Canada Early Learning and Child Care Bill
Third Reading--Debate
December 5, 2023
Honourable senators, I rise today to speak at third reading of Bill C-35, An Act respecting early learning and child care in Canada.
As senators will know, the federal government negotiated early learning and child care agreements with all provinces and territories for a period ending March 31, 2026. The objective of Bill C-35 is to set out the parameters of future early learning and child care agreements between the federal government and the various provincial and territorial governments by enshrining into law the funding and guiding principles for early learning and child care in Canada.
The Standing Senate Committee on Social Affairs, Science and Technology, of which I am a member, was tasked with studying this bill. We heard 12 hours of testimony from a variety of witnesses, including federal and provincial government officials, researchers and stakeholders, including the disability community, official language representatives and Indigenous leaders.
My remarks will focus on three questions that were raised during our study: One, the lack of a definition of “early learning and child care” in the legislation; two, the inconsistency regarding minority official languages in the legislation; and, three, the need for more data requirements in the legislation.
On the lack of a definition of “early learning and child care” in the bill, the committee questioned the Minister of Families, Children and Social Development of Canada, Jenna Sudds, on this submission. As it currently stands, Bill C-35 offers no indication of how the government defines “early learning and child care.” The government’s rationale was that this offered flexibility in their agreements specific to each province and that they preferred the option of not being prescriptive in their legislation.
However, many witnesses expressed concern that Bill C-35 does not have a clear definition of “early learning and child care.” There was no consensus on a definition, but most witnesses agreed on the elements needed. First, the definition should be reflective of UNESCO’s International Standard Classification of Education. Second, the definition should include “licensed and regulated,” which is already in the current agreements. And third, the definition should be inclusive to capture as much of the early learning and child care, or ELCC, landscape from coast to coast to coast.
Taya Whitehead from the Canadian Child Care Federation stated:
A carefully defined definition could play an important role in supporting and protecting the early learning and child‑care programs going forward.
Colleagues, I cannot suppose what definition of “early learning and child care” would be best in Bill C-35. However, given the testimony heard at the committee, I must agree with the experts: A definition of “early learning and child care” in the legislation would eliminate any ambiguity but could also offer the flexibility needed for all.
On the inconsistency in the legislation regarding minority official languages, during our clause-by-clause deliberations, our committee considered a series of amendments regarding official language minority communities. The Human Resources Committee in the other place agreed to amend clause 7 by adding a funding commitment for official languages. That amendment was just a statement that funding agreements must be guided by the commitments set out in the Official Languages Act.
François Larocque, a professor, researcher and lawyer working in the field of language rights, made the Social Affairs Committee aware of the need to also amend clause 8 of the bill. His proposed amendment would protect long-term funding for ELCC programs and services for official language minority communities across the country.
Colleagues, as a member of the English-speaking minority in Quebec, I understand first-hand the importance of the amendment to clause 8 in order to guarantee long-term funding. Since the inception of the Official Languages Act in Canada, official language minority communities have been stuck in a perpetual cycle of turning to the courts to affirm their rights. Official language minority communities need our help as legislators, both to ensure that the federal government will follow up on its commitments and obligations and to have an explicit reference in the legislation when making their case in court.
Professor Larocque told the Social Affairs Committee that:
. . . if clause 8 does not explicitly mention programs for official language minority communities, it is more than likely that a court would conclude that the government is not obliged to guarantee them long-term funding.
Despite this, the government did not include such a reference in clause 8, and we did not have an amendment at the Social Affairs Committee to insert one.
The Social Affairs Committee was also made aware of another inconsistency in the legislation. Clause 7(1)(c) of the bill explicitly refers to “. . . English and French linguistic minority communities . . . .” while clause 11(1) refers to “. . . official language minority communities . . . .” This inconsistency might have been corrected had the government been more welcoming of amendments.
On the need for more data requirements, witnesses who appeared before the Social Affairs Committee were clear — to implement a national social policy like early learning and child care in Canada, robust data is crucial. The committee heard how important data collection is to understanding the impact and effectiveness of these investments.
During our committee meeting of October 16, the minister confirmed that Statistics Canada recently launched a new survey that would provide insights in a few different areas. The minister also mentioned that reporting requirements already exist in the current agreements.
However, we also heard from witnesses concerned that the provinces were not reporting as expected. Professor Gordon Cleveland, Chair of the Data Indicators and Research Working Group of the National Advisory Council on Early Learning and Child Care, told us, “. . . the trouble is that the provinces and territories, in many cases — either haven’t been able to . . .” collect robust data:
. . . or it’s not high enough of a priority. They are not reporting in the way the agreements foresaw. They’re not providing information in as timely a way as we thought they would, and even when they do, there will be major problems of lack of comparability.
Martha Friendly, the founder and executive director of the Childcare Resource and Research Unit, or CRRU, told the committee:
CRRU has been collecting and making certain forms of data as comparable as possible among the provinces. . . . But that isn’t a data strategy.
She also told the committee, “We need a data strategy that ensures that we will be officially collecting certain kinds of data. . . .”
We also heard that a lack of data would make it harder for advocates for children from equity-deserving groups. Krista Carr from Inclusion Canada told the committee:
We have a really difficult time in the disability community to get accurate, up-to-date data particularly on the inclusion of children with disabilities, whether that’s in school or in early learning and child care.
It is critically important because otherwise when we try to make our policy arguments or our legislative arguments, whether that’s provincially, territorially or federally, everybody wants the data. . . .
The testimony heard from experts regarding the lack of data collection mechanisms in the bill confirms my concerns. How can we properly invest in a long-term early learning and child care system in Canada if we don’t have the data to guide future investments? It is inconceivable to undertake such an important endeavour without base data to guide subsequent agreements.
As a proud Québécoise, I understand the benefits of having affordable and accessible daycare for mothers and families. We have had a universal, government-funded program in Quebec for more than 25 years. The participation rate of mothers of children aged 3 to 5 rose from 67% in 1998 — at the launch of the program — to 82% in 2014. Furthermore, a 2018 Statistics Canada study confirmed the benefits for women in the labour force in Quebec:
Most of the recent increase in the female labour force participation rate in Quebec, relative to Ontario, occurred among women for whom pre-school child care or before- and after-school care is most relevant—i.e., those with young children. The labour force participation of Quebec women whose youngest child was under 13 also increased among those with less than a university degree, suggesting that the province’s family policies make it economically beneficial for those who would presumably earn lower wages to join and remain in the workforce.
Economist Pierre Fortin of l’Université du Québec à Montréal found that in 2008, universal access to low-fee child care allowed nearly 70,000 more mothers to hold jobs than if no such program had existed; that Quebec’s GDP was higher, by about $5 billion, as a result; and that the tax-transfer return that the federal and Quebec governments get from the program significantly exceeds its cost.
Colleagues, we can agree on the importance of having affordable and accessible quality daycare for all Canadians, but we need more clarity on the definition of “early learning and child care,” as well as better leadership for a national data collection strategy. Canadians need support to access affordable, quality daycare. We have a lack of space, with wait lists across the country, and a need for more qualified ELCC educators. Federal investments will hopefully help Canadian families. But without proper data, it will be difficult to evaluate the impact of the investment and to adapt future agreements to the challenges faced by Canadians.
Thank you.
Senator Moodie, do you have a question?
Senator Seidman, I just wanted to ask a question about the definition point you raised. I know that in committee, one of the key groups that raised this question was the Canadian Child Care Federation. Recently, in the last three or four days, we all received a letter from 20 key stakeholders in this area, one of which was the Canadian Child Care Federation. In that letter, they retracted any request for a change in definition.
What would you say now about your concern that these stakeholders were forceful then, but are now retracting?
As I said in the latter part of my speech, as a proud Québécoise, I understand the benefits of having affordable and accessible daycare. I truly do. I have seen it in my own province. So, yes, I understand the urgency that stakeholders across the country feel.
Will Senator Seidman take another question?
Of course.
Senator Seidman, your advocacy for evidence is consistent in every piece of legislation we study, and I think it’s really important and I commend you for it.
This legislation has a data strategy, but has no means — no levers — of actually realizing it because it’s in the hands of the provincial governments. Are we then left to conclude that we will swim in a sea that is uncharted or do we have any instruments that we can use to get the data from the provinces in a consistent, standardized manner? Or am I asking the eternal Canadian question here?
That’s the eternal Canadian question. Jurisdictional issues: We saw it in health care, and we see it all the time in the Standing Senate Committee on Social Affairs, Science and Technology, especially. We do a lot of health care‑related pieces of legislation, social policy pieces of legislation, and, indubitably, we end up in a jurisdictional quagmire.
There have been numerous times I’ve stood up in this chamber and asked for data during COVID, and we had real serious problems getting coherent, consistent data from the provinces because they don’t collect the same type of data, and, in fact, they see it as a principle not to reveal all the data they collect.
It’s very challenging, I agree. I think I’m out of time.
Honourable senators, I rise today at third reading stage of Bill C-35, An Act respecting early learning and child care in Canada.
I want to acknowledge that the land on which I am speaking to you today is part of the traditional unceded territory of the Anishinaabe Algonquin nation.
I thank the bill’s sponsor, Senator Moodie, and my colleagues on the Standing Senate Committee on Social Affairs, Science and Technology for their very careful study of this bill.
In short, Bill C-35 seeks to enshrine in a legislative framework the government’s financial commitment to early learning and child care systems in Canada.
It is important to mention, honourable senators, that the initial version of the bill at first reading in the other place did not provide any assurances that official language minority communities would be taken into account. As a result, during clause-by-clause consideration, some additions were made to the guiding principles set out in clause 7 and to the national advisory council on early learning and child care set out in clause 11.
I also want to point out that, when the bill was studied in the other place, clause 8 was not carefully examined in order to make sure that it was consistent with the additions regarding official language minority communities, or OLMCs. Let’s not forget that clause 8 is at the heart of this bill and that it codifies the federal government’s long-term funding commitment.
In light of the foregoing, the Social Affairs Committee’s study of the bill in its present form revealed some serious problems with the terminology used and the lack of consistency and accuracy with respect to official language minority communities.
Colleagues, as mentioned by Senator Seidman, there is an inconsistency in the bill’s terminology. Paragraph 7(1)(c) refers to “. . . English and French linguistic minority communities . . .” whereas subclause 11(1) refers to “. . . official language minority communities . . . .”
Second, organizations and experts from official language minority communities expressed serious concerns during the committee study about the federal government’s lack of long‑term financial commitment to official language minority communities in clause 8.
Moreover, witnesses before the committee demonstrated a clear causal link between the implementation of the financial commitment in clause 8 and the vitality of daycare centres in minority language communities. Allow me to reiterate the situation of the French fact in Canada and describe the reality of daycare centres in a minority language context.
As you may know, colleagues, it was acknowledged many times during the study of Bill C-13, which modernized the Official Languages Act, that French is in decline in Canada. This is an undisputable fact — an inescapable reality that we must consider in all our work as legislators.
You will not be surprised to hear that learning the minority language — French outside Quebec and English inside Quebec — from an early age is crucial to maintaining our two official languages and ensuring the vitality of official language minority communities.
It is clear that a young person born into a family where French is the first language spoken and who subsequently attends a French-language daycare centre is much more likely to pursue his or her primary, secondary and post-secondary education in French. However, colleagues, this young person still needs to have access to French-speaking daycare facilities.
Need I add that it’s been proven that learning and developing high-quality French in the preschool years has a direct impact on the future academic abilities of young people who pursue their studies in francophone schools?
Although imperfect, current federal legislation provides tools to protect the continuity and quality of educational services offered to linguistic minorities to ensure their development and vitality, known as “the continuum.”
As Senator Moncion reminded us in her second reading speech, section 23 of the Canadian Charter of Rights and Freedoms provides for the right to minority language education, and access to minority language daycares is essential in implementing this Charter right.
Moreover, as per the Official Languages Act:
The Government of Canada is committed to advancing formal, non-formal and informal opportunities for members of English and French linguistic minority communities to pursue quality learning in their own language throughout their lives, including from early childhood to post-secondary education.
Given the reality experienced by official language minority communities, the danger of compromising access to minority language daycares and the existing legislative framework that recognizes this reality by establishing rights to minority language education and government commitments, we could have hoped for a clear and robust bill to reflect all of this. However, with all due respect, this is not the case with Bill C-35.
In Bill C-35, clause 7 lays out the guiding principles for federal investment in the establishment and maintenance of a Canada-wide early learning and child care system.
Clause 8 sets out a binding funding commitment and, as such, it is the very heart of Bill C-35. In other words, it’s the key to creating the education continuum for official language minority communities. That’s why I urge everyone to recognize the importance of this at third reading.
The first sentence of clause 8 currently reads as follows:
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.
The second sentence of this clause states the following:
The funding must be provided primarily through agreements with the provincial governments, Indigenous governing bodies and other Indigenous entities . . . .
The wording of the clause appears to set out two specific objectives. It points to the federal government’s long-term funding commitment and the mechanism by which the funding is to be provided.
Considering how important it is to provide good support for the education continuum, it goes without saying that implementing clause 8 will have a significant impact on the vitality of OLMCs. Former Supreme Court of Canada Justice Michel Bastarache, a leading expert on language rights, stated in a message sent to the Social Affairs Committee, and I quote:
In clause 8, it seems to me that the intention is to guarantee ongoing funding for groups facing assimilation, Indigenous peoples and francophones outside Quebec.
However, colleagues, there is absolutely nothing in clause 8 on the federal government’s commitment to official language minority communities.
In committee, we heard that clause 8, in its current form, could give the impression to a judge hearing a case that its silence with respect to official language minority communities is a deliberate and intentional choice by the legislator. In other words, the legislator implicitly wanted to exclude official language minority communities from the scope of clause 8 since they were explicitly included elsewhere in the bill; namely, in clause 7.
This principle of implicit exclusion is supported by work conducted by the distinguished Professor Ruth Sullivan. In short, we have heard that the principles of statutory interpretation, as well as the Supreme Court of Canada’s jurisprudence on language rights — notably in Caron v. Alberta — suggest that the current legislation must be clear and explicit if official language minority communities’ rights are to be duly respected.
Colleagues, in the past, ambiguities in legislation have created a great deal of harm for official language minority communities, which too often have had the burden of defending their rights in court. A clause 8 that explicitly states the federal government’s commitment to official language minority communities would essentially prevent official language minority community organizations from being burdened by potential litigation to have their rights recognized.
I would like to thank Senator Moodie for stating, on the record, that clause 8 implicitly includes a funding guarantee for official language minority daycare centres, but that statement is not legally binding.
During clause-by-clause consideration of the bill in committee, I introduced an amendment to add the term “official language minority community” to the first sentence of clause 8, after the words “for Indigenous peoples.” The purpose of the amendment was to correct the absence of any explicit mention OLMCs, thereby clarifying the legislator’s intent to require the federal government to commit to maintaining long-term funding for these linguistic communities. Unfortunately, that amendment was defeated in committee.
I want to reiterate that such an addition would not have created a new negotiating mechanism requiring the federal government to negotiate directly with official language minority communities. This interpretation is based on expert testimony heard by the committee.
According to Professor François Larocque, legal counsel with Power Law, and I quote:
Section 8 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.
In order to clearly specify that intention to not create a new funding mechanism with OLMCs, my amendment divided clause 8 into two separate paragraphs.
Colleagues, as we heard in committee, there is consensus among both the English-speaking communities in Quebec and the French-speaking communities outside Quebec on the essential nature of the rejected amendment to clause 8. They all agree that there is a lack of clarity in clause 8 and that the federal government’s commitment to official language minority communities must be specified.
The Commissioner of Official Languages of Canada, an independent officer of Parliament, says that if OLMCs do not receive adequate funding as part of the early learning and child care plan, the capacity of the early childhood sector in official language minority communities will continue to be compromised. He is also of the opinion that clause 8 needs to be amended to explicitly include OLMCs.
Clearly, the government does not share our concerns over the potential impact of omitting an explicit reference to OLMCs in clause 8, even though it claims to be the champion of official languages, especially in the context of modernizing the Official Languages Act.
During clause-by-clause consideration of the bill in committee, we heard government representatives make bold statements about the merits of my amendment sought in section 8. I will clarify.
Those government officials said that explicitly including provinces and Indigenous peoples in clause 8 is a deliberate choice because they are responsible for designing and delivering child care programs and services. In other words, according to them, clause 8 would cover only the financial mechanism by which the federal government gives funding to the partners who are responsible for the design and delivery of child care programs and services.
However, again according to the government officials who spoke in committee, including OLMCs in clause 8 would create an expectation of increased funding, exclude federal support for other groups that are systematically marginalized and raise questions about support for Indigenous languages. Colleagues, with all due respect, this reasoning seems very inconsistent.
In its comments, the government implicitly concedes that the scope of clause 8 is much broader than the simple codification of a negotiation mechanism with some key partners. In fact, the government concedes that this clause will have financial repercussions on many minority and Indigenous groups in Canada.
Allow me to clarify this: Nothing in the wording of the amendment rejected in committee would have created an expectation of increased funding for official language minority communities or recognized that these linguistic communities have the same status as the provinces and Indigenous peoples in the design and delivery of child care programs and services.
Therefore, for the foregoing reasons and considering the role of the Senate of Canada as a legislative body complementary to the House of Commons, which must exercise a sober second thought so that no minority community is left behind, I will hereby table an amendment that adds the words “official language minority communities” to the first sentence of clause 8 after “for Indigenous peoples” and splits clause 8 into two subclauses. The first subclause sets out the government’s financial commitment. The second subclause lays out the mechanisms via which the federal government will provide the funding.
