I would like to thank the committee for inviting me here today to discuss an important topic, the modernization of the Official Languages Act.
I would like to congratulate you all on your work to promote and develop Canada's linguistic duality. That brings me to my first point. I will touch on just six points, each one briefly so I don't go over my allotted time.
The act does not mention Canada's linguistic duality. It does, of course, refer to English and French as Canada's official languages. It also talks about the development and vitality of English and French linguistic minority communities. All of that implies that Canada has a linguistic duality. However, the act does not specifically mention the concept, which, I'm told, has been losing so much ground that, as Senator Miville-Dechêne said at a recent seminar at the University of Ottawa, attitudes toward linguistic duality in federal institutions are becoming less and less friendly.
What she said really worried seminar participants, and it made me realize how important it is for Parliament and, ultimately, the Government of Canada, to formally recognize the concept of Canadian linguistic duality. As you know, multiculturalism and bilingualism have already been recognized, and it might be time to recognize Canada's linguistic duality as well.
My second point is international immigration. The Official Languages Act says precious little about immigration, which is absolutely crucial to the vitality and development of official language minority communities, especially francophone and Acadian communities. Their demographic weight in this country is shrinking steadily.
It seems to me that the modernization of the act provides an opportunity to include provisions regarding immigration. However, great care must be taken not to compromise the Canada-Quebec accord relating to immigration. Lawmakers will have to be extremely careful when it comes to respecting the agreement Quebec and the federal government have in place.
My third point is about Canada's international image. Perhaps the Commissioner of Official Languages should be mandated to ensure that Canada's institutions and representatives abroad convey an image of our country that respects the linguistic duality I referred to earlier. In other words, up to now, too little consideration has been given to Canada's international image.
The commissioner has well-established responsibilities here in Canada. Sections 23 and 24 of the act relate to travellers and Canada's offices abroad. I am familiar with those provisions, but the commissioner's role with respect to Canada's international image should be much more clearly defined.
I would also note that the act does not prevail in all cases. According to section 82, only some parts of the act prevail over other federal acts and regulations. In my opinion, that partial primacy should no longer be. I think all parts of the act should prevail.
One issue you probably did not expect me to raise is bilingualism in the Supreme Court of Canada. I am thoroughly convinced that bilingualism is possible in the Supreme Court of Canada. I am referring to section 16 of the act, which covers courts other than the Supreme Court of Canada. That means it is possible to institute bilingualism in the Supreme Court of Canada without seeking a formal constitutional amendment. Anyone who says otherwise is, I believe, mistaken. I have no compunction about raising this important subject.
My final point relates to something you have already heard a lot about: the importance of strengthening the act, giving it teeth. At this time, the commissioner does have important powers, it's true. For one, he has the power to investigate, report and make recommendations, but he doesn't have the power to impose sanctions. I think the time has come to focus on that gap in the Official Languages Act and give the commissioner the power to impose sanctions.
I know quite a few people interested in linguistic rights in Canada have proposed creating an administrative tribunal. I think that idea is worth exploring. I can go into more detail when it's time for questions.
That concludes my presentation.
Thank you very much, Mr. Chair.
As the Supreme Court justices say, I concur. I could stop right there, but I will add a few remarks of my own.
The last time I appeared before the committee, we were talking about Air Canada. Now the scope of the discussion has broadened to include the entire act and how to strengthen its application.
As everyone knows, the act is difficult to enforce. More and more things are being allowed to slide. Just yesterday or the day before, a National Energy Board report was published in English only, which is a clear violation of the act. That should not happen. We need to find ways to make sure it doesn't happen again. The Official Languages Act is now 50 years old, and violations like that are completely unacceptable.
That said, how can the Official Languages Act be modernized and improved? I will focus on a few points related to enforcement.
First, I have long called for transferring responsibility for enforcing the act to the Privy Council Office. PCO is crucial to the machinery of government, and making it responsible for enforcement would be very efficient and effective. That's how it worked under Stéphane Dion. Back then, the act worked well. That would be one way to improve enforcement of the act.
Second, and on a similar note, it might be a good idea to clarify Justice Canada's role. The act lists Treasury Board's and Canadian Heritage's responsibilities, but the Department of Justice, though an important player here, is not involved in applying the act.
Third, a number of recent court cases have led to disappointment. In the Air Canada case, for example, the court refused to award damages. Section 77 could be clarified to give judges some ideas. For example, it can state explicitly that, where they find a party to have been in violation of the act, they can award damages if appropriate.
Fourth, there was a lot of talk about administrative penalties during the Air Canada affair. It might be easier to sanction private entities, but the Treasury Board Secretariat can impose administrative or monetary penalties on departments too. Why not adopt a carrot-and-stick approach and make it clear to departmental officials that constant, repeated, ongoing violations of the act may affect their budgets?
The final issue I want to talk about is an administrative tribunal. It could be useful; there are pros and cons. It would be most useful for part IV on language of service, part V on language of work, part VII on positive measures and section 91, a technical provision on linguistic designation of positions. An administrative tribunal's expertise could be very useful in these areas, and having a tribunal deal with matters would be faster and cheaper than going to Federal Court.
There are cons, however, such as potential conflicts with other administrative tribunals that can deal with official languages. There will be legal debates over which body has the power to rule in a particular case. It distances litigants from the court if they decide to seek a judicial review in Federal Court following an administrative tribunal's decision. I don't want to get too technical, but it's important to know that when courts are conducting a judicial review of an administrative body, they tend to respect the administrative tribunal's jurisdiction and decline to intervene unless something unreasonable was done.
In any case, I am not alone in saying that the existence of the court challenges program, if not the details of how it operates, should be included in the act. It's important to remember the court challenges program. If an administrative tribunal were to be created, the court challenges program would have to be authorized to pay for proceedings before the administrative tribunal, not just the courts.
Thank you. I am happy to answer your questions.
Mr. Pelletier and Mr. Foucher, I'm very happy to see you here this morning. I was the one who requested your appearance here.
Mr. Pelletier, as I told you, I'm very happy to meet you. Many people have told me that you are an accomplished constitutional expert. I think of myself as an amateur constitutionalist. Maybe we can put that to the test.
I would like to get right down to business. We decided to improve on the Senate's study by focusing on elements related to the tribunal and the positive measures mentioned in part VII. If I understand correctly, when the act was last amended in 2005, lawmakers wanted to make the notion of positive measures more tangible in part VII.
Mr. Pelletier, I've been told that you are an expert on intergovernmental relations. Perhaps you are too, Mr. Foucher. I don't know.
Here's what I'd like to ask you. Take the Université de l'Ontario français, an exceptional undertaking that, for the first time in Canada's history, would give the federal government the opportunity to implement a truly positive measure by circumventing the provincial government and funding the university directly by various means. If that were to happen, what would the consequences be?
Similarly, if the wording of part VII were to extend beyond the realm of possibility into duty, any community could, at some point, contact the federal government, tell the government the community is dying, and call on the government to take positive measures. My question is really two questions in one.
First, in a case like that, how could the government determine if the community is truly in danger?
Second, if the government were to take positive measures in an area under provincial jurisdiction, what would the consequences be in terms of shared jurisdiction under the Constitution?
I picked up on two things you said.
The first is the division of legislative responsibilities, which both levels of government must respect, of course. In other words, Parliament cannot directly legislate in an area such as education, as in your example.
The division of legislative responsibilities is one thing, but federal spending power is another. Although the jurisprudence has not provided a definitive answer to date, the Supreme Court of Canada has, on many occasions, shown itself to be in favour of the federal government using its spending power regardless of the division of legislative responsibilities. In other words, the Supreme Court has found that the federal government can spend money in areas under provincial jurisdiction and has never shown any sign of wanting to restrict that power.
Some may say that such statements are merely obiter dicta, incidental expressions of the Supreme Court of Canada's opinion on federal spending power. I can tell you that in some cases, such as Chaoulli, the Supreme Court went a long way by legitimizing and affirming the Canada Health Act, which, in a way, provides guidelines for federal spending on health. Technically, therefore, Parliament can do a lot with its federal spending power, even in areas under provincial jurisdiction.
That brings us to the political problem of Canadian intergovernmental relations. It would look very bad if the Government of Canada were to intervene directly in matters under provincial jurisdiction against the wishes of a provincial government. I cannot overemphasize how bad that would look in terms of intergovernmental relations.
I also know that a number of provinces, including Quebec—maybe especially Quebec—are very resistant to accountability. What that means is that, when the federal government spends money to help the provinces help official language communities, Ottawa can ask for accountability. Many of the provinces take a pretty vague approach to accountability, and some are downright opposed to the idea of the federal level requiring accountability for areas under provincial jurisdiction.
Thank you very much, gentlemen.
Mr. Foucher, we last saw each other a year ago, and before that, it had been quite a while.
Mr. Pelletier, as I said earlier, I don't remember what forum I was at 10 years ago, but you were a minister in Quebec at the time and a key supporter of francophone minorities outside Quebec. That was much appreciated.
Mr. Pelletier, I'd like to follow up on my colleague's question about jurisdiction, the shared powers you mentioned and spending power. I find that very interesting.
included a clause in the early learning and child care agreement stating that there must be spaces for francophones. This is the first time we've seen something concrete. It's not as much as we would like, but it's a start.
You referred to Quebec, particularly in the context of immigration.
When it comes to spending power, if I give you something, I'd like to know how you're going to spend it.
Do you think we can add something to the act to strengthen that notion of accountability?
I want to thank the witnesses for being here today.
We also thank you for reminding us of the importance of having bilingual judges at the Supreme Court and encouraging us to change the law accordingly. The committee recently tabled a report on the matter, recommending that the current government amend the Official Languages Act or other legislation before the end of the current mandate to make it a requirement for Supreme Court justices to be bilingual. However, I don't think that is going to happen, sadly.
I also want to say a few words about what the National Energy Board did recently. It is horrible and you are right to mention it. I have been following this translation issue since 2014, first with the Energy East pipeline project and now with the Trans Mountain project. I moved a motion in the House of Commons on the matter and I will be filing a new complaint with the Commissioner of Official Languages.
As you said, we now have a problem with some non-compliant agencies or departments. Take the Royal Canadian Mounted Police, for example. The Commissioner of Official Languages made three recommendations to the RCMP that were so simple that my colleague Yvon Godin took it as a slap in the face. However, five or six years later, the RCMP still has not complied with these three simple recommendations, which is disrespectful to the Commissioner of Official Languages. You provided some solutions, but what can we do about agencies like the National Energy Board, which does not respect both official languages, or the RCMP, which does not respect the Commissioner of Official Languages? What can we do to improve this situation?
I thank our guests for being here. It is truly a pleasure to hear their point of view.
I would like to point out that Mr. Foucher had a successful tenure at an Acadian university, the Université de Moncton. He must be the only constitutional expert who can strum a guitar and sing Charlebois at the top of his lungs and he sure did.
I will leave it to my colleagues to talk about the merits of having an administrative tribunal, even though I would like to discuss it, but I will focus on another topic instead.
Mr. Pelletier, the first point you raised in your opening remarks—a point that Mr. Foucher subscribes to—was the following: the concept of linguistic duality seems to have gone quietly into the night. It is not something that seems to be talked about any more in Canada. I think that is the main reason our Official Languages Act is weak and has no teeth. This is not new and I would like you to expand on that. Why are we still discussing this today? I think we need to nip the problem in the bud and talk about it openly.
Before we get into that, however, I would like you to explain the link between this lost concept of linguistic duality and the age old separation of legal powers between the provincial and federal governments. Many witnesses have told us that if they cannot live, breathe, sing, write, and dance in their mother tongue from early childhood and throughout their education and post-secondary education, then they will not be able to thrive and grow. My mother tongue is that of Antonine Maillet.
How do you explain this lack of teeth in the Act or the fact that this concept of linguistic duality seems to be lost in this beautiful and great country of Canada?
I will begin by saying that the Commissioner of Official Languages defines linguistic duality as, “the presence of two linguistic majorities cohabiting in the same country, with linguistic minority communities spread across the country”. This evokes a concept we used to hear a lot about, the fact that there are two major host communities. There are two major linguistic groups in Canada and two host societies. These groups have rights that are not only contemporary, but also historic. Let's not forget that.
In my view, we have put too much emphasis in Canada on the right of each individual to choose between English and French and not enough emphasis on the wealth and synergy that stems from the very coexistence of both official languages. In my view, the concept that best translates this dynamic between the two official languages is linguistic duality.
However, I hear that linguistic duality is losing ground in some instances, specifically at federal institutions, as some have mentioned. I think we need political leadership to bring linguistic duality back to the forefront. It is extremely important for linguistic duality to have more of a presence in major official speeches across government, including by the Prime Minister and not just in speeches by the minister responsible for the Canadian Francophonie.
I can assure you that if linguistic duality were truly a fundamental value for Canada, as the Prime Minister, ministers and the entire machinery of government have said, then most Canadians would realize that they all have an interest in having their children learn French and English to ensure that they have the brightest possible future in Canada. For the longest time, that used to be the federal government's message, that if people wanted to get ahead in Canada or give their children the best chances, then they needed to have adequate knowledge of both official languages.
That being said, I hope that the political leadership that I attribute mainly to the federal government will spread across the country and result in more services in French and better collaboration with the provinces. However, there is nothing I can do about the fundamental problem of shared jurisdiction.
As you know, bilingualism exists at the federal level and in a more comprehensive way in New Brunswick. As for the other Canadian provinces, a certain form of bilingualism exists in Quebec and Manitoba under section 133 of the Constitution Act, 1867, and section 23 of the Manitoba Act, 1870, respectively. What is more, section 23 of the Canadian Charter of Rights and Freedoms applies to every province in Canada. However, subsection 23(1)(a) will not apply to Quebec until that province accepts that provision.
In other words, like Quebec, which chose to have just one official language, French, most Canadian provinces make their own choices on linguistic matters. However, that is no reason to stop promoting bilingualism across Canada, including in several sectors of the federal government. We must promote bilingualism. We have seen some positive signs, including the fact that immersion schools are bursting at the seams and there is demand for more immersion schools, or the fact that every province except British Columbia, I believe, has legislation on receiving services in French. That is significant progress across the country.
The other good news is that the Official Languages Act is much better perceived these days than it was when it was passed and it is accepted by the vast majority of Canadians. The bad news is the gradual decline in the demographic weight of francophones in Canada.
I would like to briefly come back to immigration, Mr. Chair. It would indeed be important for the commissioner to be responsible for maintaining the demographic weight of official language minority communities across the country. It would also be important for the Government of Canada to make an extra effort to achieve the immigration targets that have been set. This would help mitigate or counter the loss of demographic weight, which is the biggest threat for francophones in Canada, which, unfortunately, is an argument that plays against Canadian federalism.
Mr. Pelletier, Mr. Foucher, thank you for being here.
I want to quickly come back to the Commissioner of Official Languages.
Personally — I am not speaking for my party — I have always had a problem with the idea of a monetary penalty of any kind. The question is quite simple: if the Commissioner of Official Languages obtains the power to fine the government — regardless the department — for non-compliance with the Act, who will pay? We can all agree that the money will come out of the left pocket only to be put in the right pocket.
I can't imagine a scenario where the Commissioner of Official Languages would give a department X fine only to then have the Treasury Board asked to disperse the funds required to pay the fine. Something doesn't add up there. However, if the commissioner asked the Treasury Board to reduce the budget of a department or a given project as a form of penalty, then the department would be sure to react differently than if it were to receive a simple fine because money talks. In any case, it comes out of the same pocket.
Fining Air Canada is different. By the way, Air Canada is the only airline subject to the Act. The others can do what they want and will no longer be penalized in any way, which will do nothing to improve the French situation in Canada.
See what I mean? I understand the idea of using some sort of pressure on all the departments, but the reality is — as you said, Mr. Pelletier — that it takes political will to enforce the Act.
That is very kind of you.
Hello, Mr. Chair and honourable members of the committee. Thank you for inviting me to take part in this meeting of the House of Commons Standing Committee on Official Languages.
I also want to thank the committee's technical and administrative team for going to such great lengths to allow me to testify remotely by video conference. It is truly a privilege to be here with you even though I am currently in Montpellier in the south of France. I hope my contribution helps you a bit in your study on modernizing the Official Languages Act.
Once I was connected online, I was fortunate enough to catch the end of the comments by my eminent colleagues Mr. Pierre Foucher and Mr. Benoît Pelletier. They are scholars and I'm not sure if can say much more than they did. I might even repeat some of the things you've already heard. You will let me know if it is helpful or not.
Let me quickly introduce myself to give you a better idea of who you are talking to. My name is François Larocque and I am a Franco-Ontarian from Sturgeon Falls, in Northeastern Ontario. It's a small, francophone majority community that is very engaged. I was raised and educated in French thanks to some fierce linguistic battles and certain events that occurred in that community in the 1970s.
I also had the good fortune of being born to a very engaged family that is very proud of its language and culture, even though we were Franco-Ontarians. My parents instilled in me the desire to preserve my language and culture for myself and I even made a career out of it.
I did all of my education in French except for my doctorate, which I did in English at Cambridge in the United Kingdom. I had no choice. I studied law in French at the University of Ottawa before doing an internship at the Ontario Court of Appeal with francophone judges who were on the bench at the time, including Justice Charron before she was appointed to the Supreme Court, as well as Justice Labrosse. I was there from 2000 to 2001, which means I was lucky enough to be the only francophone clerk at the Court of Appeal during the Montfort hospital case, which I am sure you are familiar with. That was a highly educational experience. I then did an internship at the Supreme Court of Canada with Justice Louise Arbour, before doing my doctoral studies. I have been a lawyer since 2002 and a professor at the common law program in French at the Faculty of Law at the University of Ottawa since 2005. I have held several administrative positions at the faculty, including two terms as associate dean in addition to being acting dean for nearly two years.
There have been two phases to the research component of my career so far. In the first, I worked on international law and human rights. Since 2010, nearly 10 years now, I have been focused on linguistic rights. Both my research and my professional practice as a lawyer focus primarily on linguistic rights. I have worked pro bono for clients who have linguistic rights claims and appeared before every court of the land, from trial courts all the way to the Supreme Court of Canada.
Since July 2018, I have held the Canadian Francophonie Research Chair in Language Rights. This is therefore a recent move and my project is just getting off the ground. I would be pleased to talk to you about it if you are interested.
I was told that the committee would like to focus on matters of legal mechanisms to ensure that federal institutions are compliant with the Act. If I may, I believe it would be useful to provide context by going over some basic principles before diving in. As I keep telling my students, the merits of our arguments and findings inevitably depend on the merits of our premise.
I would like to quickly go over some of the historical premises on which I base the opinions I would like to present to you today.
The first premise is that linguistic duality and protecting minorities is truly part of Canada's DNA. It has always been part of how we identify ourselves as a country, our history, and our future. The Supreme Court said in Mercure that linguistic rights “are basic to the continued viability of the nation”.
The second premise has to do with the Constitution Act, 1867, formerly called the British North America Act. That legislation established the first official federal bilingualism in legislative and judicial matters only. A century later, with the Official Languages Act in 1969, that official bilingualism extended to the entire federal government. At the same time, the first oversight mechanism was established, namely the Office of the Commissioner of Official Languages, as it was called at the time.
In 1982, Canada patriated the Constitution and adopted the Canadian Charter of Rights and Freedoms. As you know, section 16 makes English and French Canada's two official languages and gives them equality of status and equal rights and privileges. That is very important.
Six years later, in 1988, Parliament adopted a new Official Languages Act that enhanced the protection of linguistic rights by allowing, for the first time, recourse to the courts — namely the Federal Court — in the event of any failure to comply with the requirements of the Act. In 2005, this provision was enhanced by making Part VII justiciable.
As you can see, there has been a gradual progression since 1867 in developing legal mechanisms to protect linguistic rights in Canada. If I had to pick a moment that was a real game changer, it would obviously be 1982. Enshrining French and English as official and equal in the Constitution of Canada changed everything.
The importance of that moment cannot be overstated. With section 16 of the Charter, official bilingualism and the resulting rights are among the structural principles of Canadian law and order. Official bilingualism is no longer part of a simple administrative policy, as it was under the Pearson government, nor is it just legislative text, as it had been since at least 1969.
By codifying language rights within the Canadian Charter of Rights and Freedoms, the framers made fundamental rights guaranteed and protected by the highest law of the land. As the Federal Court puts it in Viola, the Official Languages Act of 1988 is truly an extension of the Charter. The starting point remains the Charter.
I believe that it is in this light that modernization of the Official Languages Act should be considered in 2019. It is also in this light that consideration should be given to the extent of existing legal mechanisms and the potential to ensure implementation of the amended legislation. We must account for the historic progression and constitutional foundation of linguistic rights by establishing implementation mechanisms for the next official languages act that are both accessible and robust.
You know as well as I do that the Official Languages Act currently provides for two major implementation mechanisms. First, there are the complaints to the Commissioner of Official Languages — in Part IX of the Act — which pave the way to investigations and reports. Second, there is the recourse to the Federal Court — in Part X — stating that if a person appeals to the court within the prescribed timeline and according to the prescribed procedures, they can obtain a remedy that the court determines to be “appropriate and just in the circumstances”. That is provided for under the legislation.
I would quickly like to make a few observations and recommendations regarding these two mechanisms. First, regarding the Commissioner of Official Languages, it is interesting to note that he is the first linguistic ombudsman in the world. That is a fact we do not emphasize enough and of which Canada can be very proud. The Office of the Commissioner of Official Languages has served as a model and paradigm, even archetype, for other language commissioners that exist elsewhere in Canada and around the world. Ireland and Wales come to mind, but there are others as well.
In my opinion, the Commissioner of Official Languages currently has the necessary skills and power to appropriately carry out the mandate he is given under the Official Languages Act. I believe that there are existing proposals to give the commissioner new powers, including the power to issue fines or other administrative financial penalties. I personally do not agree with those proposals. I think it sacrifices the very essence of the role of the language commissioner. I would be pleased to discuss that further with you.
The Commissioner of Official Languages is not a police officer or a judge. The Larendeau-Dunton Commission that proposed the creation of the Office of the Commissioner of Official Languages in 1968, described the role of the commissioner as the active conscience of the federal government on matters of official languages. The commissioner is a promoter of official languages and an ombudsman.
As a promoter, he proactively educates the public on bilingualism from coast to coast to coast. That is very important and that role must not be lost. As an independent ombudsman, he receives complaints and is equipped with rather significant investigative powers that allow him to shed light on systemic problems or even isolated shortcomings of the Official Languages Act. This also allows him to propose informal solutions to remedy the problems and to report directly to Parliament, which gives him independence.
You are asking me an excellent question that I haven't really thought much about.
Off the top of my head, there are a couple of things to consider. You first said that education is a provincial jurisdiction. That is true. However, official languages are not. They constitute a matter secondarily associated with the subjects listed in sections 91 and 92. Certain Supreme Court decisions dating back to the 1970s tell us that. The Jones ruling comes to mind.
The Supreme Court put forward the idea, without elaborating on it, that it would not be impossible for Parliament to legislate on official languages in an area of provincial jurisdiction, on the grounds of its overall authority to make laws for peace, order and good government, and that official languages issues are sufficiently related to national unity as to justify federal intervention. Therefore we would need a Parliament that would try to do this and see whether a province would actually challenge that action. Perhaps we would find that the Province would be happy to see money coming in, even in one of its own areas of jurisdiction.
Also, we should not forget about the possibility of negotiating. Everything can be negotiated. That would be an easier way to get there.
In short, I've always found interesting this Supreme Court idea that Parliament has the overall authority to legislate on official languages. In fact, another related issue that interests me is the role that Parliament could play in regard to the City of Ottawa. Municipalities constitute another matter very much under provincial purview, but the nation's capital is a distinct city. The City of Ottawa is different from other cities. Could Parliament then pass a law or take positive measures to promote official languages in the City of Ottawa, when municipalities fall under provincial jurisdiction?
I wrote a paper on the subject and I think that the answer is yes, based primarily on section 16 of the Constitution Act, 1867, which declares Ottawa to be the seat of government, and on section 16 of the Charter of Rights and Freedoms, which stipulates that English and French are the official languages of Canada. I can envision federal legislation, on the grounds of those provisions. The capital city belongs to everyone. It's not strictly an Ontario city, even if it is in Ontario. Ottawa belongs to all Canadians.
I think that could justify financial and legislative federal action to promote bilingualism in the City of Ottawa. In fact, that is something I would like to see in the next official languages act. My colleague Linda Cardinal and I submitted a brief on this issue to the Senate, and we are preparing to submit one to you as well.
Good afternoon, Dr. Larocque.
Thank you very much for your presentation.
I would like to come back to the commissioner's powers. You mentioned that in your opinion, the commissioner currently has enough powers, and there is no need to give him more. I have a question about the commissioner's powers.
You are probably aware that the commissioner has the power to investigate, among others, and the power to obtain information upon request. For example, any department or organization may need documents and request that they be sent over.
I'm giving you that example because in the Netflix case, which concerns me a great deal, there was an agreement between Canadian Heritage and Netflix. Under this agreement $25 million would be added for francophone-related investments. We do not really know what those investments will be. There were complaints. I made such a complaint, to find out what would be the approach taken in terms of the positive measures cited in part VII.
To my knowledge, the commissioner did not exercise his investigative power to demand the documents that would enable him to properly conclude his report. To my knowledge, the power to demand documentation has never been used by the commissioners. Am I mistaken? Why don't the commissioners exercise that power? They have gone to court several times on a few files.
When they do request documents, however, they are told those are confidential and they make no further efforts. They don't demand the documents, even if they would keep them confidential afterward. I understand that these documents would probably not be made public because they are confidential, but they could at least be properly used to inform investigations.
As you said, the commissioner does have certain powers, but it seems that he never uses them. Why is that, in your view?
I can't really explain it, either.
I've just completed a comparative study of Canada's various language laws and I looked precisely at the issue of the commissioners' powers to secure evidence, compel certain witnesses to appear, force them to appear when they refuse or are reluctant to do so, and to demand that documents be produced. All commissioners have these powers.
They have the power to do this. Why don't they use it? My take is that perhaps the individuals who occupy these positions see their role in a certain way. On an idiosyncratic level, it may be that they just behave that way. They prefer to act more strategically and they tell themselves that they will not insist too much on one thing because they will ask for more on something else. Maybe that's the kind of calculation that goes on. We would need to ask the people who have served in these positions either at the federal level, in Ontario or elsewhere in Canada.
Also, one thing is interesting. Under the New Brunswick Official Languages Act, the Commissioner of Official Languages for New Brunswick has all the powers of a public investigator, in accordance with the New Brunswick Inquiries Act. When we look at this law, we can see that the powers of the public investigator include summoning people to appear and, if they refuse, send them to jail until they change their minds. The commissioner then has the power to temporarily imprison someone. The federal commissioner has no such power. To my knowledge, the Commissioner of Official Languages for New Brunswick is the only one that has that power—which has never been used.
That is the point you have made, Mr. Choquette. They have the powers, but they do not use them. I think this can be explained by a lot of strategic factors at play that may vary from one file to another. It could be a matter of not being bold enough or of not being certain of their right to exercise those powers. This has not been tested yet. One thing is certain, and the law is clear on this: they do have the powers.
We all understand that it must be very hard for you to work from Montpellier. We can see that you're very sad and feeling terrible about being in the south of France with all the good wine they have there.
I'm from New Brunswick. I share a mother tongue with Antonine, an Acadian from New Brunswick. If I were in your neck of the woods I would say Robert Paquette, because I love music.
With respect to positive measures, we heard plenty of testimony suggesting that the problem lies with the federal transfers, and that often the money does not get to the right place. The funds transferred to provincial governments end up eventually shrinking or disappearing. For example, the money is given to the province for education or health, and the province is responsible for disbursing it to the communities. Often, it's the francophone communities that get shortchanged.
Is it possible to discern in subsection 41(2) on positive measures a federal obligation to direct money to where it should go in linguistic communities, whether they be official language minority communities in Alberta, in Yukon, in Ontario or in Nova Scotia, as well as the anglophone minority community in Quebec? Would it be possible, under this part VII obligation, to reduce or withhold the general transfers to the provinces, if necessary, according to what the federal government should have to transfer or will transfer to the communities?
I'm not sure whether my question is clear and you follow what I'm saying.
Thank you very much for your presentation, Dr. Larocque. You did a great job of walking us through the history to give us some background. I have two points I want to raise.
Everyone seems uncomfortable with the decision handed down by Justice Gascon, whose position seems to be that if something isn't specified in the act, it doesn't have to be done. That runs counter to everything that's come out of the courts over the past century, especially at the Supreme Court. The conclusions or approach of that court are almost always more liberal. Its position is that even if something isn't specified, it should be done by default, because that's probably what the legislator intended at the time but wasn't sure about.
However, Justice Gascon opted for a more restrained interpretation. Everyone was disappointed, but not you, and I find that interesting. You said there was an opportunity to be seized, because in your view, the fact that the judge found the definition of “positive measure” too vague means that this definition is broad enough to give the federal government plenty of discretion in choosing such measures.
I'd like us to spend a few minutes on that issue.