Good morning, everyone.
Thank you for this invitation to discuss with you a subject about which I am passionate, but which is also important for Canada as a whole: the status of the official languages and the future of our communities.
In the few minutes I have, I thought it would be useful to provide a brief historical overview to get us all on the same page and fully understand what is happening today, both in the Senate and the House of Commons, in terms of the modernization of the Official Languages Act.
You have in your hands a small document. I see that even Ms. Boucher has it.
First of all, we must not forget that, when Canada was created in 1867, the status of French was almost not protected. At the time, the talk was about the status of English in the National Assembly, the status of French here in the federal Parliament, in legislation, or in spoken form. Beyond that, there was nothing. Basically, things got off to a bad start. Our forefathers had been promised that French and English would be the two official languages in all areas of activity, but the Constitution did not reflect that promise. It led to an extremely difficult period, which caused French Canada to wake up, especially in Quebec, but not in that province alone.
At tab 3 of the document, you will find a passage, in French, from Graham Fraser's book entitled Sorry, I Don't Speak French. It is followed by the passage in English. On pages 41 and 42 of the French passage, you will find a quite incredible historical account of when the Social Créditistes from Quebec arrived in Ottawa. When they arrived, they decried the English-only menu in the Parliamentary restaurant, the VIA Rail announcements at the Ottawa station, and so on.
French Canadians, especially Quebec francophones, were so successful in their complaints about the state of affairs that it led to the creation of the Laurendeau-Dunton Commission in the 1960s. It produced its first report in 1965 and a real legislative movement. That is why we are talking to each other today. The real legislative movement, of course, was the first Official Languages Act, introduced in 1968 and passed in 1969.
To remind you of the significant path that Canada has taken in a few generations, I invite you to take a look at the document at tab 1. You can read it on the plane, the train, or before you go to sleep. This is the statement by the Prime Minister at the time, the father of Justin Trudeau, explaining what Canada was trying to do when it introduced that first Official Languages Act.
This was not about partisanship. Mr. Trudeau's speech was advocating for decolonization. He said how much French Canadians have suffered. The speech was well received by all parties in the House. It led to the first Official Languages Act, passed in 1969. You will find it at tab 4.
The good news is that the status of French took a big leap forward, and English was also protected. That had never been the case previously. The bad news is that no implementation mechanism worthy of the name had been included. The implementation had to be done in bits and pieces. Each federal institution was responsible for looking after its own needs. As you can imagine, when a minister was interested, things went well, otherwise, they did not.
Then, in 1982, we had the Canadian Charter of Rights and Freedoms. That allowed the status of French especially, but also English in Quebec, to take another big leap forward. A minimum level of education in English was required.
In the 1970s, your predecessors in Parliament, both in the House of Commons and the Senate, began to deplore the inadequacies of the first Official Languages Act. This led to all kinds of interesting debates. I am not talking about the Meech Lake accord, or the one in Charlottetown, but about the Official Languages Act. Those debates culminated in the act that you know so well and in which you are experts. Since then, it has been concluded that it has to be modernized through and through. I am guessing that one of the questions is to determine how to achieve that. You will find the legislative text at tab 5.
Some more fascinating bedside reading can be found at tab 2. It is a speech by Ray Hnatyshyn, who was the member of Parliament for Saskatoon West at the time, at second reading of a bill, followed by a speech by Jean-Robert Gauthier, speaking for the Liberals, once more underlining the lack of partisanship in the issue. Everyone was in full agreement on the need to review the Official Languages Act from top to bottom. That is what your predecessors did in 1988 and it is what must be done now, quick like a bunny, as our mothers might say.
What does the 1988 act do? I want to highlight three things that we see as important for your work.
The first is that the implementation mechanism has to be completely rethought. In 1969, the implementation of the act was vague. In 1988, almost all the responsibility was placed in the hands of the Treasury Board. Why the Treasury Board? Because it is a central agency that is able, as you know, to give other federal institutions their marching orders.
That was a conscious decision, and it received the support of all parties in the House of Commons. The objective was to correct the errors in the first act and to equip ourselves with the ways to proceed if we really wanted to get things done.
That is reflected in Part VIII of the Official Languages Act. It starts at section 46 and is entitled “Responsibilities and Duties of Treasury Board in Relation to the Official Languages of Canada”. That is clear.
The second thing to stress with the 1988 act is, of course, Part VII, which encourages federal institutions to take measures to foster and enhance the development of French and English everywhere in Canada. These are the famous sections 41, 42 and 43.
I have the impression that we are going to be talking about this after my opening statement, but I want to remind you that Part VII of the act only dates from 1988. When it was passed in 1988, it could not be challenged. In other words, in 1988, no one could go to Federal Court to demand that it be implemented. In addition, Part VII was the responsibility of the Secretary of State. Today, we would say Canadian Heritage. It is one of the only parts of the act that is not the responsibility of Treasury Board. At the time, some people criticized the fact that it probably was not going to work. I am sure you see where I am going with this.
In the Senate, in March 1988, Senator De Bané spoke to Lucien Bouchard, who was Secretary of State at the time and was steering the new Official Languages Act through the federal Parliament. What did Senator De Bané say? Let me read you a passage. Unfortunately, this is not in the document you have. However, I am sure you will agree that it is fascinating:
Second, Mr. Minister, I would like to go back to the section 42 that you alluded to. Let me tell you that, personally, I am very pessimistic about the impact that the Secretary of State will be able to have with a diluted section that reads as follows…
He then read the text of Part VII.
As you know, only two or three organizations in the federal government truly have power of coordination: Treasury Board, the Department of Finance and the Privy Council. I predict, Minister, that section 42 will never give you the authority to tell recalcitrant ministers that, under section 42, they are required to take such and such an action in a certain part of the country in order to help you achieve the objectives of the act. As it stands now, Minister, all that provision will do is cause you frustration.
Why did Gérard Pelletier, your predecessor as Secretary of State, transfer to the Treasury Board his responsibilities for upholding bilingualism in the public service? It is not because—and allow me to speak freely—he too has a very close relationship with the Prime Minister. No, it is because the Secretary of State's legislation gave him no coercive power over recalcitrant departments. That is why Gérard Pelletier himself asked, at a certain point, for it to be transferred to the Treasury Board which, by law, must approve the budgets of departments and can impose requirements on them. By so doing, he hoped that he would be able to secure the agreement of those recalcitrant departments, by the back door if necessary. If you think that section 42 as worded will give you those powers, I predict that it will become a major source of frustration for you. Sections like that do not give departments the power to make other departments do work if they do not want to do as you direct.
Unfortunately, ladies and gentlemen, Senator De Bané was quite right. Between 1988 and 2005, for French Canadians and anglophones in Quebec, the implementation of Part VII was a tale of major frustration. Part VII did not work.
That is what led Senator Jean-Robert Gauthier to amend Part VII in 2005. On that occasion, Senator Gauthier received support from all parties, first in the Senate and then in the House. His bill, which received royal assent, is found at tab 7. In official language communities, it is known as Bill .
What does the bill do? It makes Part VII open to challenge. In other words, it makes it possible to go to Federal Court. Now, what Senator Gauthier, or any of your predecessors in Parliament, did not do—I don’t think any member here was there in 1988—was transfer responsibility for Part VII to the Treasury Board.
This may seem strange to you, coming from a lawyer, but Senator Gauthier, instead of choosing an administrative route, chose a legal route, and the result was a disaster. But I say that with the greatest respect and the greatest admiration for the person who previously represented the constituency of Ottawa-Vanier. He made a mistake, everyone made a mistake. Everyone underestimated the rigidity of federal institutions.
Why do I say that? Because, last May, the Federal Court said that Part VII means nothing. So Senator Jean-Robert Gauthier's amendment had no result. Essentially, the act as a whole is ailing.
At tab 8, you will find some passages from Justice Gascon’s decision. The case, entitled Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development, essentially, but not exclusively, dealt with the interpretation of Part VII.
I feel it will be useful for your work to read paragraph 213. You will find it at tab 8. It may hurt to read it, but sometimes it is important to understand the problem. Towards the end of paragraph 213 of the decision, Justice Gascon says:
Clearly, the text of the Act reveals that the expression “positive measures” does not mean the same thing as these other types of measures. It clearly does not have the same attributes of comprehensiveness, necessity, precision or sufficiency found elsewhere in the OLA.
Part VII does not say what we wanted it to say.
Let me quote one last passage. This is paragraph 216, and this is where it really hurts. The paragraph begins:
In short, section 41 does not impose specific and particular duties on federal institutions. The language used in subsection 41(2) is devoid of all specificity.
In my world, what do we do when things do not go well before a judge? We file an appeal, which is what is happening here. We will see what the position of the Government of Canada will be on appeal. In my world, winning is what really counts. What does winning look like? Going before parliamentarians and asking for the act to be appropriately amended.
That brings us back to the topic at hand: what to do with legislation that is clearly inadequate? As we see it, the time has come to rewrite the act completely, as your predecessors did in 1988. The time has come to take the act, section by section, and to ask ourselves whether it still makes sense in 2018 or 2019. Sometimes, the answer may be yes. If not, the provisions of the act will have to be improved.
Part VII is not the only one that must be rethought. We must also consider the major changes that have taken place in Canada over the course of time.
Let me invite you to look at tab 10. The wonderful map you will find there is such stuff as dreams are made on. It tells us that French can survive outside Quebec.
None of those schools outside Quebec existed in 1982. Some of them, in Nova Scotia, were established through the efforts of the member for Sackville—Preston—Chezzetcook. It is a fact that our communities are doing better than ever. But the Official Languages Act of 1988 does not reflect the impact of school administration. School boards are not major players. Very recently, the proposal has been made, through and , to amend the federal government's Official Languages Regulations to recognize the existence of a school as a sign of a community's vitality. However, that is all. We have to rethink the act in light of the fact that French Canada is doing much better than in the 1970s and the beginning of the 1980s.
Ideas are coming from all sorts of sources. There are good ideas and ideas that are less good. Let me invite you to take a look at tab 6. There you will find a list as long as your arm, in French and English, of all kinds of bills that tried in vain to amend the Official Languages Act before 2015, that is, before the last federal election. You have ideas of your own. You and the senators hear all kinds of witnesses proposing ideas for reform that are basically good.
In conclusion, in our professional capacity as lawyers, we have four recommendations for you.
First, more power must be given to the Treasury Board. In the 1988 act, everything attributed to the Treasury Board as a central agency was optional. In 1988, it was anticipated that the central agency could act. Instead, we should demand that one central agency be responsible for the official languages.
Second, official languages communities must be given a right to participate and a right to be consulted before major governmental decisions are made. Of course, I am not talking about a right of veto; I am not that naive. The idea is to make sure that official languages communities, language communities in general, can participate in public debates before major decisions are made, just because it is in their interest. We do it for indigenous peoples and rightly so. We should also be able to do it for French-speaking Canadians and English-speaking Canadians.
Third, there must be an appropriate accountability framework. By that, I mean an administrative tribunal that can hear and deal with disputes or problems with the implementation of the act. But the role and responsibilities of Canada's Commissioner of Official Languages must also be rethought. They go hand-in-hand. Some things are going well but some things are going very badly.
Fourth and last, the rest of the act must be rethought. The obligations that should be in the act must be rethought. The rights that should be granted in the act must be rethought. The list is very long. I know that some witnesses have already begun to draw up that list. You have your own ideas. The message is that this federal act needs to be rethought and passed once more, and the sooner the better.
Thank you for your attention.
I have two or three comments in response to your question, Mr. Choquette.
First, without wanting to repeat what I've already explained, I don't think anyone should underestimate the fact that, when federal parliamentarians say they're in favour of official languages, that's both symbolically and genuinely useful and important for the linguistic communities, even in disputes, fights and crises, to borrow the term you used, at the provincial level.
I personally want to thank all of you here, in particular, Mr. Clarke, who has expressed his dissatisfaction in this matter, but also the present government and its members. As a francophone outside Quebec, I find this reassuring and I'm grateful to you. It's very important. I think this is part of the federal role in the federation.
My second comment kind of follows in the wake of what Mrs. Fortier began to say. You mentioned early childhood and postsecondary education. For years, the Canadian government has granted millions of dollars to the provinces and territories and set very few conditions and, in some instances, none. That makes absolutely no sense in 2018. Responsibility, transparency and accountability have become values that can be properly used or misused, as we saw last Thursday. It's illogical for the Canadian government to allocate so much funding to Toronto without requiring something in return, such as that it keep the promises it made to francophones. I'm stating this in a general way, but that's enough for the moment.
For my third comment, I want to go back to the modernization of the Official Languages Act. It's the issue of the moment after all, despite last Thursday's surprise. As witnesses have already recommended to you, the Official Languages Act should include a section requiring, for example, that an OLEP or a federal-provincial education agreement be adopted every five years. That section could also require that a five-year action plan be adopted. I'm referring here to what the Fransaskois recommended to you. This would be a structural and structuring way to enable the federal government in future to monitor the money it gives to the provinces more closely. If the provinces knew there would likely be consequences, they would think twice or even three times before cutting the programs and services that are dear to us.
Federal support for education from kindergarten to grade 12 is not unusual, Mr. Choquette. Neither francophones outside Quebec nor anglophones in Quebec had any constitutional right to their schools in the 1960s. What did the Canadian government of the time, the government of 's father, do? It put money on the table, but with conditions attached, and those conditions were met. It's time to reinstate that notion of reciprocity, more specifically by adding provisions to the act respecting responsibility, transparency and accountability.