Canada Early Learning and Child Care Bill
Third Reading--Motion in Amendment--Debate
December 5, 2023
Senator Moodie, you mentioned that Indigenous leaders were consulted on the bill and that they were in agreement with it. Were Indigenous leaders also consulted on the amendment in committee when it was proposed? If so, what did they say about it?
We did have discussion in committee. At the time, the Indigenous leader who had the question addressed to him, President Natan Obed, did make a comment. I will quote it because I have it in front of me.
The question asked was, “Do you think such an amendment would have any impact for Indigenous peoples? If so, what would it be?”
Mr. Obed replied:
I was not aware of the amendment that you reference, but very often official language status for French and English is a sledgehammer that allows for those two languages to dominate in our communities. The very history of Inuit participation in Canada through health care delivery, education and government is the dispossession of Inuktitut in the face of federal, provincial and territorial legislation that empowers English and French even in our Inuktitut-dominated communities.
I would like to note that if one of the Indigenous witnesses had said that, do you not think that, on this whole section that is geared towards Indigenous people, they should be consulted on such a strong amendment that would possibly affect their rights?
It would be wise, yes.
Honourable senators, I rise today to support Senator Cormier’s amendment to Bill C-35, An Act respecting early learning and child care in Canada.
As the senator explained so well, the amendment to clause 8 of Bill C-35 would confirm the federal government’s commitment to maintain long-term funding for early learning and child care programs for official language minority communities.
Honourable colleagues, as a senator from an official language minority community — the community of Saint-Louis-de-Kent — and proud Acadian, I must join the debate and support my colleague, Senator Cormier.
Ever since the federal government signed bilateral agreements with the provinces, official language minority communities have been worried about the fact that the funding will accelerate the assimilation of future generations.
Parents have expressed their concern for the survival of their language, whether in the testimonies heard at the Standing Senate Committee on Official Languages or in the communications received by my office.
For some of you, this may be the first time or the rare occasion when you hear about the difficulties for francophones outside of Quebec in having access to an education in their first language. It has been and remains an important concern for many parents. During my speech on Bill C-13 at second reading, I shared the challenge for official language minority communities to effectively have access to education in the official language of their choice for their children from ages 5 to 17. It is where we are losing roughly 35% of the eligible children outside of Quebec who are not receiving their education in French despite their rights.
There is a similar issue for children aged 0 to 4. Currently, there are not enough spaces for francophone kids outside of Quebec. During the study by the Standing Senate Committee on Social Affairs, Science and Technology, Jean-Luc Racine, Executive Director for La Commission nationale des parents francophones, confirmed the difficulty:
The situation is alarming. According to the latest census, in 2021, 141,635 children aged 0 to 4 are entitled to French‑language education outside Quebec. However, the number of authorized spaces only allows us to serve 20% of these children. In 80% of cases, parents must turn to English‑speaking daycare centres.
As all francophones know, it has been and continues to be a constant battle. Colleagues, this is how assimilation happens, and how it is accelerated. Too many francophone parents across the country face the anxiety of their child’s education: Will it begin in their culture, in their language, or will it begin as assimilation at the age of 2? Too often, we hear the story of parents having to put their name on a wait-list before the birth of their child. Imagine the anxiety, colleagues, of not knowing if your child will even have a chance to begin their daycare in their language and culture.
There was a concrete example given at the Social Affairs Committee during its study of Bill C-35 by the President of the Acadian Society of New Brunswick, Nicole Arseneau Sluyter:
Let me tell you about a personal experience I’ve had since I’ve been in Saint John that shows just how important the educational continuum is. If we fail in this continuum, we contribute directly to assimilation to English. There aren’t enough daycare centres in French, and some parents have no choice but to enrol their children in English-language schools. As a result, their children end up losing their mother tongue.
A friend of mine from Saint John’s, a French-speaking Acadian, had no choice but to enrol her children in an English-language school. She told me: ”Nicole, I’m ashamed, my child doesn’t speak French anymore.”
The situation is similar in Ontario and in each province. The survival of official language minority communities across the country depends on long-term funding commitments from the federal government. We cannot take a chance that the federal government will fuel the assimilation process by not ensuring long-term funding commitments in bilateral agreements on daycares. It is irresponsible on the government’s part to refuse such a reasonable amendment.
Like the Commissioner of Official Languages, Raymond Théberge, said in his brief submitted to the committee:
. . . investing in early childcare centres for linguistic minority communities ensures greater success of the language transmission process, which in turn contributes to the vitality of the community. As Commissioner Fraser stated in his 2016 report, ”Early childhood development is an area for positive, preventive and proactive intervention to revitalize the French language and Francophone communities.”
If this situation does not change, colleagues, the French fact in Canada will slowly but surely disappear. The federal government must be responsible when granting large sums of money, as it does for the child care program. There must be clear commitments to official language minority communities.
With Bill C-13, the government committed to restoring the demographic weight of francophones in Canada to 6.1%, as it was in 1971. This commitment requires a collective effort on the part of the federal government, and Bill C-35 is part of that. Thanks to the amendment proposed by Senator Cormier, official language minority communities are being given a helping hand to maintain their demographic weight. Not only are they being given a tool to ensure that the government honours its commitment in future negotiations, but they are also being given a tool to help them if ever they need to go to court. All too often, Canada’s francophones have to turn to the courts to ensure their rights are upheld.
Linguistic minorities in Canada are a reality. Too often, we have to ask the courts to affirm our rights.
Colleagues, I’ve mentioned this a few times before, but I am an example of this assimilation. Due to there being no French schools in the Miramichi region at the time, I had to attend English schools while living in a French household. The linguistic environment outside the house was English, and slowly but surely, English became more predominant than French. My writing and reading skills in French suffered, and to this day, when speaking with my siblings, I often still do so in English. Colleagues, in today’s environment, with the internet, social media, et cetera, francophone kids are even more prone to lose their French compared to our time growing up with radio and limited television.
Honourable senators, the amendment presented by Senator Cormier is for future agreements on daycare with the provinces. We are voting on helping future generations to maintain the vitality of their language, their culture and their identity. By amending Bill C-35 in clause 8, we are helping the government’s own commitment to official language communities like it said it would in the Bill C-13 debates.
I want to repeat three words from the 2016 report on early childhood development from Commissioner Graham Fraser: positive, preventive, proactive. That is the essence of Senator Cormier’s amendment: positive, preventive and proactive. Colleagues, we complain so often about the federal government’s reactive approach to issues. And in this case, they are reactive. Therefore, let’s be preventive and proactive with a positive amendment to Bill C-35 and ensuring long-term funding to official language minority communities.
I want to personally thank my colleague Senator Cormier for his tireless advocacy on behalf of Acadians and francophones across the country. Honourable senators, let’s send a strong message to all official language minority communities in this country by supporting this amendment.
Thank you, colleagues.
We heard this afternoon, on three occasions, the mention of interpretation of laws. I would like to add to this versus “legally binding wording.” There is an important nuance that has to be brought into this context. So I start out of my text, but going into my speech.
I rise to speak to the amendment moved by Senator Cormier at third reading of Bill C-35, An Act respecting early learning and child care in Canada.
The amendment seeks to explicitly include a guarantee of long-term funding for official language minority communities, or OLMCs, in clause 8 of Bill C-35. I thank Senator Cormier and his team for all their work on this matter. His office and mine have worked together on this. During my speech at second reading, I expressed concerns about the fact that a department could draft such a critical piece of legislation for the vitality and survival of OLMCs without even mentioning them.
My concerns grew during clause-by-clause study of the bill at the Standing Senate Committee on Social Affairs, Science and Technology. I observed that Employment and Social Development Canada officials showed a very poor understanding of the constitutional rights and guarantees of OLMCs, as well as a certain absence of curiosity and sensitivity towards these communities in terms of the realities they experience and the potential impact of this legislation on their vitality and growth.
In this speech, I will outline the risks associated with the fact that clause 8 lacks any such guarantee, as well as the impacts of the proposed amendment, while also taking into account the relevant jurisprudence. As part of my analysis, I will attempt to refute the government’s interpretation of the so-called potential problems that the amendment in question could create.
In my opinion, the interpretations put forward are erroneous and even worrisome. They could be of particular concern if the courts were to draw on the comments that certain officials made to the committee when analyzing the legislator’s intent regarding the interconnectedness between the rights of Indigenous peoples and those of official language minorities.
First, I will talk about the proven dangers of omitting official language minority communities. Why is this amendment so important? As I argued at second reading, access to child care services in the language of the minority is key to the implementation of section 23 of the Canadian Charter of Rights and Freedoms, which guarantees the right to minority language education.
The bill seeks to create a national early learning and child care system in order to make services accessible to all. Under current bilateral agreements, funds are spent specifically to guarantee services for the children of rights-holders and Indigenous peoples. The government and its officials have tried to reassure us by pointing out the terms of these agreements, but you will understand that the purpose of the study is Bill C-35, not the agreements.
In addition, as a francophone in a minority situation, I fully understand the legal hierarchy between a bilateral agreement and federal legislation. Accordingly, including OLMCs in these agreements does not reassure me in the long term. I’m also mindful of the fact that governments change while statutes endure, hence the importance of considering an amendment to clause 8, as suggested by Senator Cormier.
Moreover, when it comes to services funded as part of the exercise of the federal spending powers, we must expect services of equivalent quality to be offered to both francophones and anglophones in this country. It is also imperative that Indigenous peoples receive adequate funding, in keeping with the exercise of their rights under section 35 of the Constitution Act, 1982.
With regard to OLMCs in particular, the facts, as documented over many years of jurisprudence and by the stakeholders who were heard at the committee, highlight the systemic and structural barriers these communities face when it comes to having their constitutional rights to access education in their language recognized and exercising those rights.
This jurisprudence also points to a history of tensions between OLMCs and provincial governments when it comes to upholding the rights of these minorities. These tensions are fuelled by omissions similar to those currently found in clause 8, which have allowed provinces and territories to justify infringing on the rights of OLMCs across the country for years. It is time to change this dynamic and grant these communities the means to assert their rights before the courts.
The bill, in its initial form, provided no specific guarantees for OLMCs. Although three mentions were added at the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities in the other place, François Larocque, a professor, lawyer and language rights expert, and the Honourable Michel Bastarache, former Justice of the Supreme Court of Canada, both highlighted, in their testimony to the Social Affairs Committee, the persistent inconsistencies and risks associated with omitting official language minority communities from clause 8 of the bill.
Clarification enshrined directly in the act is critically important. It plays a decisive role in the courts’ analysis of the legislator’s intent, taking into account the intrinsic evidence.
Indeed, Canadian jurisprudence on language rights is clear in this regard. François Larocque, in his brief to the committee, refers to the decision in Caron v. Alberta, in which the Supreme Court of Canada refused to acknowledge the existence of language rights because of the absence of explicit guarantees in the relevant legislative and constitutional documents.
Colleagues, the legal risks inherent in this omission are real and substantiated by the facts and by the relevant jurisprudence on language rights. The absence of any explicit reference in clause 8 is therefore deeply concerning to official language minority communities. In my opinion, the committee should have taken the opportunity to clarify the legislator’s intent directly in the wording of the bill in order to minimize, as much as possible, any risk of causing harm to official language minority communities.
However, the government was unequivocally against any amendment and misled the committee in several aspects of its arguments.
New funding mechanism: Initially, the government claimed that the suggested amendment would establish a new funding mechanism for the official language minority communities. Respectfully, this interpretation of the proposed amendment is inaccurate.
Michelle Lattimore, Director General, Federal Secretariat on Early Learning and Child Care, Employment and Social Development Canada, stated:
. . . legally speaking, English and French linguistic minority communities do not have the same status or role in delivering ELCC programs and services and in building and maintaining this Canada-wide system as the provincial, territorial and Indigenous partners do. Adding a reference to that group, then, in clause 8 would create the expectation for dedicated and increased funding. . . .
While the official was correct in distinguishing roles in program delivery, the interpretation of the amendment is misleading. Nowhere in the amendment was there a suggestion to treat official language minority communities as a governing body entitled to direct funding from the federal government.
In response to a specific question posed by the bill’s sponsor at the Social Affairs Committee, Professor Larocque provided the following statement to assist the committee in their deliberations:
Clause 8, on the other hand, specifies that funding is passed on through agreements between the federal government, the provinces and the territories, and not directly to the communities, and that’s not what’s being asked for and reflected in the suggested amendments.
So it’s not a new mechanism that’s being proposed here, but quite simply, as my colleague suggests, taking into account the linguistic rights of official language minority communities in a firm long-term commitment.
Clause 8 currently reads:
The Government of Canada commits to maintaining long‑term funding for early learning and child care programs and services, including early learning and child care programs and services for Indigenous peoples. . . .
We can observe that the scope of the commitment in clause 8 extends to the Canada-wide early learning and child care system, while specifying a commitment for the long-term funding of programs and services for Indigenous peoples because of the word “including.” However, the inclusion or exclusion of official language minority communities from this commitment is unclear, and that is the problem. Following this, the clause states:
The funding must be provided primarily through agreements with the provincial governments, Indigenous governing bodies and other Indigenous entities that represent the interests of an Indigenous group and its members.
This enumeration establishes that funding must be granted through the appropriate mechanism. For official language minority communities, if they were to be included in clause 8, it would be done through the provinces. Official language minority communities do not have a nation-to-nation relationship with the federal government, unlike Indigenous governing bodies. Adding a reference to official language minority communities will not substantially change the law of the land, and it would be absurd to pretend that it will.
Adding an explicit reference to official language minority communities regarding guaranteed long-term funding by the federal government does not, in any way, diminish the protection and guarantees afforded to Indigenous peoples under this bill and under our Constitution, nor does it grant official language minority communities any rights that they don’t already possess. It provides them with a legal tool if the services in their languages are fewer and of lower quality than those provided to the majority of a given province.
The second argument brought forward by the government was regarding competing rights. Officials stated that the amendment could be detrimental to Indigenous languages. Cheri Reddin, Director General, Indigenous Early Learning and Child Care Secretariat, Employment and Social Development Canada, said the following:
I’ll highlight that we officials were following the testimony of Indigenous representatives here last week. As Senator Moodie highlighted, President Obed was quite vocal about the absence of Indigenous Languages Act references and suggested the exclusive references to official languages came at the detriment of Indigenous languages.
First and foremost, this statement would be inconsistent with clause 3 of the bill which explicitly guarantees the rights of Indigenous peoples. It states:
This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.
The statement of Natan Obed, the President of Inuit Tapiriit Kanatami, was distorted both in committee and at third reading of the bill. In committee, when I asked Mr. Obed for his thoughts on this potential amendment to clause 8, he answered the following:
I was not aware of the amendment that you reference, but very often official language status for French and English is a sledgehammer that allows for those two languages to dominate in our communities. The very history of Inuit participation in Canada through health care delivery, education and government is the dispossession of Inuktitut in the face of federal, provincial and territorial legislation that empowers English and French even in our Inuktitut-dominated communities.
In this context, Mr. Obed addressed official languages while committee members were led to believe that his statement related to the amendment, which specifically concerns official language minority communities rather than official languages. The use of “official languages” and “official language minority communities” interchangeably by government officials and the bill’s sponsor created confusion when informing senators about the amendment’s impact on Indigenous peoples. Let me elaborate on the distinction between these two concepts.
