberta. You went faster than we did with the Mahé case. It took us 15 years to get schools management in Ontario. We got it in 1997, after 15 years of waiting and assimilation. There are all kinds of problems because we do not have our teaching institutions on site. Do we have the means to achieve our ambitions? We do not have any money. We need deep pockets to go to court.
The communities have a court challenges program in Winnipeg which is doing a good job. We have all kinds of problems right now with French-language television, broadcasting, educational television, access to justice in both official languages. Federal statutes such as the Bankruptcy Act and the Divorce Act are federal statutes, but apply to the provinces.
It is hard for a person in a sad situation such as a divorce or separation to go to court and say that he or she wants to speak French. Try that in some places in Canada. You will be told it is impossible. In Ontario, we have certain guarantees of court access in both official languages in certain designated regions. They will say: ``Yes, Mr. Arès, you can institute divorce proceedings, but We are sorry, the Francophone judge will not be available for two or three months. You have three children and you are in a critical situation. If you agree to argue your case in English, we will schedule you for next week.'' That happens in Canada. That is access to equality, no more, but no less.
Mr. Arès: I understand. We would have liked to see more investment in the federal government's action plan; $751 million is a lot, but not over five years. In my view, the most important thing is the hopes we place in the action plan's accountability framework. The most important thing is to feel the political will to help us, not only in the politicians but in the officials at all levels and in all regions. With the political will to help us, everything will change. We will be able to work well with all the departments, officials and ministers, and the funds will follow.
How many people know that the Government of Alberta spend $30 million of its own funds to expand and improve the French-language schools in Alberta? That stems from the fact that we had worked well with that government for about 12 years. Premier Klein is ready to invest money from his own government. That is unheard of in Alberta. If we can develop this political will at all levels, the funds will follow. That is the most important thing for us.
The action plan's accountability framework is very important when it comes to changing attitudes. It is not easy, and it will not be done from one day to the next; we have no hope that it will. But we have to start working on it. We are going to work hard with the Privy Council to implement the action plan.
The Chair: I would like to thank the witnesses who have come here today. I thank you for being available, colleagues.
The committee adjourned.