LANG Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Official Languages

EVIDENCE

CONTENTS

Tuesday, September 16, 2003

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0905

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

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0910

Mr. Pierre Foucher (Law professor, University of Moncton)

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0915

The Chair

Mrs. Martha Jackman (Titular Professor , Faculty of Law, University of Ottawa)

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0920

¿

0925

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0930

The Chair

Mr. Tory Colvin (President, Fédération des associations de juristes d'expression française de common law)

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0935

The Chair

Mr. Rénald Rémillard (Executive Director, Fédération des associations de juristes d'expression française de common law)

The Chair

Mr. Yvon Godin (Acadie—Bathurst, NDP)

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0940

The Chair

Mr. Pierre Foucher

Mr. Yvon Godin

The Chair

Mr. Pierre Foucher

The Chair

Mr. Yvon Godin

The Chair

Mr. Pierre Foucher

The Chair

Mr. Pierre Foucher

Mr. Yvon Godin

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0945

Mrs. Martha Jackman

Mr. Yvon Godin

Mrs. Martha Jackman

Mr. Yvon Godin

Mrs. Martha Jackman

The Chair

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

Mr. Pierre Foucher

Mr. Eugène Bellemare

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0950

Mr. Pierre Foucher

Mr. Eugène Bellemare

Mr. Pierre Foucher

Mr. Eugène Bellemare

Mrs. Martha Jackman

Mr. Pierre Foucher

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0955

Ms. Martha Jackman

The Chair

Ms. Carole-Marie Allard (Laval East, Lib.)

Ms. Martha Jackman

The Chair

Mr. Benoît Sauvageau (Repentigny, BQ)

À

1000

Mr. Pierre Foucher

Mr. Benoît Sauvageau

Ms. Martha Jackman

The Chair

Mr. Tory Colvin

Mr. Benoît Sauvageau

The Chair

Mr. Benoît Sauvageau

The Chair

Mr. Benoît Sauvageau

The Chair

Mr. Tory Colvin

The Chair

Mr. Raymond Simard (Saint Boniface, Lib.)

À

1005

Mr. Rénald Rémillard

Ms. Martha Jackman

Mr. Raymond Simard

Mr. Pierre Foucher

Mr. Rénald Rémillard

The Chair

Mr. Pierre Foucher

The Chair

Mr. Pierre Foucher

The Chair

Mr. Pierre Foucher

The Chair

Mr. Pierre Foucher

The Chair

Mr. Pierre Foucher

The Chair

Mr. Tory Colvin

À

1010

The Chair

Mr. Tory Colvin

The Chair

Mr. Tory Colvin

The Chair

Mr. Yvon Godin

À

1015

Mr. Pierre Foucher

Mr. Yvon Godin

Mr. Pierre Foucher

Mr. Yvon Godin

Mr. Pierre Foucher

Mr. Yvon Godin

Mr. Pierre Foucher

Mr. Yvon Godin

The Chair

Mr. Pierre Foucher

The Chair

Mr. Tory Colvin

The Chair

À

1020

Mr. Pierre Foucher

The Chair

Mr. Pierre Foucher

The Chair

Mr. Pierre Foucher

The Chair

Mr. Pierre Foucher

The Chair

Ms. Martha Jackman

The Chair

Ms. Martha Jackman

The Chair

À

1025

Mr. Pierre Foucher

The Chair

Mr. Benoît Sauvageau

The Chair

Mr. Rénald Rémillard

The Chair

Mr. Pierre Foucher

The Chair

Ms. Martha Jackman

The Chair

Mr. Benoît Sauvageau

The Chair

À

1030

Mr. Benoît Sauvageau

The Chair

Mr. Yvon Godin

The Chair

Mr. Yvon Godin

The Chair

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CANADA

Standing Committee on Official Languages

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NUMBER 030

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, September 16, 2003

[Recorded by Electronic Apparatus]

¿  (0905)  

[Translation]

    The Chair (Mr. Mauril Bélanger (Ottawa—Vanier, Lib.)): Ladies and gentlemen, with your permission, I would like to call this meeting to order.

    For the benefit of those who are here with us this morning, or who are tuning in to these proceedings, last spring, at the request of the House -- that is, acting on an order of reference from the House - the House of Commons Official Languages Committee undertook a study of the subject-matter of Bill C-202, the proposed legislation having been withdrawn. The subject-matter in question was health care for minority official language communities.

    Our study focused on two areas, the first of which was touched on briefly. At issue was the establishment in the health care field of a program similar to the one that exists for education. The second area, the one that we will look at today, is the legal and constitutional aspects of this issue. The question under consideration is whether our laws, our Constitution and jurisprudence provide us with any precedents. The debate that we are undertaking is very broad in scope.

    Colleagues should know that we will be holding several more meetings, but that the committee must report back by late October. This is a firm deadline. Therefore, we may have to schedule one or two more meetings than is customary. We'll try to keep the number of additional sittings to a minimum, but we do have a certain amount of work to accomplish.

    For your information, we've received confirmation that we will hear from another witness on the same subject tomorrow, but this individual won't be testifying until 4:30 p.m. From 3:30 p.m. to 4:30 p.m., we'll be meeting in camera to discuss future business. That's all for the moment.

    To assist us in our deliberations, we will be hearing today from four witnesses: Pierre Foucher, a Law professor at the University of Moncton; Martha Jackman, a Law professor and visitor at the Faculty of Law of the University of Victoria; and finally, Tory Colvin and Rénald Rémillard, President and Executive Director respectively of the Fédération des associations de juristes d'expression française de common law.

    I don't know if the witnesses have agreed on a particular speaking order, or if they simply wish to go with the order set out here, but each of you will have approximately 10 minutes to make a presentation, following which committee members will have an opportunity to put questions to you.

    You have the floor, Mr. Foucher.

¿  (0910)  

    Mr. Pierre Foucher (Law professor, University of Moncton): Thank you, Mr. Chairman.

    Good day, ladies and gentlemen. Thank you for your invitation.

    I've taken the points listed in the background paper we received and attempted to provide answers to the various questions raised. This morning, I'd like to go over these points with you and to suggest some answers in light of existing case law.

    The first question put was as follows: does the unwritten principle of protection of minorities guarantee a person's right to health care services in his or her own language? In light of existing case law, I would have to answer no to that question. In at least three cases, courts of appeal refused to interpret this principle as imposing independent obligations on governments. Therefore, given that this unwritten principle has not stopped governments from making decisions that have a detrimental effect on minorities, it is even more unlikely that it would compel governments to offer services. It should be noted that the Supreme Court of Canada has yet to rule on these questions.

    Secondly, we were asked to consider section 15 of the Charter and the principle of non-discrimination. In , the Court held that refusal to provide for paid sign interpretation services for deaf persons deprived these individuals of their right to health care and constituted discrimination. If mother tongue is included in section 15, which isn't yet clear, this would mean that the fact of offering health care services in a language which the patient doesn't understand constitutes discrimination.

    There are limits to this argument. Firstly, the criteria for discrimination would be mother tongue. Secondly, a bilingual person would not benefit from this right. Proof would have to be presented that the person doesn't understand what is being said to him or her. Thirdly, this right would accrue to every language, not just to official languages. Finally, only translation services, not direct services, would be guaranteed.

    Thirdly, we were asked to consider sections 16(1) and 16(3) of the Charter. Section 16(1) guarantees equal status for both official languages, while section 16(3) entrenches what is known as the principle of progression. It commits Parliament and government to working toward linguistic equality. Until now, this principle has been interpreted in such a way as not to prevent governments from adopting measures aimed at promoting the equality of languages. This principle does not compel governments to act.

    In Beaulac, the Supreme Court held that section 16(1) enshrining the right to linguistic equality should be interpreted as meaning that rights which exist at a particular point in time must be applied equally. Again, this provision does not compel governments to add rights.

    Thus, if either the Official Languages Act or the Canada Health Act were to make some provision for the right to health care in a person's mother tongue, these two legislative provisions would have some impact. Section 16(3) would protect the legislation from being challenged under other sections of the Charter, while section 16(1) would impose an obligation on governments to ensure that this right is applied equitably.

    Next, we were asked to consider section 20(1) of the Charter which requires the federal government to provide services in both languages in its central offices and where numbers warrant. In my view, health care services supplied directly by the federal government are covered by section 20. Therefore, the federal government is obligated to provide such services in both languages.

¿  (0915)  

    If I could stray from the text of my submission for a moment, section 20(2) of the Charter which concerns New Brunswick has the same effect. New Brunswick is also constitutionally obligated to provide health care services in both languages.

    Could the right to health care services in both official languages be entrenched in the Charter? That would be difficult to do, since the Charter would have to be amended accordingly and unanimity would be required of all partners to the Canadian federation.

    We were also asked to analyze Part VII of the Official Languages Act. Part VII expresses the commitment of the Government of Canada to enhancing the vitality of linguistic minorities and further advancing the equality of status and use of both languages.

    On September 8 last, the Federal Court issued an order forcing the Canadian Food Inspection Agency to comply with Part VII. This means that in the opinion of the Court, Part VII has a mandatory effect and can result in the issuing of judicial orders.

    Thus, pursuant to section 41, the Canadian government has an obligation to do everything it can to further the development of health care services in both languages. Under section 43(1)(d), the Minister of Canadian Heritage has an obligation to take measures to help the provinces provide health care services in a minority language.

    We were asked to consider the principle of access under the Canada Health Act. To my knowledge, the linguistic aspects of this principle have yet to be interpreted by the courts. However, the unwritten principle of protection of minorities does include or imply access to health care services in one's own language.

    Another question raised was whether the Canada Health and Social Transfer includes a linguistic component. The answer to that question is a definite yes. With some subtleties that I won't get into right now, pursuant to the legislation, residents of New Brunswick, Ontario and Quebec are entitled to health care services in their own language.

    Finally, in answer to the question as to whether Parliament can legislate linguistic obligations in respect of health care, health care is a provincial responsibility and language an accessory consideration. In theory, the right to health care services in one's own language is a provincial matter.

    Admittedly Parliament does have some jurisdiction over health, given its powers under criminal law, in emergency situations or in matters of national interest. It may also use its spending power, as it does in the field of education. From a legal standpoint, this would be the safest approach to take. Therefore, by invoking its spending power, the Canadian Parliament, could, under the Canada Health Act or the Official Languages Act, recognize a person's right to health care services in his or her own language, and its obligation, as in matters of education, to assist the province in furthering this mission.

    Thank you.

    The Chair: Thank you, Professor Foucher.

    Go ahead, Ms. Jackman.

    Mrs. Martha Jackman (Titular Professor , Faculty of Law, University of Ottawa): I too wish to thank the committee for inviting me here this morning. My area of interest and expertise is health law. I have to say that my colleague Professor Foucher covered the subject-matter thoroughly in his presentation and I fully agree with his findings. However, as a professor or constitutional expert, my focus tends to be on the issue of access to health care in both official languages. Professor Foucher gave an accurate description of the current state of the law. Rather than cover the same ground, I would like to take a few moments to discuss with you some of the ways to further advance access to health care services in both official languages.

    There is no question that up until now, the courts have interpreted the Canadian Charter as well as the unwritten principles of the Secession Reference as mainly negative obligations, that is to say the State is being prevented from taking action, rather than being compelled to act. What is interesting, however, and oddly enough, is the fact that the Canadian Charter contains positive guarantees with respect to linguistic rights which compel governments to act. Given the mindset that prevails when official language matters are involved, we are admittedly spoiled. The courts have a tendency to think in positive rather than in negative terms. In my view, the unwritten principles stemming from the Secession Reference would be a good starting point for stressing the obligation to provide services in both languages, rather than the obligation to take no action.

    In Lalonde, the Court of Ontario ruling on the Montfort Hospital, the Government of Ontario was found to be at fault for interpreting the Ontario legislation as permitting the closure of the Montfort Hospital. Ultimately, the Government of Ontario was forced to continue spending money to provide health care services in French in Eastern Ontario. Admittedly this is a negative interpretation of the obligations entrenched in unwritten principles. However, I do think it's possible to interpret these provisions, or principles, as imposing a duty to act. The constitutional rights of linguistic minorities mean little if they do not imply some positive obligations.

    As far as section 15 of the Charter is concerned, the ruling in Eldridge is very interesting in one respect. As you know full well, since Mahé, people have argued on a regular basis that section 15 does not protect against discrimination on the basis of language.The basis for this argument is spelled out in an obiter dictum of the Chief Justice which, as far as I'm concerned, has really nothing to do with section 15 in a non-education context. What's interesting about Eldridge is that when the BC government moved to dissuade the Supreme Court of Canada from interpreting section 15 as guaranteeing the right of deaf persons to sign language interpretation in the area of health care services, it argued that if such services were provided in the health care field, this could bring about the financial ruin of the health care system because governments would be required to provide health services in other minority languages. The Court didn't say that this wasn't a problem because section 15 does not safeguard against discrimination on the basis of language. The Court simply said that the Eldridge case wasn't going to determine whether or not limiting access to health care services for members of other minority language communities was justified, and that each case would have to be reviewed separately.

¿  (0920)  

    I'm very encouraged by the Supreme Court's position in Eldridge. It could just as easily have held that this wasn't a problem because deaf persons are protected by reason of their physical disability, and that other linguistic minorities enjoy no protection under section 15. However, that wasn't at all the Court's response.

    As I see it, the Eldridge case makes it possible to advance much more readily the argument that section 15 of the Charter protects against discrimination on the basis of language. Obviously, this opens to the door to many possibilities, since section 15 affords each and every individual the same safeguards. When it comes to health care services, clearly this provision could guarantee official language minorities access to health services in their own language. As Pierre so aptly stated, at issue in Eldridge is translation services. The health care system requires health services for the hearing impaired. The argument that must be advanced is that official language minorities require services in their own language. That point can be stressed more readily than services for the hearing impaired.

    Therefore, in my view, section 15 provides some very intriguing potential arguments that the committee may wish to explore.

    Another provision that is the focus of the committee's attention is section 7 of the Canadian Charter which guarantees to each and every individual the right to life, liberty and security of the person. These principles cannot be violated except in keeping with the principles of fundamental justice.

    To date, we do not have a great deal of case law to go on with respect to section 7 and the health care field. Lower courts have rejected the argument that section 7 protects access to health care services, particular in the case of AIDS sufferers in British Columbia and their access to a government subsidy for costly prescription drugs.

    Recently a Quebec court handed down in a ruling in the Chaoulli case. The Supreme Court of Canada will consider this case in March. Mr. Chaoulli had argued that provincial health insurance regulations made it difficult for persons to access private health care services by reason of section 7 of the Canadian Charter.

    In Chaoulli, the Quebec trial court rejected the argument that section 7 guarantees the right of access to private health care. However, the trial court judge held that section 7 guaranteed access to public health care services. The Quebec Court of Appeal upheld the lower court's ruling, issuing three, wide-ranging decisions which supported the lower court's decision. The latter had held that the protection afforded by section 7 of the Charter applies to public health care services.

    This constitutes another extremely valid argument that can be brought forward. In the case of linguistic minorities, to meet the requirements of section 7, health care services must be accessible within the meaning of the Canada Health Act and in the language of the minority. It will be interesting to see what the Supreme Court has to say about section 7 and the Chaoulli case. I understand that certain groups want to be heard on the equality issue and I will be addressing the poverty aspect of the question. I'm certain some intriguing linguistic considerations could be brought to light, but I haven't heard anything specific to date.

¿  (0925)  

    On a closing note, I have been following for some time now efforts to amend the Canada Health Act. We now have Mr. Romanow's report recommending major changes to the legislation.

    From a strategic perspective, if I were a member of your committee, I would be tempted to explore the possibility of achieving your legislative objectives by acting through the Official Languages Act, rather than through the Canada Health Act. My reasons for believing this are somewhat similar to the distinction I made between the negative and positive rights in the Canadian Charter. Every time the provinces are approached about the possibility of amending the Canada Health Act, the grumbling starts. The provinces maintain, and to some extent with good reason, that health care is a provincial matter. Constitutionally, the federal government has spending power in matters of health care. It controls the purse strings, thereby encouraging the provinces to achieve the objectives of the Canada Health Act. However, the provinces increasingly object to having federal health objectives imposed on them. In my opinion, there is less resistance from them when it comes to linguistic rights.

    The provinces are accustomed to the federal government spending money to strengthen access by linguistic minorities to education and services in their own language. From a strategic standpoint, since the federal government can only attain this objective through spending and a funding formula is already well established in the Official Languages Act in terms of access to services and seems to work well, adding a provision guaranteeing right of access to health care services to the Official Languages Act would be a far more effective approach, both in terms of policy, potential opposition and the formula employed.

    Mr. Romanow made it very clear in his report that the federal government wasn't applying the Canada Health Act. The legislation's provisions regarding accessibility are being violated rather seriously and for major political considerations, the federal government is unwilling to step in. In her 2000 report, the Auditor General of Canada made precisely the same observation, namely that the federal government is not enforcing the provisions of the Canada Health Act. As a rule, it does enforce the Official Languages Act. Why then opt for a vehicle that isn't necessarily very effective, except at a symbolic level? As I see it, the government would be better off using a tool that works relatively well.

    That concludes my remarks. Thank you.

¿  (0930)  

    The Chair: Thank you very much, Ms. Jackman.

    Mr. Colvin.

    Mr. Tory Colvin (President, Fédération des associations de juristes d'expression française de common law): Mr. Chairman, members of the committee, thank you very much for inviting us here. It's indeed a pleasure and an honour for us to address this committee. I also wish to apologize for my first name, Mr. Chairman. I can assure you that I had nothing to say about it.

    Let me start by telling you a little about our organization. The Fédération des associations de juristes d'expression française is comprised of seven provincial associations of French-speaking lawyers working across Canada. All provinces with an English-speaking majority, with the exception of Newfoundland-Labrador and Prince Edward Island, are represented. Our mandate is to work for the association to promote the administration of justice in French and more broadly, to defend and promote francophone minorities in provinces where the majority is anglophone.

    Our brief is divided into two parts. The first part discusses the constitutional framework, so to speak, while the second part discusses the federal spending power in certain areas that come under provincial jurisdiction, a subject that has already been broached this morning.

    By and large, our Constitution gives the provinces responsibility for health care. The territories, which remain under federal jurisdiction, are the exception.

    The federal government also has an obligation to ensure compliance with and foster the notion of equality of status of Canada's two official languages. I interpret this as an obligation on its part not only to protect francophone minorities, but also to advance the status of French to the best of its ability.

    We're not saying that the federal government has a responsibility to intervene in provincial areas, but that there are already some widely accepted ways for the federal government to assume the role that is expected of it. Clearly, the federal government can exercise its spending power and make transfer payments to the provinces for programs that fall under provincial jurisdiction. Two examples of this are education and the Canada Assistance Plan. Why then wouldn't the federal government take similar action with respect to health care?

    The Official Languages Act must serve as a backdrop against which health care principles are drawn up, both through our laws and our Constitution. Our federation has always maintained that the Government of Canada has the power, and indeed the duty, to protect and advance francophone minority rights. The courts have interpreted the Official Languages Act as part,if not an extension, of our Constitution.

    In the Montfort case, the Court of Appeal of Ontario agreed that the existence of a French-language hospital played a key, and perhaps even a constitutional role, in the preservation of a French-language society in Ontario.

    If the language in which health care services are provided and health care professionals are taught is critically important to the existence of the francophone community in Ontario, why wouldn't the same be true everywhere in the country? Why wouldn't this linguistic, or constitutional, obligation be applied on a national scale?

    Section 16(3) of the Canadian Charter of Rights and Freedoms refers to the advancement of the equality of status of our official languages, that is the advancement of the rights of citizens to live in, speak and be educated in their own language. A person can commit a crime in French anywhere in Canada and can be tried for that very same offence in French anywhere in this country. Why shouldn't it be just as easy to receive health care services in French? The requirement under section 16(3) that equality of status of the two languages be advanced demands no less than this.

    The Official Languages Act may be perceived as an undertaking on the part of the government to protect minorities.

¿  (0935)  

    Specifically, section 43(1) assigns to the federal government the role of encouraging provincial governments to promote the development of francophone minorities and to provide services to them at the provincial and municipal levels. In our opinion, in the area of health care, the solution would be to impose conditions to promote the growth of francophone minority communities.

    We believe that the notion of a sixth principle of linguistic equality is essential, and perhaps even mandatory under the Constitution. Parliament has the power to attach language-related conditions to funding. I would even venture to say that it has the obligation to impose such conditions. Thank you.

    The Chair: Thank you, Mr. Colvin.

    Is there anything you wish to add, Mr. Rémillard?

    Mr. Rénald Rémillard (Executive Director, Fédération des associations de juristes d'expression française de common law): No, thank you. I already had a hand in Mr. Colvin's presentation.

    The Chair: Thank you, Mr. Rémillard.

    Thank you very much, ladies and gentlemen.

    We will now move on to the question and answer phase. As a rule, each person has seven minutes, but my sense is that members will have several kicks at the can.

    Go ahead, Mr. Godin.

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

    It's a pleasure for me to welcome the witnesses here to Ottawa. I have a few questions for Professor Foucher who hails from Moncton in my native province. Much work is being done on francophone issues and I have been following developments in this area closely for a number of years.

    Earlier, you mentioned section 15. You implied that if we were to rule on the basis of this provision, more than just the French and English languages would be involved. I have some questions about that assertion. The federal government is responsible for official languages. Questions always arise as to what will happen in the case of other languages. Many people have come to our country as a result of our immigration policies. We have an obligation to respect immigrants, but they in turn must learn one, and if possible, both of our official languages upon their arrival in Canada. Therefore, I have to wonder where this idea comes from. Fundamentally, Canada has two official languages and even now, it's difficult to ensure that language rights are respected.

    Could you clarify for me what you meant about section 15 and other languages?

¿  (0940)  

    The Chair: Do you wish to respond immediately?

    Mr. Pierre Foucher: The risk we would be running by including language as a ground for discrimination as spelled out in section 15 is that other linguistic communities would invoke the same principle and argue that if francophones are entitled to services in the own languages in provinces in which they represent the minority, why then wouldn't the same rights extend to them?

    How could this argument be countered? The only possible response that could be given is that Canada has two official languages and that francophone minorities are not in the same position as other minorities.

    When I made this pronouncement, I had yet to hear the presentation of my colleague Ms. Jackman. I'm very intrigued by her suggested approach, in that section 16 of the Charter guarantees the equality of status of official languages as such. Thus, from a strategic perspective, it might well be preferable to proceed by way of section 16, rather than through section 15, to avoid opening a Pandora's Box and not being able to respond to those demanding services in a language other than French or English.

    Mr. Yvon Godin: If truth be told, Mr. Chairman, that argument could apply at all times and to all fields, not just the health field, because we're talking about minorities. The Official Languages Act imposes an obligation on the government to respect two languages. I agree with you that if the government funds programs, principles must be adhered to, as stated in the Romanow report.

    I'd also like to hear your views on the Dion report. Several million dollars were spent on official languages. How do you feel about the government's position on health care? On the one hand, we have the Romanow report, and on the other, the Dion plan. In your opinion, is there anything in the Dion plan to assist francophone or even anglophone minority communities?

    The Chair: You may answer the question, Mr. Foucher, but we asked you to consider the legislative framework and it doesn't necessarily include the Dion plan. We would understand it if you had no comments at this time. I'm merely trying to keep the discussion on track.

    Mr. Pierre Foucher: I really didn't consult the Dion plan to prepare my responses, but if you insist, give me five minutes to fire up my computer and look it up. However, I cannot give you an answer right this very second.

    The Chair: If I can just interrupt, Mr. Godin, you've raised an intriguing point. Mr. Foucher made an interesting comment concerning...

    Mr. Yvon Godin: It's in his drawer.

    The Chair: You provided a very categoric answer when asked if the government could exercise its power through transfers. This is relevant to the subject. You answered that it most certainly could.

    Mr. Pierre Foucher: I'm convinced that it can.

    The Chair: If you could possibly elaborate further, that would tie in with my colleague's question.

    Mr. Pierre Foucher: It's all part of the federal spending power. It's all possible as long as conditions are attached to the funding and no attempt is made to regulate the system as such. The courts have always recognized the federal government's right to attach conditions to the money it spends. If the federal government were to decide to attach conditions to the money spent on health care, namely that minorities must have access to services in their own language and that failure to comply with this condition would result in financial consequences, such a condition would withstand a court test.

    Mr. Yvon Godin: I understand that, but the federal government could allocate more funding to this area, given the cuts that have already been made.

    Earlier, you talked about private health care in Quebec. You said that in the case of private health care, there was no need to...Martha, were you the one who mentioned this?

¿  (0945)  

    Mrs. Martha Jackman: I was.

    Mr. Yvon Godin: If the government funds private health care...That's not what we're suggesting, because we don't want a private health care system in Canada. I want to be very clear on that score. I'm not going to sing the praises here and now of private health care, because I'm dead set against that kind of system. However, you implied that the government had no official language obligations when it came to private health care. That was my understanding. Could you clarify your statement for me?

    Mrs. Martha Jackman: I would simply repeat that the trial court in Quebec completely agreed with you. The court held that the Canadian Charter guaranteed the right of access to public health care services. The court rejected the argument that access to private health care was protected under the Charter. Quebec's lower court fully agreed with your position and we hope the Supreme Court of Canada will do likewise and find that Canadians are guaranteed access to public health care.

    Mr. Yvon Godin: Doesn't the government run the risk of getting sidetracked, of letting the private sector move in and then, of claiming that this is no longer its jurisdiction?

    Mrs. Martha Jackman: I would hope not. We plan to argue that both sections 7 and 15 of the Charter require positive action of the government, much like in the field of minority language education, with a view to guaranteeing that health care is accessible to all Canadians.

    Regarding access to health care in both official languages, as Professor Foucher explained so very well, we maintain that in order to be afforded the same legal protection in the area of health care, linguistic minorities must have access to health care services in their own language.

    However, as Professor Foucher explained, invoking section 15 of the Charter and the provisions of the Canada Health Act is a problematic approach to take. As the Supreme Court held in Eldridge and as Mr. Romanow also pointed out very clearly, the principle of equity underlies the Canada Health Act and justifying more favourable treatment for official language minorities is by no means easy. That's why it would be preferable to invoke the Official Languages Act. The rationale for the legislation is easier to grasp and fewer things need to be justified.

    I concur fully with my colleague Professor Foucher that the federal government can attach whatever conditions it wants to health care transfers to the provinces. As the court held recently in Eldridge, the federal government spends money in order to achieve its objectives. As I see it, it should spend money on language-related issues rather than on equality in health care.

    The Chair: Thank you. I'd now like to turn the floor over to Mr. Bellemare, since he is expected in the House in five minutes. We will then hear from Mr. Herron, from Ms. Allard, and so on.

    Mr. Eugène Bellemare (Ottawa—Orléans, Lib.): Thank you, Mr. Chairman. I have two questions, the first of which is directed to Mr. Foucher.

    You stated that the law guarantees access to health services in a person's own language. Would you care to elaborate further in so far as the province of Ontario is concerned?

    Mr. Pierre Foucher: As far as Ontario is concerned, the applicable legislation in this instance in the French Language Services Act, pursuant to which the government designates institutions that by law must make services available in French. The legislation does not specify which services in particular are involved. Practically speaking health care services have been designated, along with certain Ontario hospitals that are required to provide such services in French.

    Mr. Eugène Bellemare: And that's true only of hospitals that have been specifically designated?

¿  (0950)  

    Mr. Pierre Foucher: That's correct.

    Mr. Eugène Bellemare: Therefore, a person could not demand services in French in Belleville or in Oshawa.

    Mr. Pierre Foucher: One would have to check and see if these are designated municipalities.

    Mr. Eugène Bellemare: My second question is directed to Ms. Jackman.

    You maintain that it would be better to approach this problem by way of the Official Languages Act then by way of the Canada Health Act. However, if we take a closer look at the Official Languages Act, we see that it is legislation without any teeth. Non-compliance does not result in sanctions. The approach is always positive, never negative. The only situation that might result in consequences is when a department fails to provide the required services in either official language. A report, possibly expressing criticism, is drawn up and...However, when an institution or department branch is targeted, the matter is treated with total indifference. If one revisits the branch ten years later, the same shortcomings will be observed. There's nothing to force the parties to provide services in both languages. They can only be encouraged to do so.

    All four of you seem to be implying that money is an issue and that conditions should be attached to government funding. At present, the Official Languages Act merely encourages people to take certain action.

    If funding is awarded for the provision of services in both languages, then each time these services are not provided as they should be, a report has to be drafted and hopefully, the press will cover the story. Ten or even twenty years down the road, the situation is likely to be the same. Things never change. Are we really so powerless to effect change?

    Mrs. Martha Jackman: I understand very well what you're saying and I fully agree that the Canada Health Act contains some very powerful provisions in so far as enforcement is concerned. If a province fails to comply with the conditions set out in the legislation, the federal government has the authority to cut transfers.

    Although the legislation is drafted this way, as the Auditor General and the Romanow Commission pointed out in their report, these provisions are not enforced by the federal government because that would cause major political problems. For instance, there shouldn't be any private hospitals in Canada. Patients shouldn't be extra-billed. Accessibility is a significant problem in many parts of the country. The Auditor General found that the federal government almost never cuts funding to the provinces. The act allows for that possibility, but in reality, non-compliance never results in sanctions.

    We could find ourselves in the same situation here where funds are allocated and levels never adjusted downward. The Official Languages Act makes no provision for sanctions in the event of non-compliance. In my opinion, the sanctions provided for in the Canada Health Act have also failed to have the desired effect because of the prevailing political climate.

    I have to say that it is almost as hard to amend the Canada Health Act as it is to amend the Canadian Constitution. As MPs, this is the first problem you face. Moreover, I don't see why a language-related condition providing for sanctions should be included, given existing provisions.

    Mr. Pierre Foucher: I would like to complete this reply and point out as I did in my presentation earlier that there is a mechanism in the Official Languages Act that is executory, and that is the court. One can turn to the courts to ask it to have the Official Languages Act respected.

    I mentioned earlier that the federal government had just been ordered to reinstate four inspector positions in Shippagan in northeast New Brunswick. It had transferred them to Shediac which contravened the Official Languages Act. The court ordered the government to transfer those four positions back to Shippagan.

    Two or three years ago the federal government had asked Ontario to manage its contraventions. People's rights were being curtailed in that regard because the Ontario French Language Services Act is less generous than the federal Official Languages Act. The court ordered the federal government to correct the situation.

    So, there are two examples where court orders were issued pursuant to the Official Languages Act. It is true that when one goes through the Official Languages Commissioner's Office, a report is drawn up and recommendations are made. The commissioner is an ombudsman. She is not there to police things, but to try and improve things. But if you are still not satisfied or if problems persist, you can turn to the courts. It is an advantage of the Official Languages Act which the Canada Health Act does not share, I believe.

¿  (0955)  

    Ms. Martha Jackman: No, it certainly does not. Firstly, what the provinces are negotiating with the federal government is precisely the creation of a body equivalent to a commission. Will we get it? I do not know. Secondly, it is very difficult to go to the courts to try to get the Canada Health Act enforced, because it is a federal-provincial agreement without mechanisms designed for individuals.

    The Chair: Thank you.

    Mr. Bellemare, is that all?

    Ms. Allard, you have the floor.

    Ms. Carole-Marie Allard (Laval East, Lib.): First of all, I would like to congratulate all of the speakers. I found your presentations very complete and very interesting. I have a question for Ms. Jackman. Perhaps I should say counsellor Jackman, because I expect that you are a lawyer as well.

    You mentioned that in the Eldridge ruling, there was an obiter dictum from the judge which was encouraging, because it opened the door to the recognition of linguistic minorities in section 15 of the Canadian Charter of Rights and Freedoms. I want to ask you whether you really believe that we can anticipate that someday the court will decide as it did indeed for sexual orientation, a topic that is on today's agenda in Parliament, that the right to health care for minorities in their language could indeed be covered by section 15.

    Do you not think that there is some danger involved in trying to get section 15 to include things that were not in it at the outset, when the Canadian Charter of Rights and Freedoms was passed, and that this may lead to some dangerous precedents?

    Ms. Martha Jackman: I understand the question very well, and the debate is always the same: from a democratic perspective, is the further development of section 15 of the Charter we are witnessing a sound one? I must admit that I believe this development to be very important. We would not have had the protection against discrimination on the grounds of sexual orientation without that interpretation. The grounds are not expressly included, but section 15 is drafted so as to be very open, and the area that interests me in this matter is poverty. We are trying to cause the law to develop in the same way from the perspective of social condition and this is also important for linguistic minorities.

    The courts are extremely conservative, and it is not easy to get them to accept new grounds that have not been enumerated. I would very much like them to recognize language as a prohibited ground of discrimination. Will the courts agree? I hope they will, but this is not necessarily a given, because of this debate. Will the protection of linguistic minorities be limited to those contained in sections 16 and 23? I do not accept that point of view at all.

    In New Brunswick, it is obvious that the problems of linguistic minorities are not strictly related to access to education in their language. There is also a big problem with regard to access to other public services, other services and social programs in their language.

    The Chair: Thank you.

    Mr. Sauvageau, you have the floor.

    Mr. Benoît Sauvageau (Repentigny, BQ): Firstly, I want to welcome you and apologize for my tardiness. It was due to a misunderstanding. I thought the meeting was at 10, quite simply.

    I will read your testimony. If my question was answered—because I have one main question—let me know, and I will read the minutes later, as I do after each meeting.

    My question has to do with health care services where the situation is clear, those about which we do not wonder whether they fall under provincial or federal jurisdiction, that is to say the health care provided by the Canadian government. I am thinking of military hospitals and services provided to aboriginal people. These are hospitals that are administered by the federal government. There is no interpretation problem involving the Official Languages Act in those cases: bilingual service must be offered. To your knowledge, does the federal government, in these cases that are not disputable, respect the Official Languages Act and offer services to Canadian men and women in both languages? Have you ever encountered any conflicts in these areas?

À  (1000)  

    Mr. Pierre Foucher: To my knowledge, there have been no conflicts. I think that the Commissioner of Official Languages might be in a better position to reply, because she is more aware of all of the complaints and problems in this area. But there have not been any cases before the courts.

    Mr. Benoît Sauvageau: No.

    Ms. Martha Jackman: You may be aware of the fact that in the health area, the federal government has been making great efforts to transfer responsibility for health care to aboriginal governments and the three territories. The problem Professor Foucher alluded to concerning contraventions is one that the territories are experiencing at this time. In fact, a challenge is being mounted on these issues. Does the delegation of responsibility to the territories in this area have a negative impact on linguistic minorities? It is obvious that there is going to be one. If we are talking about a service the federal government delivers directly, it has obligations under both the Charter and the Official Languages Act. Once the responsibilities have been delegated to the territories, the government will no longer provide the service and this will pose a problem.

    The Chair: Thank you.

    Mr. Sauvageau.

    Mr. Colvin, did you want the floor?

    Mr. Tory Colvin: I simply wanted to add that that is exactly what we went through. In fact it was while I was president of the AJEFO that we filed a complaint on the matter of contraventions. What came out of that decision is that when obligations and powers are transferred to another level of government, that transfer also includes obligations and language rights.

    I know that there are several cases involving the territories. Our vice-president, Roger Lepage, is pleading some of them. The main point is that when you delegate powers to another level, you have to delegate everything, obligations as well as powers.

    The battle is not over yet.

    Mr. Benoît Sauvageau: I see.

    I would like to ask the clerk for something, if the chair will allow me to do so, or ask the chairman's opinion. It might be interesting to do a parallel study. We have to study how to respect official languages when health care is administered by the provinces, but at the same time, could we ask that a small study be done to ensure that when the federal government has direct power, in hospitals where health care is provided by the federal government, services are provided immediately and quickly, since there is no question that the obligation applies?

    The Chair: Mr. Sauvageau, I think that your question is appropriate. We can do some research or ask the Office of the Commissioner of Official Languages if that situation has been examined. In fact, the commissioner will be coming to visit us soon. It would certainly be one way of exploring this.

    We could do it in one way or another.

    Mr. Benoît Sauvageau: We can ask the federal government to urge the provinces to offer services in both languages, but as a first step, it should set an example.

    The Chair: That's legitimate.

    Mr. Benoît Sauvageau: Thank you very much.

    The Chair: Mr. Colvin.

    Mr. Tory Colvin: Mr. Chairman, perhaps the committee should consider inviting our vice-president, Roger Lepage, who is a lawyer in Winnipeg, because he is advocating for French-speaking communities in the cases alluded to by counsellor Jackman.

    The Chair: We can do that, unless there is a problem due to the fact that some cases are presently before the courts. We have to be careful with that. But your suggestion will certainly be examined.

    Mr. Simard.

    Mr. Raymond Simard (Saint Boniface, Lib.): Welcome to the committee, madam, gentlemen.

    I apologize for missing the beginning of the presentations.

    You may already have answered all of my questions, at least to some extent, but I would like to make a comment. Perhaps you would have something to say in reply to my comment.

    In Manitoba, we have bilingual service centres serving communities that comprise quite large minorities. Do you think that such a model could be feasible in the health area? For instance, do you think that the Saint Boniface Hospital, one of the seven or eight hospitals in Manitoba, could provide services to francophones or do you think this would not meet the needs?

À  (1005)  

    Mr. Rénald Rémillard: I think that with regard to the spending power, there is nothing standing in the way of developing a model, depending on regions and health care needs.

    This could be different in each of the provinces, because reality is different in each of the provinces. In my opinion, this could be an interesting model in Manitoba or in some other provinces.

    Ms. Martha Jackman: That is in fact what happened in the Eldridge case. The Supreme Court simply issued a statement according to which the fact of not offering services was unconstitutional, as a hospital was identified in the Vancouver region which specializes in providing services to the hard of hearing.

    Mr. Raymond Simard: In the long term, it may be more realistic to follow such a model, rather than trying to offer services in French everywhere in Canada.

    Mr. Pierre Foucher: Services will have to be adapted to each province. The Manitoba model is interesting in the west, but would be difficult to apply in New Brunswick, where the situation is completely different.

    Mr. Rénald Rémillard: [Editor's Note: Inaudible] ...of the idea in the education field. I don't want to raise the issue of a variable scale. Demolinguistic realities must be taken into consideration in each province. In some cases, it may not be realistic to try to obtain a completely French-language hospital. It might be better to aim to provide services or prepare a plan to offer services in a given region, and the way in which these services are made accessible would have to be adapted to those realities. I think that we have to take regional and provincial differences into consideration.

    The Chair: I would like to ask some questions. Firstly, I want to thank Mr. Foucher for having brought the Forum des maires de la péninsule acadienne case to our attention, as well as the decision handed down last September 8, as I was not aware of this case. Was the case heard at the trial level, and was the decision appealed?

    Mr. Pierre Foucher: We don't know yet. I presume that the federal government will be filing an appeal because it must not be very happy with the decision.

    The Chair: I would like to ask our clerk to provide the members of the committee with a summary of this Federal Court decision or perhaps even with a copy of the complete decision, as well as of the Eldridge ruling, because we have to discuss these matters and this could help us in our work.

    Mr. Foucher, you mentioned earlier that recognizing the right to health care in one's first official language would require an amendment as well as the agreement of all of the partners in the federation. The Constitution also contains a bilateral amendment formula which has been used on at least three occasions, if I am not mistaken: by New Brunswick when the Official Languages Act of New Brunswick was passed, by Quebec to settle the matter of linguistic school boards and also by Newfoundland, for the terms that applied when it joined Canada.

    Mr. Pierre Foucher: Prince Edward Island also used it for its boats.

    The Chair: There you go!

    Could that formula not be used, in your opinion, by a province that would like a constitutional guarantee of access to health care in both official languages? Could this be done through bilateral means?

    Mr. Pierre Foucher: Yes.

    The Chair: Unequivocally?

    Mr. Pierre Foucher: Absolutely.

    The Chair: Do you think that the other provinces might object on the grounds that this could affect them?

    Mr. Pierre Foucher: Perhaps. Politically, there could be obstacles, but legally speaking, I do not see any.

    The Chair: My next questions will be addressed to Ms. Jackman and Mr. Colvin. I have to admit that I learn things every day, such as what is happening in the Northwest Territories. Does the Blais decision, which was not appealed by the Attorney General of Canada, not prevent this type of non-transfer of responsibilities?

    Mr. Tory Colvin: Theoretically, yes, but you have to remember that this was a decision at the trial level and there has been no appeal. Therefore another trial court must theoretically take it into account but is not obliged to comply with it. This is the problem. In spite of everything, Judge Blais's ruling clearly established that when powers are delegated to a level of government, related responsibilities must also be transferred.

À  (1010)  

    The Chair: If the Government of Canada did not appeal the Blais decision through the Attorney General, does that not mean that it accepts it and must comply with it?

    Mr. Tory Colvin: One would think so.

    The Chair: I see. Mr. Colvin, I would like to take a more in-depth look at the issue of money transfers in the health care area, for instance. You go further than your colleagues. Everyone says that the Government of Canada has the right to impose conditions on funds transferred for health care. Mr. Foucher, Ms. Jackman and you yourself said that. You went further, however. You said that not only did it have that right, but that it had the obligation to do so. I think that is the term you used. Could you elaborate, please? I'm trying to determine whether you see a lack of consistency between the Official Languages Act and the Canada Health Act.

    Mr. Tory Colvin: I may be a bit too optimistic in this area and I see that my two colleagues were much more conservative, but I think that when we look at the decision of the Appeal Court of Ontario concerning the Montfort Hospital and consider the importance that is increasingly being given to unwritten principles, one can see that when powers are delegated, the obligation of taking minorities into account and acting on their behalf is included. I think that the Dion plan which was referred to earlier reflects that. I think that the fact, for instance, that judge Blais' ruling was not appealed also reflects that. It reflects the reality which flows from the Beaulac ruling, which states that there must be substantive equality between the two official languages.

    I think that since the Beaulac ruling, a page has been turned and there are signs of this just about everywhere. I think that unwritten principles, especially when it comes to protecting linguistic minorities in English-speaking provinces, have some weight and are important, and that they must be taken into account when laws are passed.

    I think that I could be accused of being a bit too forward, but perhaps that is what it means to be a lawyer and an advocate: I really think that since 1998-99, we have entered a new era where language rights are concerned, and that they must be taken into account in almost all areas. I know that some are worried and wonder if it means that Montfort-type hospitals will have to be opened in small villages like Nipigon, in northern Ontario, where there may be two francophones. No, that is not what this means. But technology nowadays makes a lot of things possible. For instance, telemedicine allows a patient in a small village in the Northwest Territories to have an interview with his doctor in Ottawa or Montreal, who receives all of the data electronically. So, we are not saying that it is necessary to build huge francophone hospitals everywhere in the country, but only that we have to think of ways to allow for equal access. That is different. I think that the Romanow report broaches these issues of equal access and recommends, among other things, in recommendation 28, linguistic access.

    The Chair: Are there any other comments on this? I will come back to this later.

    Mr. Godin, you have the floor.

    Mr. Yvon Godin: I only have a few comments and one question.

    First of all, I was very happy with the decision on food inspectors. I had even asked some questions about this in the House when the transfers to Shediac were made and when services were lost in the Acadian peninsula. I was very satisfied with the decision. Now, we will see. If the government appeals the decision, it will say something about how much it supports the Dion report. It says it wants to be more open, do more and provide more money. Finally, a trial court issued an order saying that the inspectors had to be returned to Shippagan. It is a test that will show how serious the government is with regard to official languages.

    Secondly, the Association des municipalites francophones of New Brunswick is going to go to court on electoral boundaries issues. French-speaking minorities are to be transferred into an anglophone riding. What is interesting in all of this, Mr. Chairman, is that even anglophones are going to leave. Those who are staying in the riding say that they are going to become a minority and that they might also lose rights. It will be interesting to hear the debate on this. The filing will take place next week.

    Let us get back to a matter that seems important to me also, especially since New Brunswick is recognized as a bilingual province. Mr. Foucher, earlier, you referred to New Brunswick specifically. We are talking about services in French or in English, in both languages. But how far does service extend? For instance, someone once came to my office and said that he had gone to the hospital, that he had been given service in his language, but when he wanted his medical reports, he was told that that was his problem. He obtained them in the other language and had to pay to have all of his medical reports translated. So when we talk about services, it seems that we are only talking about spoken service, when two people talk to each other, but it goes further than that. I would like to hear your opinion on that, if you have one. Are we talking about complete services?

À  (1015)  

    Mr. Pierre Foucher: I think that it does indeed cover the complete range of services provided by institutions. Would it mean that doctors would be forced to write reports in the language of their patient? I would hesitate to say that it would go that far, since the doctor-patient relationship is a private one. It might be established that the hospital has the obligation to provide the translation of the report in the patient's language. But forcing a doctor in a private clinic to serve a patient in his or her language is an issue which deserves further study, let us say.

    Mr. Yvon Godin: Mr. Chairman, I would go so far as to include hospital reports.

    Mr. Pierre Foucher: Yes, for hospital reports, I...

    Mr. Yvon Godin: It could be nurses' reports or a long medical report to which the patient wants access, a report from the hospital itself.

    Mr. Pierre Foucher: Since hospitals are public institutions, this would have to be done. There is no doubt in my mind.

    Mr. Yvon Godin: Hospitals in New Brunswick, especially, since this is recognized by the Charter, have to...

    Mr. Pierre Foucher: Yes, moreover, New Brunswick now has a Commissioner of Official Languages. So a complaint could be filed with the new commissioner, Mr. Carrier, who would investigate.

    Mr. Yvon Godin: That answers my question. Thank you.

    The Chair: Would anyone like to speak again? I have some other questions; I will take advantage of this lull, with your permission.

    My question is somewhat rhetorical, in that several provisions of the Charter of Rights and Freedoms or of the Official Languages can be invoked.

    According to your knowledge of the current Official Languages Act, is it possible to affirm that pursuant to that act, the Government of Canada, when it transfers powers, is already obligated to apply and comply with that act and also to ensure that these transfers are accompanied by the condition that health care services must be offered in both languages to minority official language communities?

    Mr. Pierre Foucher: In light of the decision handed down last week by the Federal Court, I would reply in the affirmative. This case concerned a similar area, food inspection. The court implicitly recognized that part VII of the act, which contains the federal government's commitment to support minorities, can lead to judicial orders; thus, it is binding.

    Now, what does part VII contain? One provision in particular in which the federal government commits itself to helping the provinces set up services in both languages. In light of this ruling, the federal government does have an obligation.

    The Chair: Fine. Are there any other comments on the issue?

    Mr. Tory Colvin: The debate to determine whether that part of the law is directory or declaratory has lasted for nearly 10 years. It is the purpose of Senator Gauthier's bill. We have always maintained that it is binding. It simply states that such and such a thing will be done, but that is not necessarily the position of...

    The Chair: On this issue, let me point out that the question was put—by Mr. Simard, I believe—to Minister Dion the last or the next to last time he appeared before the committee. The minister answered—and I am mad at myself that I did not react quickly enough at the time—that these programs and transfers were almost always under shared jurisdiction. That is why in his opinion the Government of Canada cannot—and we can check the transcripts to make sure I am quoting him accurately—impose that pursuant to part VII of the law.

    Someone could at that point have thought of the following question, which is valid. So I am going to ask you: I can understand that the Government of Canada hesitates to state that part VII of the Official Languages Act is binding when shared jurisdictions are involved. However, when we are talking about federal programs or any strictly federal area of jurisdiction, is the law then binding? Is that what we can expect?

À  (1020)  

    Mr. Pierre Foucher: Yes, the law would be binding in the case of exclusively federal programs. As always, the difficulty comes from the fact that health is an area of provincial jurisdiction.

    The Chair: I will repeat my question. Would a transfer program such as the Canada Health and Social Transfer be considered a federal program or a shared jurisdiction program?

    Mr. Pierre Foucher: Yes.

    The Chair: Yes what?

    Mr. Pierre Foucher: It is a shared jurisdiction program.

    The Chair: So it falls under provincial and federal jurisdiction, and in that case the act would not be binding.

    Mr. Pierre Foucher: Well, you would need a judicial interpretation. The debate continues, as Mr. Colvin said.

    The Chair: Here is another question. Supposing an English-speaking person from the Canadian west were to go to the Acadian Peninsula or somewhere in Quebec; suppose he then needed health care and went to a public institution but did not have access to service in English, whereas the Canada Health Act guarantees him access to services. Can it be said at that point that his rights have been breached, whether we are talking about the rights recognized by the Canada Health Act or by the Charter of Rights and Freedoms?

    Ms. Martha Jackman: Your question is very interesting, in my opinion, because up till now the discussion has centred on access to services for the local community. The issue you raise of what would happen when you come from somewhere else is very, very interesting. I think there is a difference where provincial laws that apply to linguistic minorities are concerned. But obviously, from the perspective of the Charter or of the Canada Health Act, the content is the same, whether you are a resident or from outside the province. So section 7 or section 15 of the Charter guarantees access to health care.

    The problem is that the Canada Health Act does not contain a good definition of the notion of accessibility and it is not applied. Yes, in principle, services are to be provided, but when I arrive in a unilingual milieu where the other official language is spoken and fail to obtain decent medical service, I cannot file a complaint under the Canada Health Act complaint mechanism because there is no such mechanism. It is a federal-provincial agreement which for the time being contains no individual application mechanism.

    My colleague Sujit Choudhry from the University of Toronto claims that according to the Finlay case model, which concerned the Canada Assistance Plan, an individual could turn to the courts to attempt to have the law enforced. But you would have quite a battle to wage to convince the courts to accept such a complaint.

    The Chair: So...

    Ms. Martha Jackman: To summarize, I would say that where the Charter is concerned, there is no problem. There is no problem if I am right in saying that sections 7 or 15 of the Charter entrench access to health care in one's language. But if we must depend on provincial legislation on language rights or on the Canada Health Act, things are much less clear, in my opinion.

    The Chair: Does anyone have anything else to say on this topic? Is my right to be served by the public health system in my language restricted to my province or my place of residence or birth place, or can this right be applied anywhere in Canada? Is it a regional, local or national right?

À  (1025)  

    Mr. Pierre Foucher: If accessibility includes a linguistic aspect, it is a national right. If accessibility does not include a linguistic aspect, for the moment, it is a provincial right. The federal government can only act through the Official Languages Act and through its spending power by helping provinces to provide services. As for the provinces themselves, the only ones who have any obligations are, as I said, Ontario, Quebec and New Brunswick, who have created obligations in their legislation. The only province that has a constitutional obligation is New Brunswick.

    The Chair: Are there any other colleagues who would like to ask questions?

    Mr. Sauvageau.

    Mr. Benoît Sauvageau: I would have a question to ask, with your permission, but after the witnesses leave. I wanted to give you notice right away.

    The Chair: Very well. Mr. Foucher, Ms. Jackman, Mr. Colvin, Mr. Rémillard, did you want to add anything?

    Mr. Rénald Rémillard: I simply want to reiterate the fact that there should be a debate around whether or not accessibility includes a linguistic aspect. This would certainly have to be added very specifically. The courts always hesitate to go further, especially when the language issue is involved.

    The Chair: Thank you.

    Mr. Foucher, you have the floor.

    Mr. Pierre Foucher: In conclusion, I simply wanted to congratulate the committee on its work and wish it the best of luck.

    The Chair: This work is not easy and it is extremely complex. It touches on several matters: federal-provincial jurisdictions, the Constitution, the Charter of Rights, the objectives of the Official Languages Act, and so on and so forth. We are going to do our best to arrive at certain conclusions, but I have the feeling that we may have to be satisfied with raising certain questions that will lead us to further reflection and will lead our governments—not just the Government of Canada—to further reflection.

    So, we will continue. As I was saying, tomorrow afternoon we will be hearing another person at 4:30, but at 3:30, there will be an in camera meeting on our future business.

    Ms. Jackman, you wanted to speak. You have the floor.

    Ms. Martha Jackman: I too wanted to congratulate the committee. Too often, we see that there is a clear division between language rights and other rights, especially at the social level. Linguistic minorities in Canada are often economically underprivileged. Language rights as they are traditionally interpreted, the right to legal representation, the right to education in one's language, are not the biggest problems for minorities. I am delighted to see that you are broaching this issue. Thank you.

    The Chair: Indeed it is a bit of an adventure. It is long-term work. I think that your comments will be of enormous assistance to us. We are going to reread them, digest them and they will in one way or another be reflected in our report, which we expect to have ready at the end of October. I yield the floor to Mr. Sauvageau.

    Mr. Benoît Sauvageau: My question is the following. Last June 10, the Minister of Defence stated that on June 9, that is to say the day before his testimony, he had had time, with his staff, to prepare a strategic plan for National Defence. At your request, Mr. Chairman, he was to send the clerk of the committee and the members of the committee a copy of that strategic plan prepared June 9. I would like to know if we have received that.

    The Chair: No.

À  (1030)  

    Mr. Benoît Sauvageau: Thank you very much.

    The Chair: Let us move to another topic. I received a letter from Mr. Jean-Pierre Kingsley, the Chief Electoral Officer, dated September 12. You will recall that he had asked to meet with us on September 17, i.e. tomorrow, to study the relation between the Official Languages Act and the elections, the changes to electoral riding boundaries, etc. We know that this debate rages on in certain parts of the country. I find it regrettable that this meeting to be held tomorrow was scheduled from 2 to 5 o'clock since some of our colleagues have formal duties in the House during question period at that very time. This letter dated September 12 confirms that the meeting will be extended from 5 o'clock to 7 o'clock to accommodate our colleagues. There were at least three of us, Ms. Thibeault, Mr. Godin and myself, who expressed an interest in participating. We could thus continue the meeting between 5 and 7 o'clock tomorrow. Mr. Godin, you have the floor.

    Mr. Yvon Godin: Mr. Chairman, I want to point out that it is regrettable that the meeting is to take place tomorrow during question period, all the more so since the government will tomorrow be tabling its bill aimed at changing the August date to another date in the month of April. I certainly intend to intervene during the debate on this bill because it will prevent the court from ruling, in my opinion. We have to be in two places at once. It will be difficult to be here because this debate will end around 5:30 p.m. Would it be possible for our meeting to be held from 6 p.m. to 8 o'clock?

    The Chair: Mr. Godin, I cannot confirm anything because it is not up to us to set the time for meetings organized by the Chief Electoral Officer. However, we are entirely free to...

    Mr. Yvon Godin: The chairman could make a suggestion.

    The Chair: Yes. I had made one and we had obtained two extra hours. Moreover, the committee is free to invite whomever it wishes to invite.

    That being said, I thank you once again for your presence here today. Your contribution was very useful. Have a good day.

    The meeting is adjourned.