Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence, February 14, 2007
OTTAWA, Wednesday, February 14, 2007
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:10 p.m. to consider that the Senate should recognize the inalienable right of the first inhabitants of the land now known as Canada to use their ancestral language to communicate for any purpose; and that, to facilitate the expression of this right, the Senate should immediately take the necessary administrative and technical measures so that senators wishing to use their ancestral language in this house may do so.
Senator Consiglio Di Nino (Chairman) in the chair.
[English]
The Chairman: Honourable senators, today we are proceeding with our study of the motion proposed by our colleague the Honourable Senator Corbin, respecting the use of Aboriginal languages in the Senate.
Today we will have an opportunity to hear from Mr. Mark Audcent, the Law Clerk and Parliamentary Counsel for the Senate, after which we will have an opportunity to ask Mr. Audcent a few questions. I would remind everyone that we have a responsibility to be in the chamber no later than 1:30, so I will keep track of the time and be a little tougher than we normally would be if that were not the case.
Mr. Audcent, you have the floor.
[Translation]
Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: Honourable Senators, thank you for inviting me to speak to you today. With me is Ms. Suzie Seo, Legal Counsel with the Senate. You have asked me to provide some clarification as to the constitutional scope of the motion introduced by Senator Corbin and brought before your committee on October 19, 2006. The motion reads as follows:
That the Senate should recognize the inalienable right of the first inhabitants of the land now known as Canada to use their ancestral language to communicate for any purpose; and that, to facilitate the expression of this right, the Senate should immediately take the necessary administrative and technical measures so that senators wishing to use their ancestral language in this house may do so.
The wording of the motion raises two questions. Firstly, the motion calls on the Senate to recognize an inalienable right. To do so requires that we consider the advisability of asserting this right, as well as the scope of an assertion of this nature.
Secondly, the motion proposes a plan of action which calls for our giving some thought to how rights can be combined with practical limitations.
[English]
Allow me to provide some background on the status and use of Aboriginal ancestral languages in Canada. The 1996 report of the Royal Commission on Aboriginal peoples notes:
Recent assessment suggests the impending extinction of as many as 90 per cent of the world's 6,000 languages.
Aboriginal languages in Canada are not alone; minority languages on every continent are at risk. Canada's Aboriginal languages can be divided into 11 distinct language families identified with First Nations, to which must be added Inuktitut with its several dialects and Michif, which also has dialects drawing on several Aboriginal languages. There are between 53 and 70 languages in these families. Only a small number of Aboriginal people speak Aboriginal languages. While more than a million people claimed Aboriginal ancestry in the 1991 census, only 190,165 said an Aboriginal language was their mother tongue; and 138,105 reported using their Aboriginal mother tongue in the home. Languages, boasting large numbers of speakers in a high overall ratio of home use, can be considered viable. The linguistic family with the greatest vitality is Inuktitut.
A demographic profile from Statistics Canada using 2001 information identifies Cree, Inuktitut, Ojibwa, Dene and Montagnais-Naskapi as the five Aboriginal ancestral languages with the greatest number of speakers. Cree is spoken by 92,630 persons; 31,945 speak Inuktitut; 27,955 speak Ojibwa; 10,500 speak Dene; and 9,335 speak Montagnais- Naskapi. The 1991 statistics indicate that Cree make up about 43 per cent of all those in Canada with an Aboriginal mother tongue, while Inuktitut and Ojibwa each make up about 13 per cent. Cree and Ojibwa include several dialects, however, that not everyone who speaks Cree or Ojibwa understands.
A Université Laval website, maintained by Mr. Jacques Leclerc, updated to August 26, 2006, advises that most First Nations languages are spoken in small communities having less than a thousand speakers. It is obvious that the vitality of these languages is gravely affected.
When the commissioners turned their focus to solutions, they noted:
In our view, Canadian governments have an obligation to support Aboriginal initiatives to conserve and revitalize Aboriginal languages and, as much as possible, to undo the harm done to Aboriginal cultures by harshly assimilative practices.
The report advocates that:
Federal, provincial and territorial governments recognize promptly that determining Aboriginal language status and use is a core power in Aboriginal self-government, and that these governments affirm and support Aboriginal nations and their communities in using and promoting their languages and declaring them official languages within their nations, territories and communities where they choose to do so.
Honourable senators, this recommendation leaves us at the door of the motion that is the subject of your consideration. The report is resoundingly silent with respect to the rights of Aboriginal persons to use their Aboriginal ancestral language in the wider world beyond their own nations, territories and communities, and, in particular, their right to use their languages within the higher levels of the federal government.
Honourable senators, one additional fact is perhaps useful. On June 1, 2005, Senator Adams advised this committee that he would like to speak Inuktitut in the Senate. In his words, "As Canadians, we should be allowed to use our language.''
The history of language rights in Canada is long and complex and the resulting legislative scheme is equally complex. It is necessary to begin with a review of official language rights. Our starting point is the Constitution Act, 1867, section 133, which provides for the use of the English and French languages in Parliament. Significant to our purposes is that the section contains both permissive and mandatory provisions.
Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada. . . ; and both those Languages shall be used in the respective Records and Journals of those Houses;
It follows that section 133 places no prohibition on the use of a language other than English or French in the proceedings of a federal House, so long as that use does not impede the requirement to use both official languages equally in the records and journals of the House.
[Translation]
It is not very likely that the Fathers of Confederation gave any thought to the use of ancestral languages in Canada's Parliament. Admittedly, some Métis served in Parliament in the early years of Confederation. The name of Louis Riel comes to mind.
However, the first Aboriginal member of Parliament was Mr. Errick French Willis who was elected to office in 1930. Also, the first Aboriginal Member of Parliament elected to the House of Commons after Aboriginals won the right to vote in 1960 was Mr. Leonard Stephen Marchand. He was first elected in 1968 and later appointed to the Senate. The first Inuit elected to office was Mr. Peter Ittinuar in 1979.
In 1958, Prime Minister Diefenbaker appointed Mr. James Gladstone, a full blood Indian from Alberta, to the Senate. Your colleague Senator Adams was the very first Inuit to be appointed to the Senate in 1977. Of course, there have been several Métis senators, notably Senator St. Germain and former Senator Chalifoux.
The increasing Aboriginal representation within our institutions of government, beginning in the 1960s and 1970s, clearly points to the need to consider the motion currently before your committee. At present, the Senate has 94 senators, including seven, or approximately 7.5 per cent of the membership, who have Aboriginal roots.
[English]
The 1980s began with the enactment of our Canadian Charter of Rights and Freedoms, which is Part l of the Constitution Act, 1982. The Charter makes English and French the official languages of Canada and sections 16 to 22 of the Charter appear under the heading "Official Languages of Canada.'' Subsections 17(1) and 18(1) of the Charter essentially repeat section 133 of the Constitution Act, 1867. The former provides that everyone has the right to use English or French in any debates or other proceedings of Parliament. The latter provides that the statutes, records and journals of Parliament shall be printed and published in English and French, with both language versions equally authoritative.
Building on this constitutional structure, the Official Languages Act once again provides that English and French are the official languages of Parliament and that everyone has the right to use either of those languages in any debates or other proceedings in Parliament. The act then complements the right to use either language with a provision aimed at the corollary right to be understood and the corollary right to understand.
Subsection 4(2) provides for the simultaneous interpretation of the debates and other proceedings of Parliament from one official language into the other. It is important to note that simultaneous interpretation was only introduced into the House of Commons in 1959, on the motion of Prime Minister Diefenbaker. Before the system of interpretation was introduced, parliamentarians who spoke in one official language were simply not understood by unilingual parliamentarians whose language was the other official language. It has been said that this sometimes had the effect of emptying the house of its members.
While the presence in the Official Languages Act of the requirement for simultaneous interpretation makes it is clear that the right is a legal right, it is unclear whether it is a constitutional right that enjoys constitutional protection. The historical fact that interpretation was not provided for almost a century suggests that it is not an enforceable constitutional right.
The English and French versions of the obligation to report in the Official Languages Act are framed in somewhat different terms. The English version can be understood to contain a requirement that everything reported in an official report of debates be said in an official language and reported in that language and the other official language. This would, of course, prevent the use of an Aboriginal ancestral language in Senate debates.
However, the French version merely requires that the reports contain the transcription of what is said in either official language and a translation thereof. This version can be interpreted in such a way as not to require that only official languages be used and not to prevent the use of other languages.
I now approach the question before you from the perspective of third language rights and Aboriginal language rights. Our review of the law governing the use of official languages has revealed that there is no prohibition against using a third language in Senate proceedings. However, care is required when it comes to planning for their use in the records of the house.
What positive constitutional rights exist to use Aboriginal languages and other third languages? The Constitution Act, 1982 contains a series of provisions that require consideration. Section 22 of the Charter provides as follows.
Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.
Section 25 provides:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
Professor Walter Tarnopolsky has written that section 22 can only apply to Aboriginal peoples and languages. Jeffrey Richstone adds that the scope of the section is limited to preserving acquired status. It cannot confer additional protection. The same is true for section 25. Sections 22 and 25 merely trace the line between existing Aboriginal rights and the Charter. We must, therefore, look elsewhere to find the rights or recognition thereof. Subsection 35(1) of the Constitution Act, 1982 provides as follows:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Do Aboriginal rights as contemplated by section 35 have a linguistic component? While my search of the jurisprudence has not found any case denying that Aboriginal rights include language rights, I have not found any case that expressly confirms that they do.
Professor Tarnopolsky has written, in words adopted by Jeffrey Richstone, that Aboriginal rights as contemplated by section 35 must include language rights. In his words:
It would not be logical to recognize customary Aboriginal rights but to fail to protect at the same time the language in which these rights are articulated and transmitted.
Accepting this conclusion, what is the scope of the affirmed language right? Mr. Richstone makes three points. The first is that the section is aimed at collective, not individual rights. The second is that it would be difficult to advance the position that section 35 covers more than the right to use and develop Aboriginal languages and traditions within the communities concerned. The third is that it would also be difficult to advance the position that section 35 extends to impose an obligation to provide public funding for training and development. These views effectively eliminate section 35 as a potential source of a right to use Aboriginal ancestral languages in parliamentary proceedings.
We have identified section 35 as the source of certain collective Aboriginal rights. What about individual rights? The Charter contains three potential sources, which are sections 2, 15 and 27.
The first source is section 2 of the Charter, which guarantees freedom of expression. In the 1988 case of Ford v. Quebec (Attorney General), a case on Quebec's Bill 101, the Supreme Court of Canada dealt with language rights in the following terms:
[Translation]
. . . language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one's choice.
At paragraph 40 of the decision, the court states:
Language is not merely a means or medium of expression.
Language colours the content and meaning of expression. As stated in the preamble of the Charter of the French Language, language is also a means by which a people articulate their personal identity and sense of individuality.
[English]
Section 15 of the Charter provides:
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Section 27 says:
This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
In the words of Mr. Justice La Forest in the 1988 case of R. v. Mercure:
[Translation]
It can hardly be gainsaid that language is profoundly anchored in the human condition. Not surprisingly, language rights are a well-known species of human rights and should be approached accordingly.
[English]
It is important to note that whatever scope is given to sections 2, 15 and 27, they are not limited to Aboriginal persons and languages. The scope to be given to these sections in the Senate context will need to be balanced with the constitutional right of the Senate to provide for productive proceedings in which all senators can take part. On the other hand, a policy tailored to Aboriginal persons and languages could be defended as an affirmative action program protected by subsection 15(2).
In conclusion, honourable senators, my review of the statute law and the jurisprudence leads me to the conclusion that there is no basis yet in law to affirm that there is a legal right to use Aboriginal ancestral languages to communicate for any purpose and in particular, to use Aboriginal ancestral languages in Senate proceedings. However, several provisions of the law contain the possibility for future development of Aboriginal ancestral language rights by the courts. The relevant provisions can be said to contain inchoate rights, and that it can be anticipated that with the passage of time the courts will develop a theory of Aboriginal constitutional language rights that rely on those sections.
So far, honourable senator, we have concluded that the law, and in particular the laws on official languages do not prevent the use of Aboriginal ancestral languages in the Senate chamber.
We have also concluded that at present, there is no basis in law affirming that there is a legal right to use Aboriginal ancestral languages to communicate for any purpose and, in particular, no right to use Aboriginal ancestral languages in Senate proceedings. Conversely, we have not identified any objection in law to their use.
I now turn my focus from the question of the right of an Aboriginal senator to use his ancestral language to the rights of other senators in the chamber. It is often said that where one person's rights begin, the other person's ends. Generally speaking, it is the right of all senators present to understand and participate in debate. The Houses of Parliament have a purpose. The House of Commons has been called the living room of the nation, and the same could be said of the Senate. Even the case for the use of Aboriginal language rights in the Senate has been argued in terms of the importance of allowing Aboriginal senators to participate in debate. Given the absence of simultaneous interpretation in Parliament for almost a century, it can be argued that there is no Constitutional right to understand everything that is said in the Senate chamber; however, the Official Languages Act now imposes an obligation on the Senate to provide for the simultaneous interpretation of its debates and proceedings. Furthermore, the scope of this obligation is framed differently in the English and French versions. While the English version of subsection 4(2) only provides for simultaneous interpretation from one official language to the other, the French version provides for the simultaneous interpretation of the debates and proceedings. While the scope of both versions is identical if only official languages are spoken, the scope of the obligation under the French version, which is not limited to official languages, may be wider when third languages are spoken.
Finally, honourable senators, I turn to the institutional rights of the Senate itself. Section 18 of the Constitution Act, 1867, as complemented by section 4 of the Parliament of Canada Act, provides the Senate with a full complement of privileges, immunities and powers. According to Joseph Maingot in his text Parliamentary Privilege in Canada, second edition:
The privilege of control over its own affairs and proceedings is one of the most significant attributes of an independent legislative institution.
Given the absence of any legal prohibition on the use of Aboriginal ancestral languages in the Senate chamber, in my opinion the Senate has the undoubted right to accommodate senators who wish to speak in their Aboriginal ancestral language, or in any other language, for that matter, in Senate proceeding. The non-discrimination requirements found in section 15 of the Charter should be understood as preventing the Senate from discriminating between different senators and different Aboriginal ancestral languages. The section allows the Senate to accommodate Aboriginal senators and languages in preference to other third languages.
It will be important for the Senate to frame any right to use an Aboriginal language in such a way as not to commit the institution to a service standard that cannot be achieved. Rights cannot change reality. Since the Senate will be conferring on Aboriginal senators who speak a language spoken by 20 or 200 people the same rights that it confers on those who speak the language of 80,000, any plan must have great flexibility in service levels. The Parliamentary Documents Division of the Translation Bureau of Public Works and Government Services Canada can be of great assistance to senators in assessing what is within the realm of the possible.
[Translation]
Let me recap by recalling the wording of Senator Corbin's motion. I will limit myself to the following observations: I was unable to find in legislation a provision that clearly recognized the right of Aboriginals to use their ancestral languages and to communicate for any purpose in these languages; such use is not expressly authorized in any constitutional provision and there is no jurisprudence which clarifies this matter.
Certain constitutional provisions are sufficiently general in nature to allow the notion of the virtual right to use ancestral languages for any purpose. In other words, the provisions are so vaguely worded as to permit courts in the future to broaden the scope to recognize the use of aboriginal languages for any purpose.
For example, the courts could recognize the so-called "inherent'' right of an Aboriginal community to promote the use of its language among its members. There is no one provision in the act recognizing the right to use ancestral Aboriginal languages in the deliberations of the Senate. Even though this right is not recognized by law, there is nothing to stop the Senate from acknowledging this moral right in some other fashion, or still yet, from making it a procedural right.
When official languages simultaneous interpretation was first introduced in Parliament in 1960, Prime Minister Diefenbaker stated that it was a "fundamental right'' and "an integral part of our constitutional freedom.''
Furthermore, the Royal Commission on Aboriginal Peoples talks about the "inherent right'' to determine the status of ancestral languages on lands belonging to Aboriginal nations.
[English]
In this regard, the Constitution is a living tree and, as one senator noted, should not be considered arthritic. The Senate is described throughout the constitutional, parliamentary and political literature as the house of the regions and the minorities and can be expected to be a leader on minority language issues. Since there is no legal right to use Aboriginal ancestral languages in Senate proceedings, there is no corresponding obligation to allow for their use. It follows that the Senate has a relatively free hand in developing the conditions under which the use of Aboriginal ancestral languages will be allowed in Senate proceedings. In this regard, your debates contain reference to an incremental approach. Whatever opportunity is developed should be available to all Aboriginal senators who wish to use their ancestral language in Senate proceedings. That said; there are very real, practical limitations, some of which are changeable and manageable and some that are not. These limitations may result in different service levels in different cases.
Thank you for your attention, honourable senators. I would be pleased to take your questions.
Senator Joyal: As a preliminary remark, we had previously requested that all Aboriginal senators receive a notice that we would be discussing this issue. It is a fair opportunity to give them the benefit of the witnesses and our discussions. I would repeat what we had mentioned before in relation to this particular issue.
The Chairman: If it has not been done, it will be done. It has been done.
Senator Joyal: This morning, I happened to bump into Senator Watt and invited him because of the issue.
I would like to thank the chair for having invited Mr. Audcent to give us this presentation, which I had the benefit of reading this morning. It may not be exactly the presentation you gave, but it is the one that was prepared by Ms. Seo, Legal Counsel. I appreciated reading it, because this is the first time, in my recollection, that there is an initiative to try to understand the legal implications of Aboriginal language rights in relation to Parliament, especially in relation to section 22 of the Charter.
Section 22 of the Charter is a "mysterious'' section. It has not been interpreted by the court since its adoption. It reads:
Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.
Section 22 refers specifically to sections 16 to 20 of the Charter. Sections 16 to 22 of the Charter refer to official languages of Canada and their status and privileges in the Parliament of Canada, in proceedings in Parliament, in parliamentary statutes, in proceedings in the courts and in communications with federal institutions.
Section 22 states that although we have a group of sections that clearly establish the status of the use of French and English in relation to Parliament there are other potential rights and privileges, either acquired or enjoyed, through legal or customary manner, other than English and French.
It is recognized that English and French exist for the business of Parliament, but aside from those rights and privileges there might be or there are other languages that have, ". . . from any legal or customary right or privilege acquired. . . .''
Then the question becomes what are the other languages that might have status aside from French and English in Parliament? That question comes to mind when one reads section 22.
I refer you to Senator Corbin, who was one of the members of the joint committee of the Senate and the House of Commons some 27 years ago when that section was in the draft resolution that included the Charter and the Constitution. It was quite clear at that time that we wanted to protect other languages that might have status through customary or legal origins in Parliament.
We are essentially dealing with Parliament. We are not dealing with the status of languages on reserves or territories where Aboriginal people may have acquired a right to self-government. That appears in section 35 of the Constitution. We are dealing with the status and privileges of other languages in Parliament. I agree that jurisprudence has not been applied to that section of the Charter, even though there has been interpretation on many other sections dealing with Aboriginal people's rights, especially with respect to section 35.
One must recognize the fundamental fact the Supreme Court noted in the Haida case of 2002-03. To me, the Haida case is a very important case because for the first time, the Supreme Court recognized that the Europeans did not conquer the Aboriginal people. When the European settlers arrived on the West Coast and in the Acadian regions of Canada in the seventeenth and eighteenth centuries, there were people who had rights, customs, traditions, self- government and capacity that was not superseded through the means of a conquest. The Aboriginal people maintained their full identity culturally and politically.
The court sees section 35 as remedial. The section re-establishes the Aboriginal peoples to their original conditions. There have been three European settlements and the Aboriginal people have never been conquered. As a French Canadian, I have been conquered; I have been the object of the Treaty of Paris while the Aboriginal people have been the object of the Royal Proclamation, which recognized that Aboriginal people were not conquered. They maintained their rights. That was the pledge of King George III. However, as a French Canadian at that time, I was transferred to the sovereignty of the British King. In 1774, the Quebec Act granted my language rights back to me. The rest is in the history books.
When we deal with Aboriginal languages in Canada in relation to Parliament, we must start with the fundamental elements of what we had in mind when we created section 22. At that time, we were unaware of the scope of Aboriginal rights in today's world. Honourable senators, that we even avoided using the term "self-government'' in those years in order to avoid scaring people. If we inserted the term "self-government'' into section 35, we would not have had a Charter.
At that time, the concept was so fluid that nobody wanted to insert a term that was not clear and defined in the minds of people. We said the Charter would have an evolutionary nature; there will be a dynamic element in the Charter. Through the years, through evolution and through interpretation, we will come back to a point whereby we can sign treaties to grant back to the Aboriginal people their rights to self-government, as we did with the Nisga'a people. Most senators participated in those debates and hearings.
The point I want to emphasize in your presentation, Mr. Audcent, is that you told us there is not a clear exclusion. I would pretend there is an inclusion by virtue of section 22 because it deals essentially with other languages in Parliament. Of course, there is the remedial nature of the Charter. The Charter objective in relation to language rights as much for my Acadian friends and the community in Nova Scotia is remedial. It is meant to bring people back into their situations when they were able to use their rights. That is essentially the philosophy of the Charter. It is a dynamic human rights objective to repair wrongs.
I think it is very important, when we examine section 22, to define the parameters of its territory, its Parliament in relation with other languages. It falls under a sense that the only other languages that might have had customary or legal rights at that time were Aboriginal rights.
In other words, the first treaties that were signed by the Aboriginal people in 1701 were not signed in English. They signed in their own language. It was the French at that time that had to translate it. Why? The answer is that in those years, the sovereignty of the Aboriginal nation was still fully recognized. They were negotiating at par, and they were using their own language.
When the Great Peace of Montreal was signed in 1701, none of the 36 Aboriginal chiefs spoke another language other than their own; none of them spoke French. The French provided translators for others to understand what the chiefs were saying. They signed the treaty with their Aboriginal scripture. They used their languages in rapport with the other minority at that time.
The Chairman: Senator Joyal, please direct your question.
Senator Joyal: I say to our expert and very learned guest that section 22 opens the door to the status of Aboriginal languages in relation to Parliament. It is there that it is to be recognized under customary rights basis. As such, there is no decision of the court interpreting section 22. Section 22 is still there, and should receive a meaning. It is not there for enjoyment, it has meaning.
What do you think section 22 encompasses?
Mr. Audcent: Honourable senators, just as an aside, I thank the senator very much for qualifying me as an expert. I am certainly Legal Counsel to the Senate, but I am not sure I would claim expertise in language rights in Canada. I think that is a whole discipline that is beyond my expertise, although I am quite prepared to speak to the subject today.
Senator Joyal invites us to look at section 22. It says:
Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.
It is a living provision. It is before or after the Charter. With respect to ". . . any language that is not English or French. . . ,'' in my main presentation I cited authors that say that this can only mean Aboriginal languages. Professor Tarnopolsky made that point. It is very clear we are talking about Aboriginal languages; however, here is the problem with the way it is framed. As you know, I am a legislative drafter. Nothing abrogates or derogates from rights that you can find. It does not confer any rights. The purpose of this section is to say, if you found the rights somewhere, sections 16 to 20 are not abrogating or derogating from them; please keep that in mind. We are recognizing these rights, and we are not letting the official language provisions abrogate or derogate from them. It cannot confer a legal or customary right or privilege. First you have to find somewhere in the law the legal right or privilege, or you have to find the customary right or privilege. That is my problem. When I went in search of the legal right or privilege or the customary right or privilege, I did not find a positive expression in law, or section of a constitution, or an act that said here is the right, we are expressing it. That is the legal right or privilege. I did not find a customary right or privilege. I have not found a customary right or privilege that says that generally or in particular we are speaking about in Senate proceedings and parliamentary proceeding; I have not found that custom.
This does not mean it cannot be built. I bring you back to the words, ". . . acquired or enjoyed either before or after the coming into force of this Charter . . .'' Even after this Charter comes into force, which is post-1982, rights can develop and those rights will be defended by section 22. What I cannot do is go that extra mile and say that I find in section 22 an affirmation of the rights and privileges; I think that is beyond the scope of the section.
The Chairman: Thank you very kindly. I have three other senators, Senator Joyal, if you do not mind?
Senator Joyal: I know I have abused the attention of my colleagues.
The Chairman: Not at all. I am tempted to ask you to be a witness one day; that may be interesting.
Senator Andreychuk: We have heard a fair bit about the legal side. Are we approaching a determination as to whether there is an existing right? Is this issue a particular problem for a particular senator or several senators in their ability to function as parliamentarians?
You pointed out we could get into the community rights vested under section 35, et cetera. We can go down that route. If the object of our exercise is to determine to the extent language rights need to be applied, or was this exercise to say that we come in here by appointment and we come with our capacities. I am thinking back to Senator Dyck's speech yesterday, how she found herself here, what she thought her job was and what she believes her job to be. Therefore, will an Aboriginal senator have to reach for the language tool?
I am thinking back to my days as a judge, when we would have Aboriginal people come before us, and we would anticipate that they were not capable of speaking English or French, so we would need a Cree translator, only to find out that the Cree translator did not know the dialect of the person. We provided for the rules, but the people could not communicate and defend themselves appropriately in court. We then had to go to the next step. The issue there was the right to defend oneself in court. The question was what language capacities we had to understand. If the defendant spoke only Cree we could find a Cree translator, but how could we be sure that the translator understood the defendant properly and give us a proper interpretation. The other side would then stand up and say we have no confidence that what is being translated is correct because we want a certain sufficiency in standard of translation. That is a conundrum we were grappling with when I left the court.
Are we here discussing an Aboriginal right or are we discussing a senator's right to perform his or her duties? How did you approach your task when you came here?
Mr. Audcent: Honourable senators, I understand the object of the exercise from the words of Senator Corbin who said that he wants to solve his colleague's problems.
The motion is very wide, and you have to appreciate that because words are important, words remain on the record. At the same time, we understand what is behind the motion. Senator Corbin has been very clear. That is the object of the exercise before you.
Then your committee turns to me as your legal counsel and it changes somewhat because I only have a role in this. I do not have the big picture. My role is to give you the constitutional background within which you can find solutions. That is why I gave you a rather long presentation today, for which I apologize, but sometimes it is important to leave on your record the considerations against which the solutions that you come up with can be measured.
I view my role as providing you with the constitutional legal background within which you can frame the solutions that you wish to develop.
Senator Andreychuk: Are you saying that there is not a precedent to determine whether it is a right within the Senate?
Can I turn it around the other way and say we still have the dilemma to assist a senator who feels he cannot perform his task fully because of a language barrier?
Mr. Audcent: I have to describe the existing state and I have tried to be fair in telling you where I view the rights at present as they have been identified and expressed.
You will want to accommodate that senator; I know you do. Within the context of accommodating the senator, and you want to do so in a fair way to all senators, you also have to take into account the interest of the other people in the chamber. It is a dynamic where one person's rights begin where the other person's rights end. At any given time where a senator is addressing the chamber, say in an Aboriginal language, there are rights of the senator to speak in his or her language and express himself or herself to the best of his or her ability. There other senators have the right to understand what is happening in the chamber. Those two rights need to be reconciled and they require practical, positive solutions.
Senator Fraser: Mr. Audcent, you have fundamentally come before us and told us that there is no legal right to the use of Aboriginal languages in the Senate, but to the extent possible, it would still be the right thing to do. I read your brief and noted this message even more strongly in it than perhaps in your presentation although both were fascinating.
Do I understand you correctly?
Mr. Audcent: Senator, that is fair. I would say there is presently no legal right.
Senator Fraser: That is where I want to go next.
Mr. Audcent: I did recognize the fact that in certain sections of the Constitution, the language is wide enough to recognize an inchoate right — inchoate meaning incipient, capable of growth. The Constitution can accommodate growth in the area of Aboriginal language rights. I have discovered that the law is not fully developed in that area.
Senator Fraser: I want to thank you and Senator Joyal for drawing section 22 of the Charter to our attention. I confess, although I have spent more hours than I care to think brooding about language rights, I had not turned my attention to section 22.
What it reinforces for me is that what we do now with this proposal may well be the beginning of the establishment of a constitutional right, which means it is important that we do whatever we do carefully. We must consider that we are moving in a direction that we want to move in, and not create more unintended consequences.
Mr. Audcent: I agree with that, senator.
Senator Fraser: When there is a right to use a language in Parliament, that right is not confined to a person whose mother tongue it is. I, for example, have the right to speak French in Parliament, or in a committee, even if everyone else in the room is a unilingual anglophone I have the right to speak French. My francophone colleagues have the right to speak English in a room even if everyone else there is a unilingual francophone. The right is not related to one's mother tongue. Therefore, I think we are all predisposed to say that our colleagues should be able to participate in our debates in their own language. Anyone who has tried to learn another language knows how hard it is to participate in a debate in other than your mother language. However, as your brief points out, there are over 60 Aboriginal languages in Canada, and constitutions last a long time. If we are going about creating a constitutional right, if we are setting out down the path toward the eventual creation of a constitutional right, how does one frame such a right in a way that is fair to Aboriginals, to the Aboriginals who need it, but is at the same time in some way practical?
You also point out that you have to be practical about this. For example, if we passed a rule saying anyone can use any Aboriginal language in the Senate, and if I had the intelligence and the energy I might rush out and study Mohawk and practice my Mohawk in the Senate, even though to the best of my knowledge, there are no senators whose native language is Mohawk.
I am not very well organized in what I am saying here, but I am looking for some guidance about how one might frame practices, rules, programs, to do what we want to do without opening the door to a constitutional right to the simultaneous interpretation of over 60 languages. That would lead to something like 3,500 different possible combinations of languages for translators to handle.
Mr. Audcent: Honourable senators, the first comment that I would like to make in response is that I agree with the point that the right to speak in a language should not be tied to the fact that it is your language. If you have a bilingual anglophone who speaks Cree, which you may have in the future, then that particular person should not be restricted from using an Aboriginal language if the use of the language is permitted. I agree with that concept.
With respect to your issue about how to frame rights, I do not have an answer because the answer partly depends upon where the committee wants to go in terms of the proposals. Whatever the proposal, it should be tested against the law and the various considerations as they have been presented to you today. I do not think there is an answer.
There is an indication on your record that you are proposing to approach this in an incremental fashion. Subject to making sure that you respect all senators at every step along the way, the idea of proceeding in an incremental fashion is probably a very good approach. Take one-step at a time and develop the right as you find that you are able to do so, and as you see fit.
Senator Smith: My question might be a bit long but I will not be quite as long as Senator Joyal's question. Like you, Mr. Audcent, and Senator Joyal, and some other members, I am a lawyer, but I always find it refreshing when lawyers can put legal issues in everyday common language.
What I want to do is to put to you my interpretation and then if I am straying from the path of correctness you can tell me.
The first thing is that I agree with your conclusion that there is not the same constitutional right for the use of the Aboriginal languages as there is for English or French. I do not think it matters in that we are not in a straitjacket. We are entitled to structure a system that shows respect and makes it practical for people who speak Aboriginal languages to use the language in the chamber.
I was intrigued by Senator Joyal's reference to whether they had been conquered. I am not sure that it really matters and I started thinking, what about those poor Aboriginals in Newfoundland. They were massacred and wiped out in one of the great tragedies in Canadian history. Were the Métis conquered during the Riel rebellion? I do not think it matters because we are not in a straitjacket that in any way prevents us from structuring something practical that shows respect to the Aboriginal languages of this country.
We had a consensus prior to the last election that we would develop a system whereby the most clear-cut case had to do with the Inuit because we have two members whose mother language is Inuktitut. We canvassed all of the other members with an Aboriginal background and they said that they would appreciate the opportunity to use it. They said they were quite happy with a system whereby they would give a reasonable period of notice so that people were not there all the time to interpret. They understood the costs involved with translation. They would give a reasonable period of notice if they wanted to make a statement in their language whereby we would accommodate that notice.
In the case of the Inuit, we never had a total agreement on the sort of notice period or requirement. We would not be getting into Hansard in both languages for legal reasons, but there would have to be translation of what they did say in their native language into English and French.
I am interpreting that we can do it. We can structure something that addresses and respects the people who want to use Aboriginal language in a cost-effective way. I am sure we can do it in a better way than the Northwest Territories, where it was very expensive. I want to try to keep an open mind until we see it.
Am I losing something here? Am I putting it in language that you are comfortable with from a legal perspective?
Mr. Audcent: I am very comfortable with the representations that Senator Smith has made and I agree with the basic positions. The starting position is there is no legal constitutional right. The second statement is assuming that senators want to go there, which I am assuming, and senators want to structure an accommodating system. That is what I have understood you to say, and I agree with that completely.
[Translation]
Senator Corbin: When I drafted this motion, I deliberately included a reference to an inalienable right. I did not refer to a constitutional right, an Aboriginal right, a treaty right, an ancestral right, a moral right or a procedural right, but to an inalienable right. By that I mean something even more fundamental, akin to a "natural'' right. Mr. Audcent, can you define a "natural'' right for me?
Mr. Audcent: Honourable senators, I must admit that philosophy is not my area of expertise. In this context, a natural right would be the same thing as a philosophical right. If you say that you are referring to a philosophical right, not a legal right, that is to an inalienable right, I would have to say that this is outside my area of expertise.
Senator Corbin: That being said, I do not think that a natural right is a purely philosophical concept. If you look at some of the deliberations of the United Nations, you will see that this concept frequently arises in the course of discussions on peoples' rights and the right to appeal to the UN.
I am not a lawyer. I make no apologies for that. I must admit that it allows me to see the world more clearly. With all due respect for my colleagues, I found your presentation to be quite fascinating and I want to sincerely thank you and your assistant. You have shed considerable light on this debate.
As Mr. Audcent said, we are engaged in an evolving process. Some have talked about the evolving nature of constitutional law, of certain rights that are either recognized or implicit in the Charter of Rights and Freedoms, or in the Constitution of Canada.
I remain very optimistic, as long as we continue to move in this direction. I have to say that I am satisfied with today's meeting. However, I am not dismissing the discussions of the previous Standing Committee on Rules, Procedures and the Rights of Parliaments. These tie in with today's deliberations.
When we consider the objections raised, almost frantically, on that occasion and when we tie them in with today's observations, we have to believe that we are making some progress and that we deserve some credit. We are moving forward and engaging in some fruitful discussions.
I do not intend to say more on the subject. I want to take a moment and carefully read and reflect on the comments made by the Senate Law Clerk and Parliamentary Counsel. I encourage you to continue your deliberations and I believe we will ultimately arrive at a practical solution.
Most definitely, I want to remind you that this motion is in response to a stated request, not to a virtual request. Regardless of the number of Aboriginal languages in Canada, I am interested in the prevailing situation in the Senate. I am thinking about senators who cannot express themselves clearly either in French or in English, about issues that are important to them and of great interest to their community, issues that should interest us as well. I want us to recognize their right to voice their concerns and take part in debates in the language of their choice.
Right now, two senators are prepared to participate in the proceedings in the Inuktitut language. I think we need to bear this in mind as we search for a practical solution.
Some senators balk at the idea of having to provide interpretation services in all of Canada's Aboriginal languages and at the problems this would present. In my opinion, we should not be thinking along those lines.
If you do not already know this, let me remind you that at the European Parliament, there are more interpreters than there are parliamentarians. No one is complaining, the system works well and everyone is happy. Why could we not have the same thing here in Canada?
Senator Robichaud: I like it when things are simple. You explained to us that there were no clearly stated obligations, but equally that there was nothing to prevent us from going along with the request made by senators to address the Senate in their own language.
Senator Corbin said that we should not take this to mean that every language spoken in Canada would be recognized for use in the Senate. It is simply a matter of considering those senators who would like to speak their own language to properly convey their wishes and those of their communities.
I do not see why the door should remain closed to them. I think we need to move forward with this initiative.
I do not like to use the expression "reasonable accommodation,'' but I do believe that for the time being, we must be practical and, as Senator Corbin mentioned, clearly we must proceed with caution and put in place a system that allows for compliance with Senator Corbin's motion. Do you disagree with any of what I have said, Mr. Audcent?
Mr. Audcent: I totally agree with you. As Senator Fraser said, we must be mindful and cautious in the future and be receptive to the wishes of a certain number of people.
[English]
Senator Fraser: I want to clarify something. I think I have been interpreted as wanting to put up roadblocks. That is absolutely not my intention. It is on the contrary. I am very uncomfortable, for example, with the proposal that while you can use your Aboriginal language, we will say it is okay as long as you furnish the translation ahead of time. This strikes me as a very grudging way to go about things. Whatever we do, we have to do it properly and fully, which is why we have to do it very carefully. That is all I am trying to say.
Senator Andreychuk: We should be therefore mindful of the consequences of it to the House of Commons, to other legislatures in Canada.
Senator Joyal: Maybe the research library could tell us how New Zealand and Australia deal with Aboriginal language rights. I would like us to get the debate at the United Nations related to the languages, which would be helpful.
The Chairman: I will tell you what I am planning to do. On Tuesday, I will convene a meeting of the steering committee, and we will then look at not only how we proceed with this issue but also some of the others.
I want to comment that it is always wonderful where we have a debate of this nature where there is no politics involved, the wisdom that comes out of our colleagues is always something that teaches me something. Thank you for your participation.
The committee adjourned.