LANG Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Official Languages

EVIDENCE

CONTENTS

Wednesday, September 17, 2003

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1540

The Chair Mr. Mauril Bélanger (Ottawa-Vanier, Lib)

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1605

Mr. André Braën (Law Professor, University of Ottawa)

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1610

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1615

The Chair

Mr. Benoît Sauvageau (Repentigny, BQ)

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1620

The Chair

Mr. Benoît Sauvageau

Mr. André Braën

Mr. Benoît Sauvageau

Mr. André Braën

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1625

Mr. Benoît Sauvageau

Mr. André Braën

Mr. Benoît Sauvageau

Mr. André Braën

The Chair

Ms. Yolande Thibeault (Saint-Lambert, Lib.)

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1630

Mr. André Braën

Ms. Yolande Thibeault

The Chair

Mr. Eugène Bellemare (Ottawa—Orléans, Lib.)

Mr. André Braën

Mr. Eugène Bellemare

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1635

Mr. André Braën

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1640

Mr. Eugène Bellemare

The Chair

Mr. Yvon Godin (Acadie—Bathurst, NDP)

Mr. André Braën

Mr. Yvon Godin

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1645

Mr. André Braën

Mr. Yvon Godin

Mr. André Braën

Mr. Yvon Godin

Mr. André Braën

The Chair

Mr. André Braën

Mr. Yvon Godin

Mr. André Braën

The Chair

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1650

Mr. André Braën

The Chair

Mr. André Braën

The Chair

Mr. André Braën

The Chair

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1655

Mr. André Braën

The Chair

Mr. André Braën

The Chair

Mr. André Braën

The Chair

Mr. André Braën

The Chair

Mr. Benoît Sauvageau

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1700

Mr. André Braën

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1705

The Chair

Mr. Benoît Sauvageau

The Chair

Mr. André Braën

The Chair

Mr. André Braën

The Chair

Mr. André Braën

The Chair

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CANADA

Standing Committee on Official Languages

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NUMBER 031

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Wednesday, September 17, 2003

[Recorded by Electronic Apparatus]

¹  (1540)  

[Translation]

    The Chair Mr. Mauril Bélanger (Ottawa-Vanier, Lib) : We have the quorum to hear witnesses. So, since our only witness today, Professor Braën, has arrived, we will begin our proceedings, which, once again, will be televised. For the information of people watching, we will continue our work on the reference from the House of Commons to this committee on the subject matter of Bill C-202, which concerned access to health services for the official language minorities of Canada.

    As a committee, we developed a work plan in which we explored two main axes. One was the creation of an aid program for the provinces, somewhat as is done in education, with cash transfers. The other axis was to go and explore, to try to understand the legal bases that could guarantee access to health services in French for the Francophone communities living in provinces other than Quebec and for the Anglophone community living in Quebec. We are focusing on this second axis today with Professor Braën, who is an expert in the field and who previously visited the committee when it was a joint committee.

    We welcome you once again, Professor, and we will allow you whatever time you wish, within reason, to make your presentation. There will then be an exchange with committee members, who will speak in turn until there are no more questions or until the bells ring to call us to vote. So the floor is yours.

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    Mr. André Braën (Law Professor, University of Ottawa): Thank you, Mr. Chairman.

    First I would like to thank the members of this committee for their invitation. Please understand that it is a privilege for me to speak to you. And, since I'm aware of the time constraint, I'm going to limit myself to brief remarks of some 10 minutes, and then I will answer your questions, if there are any, hoping that not too many bells ring in the meantime.

    With respect to the subject you have raised, the legal or constitutional basis for the provision of health services in Canada, I was asked by the Commission on the Future of Health Care in Canada, the Romanow Commission, to prepare a study on the constitutional basis of the distribution of powers respecting health services in Canada. I had had the opportunity to very briefly analyze the constitutional enactment and relevant case law and to check which of the legislatures, the Parliament of Canada or the legislature of a province, could intervene in the well-defined field of the provision of health services, either access to the hospital system or access to medical care as such.

    I had come to the conclusion, based on an historical analysis of the case law and constitutional enactments, that it is the provinces which have primary authorization to intervene in the field of health care. Why? Because historically, in 1867, the entire health field was perceived as a private matter, not one in which the state should intervene. So it should not be surprising that the legislative authority of the provinces was very soon attached to a jurisdiction outlined in subsection 92(7) of the Constitution Act, 1867, that is to say the establishment of hospitals and health institutions, but also to subsection 92(13), respecting property and civil rights, and also to subsection 92(16), matters of a merely local or private nature. Thus it was mainly as a result of these jurisdictions that the provinces were very soon recognized as having primary authority to intervene in the health field.

    Subsequently, starting in the period between the two wars or after the Second World War, when people began talking about a hospital insurance system, to the extent people referred to insurance as such, hospital insurance, drug insurance, medical insurance and so on, they were referring to a subject that comes under property and civil rights, thus a provincial jurisdiction. However, that doesn't mean that the Parliament of Canada cannot intervene in the health field. On the contrary, as you know perfectly well, it does so to a huge extent. It intervenes in the health field particularly through its criminal law jurisdiction, which enables it to intervene in public health matters. It also does so through other jurisdictions, extraprovincial trade, patents, trademarks, marine hospitals and so on. So those are jurisdictions specifically designated in section 91 of the Constitution Act, 1867.

    But the Parliament of Canada mainly intervenes in the field of health services delivery in the current legal context through its spending power. As you know, as an income owner, the Government of Canada can spend its income as it sees fit and can obviously set conditions for the granting and spending of its public funds.

º  (1610)  

    In the health field, it has done this by passing the Canada Health Act, which, among other things, defines the framework governing federal government subsidies to the provinces in the public health field. As you are aware, those transfers are conditional on the provinces' compliance with certain so-called national standards. Can the Parliament of Canada thus impose so-called national standards by exercising its spending power? The question has not, strictly speaking, been disputed before the courts. One will readily understand why the provinces have never disputed the federal government's spending power in this field or the subsidies that result therefrom.

    A careful reading of the case law that might apply in our field suggests that it is legally acceptable for the Parliament and Government of Canada to be able to make these transfers and subsidies conditional on the satisfaction of certain conditions, to the extent that those conditions are not considered as constituting indirect regulation of matters that would normally come under the primary jurisdiction of the Parliament of Canada. I repeat: the standards contained in Canadian legislation have not, at least to my knowledge, been disputed in the courts.

    Furthermore, when the federal government defines national standards in this manner and sets them as conditions for the granting of subsidies, that places extremely heavy pressure on the provinces. A province finds it very difficult to waive those subsidies and not to accept the conditions. If the province refuses to accept the federal conditions in the field, what does that mean? It means that it will not receive the subsidies; it means that its population will be subsidizing services accessible elsewhere in Canada, but not available within that province's own borders. There is thus very, very great pressure on the provinces to accept federal conditions. The Parliament of Canada thus has an enormous power to act using its spending power, if it has the money, of course.

    The debate can obviously shift if we are in a context of budget cuts. There will be strong pressure from the federal government. That being the case, the provinces will put forward their own systems. They are not generally required by the Constitution of Canada to offer care in the language of their official language minority. Some may have passed legislation guaranteeing their official language minority that health services will be provided in their language. Could the Parliament or Government of Canada intervene in this field? Part VII of the Official Languages Act, which concerns the advancement of English and French, provides as follows in section 43:

43.(1) The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to advance the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to:

(a) enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development;

(d) encourage and assist provincial governments to support the development of English and French linguistic minority communities generally and, in particular, to offer provincial and municipal services in both English and French...

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    To the extent that there is thus a commitment made here by the Parliament of Canada such that the government promotes, if you will, the development of official language minorities across the country and, among other things, supports the provincial governments so that they provide services in the minority language, the Canadian government, again for the purpose of implementing that commitment, could then intervene with respect to the language in which health services are delivered in the country.

    What should be noted is that Part VII, and particularly the provisions I've just read, that is to say paragraphs 43(1)(a) and (d), is, strictly speaking, also an expression of the federal government's spending power, although the federal government is obviously not empowered to legislate in the field of municipal services, but to the extent that it can spend money in that field, it can very definitely set certain conditions. The same process or reasoning will apply with regard to the delivery of health services.

    This is a very important question for official language minorities, particularly for Francophone communities outside Quebec. As you know, there are enormous deficiencies in that area. Transfers are already being made under federal-provincial arrangements for, among other things, the question of minority language education and instruction in English and French as second languages. Canadian government intervention that would improve what exists--there really isn't much in a number of provinces--in the field of health services delivery in the official language minority language would definitely be a welcome thing.

    In short, and I will close on this, in legal terms, there is very definitely a basis in the constitutional enactments for federal intervention in this field managed on a priority basis by the provinces.

    Thank you.

    The Chair: Thank you very much, Professor Braën.

    Mr. Sauvageau, you have roughly 10 minutes.

    Mr. Benoît Sauvageau (Repentigny, BQ): Professor Braën, I'm not insensitive to your interesting presentation. However, if one listens to you carefully, under the Official Languages Act and thanks to its enormous surpluses, which attest to a fiscal imbalance, the federal government could use its spending power both to manage and to spend in the hospitals, both to manage and spend in the municipalities, which would already constitute more significant direct intervention than is the case today, whereas that is already unacceptable for certain provinces right now.

    It seems to me there's already a bit of a problem, but you seem to be saying, if I understand you correctly, that according to the constitutional basis, according to the Official Languages Act, while the federal government has not even stated whether it considers Part VII declaratory or binding, it would be unusual for a government that does not perform all its duties or everything it has to do in its own areas of jurisdiction to impose or make its transfers to the provinces conditional on their implementing in a declaratory manner an act which it considers binding.

    I'm not a constitutional expert, but it seems to me, first of all, that there's at least something not quite normal. The federal government, as we speak, considers Part VII of the Official Languages Act as binding.

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    The Chair: Declaratory. It's the reverse.

    Mr. Benoît Sauvageau: Declaratory. I'm sorry. Thank you for correcting my comment on that point.

    Second, if those transfers were made conditional, it seems to me two provinces would not have too many problems receiving money from the federal government. I'm thinking of Quebec, under its Bill 142 on health, and I'm thinking about New Brunswick, through its Official Languages Act.

    But I'm trying to imagine a government of Saskatchewan or British Columbia--where the Francophone communities don't have the best press there is--or a health minister from Saskatchewan or Manitoba telling his citizens that they'll be deprived of a certain amount of money in health because the federal government requires him to comply with the Official Languages Act. So the entire population, Anglophone and Francophone, would have less money and fewer health services for that reason. It seems to me the Francophone community would be in a delicate situation, having been taken hostage in that way in each of the provinces.

    Do you share my view?

    Mr. André Braën: Not really, and I'm going to explain why.

    First, with respect to Part VII of the Official Languages Act, you're quite correct: we don't know whether that part is binding or declaratory. I believe there's confusion on that point; there are all kinds of legal opinions. But that's not what I'm emphasizing. All I'm saying is that Part VII refers to a commitment that was made to promote the development of official language minorities, and one of the ways of doing so is to help the provinces which provide services to their official language minorities to do so. That's all I'm saying; and I'm saying that this part is an expression of the Canadian government's spending power.

    Mr. Benoît Sauvageau: Allow me to interrupt and ask you a question so that we understand each other. So you're saying that, if the federal government transfers x million dollars to a province in the fields of social and health services, there are no conditions for it to receive more. However, if a province says that it needs x million dollars more to contribute to service for Francophone communities, the federal government should give it that money. So these aren't conditions on a social transfer, but an additional desire to assist the provinces that want to do more. Is that what you're saying?

    Mr. André Braën: It should be clearly noted that federal transfers to the provinces for health care are currently conditional. There are at least five conditions, such as accessibility, universality and so on, which are set, and recipients of federal funds have agreed to those conditions. All right? So the question that arises is this: can the provinces be asked, under another arrangement, to consider putting health services in place? As you said, the problem doesn't necessarily arise in Quebec, although, in remote regions, the Anglophone population may have trouble gaining access to medical services in its language, but, in general, this is mainly a problem that concerns the Francophone communities outside Quebec. So why couldn't the Canadian government provide certain sums that would promote the establishment of medical services in French, and make that a condition? I think it can do so and I don't see how that would be harmful.

    You're correct in saying that, with respect to the provinces, one would have to go before the public and say that we had $100 million to do such and such a thing, but that we no longer have $100 million, but only $90 million, because $10 million must be allocated to Francophone affairs. There's a kind of petty aspect to language relations in this country, in that, when something is given to a minority, the impression is that the majority suffers as a result. I don't share that view. I don't think that giving something to a minority takes anything away from the majority. It simply improves the social context.

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    Mr. Benoît Sauvageau: I don't think we're far from agreeing with each other. Where something is being taken away is where, if I had $100 million and I now have $90 million, someone has nevertheless taken away $10 million. But where I believe we can agree is that, if the federal government transfers $100 million--I'm using your figure again--but the province sets up a program to provide more assistance to Francophone communities, it will keep the $100 million it obtained and, under Part VII, section 43, the federal government will increase the amount offered to that province which displays an additional commitment. But if that province does not show commitment, the population is not penalized in the area of health care. In other words, the status quo remains with respect to health transfers, but a benefit is offered to provinces that want to do more for Francophone communities.

    Mr. André Braën: I disagree with you on that because a part of the population suffers from the provinces' inaction and from the status quo, and that's the official language minority, the Francophone community, to be specific. It currently has no access to health services in its language. I believe these are significant deficiencies and that the status quo merely perpetuates this inequality. So I disagree with you to the extent that I think part of the population is losing.

    Mr. Benoît Sauvageau: And what if the provincial government was told that it could no longer say it couldn't afford to provide services? When you're a minister, it's easy to say you can't afford it. We'll tell them we don't doubt it, but that there's a closed envelope for health and an additional envelope, and that, if they want to commit to providing services, they'll have an additional envelope. In that way, it seems to me the Francophone community won't be penalized and the budget of that province's health minister won't be undermined. In other words, it's going to cost the federal government more, but sometimes you have to take concrete action.

    Mr. André Braën: Sometimes you have to insist or encourage or provide strong support for what the provinces do in this field in view, among other things, of the nature of Canadian Francophonie. I don't think the provinces intervene on their own initiative, especially in language matters. It's not a very sexy or hot subject these days; in fact, it never has been. It's a subject that's divided. So, to the extent that the Parliament or Government of Canada establishes guidelines in the official languages field and wants to orient its action or is prepared to encourage provincial authorities to intervene in the field, I don't see why it would...

    The Canadian government's linguistic objectives are quite different from those pursued by a province such as Saskatchewan, for example.

    The Chair: Thank you, Mr. Sauvageau. We'll come back.

    Ms. Thibeault.

    Ms. Yolande Thibeault (Saint-Lambert, Lib.): Thank you, Mr. Chairman.

    To take the argument a little further, let's suppose that the federal government tells province x that it's granting it an additional amount on the condition that that amount be allocated to its official language minority.

    How do you think the government can ensure that the amounts will be spent for that purpose? This situation doesn't just arise in this field. As you know, the federal government always wants a report card, but, in fact, that's not the way things work.

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    Mr. André Braën: The problem has been around for a long time with regard to federal transfers in education, more particularly in second language instruction. I believe officials wondered for a long time, and I don't know whether that's still the case today, whether the $100 million or so that the government paid to the provinces, for French language instruction among other things, was in fact spent for that purpose.

    I know that federal authorities were aware of it, but I have no idea what steps were taken to look into the matter. The same problem would definitely arise with regard to the health care we're concerned with here.

    Ms. Yolande Thibeault: That's fine for the moment. I'll come back.

    The Chair: Mr. Bellemare.

    Mr. Eugène Bellemare (Ottawa—Orléans, Lib.): Thank you, Mr. Chairman.

    Earlier you spoke of national standards which have never been disputed. Could they be disputed? Let's suppose, for one reason or another, that, without being unpleasant toward Alberta, a province wants to dispute them.

    Mr. André Braën: The federal government's spending power is limited. According to the courts, when the Parliament of Canada passes an act to exercise its spending power and sets conditions in this manner, it can't alter the nature of its act, that is to say, for example, that the Canada Health Act must not become an act that institutes a hospital services delivery system in the provinces. The conditions must be general. In addition, the exercise of that power must not constitute indirect regulation of a matter that normally falls within provincial jurisdiction. Those are the limitations that have been laid down by the courts.

    Are the conditions set out in the Canada Health Act consistent with those case law limitations?

    There have been no case law tests as such. As you know, even if the provinces complain that they do not receive enough, will they dispute the federal government's power and say no to $800 million a year? Between you and me, that could hurt the provinces' budgets. It's partly for that reason that there have been no court challenges of federal government intervention in this field. I'm not saying that it's constitutional. A court might find that national standards or the conditions set out by the Federal Act constitute indirect regulation of a matter under provincial jurisdiction. What I'm saying is that, strictly speaking, this has not been disputed.

    Furthermore, the case law suggests that, when the federal government sets conditions for grants, that's not necessarily a bad thing. Pressure is of course put on the provinces, but it is considered that the province remains free to accept or reject. Of course, that's the theory. Are you going to say no to $800 million? Are you going to say no to services that your population moreover subsidizes and that will be delivered in the other provinces? No.

    The system at the present time is a hybrid, as you can see, and an accountability problem arises. We don't really know who is responsible for what in the health system. But one thing is certain: in the present state of the case law and of the constitutional enactments, I believe there is room for both orders of government in the health field and, in particular, in the field of health services delivery in the minority language.

    Mr. Eugène Bellemare: My second question concerns transfer payments, Mr. Chairman.

    Cash transfers to the provinces are still a problem. You mentioned it a number of times, and my colleague Sauvageau has referred to it as well. It's a shell game, which means that they can play with the money they receive.

    Rather than subsidize the provinces for services in French, can other avenues be considered? Could funds be given to students, to an Anglophone, for example, who would like to leave Toronto and go to Trois-Rivières or Gaspé? There he'd be living in French immersion. Of course, he would need a minimum knowledge of French. If his internship were entirely paid for by the federal government, neither the province nor anyone else would pay. The hospital would not pay a cent. That would encourage students because all their expenses would be paid. That's one example, the idea being to encourage students. I referred to an Anglophone who would go to a French area; it would be the same thing for a Francophone who went to Calgary. If he went to Calgary to learn English, that experience would enhance the image of both languages.

    We could also help all those who take courses in French and in English. For example, if a student from McGill took half her courses in English and half her courses in French, she would receive a bonus. The same would be true in Toronto or Ottawa.

    These two examples may be crazy or good, but the idea is to start with students.

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    Mr. André Braën: Even if the federal government uses its spending power for good purposes, in a federation such as Canada, this subject creates considerable tension between the provinces and the central government. You referred to scholarships for students; however, the present government entered that field and was criticized, particularly by one province, Quebec. The fact remains that the federal government has taken initiatives in this area.

    Obviously, with regard to students, initiatives that promote contact and meetings can only be beneficial. However, in the short term, I believe this is absolutely not a solution. It must be understood that the health system for Francophones outside Quebec, with the exception of New Brunswick, perhaps, and even there--I lived in Moncton for three years--has very serious deficiencies. In a number of provinces, that network as such is non-existent.

    To the extent that a principle such as Canadian duality is advanced and health care is a primary concern for the public, certain questions that arise should be answered quickly.

    I feel the student initiative is too limited. One of the problems facing the Faculty of Medicine at McGill University is that 60 percent of graduates don't speak French and leave Quebec to go and practise elsewhere. So the situation is that the province is financing the education of doctors who ultimately go away and work abroad.

    People in the provinces must really be less hostile and thus more friendly when it comes to the language of the official language minority. People in those provinces must become aware of the need to establish such basic services as health care for the official language minority. I think we need much more than student exchanges, even though, as I've already mentioned, that's a promising initiative, but over the long term.

    I believe the present situation requires quick answers. Not long ago here in Ontario, efforts made to prevent the closing of Montfort, which was imminent at that time, took two years to produce results. But that was a crucial initiative. People had to react very quickly. It was a legal challenge, much more than the Parliament of Canada, that saved Montfort in the first place.

    I think drastic measures are necessary.

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    Mr. Eugène Bellemare: Thank you.

    The Chair: Mr. Godin, do you want me to go ahead of you or would you prefer to speak right away?

    Mr. Yvon Godin (Acadie—Bathurst, NDP): Thank you, Mr. Chairman.

    Earlier you referred to New Brunswick. I don't think you wanted to suggest to us that New Brunswick doesn't have an even greater responsibility under the Official Languages Act, particularly in health, since it is the only bilingual province in Canada.

    Yesterday, Professor Foucher said that a hospital should translate its reports for the minorities, and not just for Francophones. Francophones who have been served in French have asked to see their reports in their own language so that they could understand them. The hospital said that it was not required to do so because hospital employees were entitled to work in the language of their choice. They sometimes use this kind of excuse in order to avoid providing a service to citizens. I believe workers have the right to work in the language of their choice, but that the hospitals have a responsibility to provide clients who so request with communications or documents in the language of their choice. I would like some clarification on this subject.

    Mr. André Braën: Yes. You're right to raise that point because New Brunswick is a special case. As you know, since 1982 in particular, subsection 20(2) of the Canadian Charter of Rights and Freedoms has stated that the services of the government of New Brunswick are provided in the official language selected by the client. There is thus an obligation in New Brunswick which does not exist in the other provinces, even if a province may have certain constraints in the field under its own legislation, such as Bill 8, the French Language Services Act, here in Ontario. So there is a constitutional obligation, although we don't know the exact nature and scope. Does it include, for example, the language in which internal minutes are written, and so on? As you just noted, these are questions that remain to be clarified. But for the layman, what interests him is access to health services in his own language.

    I remember that, when I was in Moncton, I did a study for a New Brunswick Francophone organization, on the health services question in particular. Based on surveys and so on, we had concluded that there were very significant deficiencies for the Acadian population. There were no problems in the Acadian centres. The minority usually adapts linguistically, isn't that so? So even if you're at the Hôpital Dr-Georges-L.-Dumont in Moncton, an Anglophone can receive care without any problem because the Francophone doctor and nurse will speak to him in English; they're bilingual. But the reverse isn't true. If you go to the Anglophone hospital in Moncton, it's not at all the same thing. There's no adaptation, if you will, on the part of the members of the majority toward those of the minority. That was in 1981. Has there been an improvement? It's now nearly 2004, and I'm convinced that the answer is yes. To what extent? I don't know exactly. Are there deficiencies today? I'm persuaded there are, but New Brunswick's special status, two official languages and the equality of the Acadian and Anglophone communities definitely mean that the issue of health services delivery is somewhat different in that province.

    Mr. Yvon Godin: Mr. Chairman, when I spoke earlier about documents in the language of one's choice, I wasn't just referring to internal documents circulating solely in the hospital. But, for example, if a patient is entitled to receive documents, it's almost like for a traffic violation. The documents that the police will circulate in their office don't really concern the citizen in that he has nothing to do with the document, but, from the moment he is entitled to a document, such as a contravention, the document must be in the language of his choice. It's not just a question of words; everything that is presented to the person must also be in writing, as in the example I gave involving that Anglophone who could not get documents in his language. I believe that would violate the Act.

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    Mr. André Braën: Are you talking about a case involving health or a contravention?

    Mr. Yvon Godin: No. When I refer to contraventions, I'm referring to the Official Languages Act.

    Mr. André Braën: All right. There's a problem with the RCMP, as you know, in New Brunswick: language of work, language of contravention and so on. But there can indeed be this problem to the extent that, in New Brunswick, I'm entitled to use French or English as my language of work in a hospital institution. There may be some difficulty in that the patient may want to be served in one language and expect to receive documentation in his language.

    Mr. Yvon Godin: That's an issue that may be debated one day. I still think the client is right. And then working in the language of one's choice is internal. Otherwise the Official Languages Act is invalid. For example, if someone decides to work in the language of his choice and doesn't feel required to provide the service in the client's language, that would be an issue.

    Mr. André Braën: Yes, but simply by analogy, you know that, in constitutional terms, the Supreme Court has previously held that the right to a hearing in English or in French before a court of law, as established by the Parliament of Canada or the National Assembly of Quebec, does not entitle us to be understood or to have a judge who understands our language or the judgment in our language? Do you see? So...

    The Chair: But didn't the Beaulac decision change that?

    Mr. André Braën: That's something else. The Beaulac decision concerns the Criminal Code provisions respecting trials in French. That indeed changes matters because, in Beaulac, the Supreme Court set aside the interpretation that had been used in the case I just cited to you for the right to use English or French before a court. That was in fact set aside in Beaulac, in 1998.

    Mr. Yvon Godin: That was just a clarification. There are already official languages statutes under the Constitution; questions are already being asked about the New Brunswick legislation, so imagine Canada's... In situations where it grants funds which are transferred to the provinces, regardless of which one, the federal government should at least ensure that the services are offered in both official languages. My question may not be timely, but the Romanow report nevertheless stated that, if it had the will to do so, the federal government could contribute much to respect for the two official languages in Canada.

    Mr. André Braën: I'm convinced of it. In the study I conducted for the Romanow Commission, I cited Part VII of the Official Languages Act. For Francophones outside Quebec, access to medical care in French is very important, all the more so since the population is aging. In a number of provinces, including Ontario, it's become a real issue, and it's a question that calls for quick answers.

    It must be admitted that the provinces are passive most of the time. You undoubtedly understand a bit of the mechanics with regard to this inaction, and I'm not talking about New Brunswick. Let's talk about Ontario, among others. The reaction is then to say that it might be better to ask the federal government to lend a hand and try to agree with the provinces in order to implement this kind of system.

    The Chair: That's sort of what's in the offing right now. The Government of Canada recently granted funds to support training for health professionals, and assistance has just been provided for the creation of a French-language health services corporation.

    I would like to bring you back to legal matters, if you will. I may be skipping from one subject to another.

    Based on the studies you conducted for the Romanow Commission and in the current legislative and constitutional context, do you believe it would be incorrect to say that the Canadian government's health transfer program is subject to the Official Languages Act?

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    Mr. André Braën: There is a provision in the Official Languages Act that gives precedence to that act, but, unless I'm mistaken--I should check again--it doesn't apply to Part VII.

    Furthermore, it would be difficult for me to answer in that this is a matter which comes primarily under provincial jurisdiction. I therefore can't answer exactly; I would have to reread the Official Languages Act. I nevertheless think, unless I'm mistaken, that the precedence of the Official Languages Act applies to all federal legislation, but it does not apply to all parts of that act, to Part VII, among others.

    To the extent that Part VII--and here we're coming back to an issue you're quite familiar with--reflects either a commitment or a wish, it's clearly difficult to answer your question in the affirmative.

    The Chair: Referring to subsection 16(1) of the Canadian Charter of Rights and Freedoms, which states:

(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada,

can we conclude that a program of provincial transfers governed by a statute is an institution of the Government of Canada?

    Mr. André Braën: At first I would be inclined to say no. Subsection 16(1), which sets out linguistic duality and the principle of equality of the two official languages is valid for the federal field.

    When it comes to granting funds, is the authority that receives those funds thereby subject to the federal obligation as well? I believe that's going a bit far, particularly since, in constitutional terms, the Canadian Charter must be interpreted together with the other constitutional provisions. Furthermore, section 92 of the Constitution Act, 1867 specifically states the areas where the provinces intervene exclusively. So how could section 16 be used? There might be problems.

    As you know, the question now arises for private business. To what extent can the federal government require a private business to comply with the Official Languages Act in providing certain services? The question is before the courts, if I'm not mistaken.

    The Chair: Yesterday I put a similar question to Mr. Tory Colvin, who is President of the Fédération des associations de juristes d'expression française de common law. I thought I understood from him that the government had not only the power but also the obligation to do so, to include the notion of linguistic duality and to compel compliance with it.

    That leads me to ask you the following question. In your opinion, could the Government of Canada insist on compliance with linguistic duality in transfers, make it a condition of transfer or impose it under the Official Languages Act?

    Mr. André Braën: I believe that, if it wants to do so, it can definitely add a sixth condition to the Canada Health Act. In legal terms, I don't think it can rely on section 16 of the Charter. Instead I believe it would be exercising a spending power. It would be no problem to the extent that that spending power is not considered as constituting indirect regulation of a provincial jurisdiction.

    With all due respect, Mr. Chairman, you must watch what you say. It is a bit embarrassing for the federal government, which is not discharging all its linguistic obligations, to go and see the provinces and tell them what to do. I'm sure the provinces would use that argument.

    The Chair: Without a doubt!

    In your view, could a sixth condition of that kind be considered acceptable, or would it be perceived instead as an indirect way of regulating provincial programs?

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    Mr. André Braën: I don't think so. There are currently five conditions. My memory fails me, but they include, in particular, universality, portability, public administration and so on, which, I repeat, appears to be relatively well accepted by the provinces. They have no difficulty caring for patients from other provinces, for example.

    Adding that condition of course means implementing something that does not currently exist. If we don't have the money, that poses a problem, but, even if we do have the money, that doesn't mean that it will be accepted because implementing a program is not all there is; then you have to pay, and we know that, if the federal government withdraws, there may be problems. I don't know what form that could take; I'm simply saying that, in constitutional or legal terms, there's nothing currently preventing the Parliament of Canada or the federal government--which has surpluses--from allocating a portion of those surpluses to the development of health care for official language minorities. I don't think that would be disapproved of, and I don't think there are any legal barriers.

    The Chair: In another line of thinking, should governments be concerned with the availability of health services in English or in French for a travelling Canadian? Consider the example of a tourist from Calgary who travels to Acadia or Chicoutimi, who needs services and who does not speak French. As a Canadian citizen, is he protected by the Charter or by the distribution of the powers as described in the Constitution Act, 1867?

    Mr. André Braën: Ideally, we would experience linguistic duality, but we know perfectly well that's not how it works, and, in legal terms, the provinces are still sovereign in their areas of jurisdiction. If one province doesn't care or want to do so, I find it hard to see how that could happen, except with the federal government intervention or support I referred to earlier.

    As you know, the official language minorities carry virtually no political weight. You can see that in the current Ontario election campaign; this is not an important issue.

    It must be understood that linguistic duality, which is one of the federal government's responsibilities, is not necessarily one of the provinces' priorities. Quebec has chosen French, even though health services are provided to the Anglophone community.

    The Chair: The document you referred to, which you prepared for the Romanow Commission, is a public document, is it not?

    Mr. André Braën: Yes, it's Study No. 2.

    The Chair: All right.

    Mr. André Braën: I apologize; I only have one copy.

    The Chair: Our researcher is here. I'll ask our clerk to have a copy sent to all committee members so that they can read it as well. This suits me for the moment.

    Mr. Sauvageau, over to you.

    Mr. Benoît Sauvageau: First I would like to point out to Mr. Bellemare that student exchanges are already taking place. The University of Sherbrooke has an agreement with universities in New Brunswick concerning medical students, and I believe the same is true in Manitoba. However, space must be limited because there are labour shortage problems in Quebec. So we shouldn't open too much, and we're already doing the maximum. There are also exchanges based on tuition fees. That unfortunately causes certain problems. As the professor said, unfortunately students too often come to study at McGill University at a discount and return after that to perform their duties in other provinces.

    There's also a constitutional interpretation problem. It's said that, if things are not going well in a province's area of jurisdiction, if the province is not acting as desired, the federal government should get involved. I don't think the federal government is a police force. If we want to remove this jurisdiction from the provinces, we need only conduct another constitutional round and we'll see what it produces. You can't say that you're going to withdraw a field of jurisdiction from a province because it's not respecting a community. You have to work within the current framework.

    I would like to ask two questions. You've already touched on one. If the federal government wants to encourage the provinces to offer health services, it must lead by example, as I emphasized to the other witnesses yesterday; it must set a good example.

    If the conditions are set, no matter how minor they are, for cash transfers for health care, should the federal government set even greater basic conditions if it transfers those responsibilities to a territory?

    You referred to health services as a hybrid component in which we didn't really know who did what, but we know perfectly well who does what when health is administered solely by the federal government, in the territories, for example, or on Indian reserves and in military hospitals.

    First, can you tell us whether the Official Languages Act is applied when responsibilities are transferred from the federal government to a territory. In the case of a transfer of responsibilities, not cash, are federal responsibilities also transferred?

    Second, you referred to a brilliant gesture in referring to Montfort Hospital. A sixth principle or transfer conditions would be disputed and thus would surely not constitute that brilliant gesture you referred to.

    Could you elaborate a bit more on that brilliant gesture and on my two questions on responsibilities?

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    Mr. André Braën: Yes. The Canadian government is primarily responsible for the federal territories, although the territorial assemblies are quasi-sovereign. It is undeniably true that there are problems in the application of the Official Languages Act, even now. I don't think I'm telling you anything new. I'm not referring to the health field, but to all the other fields. Do the Parliament and Government of Canada have a little housecleaning to do in that regard? Perhaps, but that's a political question.

    Let's talk about native reserves. In a number of cases, there have been agreements with the provinces and there is confusion. The Health Canada Web site indicated that this was a provincial not a federal responsibility. So there may be problems in that respect because some Aboriginal communities speak French, while others, most, speak English.

    It is always a bit difficult to ask the provinces to do something when your own house is not completely in order. However, a little disorder in your house doesn't mean you can't intervene and help. I referred to brilliant gestures earlier. Health care is very important for official language minorities, in particular for Francophones, because they don't have an appropriate institutional network in the field, except in New Brunswick.

    In my view, if the Canadian government is really concerned about linguistic duality in this country--stating it in an enactment is not enough; it will listen to the messages minorities are sending it on the subject. The minorities have no choice. They aren't listened to by their provincial governments. The federal government is not a police force. It must be clearly understood that minorities are turning to the federal government because they have no one else to turn to. It's the only place where their claims may be closely listened to.

    To the extent that this government wants to give substance to its commitments or to what Part VII of the Official Languages Act contains, I believe it could very definitely say that it is seriously considering the question of health care delivery in Canada, that it knows that question is important for the population as a whole, that the linguistic aspect is one of its concerns and that it wants to improve that linguistic aspect. What I'm telling you has already been said by the representatives of the Office of the Commissioner of Official Languages, I believe. Many people across this country have told you.

    The brilliant gesture would perhaps be to make a statement that this is an important concern and that amounts of money commensurate with that importance will be allocated to it.

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    The Chair: Mr. Sauvageau, does that suit you?

    Mr. Benoît Sauvageau: Yes.

    The Chair: Colleagues, Mr. Godin, is that all right?

    I very much appreciated your comments and the suggestions you made. Would you like to make any other comments on what we're trying to accomplish?

    Mr. André Braën: The Official Languages Act is a piece of legislation that is not very, very popular in general, except in certain circles, minority circles. It is nevertheless a piece of legislation which is extremely important in that it is consistent with the very identity of the country you want to build. For a long time now, deficiencies have been identified in the application of that legislation or its non-application. I feel that the work you are doing here is important because it must ultimately serve to guide government action in this field. I repeat, most of the official language minorities in this country are relying on the federal government because the provinces are slow to act or are simply being negligent in this field. It must be clearly understood that you are virtually the only hope for hundreds of thousands of individuals. That's it. I wanted to emphasize that your work is of the highest value.

    The Chair: Thank you very much, Mr. Braën.

    We will now adjourn until next Tuesday, the 23rd. At that time, as determined earlier, we will receive an official from the Department of Canadian Heritage with whom we will look at the question of government transfer programs and their operation. We will also hear from an official from the Department of Finance, to whom we can put questions on the presentation concerning the health transfers program, as well as other witnesses. Subsequently, on Wednesday afternoon, we will receive Ms. Robillard, President of the Treasury Board, for a consultation on the Treasury Board's official language policies. That will be an in camera session.

    On that note, thank you, Professor Braën, for coming here today.

    Mr. André Braën: Thank you very much.

    The Chair: Thank you as well for your comments and for making yourself available.

    Mr. André Braën: Thank you, and I wish you well in your work.

    The Chair: Thank you, sir. Thank you, madam. We'll see you soon.

    The meeting is adjourned.