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37th PARLIAMENT, 1st SESSION

Standing Joint Committee on Official Languages

EVIDENCE

CONTENTS

Tuesday, March 12, 2002

1535

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

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

The Joint Chair (Mr. Mauril Bélanger)

M. Tory Colvin

1540

1545

1550

The Joint Chair (Mr. Mauril Bélanger)

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

1555

The Joint Chair (Mr. Mauril Bélanger)

Professor André Braëns (Law, University of Ottawa)

1600

The Joint Chair (Mr. Mauril Bélanger)

Professor Joe Elliot Magnet (Faculty of Law, University of Ottawa)

1605

1610

1615

The Joint Chair (Mr. Mauril Bélanger)

Prof. Joe Elliot Magnet

The Joint Chair (Mr. Mauril Bélanger)

Mr. Reid

1620

Prof. Joe Elliot Magnet

Mr. Reid

Prof. Joe Elliot Magnet

1625

M. Reid

The Joint Chair (Mr. Mauril Bélanger)

Mr. Gérard Lévesque

1630

The Joint Chair (Mr. Mauril Bélanger)

Prof. André Braëns

The Joint Chair (Mr. Mauril Bélanger)

Mme Thibeault

1635

Mr. Tory Colvin

Ms. Thibeault

Mr. Tory Colvin

Ms. Yolande Thibeault

The Joint Chair (Mr. Mauril Bélanger)

Mr. Sauvageau

Mr. Tory Colvin

M. Benoît Sauvageau

Mr. Tory Colvin

M. Benoît Sauvageau

Mr. Tory Colvin

M. Benoît Sauvageau

The Joint Chair (Mr. Mauril Bélanger)

M. Gérard Lévesque

M. Benoît Sauvageau

M. Gérard Lévesque

M. Benoît Sauvageau

Prof. Joe Elliot Magnet

1640

Mr. Benoît Sauvageau

The Joint Chair (Mr. Mauril Bélanger)

Prof. André Braëns

Mr. Benoît Sauvageau

Prof. André Braëns

1645

Mr. Benoît Sauvageau

Prof. André Braëns

The Joint Chair (Mr. Mauril Bélanger)

Prof. Joe Elliot Magnet

The Joint Chair (Mr. Mauril Bélanger)

Mr. Benoît Sauvageau

Prof. André Braëns

1650

The Joint Chair (Mr. Mauril Bélanger)

M. Gérard Lévesque

The Joint Chair (Mr. Mauril Bélanger)

Senator Jean-Robert Gauthier (Ottawa—Vanier, Lib.)

1655

M. Tory Colvin

Senator Jean-Robert Gauthier

Prof. André Braëns

Senator Jean-Robert Gauthier

Prof. André Braëns

The Hon. Gauthier

Prof. Joe Elliot Magnet

1700

The Hon. Gauthier

The Hon. Beaudoin

1705

Prof. André Braëns

The Joint Chair (Mr. Mauril Bélanger)

Senator Jean-Robert Gauthier

Mr. Godin

1710

Prof. André Braëns

M. Yvon Godin

Mr. Gérard Lévesque

M. Yvon Godin

Mr. Gérard Lévesque

1715

M. Yvon Godin

Mr. Gérard Lévesque

The Joint Chair (Mr. Mauril Bélanger)

M. Tory Colvin

Prof. André Braëns

The Joint Chair (Mr. Mauril Bélanger)

Senator Gérald A. Beaudoin

1720

The Joint Chair (Mr. Mauril Bélanger)

Senator Gérald A. Beaudoin

1725

The Joint Chair (Mr. Mauril Bélanger)

Senator Gérald A. Beaudoin

The Joint Chair (Mr. Mauril Bélanger)

Prof. Joe Elliot Magnet

Senator Gérald A. Beaudoin

Prof. Joe Elliot Magnet

1730

The Joint Chair (Mr. Mauril Bélanger)

The Joint Clerk of the Committee (Mr. Jean-François Pagé)

The Joint Chair (Mr. Mauril Bélanger)

Senator Jean-Robert Gauthier

The Joint Chair (Mr. Mauril Bélanger)

Senator Jean-Robert Gauthier

The Joint Chair (Mr. Mauril Bélanger)

CANADA

Standing Joint Committee on Official Languages

NUMBER 028

1st SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, March 12, 2002

[Recorded by Electronic Apparatus]

¹ (1535)

[Translation]

The Joint Chair (Mr. Mauril Bélanger (Ottawa--Vanier, Lib.)): Good morning, Ladies and Gentlemen.

Today, we will start working on what the steering committee and the full committee had agreed to regarding Part VII, section 41 of the Official Languages Act. The steering committee had decided that we should start with the Justice Department, and go on to Health Canada, and afterward, Citizenship and Immigration, and continue in this manner, alternating with meetings dealing with other matters if necessary. This has been adopted by the plenary committee.

We had hoped to meet this week with representatives from the minority francophone and anglophone communities, but it appears that they will be in Ottawa this weekend, on another matter. The two sessions that were planned have therefore been put back to Monday and Tuesday next week. On the 18th, there will be an extended meeting with the representatives from all the provinces and territories. The next day, on the 19th, we will meet with the representatives of the national associations. This follows Mr. Sauvageau's motion, which was adopted by the committee, which requested that these representatives appear before the committee to present their complaints to Mr. Dion so that he can include them, if he wishes, in his action plan. These two sessions will be held on Monday and Tuesday next week.

In order to take some advantage of the fact that we are all here, today we are welcoming persons who will also attend a meeting of one of the Senate committees dealing with the same issue, namely section 41. As the committee has requested, and to start this part of our work on section 41 of Part VII of the Official Languages Act, we will hear from experts who are very knowledgeable on the subject, so that we can get an outside opinion on the application of section 41 of the Act. This is the main focus of this meeting. You will recall that we have already had two briefings from the Commissioner of Official Languages on this subject. These meetings are a follow-up to those two briefing sessions.

Now, I will give the floor to one of the witnesses. The witnesses will be heard in the order in which they appear in the notice of meeting. Messrs. Gérard Lévesque and Tory Colvin, from the Federation of Associations of French Speaking Jurists of Common Law, will start. Afterward, we will hear from Professor André Braëns and Joe Magnet from the University of Ottawa.

M. Tory Colvin (President, Fédération des associations de juristes d'expression française de common law: Madam Senator, Mr. Chairman, Honourable Senators and Members, I thank you first of all for inviting us to appear before you to comment on section 41, its application and its effect.

Our jurist federation represents the seven French speaking jurist associations in Canada, that is, all the provinces with an anglophone majority, except for Prince Edward Island, and Newfoundland and Labrador. We are therefore able to give an overview for all of Canada.

First, I would like to ask the Senators to forgive us if we essentially repeat what we told them at our appearance before them on February 20th, just three weeks ago.

The Joint Chair (Mr. Mauril Bélanger): There is a technical problem, but continue, Mr. Colvin.

M. Tory Colvin: Thank you, Mr. Chairman.

I have the honour of being accompanied by our Director General, Gérard Lévesque, who is practically our walking encyclopedia on everything relating to linguistic rights.

I wish to speak to you briefly, if you will, about what is happening on the streets, that is, what we are running into everyday before the courts, and the problems that we are having with— [editor's note: Inaudible] —section 41, issued especially by Justice Canada when we appear before them in the courts.

The Honourable Senators will recall that during our appearance on February 20, we referred to a matter that occurred in London, the Boutin affair. This was a case where the court judge declared that the statements written in English for a case being held in French were null. He believed that the State, upon accusing a citizen, must address that citizen in the language of the citizen's choice. This is not too surprising; there are decisions from the appeal court in Quebec which state the same thing. The Supreme Court of Canada has repeated this in Beaulac, and yet we are rehashing the same question. And with the Simard case, which went to the Ontario Court of Appeal, we are discussing the same issue.

As of the 22nd, two days after our appearance before the Senate, where we spoke of the difficulties that we had to plead in French in London, a city that is theoretically bilingual, in a criminal case where one has the right to be heard either in French or in English, we appeared to ask that the Association of French Speaking Jurists of Ontario be allowed to intervene in the case, because the association could argue the linguistic aspects that the four respondents would not necessarily be able to grasp.

This date was chosen about one and a half months in advance, so that the proceedings could be held in French. Yet, when we arrived on the 22nd, there was a judge who spoke French, fortunately, but the clerk and the stenographer were not present. It seems that the clerk was scheduled, and that both the clerk and the stenographer were supposed to arrive from North Bay, but due to freezing rain, they could not make it. This led to the fact that on the 22nd, we were obliged to either not proceed at all, or, for the official transcripts, speak in English, and when addressing our clients or the judge, speak in French.

It is precisely this lack of resources that creates the problem. I know very well that— [editor's note: inaudible] —but everything that deals with the administrative side of justice is under provincial jurisdiction, of course. But this was nevertheless a court under federal jurisdiction, because it was a criminal matter. Our choice was simply to either postpone the case to whenever it would be possible to find a team or framework that would allow the case to proceed in French, or proceed in English. Unfortunately, this is what happens too often before the courts.

¹ (1540)

Cases were referred to in 1995 by the Commissioner of Official Languages in his report. For example, you can be married in French, but not necessarily get a divorce in French. You can have a business that operates in French, but it is not everywhere throughout the country that you can declare bankruptcy in French. And I believe that it is somewhat abnormal when there is a federal statute under which two languages are supposed to be equal, but in practice they are not. Theoretically, in London, I can get a divorce in French. The reality is that even for temporary custody, I will probably have to wait two months to get a judge that can speak French. The end result is that it gets done in English, because no one can wait two or three months for a temporary alimony or custody decision. Of course, afterward, we are told that there is no demand, and because there is no demand, it is difficult to get the necessary services, which is what we experienced on February 22, where there was neither a clerk nor a stenographer, because the demand wasn't there. This is the excuse.

In my opinion, if we had the proper framework, that is, judges, stenographers and service personnel able to work in both languages, there would be a demand. Because London is designated a bilingual region under the French Services Act and The Judicial Courts Act, both of which are Ontario legislation. To be designated bilingual means that this city has a population that is at least 5 percent Francophone. If there were sufficient capacity to provide services in both languages, I am sure there would be a higher demand, because there are lawyers who are specialized in family law, as well as in criminal law and litigation, who speak French. Therefore, it is not due to a lack of lawyers, but rather to the difficulty in getting service to which one is entitled.

I will also take a quick look at the other provinces. Theoretically, London is bilingual, but imagine British Columbia, Alberta, Nova Scotia, were there is no right to services in French in civil proceedings. There, divorce and bankruptcy cannot proceed in French. At least in Toronto or London, it can be done in French. These problems were raised by the Commissioner of Official Languages in 1995 when he submitted his report on the judicial courts at the annual meeting of ACFO. Unfortunately, things have not advanced since then.

I believe that the problem comes back to how section 41 is interpreted. Each time that we argue a linguistic rights case, even if only to protect rights that have already been acquired, for example, in the case before Justice Blais on the Contraventions Act, a little more than a year ago...In this case, the complaint made by ACFO was simply to protect language rights, the existing right to trials in French, and not expand them. Our adversary in the case was Justice Canada. Therefore, we had to argue against them to maintain, to protect a right that already existed, the right to a trial in French. Therefore, the entire case was not about acquiring another right, not about furthering rights, but to protect existing rights. With the Contraventions Act, we found ourselves in a truly strange position.

¹ (1545)

For example, if I commit a speeding offence on the 401 in Toronto, near the airport, I have the right to a trial, either in English or in French. It's my choice. However, within the airport proper, I no longer have the right to a trial in French because the case is sent to the city of Mississauga, and the municipalities are not subject to the French Services Act. Therefore, I have more linguistic rights in the city of Toronto than within a federal territory, namely Pearson International Airport, in Toronto. I understand that this is being re-negotiated. We may infer that the city of Mississauga will be obliged to be able to hold trials in French and pursue cases in French. In this example, what Justice Canada has achieved is a reduction in the right to proceed in French before the courts.

I will give you another example. The vice president of our federation, Roger Lepage, a lawyer in Regina, is arguing a case this month before the Federal Court that the Northwest Territories are under federal jurisdiction, and must therefore offer services in both languages. He is arguing against Justice Canada, which states that by creating a new territorial assembly, they cannot place existing federal linguistic obligations upon the Northwest Territories. In other words, Justice Canada is arguing exactly what they argued in the contraventions case. We believe that once more, this marks a step backward for existing linguistic rights. The Northwest Territories are under federal jurisdiction. The linguistic obligations should continue to exist.

Another problem that we raised on February 20, is the issue of appointing judges. At this time, we are awaiting the appointment of a third judge for the Nunavut territory. Up to now, both judges that have been appointed are unilingual English. There is nevertheless a federal competency over the territory of Nunavut. They should be able therefore to offer criminal trials in both languages. We wish to put pressure, and we are doing so, to ensure that the third and last person appointed is capable of dealing in French.

I will now give the floor to Gérard so that he can briefly talk about forms. This is another problem that we have.

¹ (1550)

The Joint Chair (Mr. Mauril Bélanger): Allow me to make a short comment. You may, if you wish, refer to the brief that was distributed, because this committee is mainly interested right now in section 41. Thank you.

Mr. Gérard Lévesque (Executive Director, Fédération des associations de juristes d'expression française de common law): In that sense, we can see that with section 41, the overall debate is whether there are effects to the commitment contained therein, or whether it is just a political statement. If it is just a political statement, we can't do much, but if there are obligations, we should look at how the commitment is monitored.

Currently, politicians make daily commitments to their constituents. When the commitment is enshrined within a text of law, it is no longer a political commitment. It has legal effect. We can argue before the courts that in a given text of law there is an obligation, a commitment to do something. This is the case with section 41 under the commitment of helping the minority community.

Until now, the interpretation given has been minimalist. We see this in the results, or lack thereof, that have been obtained in that situation.

¹ (1555)

The Joint Chair (Mr. Mauril Bélanger): Thank you. Mr. Braëns.

Professor André Braëns (Law, University of Ottawa): Mr. Chair, Madam Chair, Ladies and Gentlemen who are members of the committee, first, I would like to thank you for your invitation. I am very honoured.

I have been asked to comment briefly on Part VII and more particularly on section 41 of the Official Languages Act, and answer your questions, if you have any.

You know that Part VII of the Official Languages Act was added during the reform of the official languages legislation in 1988. At that time, there were complaints, and many complaints, that the original legislation had problems. There were no legal recourse mechanisms regarding the application of the provisions contained in the Act.

In fact, after the Canadian Charter of Rights and Freedoms was adopted in 1982, it was necessary to complete and even add to the guarantees that were contained in the legislation. At the time, there were also complaints that there was no clear commitment by the federal authorities to promote the development of the official languages and the official language minorities. In 1988, Part VII, and more particularly, section 41, responded to these complaints.

You will agree that the way section 41 reads presents serious difficulties regarding interpretation. You know that at the executory level, it led to a double interpretation in a report, in a study that the Commissioner of Official Languages had published in 1996. After an inquiry, it was noted that among the senior managers in the civil service, many found the section to be an important political statement, certainly, but without legal obligations. While for others, on the contrary, there was a clear commitment that required follow-up.

So the matter that my colleague referred to, the Contraventions Act affair, highlighted the double perception or double interpretation that could be found in section 41.

This was perhaps somewhat normal, especially since at the judicial level, there was a slow waltz, if you will, regarding interpretation of section 41. You know that interpretation, and especially legal interpretation, gives meaning to words that are used by the legislator to the extent that for some time the Supreme Court's interpretation of linguistic rights has been ambivalent.

On the one hand, there was a wide interpretation, quite liberal, based on the principle of equality of the official languages, equality of linguistic groups, the linguistic duality enshrined in section 16 of the Charter, giving wide meaning to the words that were used, whether by the constituent, or by the legislator. But in other domains, it was the opposite. The Supreme Court relied on the notion of political compromise to interpret narrowly the words that the legislator had used.

In short, inspired by this legal waltz, one could support one or the other interpretation given to section 41. In Beaulac, since the Arsenault-Cameron affair, I believe that there is no longer any doubt on this point, to the extent that we have really swept away restrictive interpretation in linguistic matters, to the extent that the Supreme Court has invited the courts to interpret language provisions and guarantees in a broad manner, whether in the Constitution or even within legislation, be it federal or provincial, based on the principle of duality, that of equality, and by looking at the context that surrounded the adoption of the linguistic legislation.

º (1600)

In my opinion, at the judicial level, we can state that section 41 veritably places one obligation under federal jurisdiction. I no longer think that we can now, at the judicial level, argue that this section is simply a pious statement; it must go much further. If it goes much further, that does not mean that it is necessarily much more certain. When we read section 41, we can read it by saying that the Canadian Parliament has obliged the federal authorities to act. In that sense, the government has no choice: it must act.

Given the wording, we must conclude as well that the legislator, that the Canadian Parliament has nevertheless given much discretion to the executive authority, that is, if the government has no choice in acting-it must act to develop linguistic duality, to develop, encourage official language minorities-, it nevertheless can choose the means. When we say it has the choice of means in that field, things remain, again, somewhat vague. Perhaps we should ask why is it necessary to find a clearer interpretation at this level.

This can be done in two ways. We can appear before a court and once again, for interpretation, ask the court if in addition, for example, the obligation imposed by section 41 is executed concretely at the administrative level by adopting a plan or general framework, for example, and so on. We can also proceed through legislation by adding clarifications to section 41, which would for example have the government adopt an implementation framework for section 41.

Whatever the case, this is what I had to say to you as an introduction. I remain at your disposal for questions, if there are any.

[English]

The Joint Chair (Mr. Mauril Bélanger): Merci beaucoup, professeur.

Mr. Magnet.

Professor Joe Elliot Magnet (Faculty of Law, University of Ottawa): Thank you, Mr. Chairman. Honourable senators and members, I'm here at the request of the committee and its staff. It's my honour and privilege to appear before you in an attempt to be of assistance to you. I have to note my respect for Senator Gauthier. He has waged a long and honourable battle in the cause of advancing the rights in the status of official language minorities. Bill S-32 continues this struggle. His cause is just. His intentions are noble.

I'm going to address the four issues that I think are the heart of the matter before you. Part VII of the Official Languages Act, especially article 41 thereof... as it now stands, is it executory or is it declaratory? I'd like to look briefly at the intention of Bill S-32 as I understand it. I'd like to ask whether Bill S-32 accomplishes its intention, and if it doesn't, or it doesn't fully, I have some little amendments that you may want to consider to better accomplish that intention.

This question of executory or declaratory, which is cumbersome language not really found in other debates, rises out of Senator Joyal's famous case, Joyal v. Air Canada, a 1976 decision of the Superior Court of Quebec. This case concerned 40 pilots and a member of Parliament who impugned the validity of an Air Canada internal policy that prohibited the use of French for safety reasons in operational and flight deck communications. Senator Joyal, then a member of Parliament, and the pilots challenged this policy, and the Commissioner of Official Languages intervened to support the broad proposition that section 2 of the Official Languages Act was more than simply what my colleagues have called political or declaratory, that section 2 could support a right of action for infringement of rights that were in fact justiciable or legal and not merely a statement of intent.

Chief Justice Deschênes agreed with this proposition, that section 2 was more than declaratory in the sense that a legal remedy could be founded on it--a legal remedy that could protect the status of French as a working language and that could overturn the internal Air Canada policy. That case was appealed to the Quebec Court of Appeal, and Chief Justice Deschênes' ruling that section 2 was executory was overturned by a split Court of Appeal. Justice Monet concluded that section 2 was not self-executing, that implementation of bilingualism as a language of work required executive action.

Now the debate occurs for a very practical reason. When the official languages policy and act came into effect in 1969, Ottawa was an English town. French had been virtually shut out of the federal administration, and the commitment to implement French was not something, for some reasons noted by my colleagues, that could be done overnight. It was to be progressive and working towards a goal. The view that section 2 of the then act was executory reflected the view that those who were impatient should have a voice, and if government was in fact dilatory without some just cause, there should be a remedy in the court to hurry the process along, that this was not just a pious statement of intent; we were meant to get somewhere, to get there in a hurry, with all deliberate speed. This was the idea, and this is what gave rise to the debate. This is what Bill S-32 is now about.

º (1605)

Section 2 of the Official Languages Act was entrenched as section 16 of the Canadian Charter of Rights and Freedoms in 1982. This is interesting because the entrenchment took section 2 out of the machinery of the Official Languages Act, where the implementation of French into federal institutions was to be by executive action, overseen by a commissioner with some general investigatory and publicity type of machinery to hurry the process along. The entrenchment put section 2 into the charter, subject to an enforcement clause. It gave people the right to complain about violation of rights. It was not subject to any executive instrumentality like commissioners and publicity and that sort of thing. It was free-standing.

Many on the constitutional committee thought this resolved the debate that began in 1976. It is now executory in the language of that old case because all the implementing political machinery--commissioner, reporting, parliamentary oversight--was gone and it was made subject to section 24 of the charter, which gave people the right to complain in court.

The clarity that many of us thought had been achieved by the entrenchment of section 2 was obscured in the strange twist the Supreme Court took in the cases my colleagues have discussed--Société des Acadiens and MacDonald. In those times, in the mid-eighties, we had had some scary problems in Manitoba, we were having some difficulties with the Meech Lake Accord, and we had had energetic action on languages. We had seen the PQ government.

This action just ground to a halt in the Supreme Court. The Supreme Court said, “This is basically enough of court moving this envelope. We are not going to move this envelope. This will have to occur by political action.” With those statements and that clear attitude, this idea that section 16 would self-execute to give people who are impatient a way to complain in court and move the process with a judicial engine lost all motive power. Section 16 was really not seen to have that kind of force. The majority of decisions in SANB and MacDonald basically made that the rule of the day.

My colleagues have told you that SANB and MacDonald, to the extent that they would choke judicial development of the language communities and their rights, has been overthrown in the Supreme Court. That is certainly clear. So the debate, which is 17 years old, is again alive today.

My colleagues have speculated that perhaps the machinery that implements section 2 in the Official Languages Act, section 41, is now executory. It has juridical force and rights of action can be found on it. We've heard some arguments of why that might be the case. Of course, the intent of Bill S-32 is to settle this, to make clear that section 41 is executory, that rights of action can be found on it, and that in addition to the political process, there will be recourse in the courts for people who want to move the process faster or feel that government is not justifiably moving fast enough.

º (1610)

Of course, things have changed. French is no longer shut out of this town. There has been remarkable progress in the federal administration. There is equitable representation in the federal public service. There are sore points, of course. My colleagues have referred to some interesting ones, and there are others. It is not an easy process and there are people who resist it. Our work isn't done. So in the different context of today, it's worth considering what would happen should the right to address the court about these problems be fully recognized in the Official Languages Act.

Senator Gauthier was clear about the intent of his bill. He said before committee that his intent was to strengthen section 41 and to give it executory force. I think the problem before you is if you were persuaded that this is a purpose you want to pursue, do you believe this intent is accomplished by Bill S-32? I think that is the chief problem.

A potential problem Bill S-32 may encounter is that it relies on subsections 16(1) and 16(3) of the charter to draw its strength. It assumes that subsections 16(1) and 16(3) are executory, that this debate has now been settled by perhaps Beaulac, Arsenault-Cameron, the new environment in which we find ourselves. But of course the Supreme Court hasn't spoken about that.

The Supreme Court does use some muscular language in Beaulac. I'll give you a sample of it. It may help you. It says:

This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State.

If it's true that section 41 is protective of rights that are institutionally based, this would settle the debate. But is it? After all, the rights that are institutionally based might be seen by some to be the rights to address the courts in the official language of choice and to be served by the federal administration, and these other rights of equality between the communities might not be institutionally based, but rather a policy--section 41 has been stated to be government policy--towards which we're going, the motor of the actions we're taking. If that's the case, then the rights aren't institutionally based and section 41 doesn't make anything executory--possibly. This is the sort of groundwork of the debate into which Bill S-32 has thrown its hat.

º (1615)

The Joint Chair (Mr. Mauril Bélanger): Professor Magnet, my colleague and I both feel that you should be aware that Bill S-32 is not before this committee, and it's not likely to be before this committee. We're really focusing now on section 41--just so that it's clear for you.

Prof. Joe Elliot Magnet: I think this is the legislative activity that's taking place, and I still think it's necessary to ask where is it that the act will go? It's necessary to ask whether in its form, as it currently exists, it is executory or declaratory, and in the amendment that has been proposed in the Senate chamber.

I think that is about as far as the debate can be carried. In other words, the obligations of the government under section 41 have to be declared in the court, and this is not something that has been done. And we have seen a couple of cases work their way into the orbit of that question without completely resolving the question. Again, my colleagues have referred to some of the cases of last year that deal with this.

I hope these comments are helpful to you in considering the questions before you.

The Joint Chair (Mr. Mauril Bélanger): Thank you.

Mr. Reid.

Mr. Scott Reid (Lanark--Carleton, Canadian Alliance): Thank you, Mr. Chairman.

I would like to present my understanding of section 41 to the witnesses and then ask your views on whether or not my understanding is in fact faulty on the question of whether section 41 is declaratory or executory--that is to say, binding.

The evidence that I look at seems to suggest to me that, as it stands, section 41 is a non-binding declaratory passage. I base this on three pieces of evidence that I would like you to consider and comment upon.

First of all, the relevant passage occurs at the front of part VII of an act that is thematically divided into 14 parts, and as such, it seems to serve as a sort of preamble to part VII of the act. Part VII is entitled “Advancement of French and English”. Other parts have similar titles--for example, part VI, “Participation of English-Speaking and French-Speaking Canadians”; part VIII, “Responsibilities and Duties of Treasury Board in Relation to the Official Languages of Canada”; and so on. In this capacity, it seems to serve as a sort of preamble for this thematically defined part of the act.

Secondly, I notice that this paragraph or section is almost identical in its wording to one of the paragraphs or one of the “Whereases” in the preamble to the Official Languages Act. To make this point, I wonder if I could just quote section 41, and then the relevant section to section 41 here.

The Government of Canada is committed to

(a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and

(b) fostering the full recognition and use of both English and French in Canadian society.

Then, turning to the preamble, we find the following wording:

AND WHEREAS the Government of Canada is committed to enhancing the vitality and supporting the development of English and French linguistic minority communities, as an integral part of the two official language communities of Canada, and to fostering full recognition and use of English and French in Canadian society;

So it seems the two are virtually mirrors of each other.

Finally, the third point that strikes me is that I believe it is a general principle than when, in a given law, a provision of a more general nature conflicts with one of a more specific nature, it is the more specific that is the one that should be regarded as binding.

In the context of section 41, it strikes me that if section 41 were to be regarded as binding as opposed to declaratory, then it would require that the other sections of part VII of the act would have to be read differently than they do in fact read.

For example, subsection 43(1) currently reads:

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

Then a series of proposed measures are listed, paragraphs 43(1)(a) through 43(1)(h).

It seems to me if one were to take section 41 as being binding, one would have to read section 43 as saying, “and, without restricting the generality of the foregoing, must take measures to”, as opposed to saying “may take measures to”.

I wonder if perhaps we could have some commentary on whether I'm reading this correctly or not.

º (1620)

Prof. Joe Elliot Magnet: Suppose, Mr. Reid, that the minister responsible for Canadian Heritage, PCO, said, well, I'm not doing anything; I recognize that there are inequalities here, but I'm going to rest on the other things and I'm not doing anything; and as far as I'm concerned, it's not an act I supported anyway, so things can stay as they are.

Let's put your question in that light and ask ourselves, because you've made your arguments as if they are being addressed to a court, which is very interesting, so perhaps--

Mr. Scott Reid: They are being addressed to an eminent legal scholar.

Prof. Joe Elliot Magnet: Perhaps someday that will be a new vocation for you.

What would a court say if presented with this kind of evidence? Would a court say, well, there's absolutely nothing we can do about it, it's not justiciable? Subsection 43(1), Mr. Reid has pointed out to us, simply gives discretion to the minister; it's for the minister to decide and not for us to second-guess.

I think what we see in administrative law is that sometimes these discretions can be channelled, structured, and governed by the objects and purposes of the statute they're in. There is a discretion the word “may” underlines, which you drew attention to, but that isn't determinative of the question of what the minister can or must do. The question, again, concerns the objects and purposes of the act.

Now, you referred us to the preamble, which contains some of the objects and purposes of the act. It's very interesting that the government is committed, but suppose we have evidence the commitment isn't being lived up to. Again, the commitment is to get somewhere, it seems to me. The government is committed to enhancing the vitality.

We have a history in the provinces, Ontario, for example, not of enhancing but of striking at what makes the communities vital, a history of choking the French language in Ontario schools. Suppose that attitude had returned. Would a court say, well, not only are you not moving as fast as some malcontents want, but you are taking some active measures to sap the vitality out of these communities? Can we say that nothing can be done?

Again, I think there is a commitment. The commitment is to achieve a result, and in my respectful view, the question isn't whether a remedy can be found--in my view it can--the question is, what sorts of circumstances or what kinds of evidence, how much misfeasance, negligence, or wanton care, or how much not going fast enough or not as fast as some want, not putting the pedal to the metal, is necessary to make the right active?

I would answer that question by saying it was really interesting in the dissents in SANB. Justice Wilson said you have to move along, and the question is, how far have you moved and at what speed, and are you going in the right direction and at the right speed? That was her view.

An interesting opinion of Michel Bastarache, then a law professor, was tabled before the other place, in the Senate, where he made some of these administrative raw points in more detail than I've made. He said, well, it's executory and the right of action can be founded on it. I guess that humble professor's opinion now carries some more weight because he is perhaps in a position to sound one of nine votes on that.

I think this is the perspective. I hope it's helpful to you.

º (1625)

Mr. Scott Reid: Very much so. Thank you.

The Joint Chair (Mr. Mauril Bélanger): Monsieur Lévesque.

Mr. Gérard Lévesque: I would like to quote the drafting principles, and since I'm licensed to practice in Ontario, the legislative drafting conventions, where it says:

Occasionally, a preamble may be used to set out historical facts that support the constitutionality of a public act. Preambles should not be used for political statements or statements of purpose.

I think the reason is that if they mean something to have some legal consequences, it has to be put in the body of the text, just like section 41 of the Official Languages Act.

[Translation]

This is what is unacceptable to us, that the interpretation given to section 41 is so minimal that we don't even know, even today, if we can use both official languages in jurisdictions that fall under the Parliament of Canada, for example, in divorce or bankruptcy. It is not clear, and we have spent many years asking for modifications to confirm that Canadians have the right to use French and English, at their leisure, in domains that are under the jurisdiction of the Parliament of Canada, such as divorce and bankruptcy.

Currently, studies and consultations are ongoing, but there is still no action. Even a Senate report, For the Sake of the Children, asked for amendments for the Divorce Act, to confirm this right. And since we do have a sense of humour, in addition to our arguments, we called upon Santa Claus last year to ask for an amendment to the legislation. If you wish to have a copy of this Christmas card-Santa Claus only spoke French, so the card is unilingual French, you may ask my assistant, who is here; she will give you one.

This is a very good example that shows to what extent the government's commitment as stipulated in section 41 has not been followed up by actions in domains that are under federal jurisdiction, such as divorce and bankruptcy. This means that those who wish to use French in common law provinces will have tremendous difficulty in doing so, not only before the courts but also with filling in the basic forms.

I know that last September, you heard Mr. Dion, the Minister, who talked to you about progress. He announced an action plan and made reference to mixed couples, not the Senate and the House of Commons, but English and French. He said that the State had no business intervening in love relationships. But the State has a responsibility regarding mixed couples. If the forms are only available in separate English and French versions, in mixed situations, only one or the other version can be used; only one version will be used and one of the parties will have to renounce his or her linguistic right. Yet, in a dominant situation, it is usually the person who is in a minority situation who is bilingual, and who will accept to use the majority language.

So divorce is a good example. If two persons of differing languages want a divorce, they must make a joint application to the court, and the application is not available in a side by side column format, as is the case everywhere across the country currently, they will have to use the French or the English form. Therefore, one of the parties will have to renounce his or her linguistic right to appear before the court. This is one point that has to be corrected regarding commitment, that is, clarify section 41.

º (1630)

The Joint Chair (Mr. Mauril Bélanger): Thank you. We have greatly exceeded the time allowed, but Mr. Braëns has asked to make a comment.

Prof. André Braëns: Very briefly, Mr. Chair, I believe that the Honourable member has properly shown the various methods for interpretation that can be applied when looking for the precise meaning of section 41. We can proceed in a correlative manner, verify where section 41 sits within Part VII in the overall context of the Act, look at the preamble to the Act. We could invoke subsection 2(c), which defines the purpose of the Act by stipulating: “set out the powers, duties and functions of federal institutions with respect to the official languages.”

We can also adopt a more textual method and verify the words that are used in sections 42 and 43 that you mentioned. Other methods could, on the same basis, state that section 41 presents a general obligation and that section 42 and those that follow present the organizations that will have the responsibility for implementing this commitment.

Therefore, there are all kinds of ways to interpret all of this. All I know is that given the recent jurisprudence of the Supreme Court of Canada, which decided to give this principle a broad interpretation, liberal, generous, corrective, calling upon the principle of minority protection in interpreting constitutional texts and legislative texts, there is a good chance that we will arrive at a judicial solution regarding a veritable commitment under section 41. But even there, once again, as I said earlier, is this the true debate? To the extent that, even if we come to a veritable commitment, if it is couched in such general terms and the discretion conferred to government so vast, that finally, it would be advisable, for better clarity, to further specify how this discretionary power should be applied.

The Joint Chair (Mr. Mauril Bélanger): Thank you. Ms. Thibeault.

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

I am not a jurist; you will find that out very quickly. Therefore, please be patient with me.

Many of my colleagues here, on the committee have experienced the frustration of asking one and all to comply with the Official Languages Act, only to find that if one or the other wishes, they will do otherwise. The government can do nothing, precisely because of the executory problem in all of this.

Mr. Colvin, I found the situation that you encountered in London to be interesting: “Catch 22”. You appear before the court and they don't have the necessary staff, because there aren't enough cases, and there aren't enough cases because there isn't enough staff. That's my first point.

In a situation such as this, the London case, which, you said, is a city covered by the Official Language Act, who is responsible then, for ensuring that services are available in both languages? Is it the municipality, the province? Is it the federal government? If the entire Act were clarified, and we knew exactly what was executory, would it be easier to appear before the court and says that there is staff and that things happen this way?

º (1635)

Mr. Tory Colvin: As for responsibility, it would depend on the cases that we would have to deal with, because we have cases that are brought by municipalities, we have cases that are brought by the provinces and of course, by the federal government as well. Theoretically, everything at the administrative level regarding the courts is under provincial jurisdiction.

That being said, it was a criminal case, a criminal appeal, therefore, before a judge under federal jurisdiction. If we had really wanted to start a war, which we did not do because we wanted to go forward with the appeal because— [Editor's Note: Inaudible] —in section 41 and could be executory. Therefore, we renounced our linguistic right. But in fact, we could have told the judge that the court was not competent precisely because we could not argue in the language of our choice. We could have asked to declare the entire procedure to be null, and the case would have had to start all over again, and— [Editor's Note: Inaudible]

Of course, if we wanted to be difficult, we could have done that, but there is a greater issue— [Editor's Note: Inaudible] —April 22, and it is precisely section 41. Therefore, we had to accommodate a— [Editor's Note: Inaudible] —but we could have asked the federal judge to start all over again.

Ms. Yolande Thibeault: So if I understand correctly, at that point, you incurred the risk of having Justice Canada argue against you.

Mr. Tory Colvin: At this time, Justice Canada is not part of the appeal. The appeal is through the Attorney General for Ontario, because he is in charge of criminal cases. However, if Justice Canada is true to its tradition, if we make it to the Ontario Court of Appeal, their lawyers will probably intervene. Unfortunately, it is always against us. In fact, I really like it when they argue against us. They are very kind. They make excellent arguments, and we have a great day.

Ms. Yolande Thibeault: I wish you good luck, Mr. Colvin.

Mr. Tory Colvin: Thank you, Madam.

The Joint Chair (Mr. Mauril Bélanger): Are there any other comments?

I now go to Mr. Sauvageau.

Mr. Benoît Sauvageau (Repentigny, BQ): Gentlemen, thank you for being here. It would be so interesting to be able to intervene when we have questions, on the spot, because afterward, we forget, and there are others pushing to ask their questions.

My first question is for Mr. Colvin. To your knowledge, is there a similar organization in Quebec defending he rights of Anglophones to be heard in the Quebec courts?

Mr. Tory Colvin: We are an association of French speaking jurists, therefore we include lawyers, judges, justices of the peace...

M. Benoît Sauvageau: I know all this. What I want to know is, do Quebec Anglophones living in a minority situation need to be defended by an organization such as yours.

Mr. Tory Colvin: I wouldn't be able to say: I don't know. If there is something at the level of the Quebec Bar or the Canadian Bar, that...

M. Benoît Sauvageau: They can probably be heard in English in all the courts, so they don't need an association. In Quebec, the law is respected.

Mr. Tory Colvin: You are obliged to do so. The Canadian Constitution obliges you to have courts that can operate in both languages.

M. Benoît Sauvageau: Yes, but they are obliged to respect the law elsewhere also, and they don't. We understand each other. I am not a constitutionalist, either. I only want to understand things.

The Joint Chair (Mr. Mauril Bélanger): Mr. Levesque.

M. Gérard Lévesque: I think we would have heard if someone had not been able to file for divorce in English in Quebec. We would have heard it much more than currently, when it is very difficult to file for divorce in French.

M. Benoît Sauvageau: They have a newspaper. Among others, they have The Gazette to put these cases on the front page. It's too bad that Ms...

M. Gérard Lévesque: Many of our members belong to both the Quebec and the Ontario Bars, Anglophones and Francophones— [Editor's note: Inaudible] —in both provinces.

M. Benoît Sauvageau: But there are fewer problems in education, health care and the courts.

[English]

Prof. Joe Elliot Magnet: May I respond?

Theory sometimes isn't the best guide to this. I've prosecuted in the Ontario courts. Sometimes my French is not perfect or even particularly good, but sometimes just to get your work done...

I happen to have been the line crown in a court in a French trial, and there was a, “Joe, could you help out?” kind of situation. Yes, it's not a perfect situation to have someone with my linguistic competence as a prosecutor. This would be one of the problems.

If we look at the rest of the question, about Quebec, I have also had the experience of proposing an affidavit in the Superior Court on behalf of La Société franco-manitobaine, drafted in English, in my language. We received unflattering commentary from the judge. We were exercising linguistic rights that are constitutionalized in the province and were still getting the kind of--what would I say--practical restraint from doing it that makes it difficult to do. I learned my lesson; I'm not going to do that again, even though I have the constitutional right to do it.

º (1640)

[Translation]

Mr. Benoît Sauvageau: I rarely thank my friend from Reform or the Alliance, but he has clearly shown us that it is not clear at all and that the interpretation that is given to section 41 and the Official Languages Act can be just about anything. As for me, it's as if at the end of debating whether angels are male or female, we cannot say whether we believe in angels or not.

Let's say that all jurisprudence shows that there were previous agreements making section 41 executory. If there is no will to apply it, it comes down to the same thing. First, is there a wording that you could propose now or send us in writing afterward, that would make section 41 executory?

I searched the Parliamentary web site which was updated on February 21, 2002. An error was probably made, but I read that the ministers responsible for the Official Languages Act this too, is somewhat— [Editor's Note: Inaudible] —are Jean Chrétien and John Manley. Since I wasn't sure, I continued my search. It mentioned that the spokespersons were Benoît Sauvageau, Yvon Godin and John Herron. It must be the correct list because the spokespersons listed were correct. I don't know if they had the correct ministers, but anyway.

In sections 42 and 43, if we changed “The Minister for Canadian Heritage, upon consultation...” for “Prime Minister, upon consultation...” would this be more clear? Section 43 would read as follows: “The Prime Minister shall take such measures...” The Minister of Canadian Heritage is at the same horizontal level as the other ministers. She consults them. She therefore has no power to tell other ministers how to apply or not to apply this. This is my interpretation of section 42 as a politician, and not a constitutionalist. If we remove “the Minister of Canadian Heritage” and we put in “the Prime Minister”, it seems that we have a person who is hierarchically superior, who will consult the others. If we really want to give wight to this section or law, this does it. Can we change “Minister of Canadian Heritage” to “Prime Minister”? That is my second question.

Now for my last question. In paragraphs (d), (f), and (g), what is meant, for example, when speaking of encouraging Anglophones to obtain municipal services in their language, or when it is said: “encourage and cooperate with the business community, labour organizations, voluntary organizations and other organizations or institutions to provide services in both English and French...”

Here is an anecdote, an example, an illustration. I am sure that it is not that, but anyway. In the city of Charlemagne, the population is 6,000 people, and there is one Anglophone. Under paragraph (f) of the Official Languages Act, could this person request that his tax bill be in English? I don't think this could be demanded. Why do we make note of this if it cannot be addressed to these organizations?

Thank you.

The Joint Chair (Mr. Mauril Bélanger): Mr. Braëns.

Prof. André Braëns: I must humbly admit that I forgot your first question.

Mr. Benoît Sauvageau: Could you give us clear wording that would make section 41 more executory? Currently we can state that it is or that it is not executory.

Prof. André Braëns: We can always change the wording. We could use the word “must” for example. We could adopt an application framework, and so on. There are certainly some words that could be added to specify the executory character of section 41. But what is important to note, is that if it is clear, this means that not only, for example, is the Commissioner of Official Languages able to make a status report to Parliament regarding section 41, but that there is also a legal basis, that is, we could be able to appear before the courts to complain, for example, about lack of action by the federal authorities. At that point, it becomes very important.

Also, in regard to your second question, I would not think it a good idea to designate the Prime Minister. He does not head a department. Generally, of course, he presides over Cabinet. He is the most important member. Rather than the Prime Minister, we could name the government itself. There you would truly have the head of the administrative hierarchy, and there, my word, it would come from on high.

º (1645)

Mr. Benoît Sauvageau: Therefore, we could change “Minister of Canadian Heritage” to “government”. Is that correct?

Prof. André Braëns: Yes, certainly. In addition to its administrative role, the government plays a political role. It would have to respond to certain questions in this regard.

As for your concerns regarding certain paragraphs of section 43, I would say that this is legislation regarding the linguistic issue. The Canadian Parliament can legislate on the linguistic issue as long as it is connected to an activity for which it is competent. In other words, it cannot legislate in provincial matters. It can also encourage or promote, through administrative agreements or through spending authority, the official languages on the federal scene, and also at a level that is not federal. Obviously, at that point, it is more limited.

The Joint Chair (Mr. Mauril Bélanger): Thank you. Professor Magnet.

[English]

Prof. Joe Elliot Magnet: I have some language that may help you. I gave an amendment to the clerk, and it will be translated and distributed to you.

But to advance our discussion, you might indulge me to read you some language I think would be appropriate.

Let's assume that what's there now becomes subsection 41(1). I would suggest the addition of 41(2), (3), and (4). Subsection 41(2) would say, “Subsection 41(1) is executory.”

Subsection 41(3) would say:

Federal institutions are required to implement the commitment in s. 41(1) with all deliberate speed, subject only to such reasonable exigencies, provided by regulation, as can be demonstrably justified in a free and democratic society composed of two official and equal linguistic communities.

Subsection 41(4) would say:

Any person aggrieved by a failure of a Federal institution to respect its obligations under this section, after having exhausted all other remedies under this Act, may apply to the Federal Court, Trial Division for such remedy as that court considers appropriate and just in the circumstances.

I think this would resolve the debate. It would give clarity to federal institutions as to what they're supposed to do, which is implement obligations with all deliberate speed to develop the vitality of the communities.

After investigation by the commissioner, reporting, publicity, and parliamentary oversight, a person would have a right, if still unsatisfied, to go to court to seek a remedy that the court considered just and appropriate.

[Translation]

The Joint Chair (Mr. Mauril Bélanger): Mr. Sauvageau, the document that was given to us is in English. We will have it translated and distributed to all the committee members as soon as possible.

Are there any other questions? Mr. Sauvageau, one last question.

Mr. Benoît Sauvageau: Perhaps we can make a link to what the gentleman has just said. You said that we should specify the obligations of the government in applying section 41. Could you, perhaps immediately or later, provide us with a specific wording that we could put into the Act?

Prof. André Braëns: Yes, quite humbly, I could make proposals, in fact.

M. Benoît Sauvageau: Thank you.

º (1650)

The Joint Chair (Mr. Mauril Bélanger): You may send them to the committee clerk.

Mr. Lévesque.

M. Gérard Lévesque: I would simply like to clarify something concerning the wording. Senator Gauthier is correct in proposing the wording: "The government takes the necessary measures". It would be clearer of course than the current wording. If we had a provision that would make that section executory, I fear that it would lead to problems with all the other laws that do not contain a clause stating that the section is executory. The text really has to be clarified, and with Senator Gauthier's project, we have an excellent opportunity with this wording to clarify the intent, which originally was to promote the minority.

Now, we alluded to what could be done at the municipal level. I think that this is a good opportunity to recall that when the federal government gave the province of Ontario responsibilities under the Contraventions Act, Ontario in turn gave that responsibility to the municipalities that wanted to replace the federal government in pursuing citizens for federal offences. This is what we fear, because the federal law under which this devolvement was made did not protect acquired linguistic rights, and in Ontario, we were caught with almost 90 municipalities that had illegally declared themselves to be unilingual English, and at that point it was to be the municipalities' responsibility to handle justice. The municipalities would appoint the clerk, they would appoint the prosecutor and they would be responsible for providing service regarding the offences.

Fortunately, with Bill 108 in Ontario that devolved these powers to municipalities, we have a minimum of guarantees. But it wasn't easy to ask Ontario to take into account the linguistic rights, because Queen's Park asked us why Ontario should give us linguistic guarantees in devolving the powers to municipalities when the federal government gave the province the power without obliging it to respect acquired linguistic rights.

Therefore, for this reason we had to bring the contraventions case before the court. But if there were a clear commitment, we could avoid such situations.

The Joint Chair (Mr. Mauril Bélanger): Thank you. Senator Gauthier.

Senator Jean-Robert Gauthier (Ottawa—Vanier, Lib.): One must be patient when one is a senator. We have been here for one and a half hours. We were both called back to return to the House. We could perhaps alternate, Mr. Chairman: an intervener from the House and one from the Senate occasionally, rather than having three or four members before hearing a senator.

I am very pleased to welcome you. I will read you a section that concerns us all. Mr. Magnet knows it even better than I do.

...The government of Canada and the provincial governments, are committed to:

a) promoting equal opportunities...

b) furthering economic development to reduce disparities in economic development;

This is the wording for section 36 that deals with equalization. How is it that we can spend billions of dollars under a federal commitment, but we can't do anything under section 41? The answer, Mr. Magnet is because section 41 has no effect. We cannot go before the courts with the help of the Commissioner of Official Languages; this is not allowed. We need deep pockets and good lawyers like you to argue section 18 of the federal statute that would allow us to do so. We don't have the means and we don't have the required human and financial resources.

I was here in 1988 when the law was adopted. We tried to get the government to say that it was executory. We did not succeed. Since that time, all the Justice Ministers have told us ad nauseam that it is declaratory, and even, I like this word, political. Well that's my game, of course! So I took the wording that existed and the word “commit”, which seemed to be causing the problems, and I took it out. I replaced it with “take the measures necessary”. I am just an amateur in this field. I said to myself, if the word “committed” is the problem, then we'll change it.

What I wish to know is, how come section 36 clearly states that the government is committed to spending billions of dollars, while section 41 commits the government but does nothing, or next to nothing. You all have alluded to this: divorce, bankruptcy, difficulties within a law that is applied asymmetrically across the country. The federal law is symmetrical, but it is applied asymmetrically.

My first question is for Mr. Colvin.

º (1655)

M. Tory Colvin: I must admit, Mr. Senator, that when I read section 41 in its current form: “The Government of Canada is committed to enhancing”, a simple interpretation of these words leads me to believe that the federal government is taking on the obligation to protect a linguistic right, an obligation. If I have the right to vote, it means that there has to be a ballot somewhere for me to vote, or else it is— [Editor's note: Inaudible] —that means nothing. As soon as the government is committed to enhancing, I must admit that a priori I would have believed that the solution was already there. But with all the debates going on, of course, it must be clarified, and modified. With section 41 in its current form, we have had the contraventions affair. We almost lost our right to be tried in French. We are fighting to ensure that the Northwest Territories will respect the linguistic obligations that devolve from the federal government. Therefore, I completely agree with you that, obviously, we must amend section 41.

Senator Jean-Robert Gauthier: Just now, one of you asked for proof. I believe it was Mr. Magnet. It takes proof. Look at the galloping assimilation of minority groups. In Ontario, one francophone out of three no longer speaks French at home. Is that not enough? There is abundant proof. I can give you as much as you want.

Perhaps Mr. Braëns would have something to say about this.

Prof. André Braëns: Section 36 of the Charter refers to a rule that prima facie appears to be better established or in any case much less contentious than the language issue. This is why it has been easier to implement. Section 41 refers to the language issue, and therefore we know that it is at the heart of a contentious issue in Canadian life. This is perhaps why we are asking the true meaning of section 41. I think that the wording that you are proposing effectively add to it. In my opinion, it is already executory. In my opinion, we can, based on certain jurisprudence that has developed lately in the Supreme Court of Canada, the Baker affair, that is, control of governmental discretion by the judiciary, we can, for example, appear before a court and question, for example, the federal government's lack of action. I think that the wording that you are proposing certainly adds weight.

I would go just a little bit further and say... I don't know, but “...take the measures necessary...” I think that there should be further tightening of the discretionary exercise. The more discretion there is, the more justification there is for not taking action.

Senator Jean-Robert Gauthier: You are aware that the Séguin Commission wrote a very important section on equalization, in which the constitutionality of section 36 is questioned. Are you aware of this?

Prof. André Braëns: I only took this out.

Senator Jean-Robert Gauthier: I recommend that you read the Séguin report on this. It is important.

[English]

Prof. Joe Elliot Magnet: I have a somewhat different thought to add to this, Senator. I think if we had been told in 1969 that the federal administration would look as it does now and that Ontario francophones would have more secure rights to an institution of a larger penetration, and that those rights would be recognized in law, we would have thought it was a good story.

What we have achieved together, I would say, is very considerable and was not foreseeable. We have come a very, very long way in the 33 years since the official languages policy. It's an achievement of our country. One of the things we have demonstrated as a political community is that our system makes it possible for national communities to better progress. Look at the province of Quebec, where the French language has gone up slowly from 79% to the 82-point-something-percent it's at now.

The worldwide onslaught of English as the dominant language of the globe has been fantastic. Yet we see that in our country a national community can be more secure in its language as part of a non-sovereign province than small, sovereign communities in Holland or Denmark, whose languages are more severely eroded, while ours are more secure.

I appreciate the pressure points because they're real and they're frustrating. The justice department lawyers can sometimes be very, very interesting people with whom to have a beer.

Mr. Yvon Godin (Acadie—Bathurst, NDP): Would that be in English or in French?

Prof. Joe Elliot Magnet: I think these changed circumstances are relevant in this way. In the 1970s and the 1980s, these were very, very hot and divisive issues that threatened the security of our country. Not that we do not have problems now, but our problems are much more manageable. Our justice is much more robust than it was 33 years ago.

I think these changed circumstances make it possible now to do what you are proposing in Bill S-32, its intent--in other words, to give a right to people who are more impatient and who want to push the envelope into every little corner with court remedies, to push buttons the Supreme Court thought were too hot and shouldn't be pushed; and who is to say that those people are wrong?

It is a changed atmosphere now and we should be more concerned with the vitality of these communities because we are less concerned with the security of our country in light of these things. We are more secure in that sense.

So I think what we propose for section 41--whether my colleague, Professor Braëns, is correct that it's already there, or whether, as in your own view, we need to strengthen it to make it clearer--is the right thing to do. The language I've offered would be absolutely clear.

» (1700)

[Translation]

Senator Jean-Robert Gauthier: Mr. Magnet, I will respond to your argument. Admitting that section 41 has effect. Many ministers are sensitive about this. They say it will lead to increased judicial activity. It's legal jargon; I don't know what that means.

In 1982, when we adopted the Constitution, a new Charter of Rights and Freedoms, I was there. I voted against it, but in any case... I committed suicide, as they say.

The provinces were sensitive, at that time, especially because of the effect of the legislation, and that relating to the official languages, especially, in regard to section 41. The government's answer was that they should not worry, that it was spending authority that was at stake, and nothing else.

I think that Mr. Braëns mentioned spending authority, earlier. One of you mentioned spending authority. This is an argument that must be used, also, because the first section is not only executory, but it provides the government, it explains the effect of section 41 by stating that the government is committed, but that the Minister of Canadian Heritage does this or that. There is a list of suggestions.

Am I wrong in stating that if we went before the Supreme Court of Canada to ask what section 41 means, whether it is executory, declaratory or political, that we could have your support?

Senator Gérald A. Beaudoin (Rigaud, PC): I think that ever since the Beaulac case, all governments and all courts must rethink their previous positions in matters of official languages. This explains the big difference between the government's commitment in the matter of equalization, and its commitment in the matter of official languages. It's that the government , unfortunately, is referring to the previous decision regarding the interpretation of language rights in Canada in the matter of the Société des Acadiens du Nouveau Brunswick.

That decision concluded that the Acadians had the right to speak French, but that they did not necessarily have the right to be directly understood in French. The right to use one or the other official language is not a right to an interpreter. Earlier, we asked which jurisdiction covered justice. Justice is shared between the provinces and the federal government.

The Ontario government, the legislative assembly of Ontario declared that French and English are the two official languages of the courts in Ontario. We need to have the collaboration of the Parliament of Canada and the provincial government to ensure that when judges are appointed by the federal government, there are a sufficient number of bilingual judges. If we don't have this, we cannot exercise our right which is recognized by the province.

So the current inspiration within the government, coming from Justice Canada, arises from the fact that when they submitted their brief in the Contraventions Act case in April 1999, it was based on the interpretation that was made regarding the Société des Acadiens case, which stated that all language rights were a political compromise, that the courts had to be very prudent in interpreting this.

One month later, in May 1999, with the Beaulac decision, the Supreme Court ordered all courts to henceforth interpret language rights liberally and generously. This completely changed the interpretation. Before, the Supreme Court told the courts to interpret language rights legislation as strictly as possible, so not to give too much.

Now, the Supreme Court is asking the courts to do the opposite in interpreting the legislation, to give much more to be sure that those who are in a minority official language situation can obtain the equitable treatment to which they are entitled under the Act.

» (1705)

Prof. André Braëns: Mr. Senator, you are probably well aware of the Charlebois case in New Brunswick, in which the New Brunswick Court of Appeal found that under the Constitution and the official languages legislation in effect in that province, the municipalities had to adopt and publish their by-laws in both languages.

This is quite special, because the Supreme Court had interpreted similar provisions, section 133 etc., in the Blaikie case, and had excluded municipal by-laws from the obligation for legislative bilingualism. Now, in 2000, with that jurisprudence, the issue comes up in New Brunswick. What do the New Brunswick courts do? They find that the situation has changed in New Brunswick, and that section 16.1 had been added to the Canadian Charter to proclaim equal status and privilege for the two official languages. Then, referring to the Beaulac and Arsenault-Cameron cases, as well as to the principle of protecting the official language minorities, they found that municipal by-laws had to be included in the obligation for legislative bilingualism.

So to reply to your question, quite specifically, if we were to appear before the Supreme Court currently, I think that we would have a good chance of seeing it decide in favour of section 41 being executory. However, that does not mean that it would instruct the Government of Canada on what to do. That would be another matter.

The Joint Chair (Mr. Mauril Bélanger): One moment, Senator Gauthier. I must now give the floor to Mr. Godin. Mr. Godin, it is now your turn.

Senator Jean-Robert Gauthier: Very well.

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

First, I would like to welcome you. I can say that I am very pleased with the Moncton decision concerning municipalities. I think that this shows that putting Bill 88 into the Constitution has had an effect in New Brunswick.

Here is an important question: when we talk about replacing section 41 with Bill S-32, are we committing the same error again by putting off to tomorrow what we should be doing today? Modifying the wording, if the will is not there, will not change things. If the government decides that the new wording is not any more executory-this is the word you use-than the previous version, than we are spinning our wheels.

So if, as you say, section 41 already has some weight, we should test this in the Supreme Court. And if we decide not to test it in the Supreme Court, we will end up with Bill S-32, which will come back to the same thing because we don't want to adhere to it, I would say. Since 1988 we have been throwing the ball back and forth, asking if the section is executory or declatory.

I have been here for five years, and I have been on this committee for a long time, where I have constantly heard Senator Beaudoin state that this text is executory and that we should go to the Supreme Court. We are going to hear from him soon and I will let him use his own words. I, for one, believe that we are losing time because you, who are supposedly the experts, the professors teaching our youth, you tell us this. But the others don't believe or agree with you. This is unfortunate. I think that we should continue in 2002...

I will give you a small example: Air Canada. We have just completed a study, and made a presentation to the House of Commons, and recommendations, regarding Air Canada. While we were conducting our study, a Francophone sitting on a plane wanted to be served in French. He probably ended up raising his voice because these situations usually end up being irritable. Finally, the police arrested him because he wanted to be served in French. If this is what Francophones have to go through to get their point across, it is terrible and unacceptable.

So, perhaps it is time to take section 41... Because even with an amendment, the problem would linger on and we would have to test it before the courts. Therefore, why not do so immediately. And if section 41 is not satisfactory, we amend it. We will do our duty as politicians and members of Parliament.

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Prof. André Braëns: Mr. Godin, I have stated time and again that even if we find that section 41 is executory, the discretion allowed the government is so wide that finally, the true question is not addressed. To the extent that the application framework is not stated in the Act, as you say, we could continue arguing this point for a very long time on what should and what should not be done.

Obviously, I am very much in favour of specifying the degree of discretion that should be attributed to the federal government. The problem is that in doing so, you enter the political arena. In the political arena, will Parliament be ready to follow up on the requests for clarification that will be made? That is another matter.

M. Yvon Godin: But then...

Mr. Gérard Lévesque: Senator Gauthier's project has an important aspect; it would bind the revised section 41 to the Constitution, the Canadian Charter of Rights and Freedoms, by stating from the start:

In accordance with subsections 16(1) and (3) of the Constitution Act, 1982

This would give the courts, who would have the task of interpreting section 41, a very clear definition of the equitable status contained in section 16 of the Canadian Charter of Rights and Freedoms. It would be a great improvement on the current wording, in addition to adding new wording that would allow the government to take the measures necessary.

M. Yvon Godin: Mr. Chairman, the witness states that it would be a great improvement. From experts like you, could we get words that would not only be an improvement, but that would be direct, clear, black and white.

Mr. Gérard Lévesque: We could ask for an opinion, but the ideal would be to specify the wording in the Act. Given that people state that the wording is not clear, currently, let's modify the wording to be specific, and if we still have a problem, we'll go to the courts.

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M. Yvon Godin: If Senator Gauthier's amendments were to be refused, it would mean that the government would not want more specific wording, which is what we are looking for, in fact.

I would like to get each one of your opinions on how you would interpret a refusal of our what our colleague, Senator Gauthier, is proposing.

Mr. Gérard Lévesque: A refusal to specify the government's commitment, which seems to be the problem currently... There are clear words that signify a commitment to enhance something. Yet, when we look at what is going on, we don't always know if we can use French in areas under federal jurisdiction. Therefore, there is a lack of coherence. If there is a commitment, and unambiguous action, we no longer have to ask whether we can use French in getting a divorce in Toronto or anywhere else.

The Joint Chair (Mr. Mauril Bélanger): Does anyone else want to add anything?

M. Tory Colvin: To add to what has just been said, I think that we are really living in a different world since the Supreme Court decisions in Arsenault-Cameron, and Beaulac. I think that before these decisions, language rights were not really rights, they were privileges given that could be withdrawn. I think that with these decisions—I think that it really started with Beaulac— these are no longer privileges, these are rights and can no longer be withdrawn.

I think that it's mainly due to this that Justice Blais went in our direction in the contraventions case. And this is why, unless there is a lawyer who is still looking for cases, I think that if we are ever before the Supreme Court to deal with section 41, or something approaching the amendment brought by the senator, I prefer to be optimistic and believe that this will be respected. In fact, I think that things have changed enormously since Beaulac. I can't wait for April 22.

Prof. André Braëns: Perhaps one way of giving more weight would be to state that the legal recourse given in section 77 can also be used. We currently think that the Commissioner of Official Languages, or a person making a complaint, may appear before the courts regarding a violation of these rights. This is stated in sections 4 to 7, 10 to 13, or in parts IV or V. We only have to add part VII. In that case, I can tell you that it would be very executory.

The Joint Chair (Mr. Mauril Bélanger): Thank you, Mr. Braëns. Senator Beaudoin.

Senator Gérald A. Beaudoin : I think that I like your last statement, when you say that Beaulac changed everything. In my opinion, we should forget about the Société des Acadiens case. It practically no longer exists.

So, Justice Canada states that section 41 is not executory. I respect this opinion. There is another school of thought that states that section 41, which strangely resembles section 36 of the Constitution Act of 1982, is executory. I support this theory. When two theories confront, nothing happens. So we must go further. At this point, either we amend section 41, as my colleague Senator Gauthier is proposing, or we go to the Supreme Court.

We must use the instruments that we have. We have a Parliament and we have a Supreme Court. Parliament legislates and the Supreme Court interprets. If there is a problem with interpretation, in constitutional law it always ends up in the Supreme Court. This is a purely political problem; nothing happens if the government doesn't want to go further, if Parliament doesn't want to go further; or something does happen when there is the political will to resolve the problem. It's as simple as that.

After having heard all the theories, I think that the status quo... It's what we currently have. There are people saying that we shouldn't touch section 41, that it is perfect the way it is, except that it is not executory. And they accept this theory. They accept it, but others do not.

I have always thought that the legislator does not legislate without a reason. I experienced the debate in 1982, from start to end and with the lower courts... In the case with Mr. Forest from Manitoba, he was losing everywhere, all the time. They were saying that Mr. Forest's case was not executory, and that it was a guide. He was desperate. He consulted. I remember telling him that he would lose everywhere, without a doubt, but that he would win at one point, and that the only place he could win would be in the Supreme Court. It is not true that the Supreme Court doesn't change things; to the contrary. It is the only court that through its decision changes constitutional law. We must never forget that a decision from the Supreme Court is part of the Constitution. We must never forget that. Obviously, if Parliament states in an amendment that section 41 is executory, that solves part of the problem, indeed. And if the court says that it is executory, that also solves part of the problem.

Now, it is evident that even here, we will need regulations to specify even further how this executory function of the Act will work. I support the theory that states that if we don't agree, we have to go to court, and nobody, up to now, has found a better way.

If we agree on an amendment, fine. Let's get it adopted by the Parliament of Canada, and it will be a great day; but if we don't succeed there, let's go before the courts. Mr. Forest, in winning his case before the Supreme Court of Canada, changed Canada's constitutional history. Mr. Forest is a great man. He changed constitutional history, and the Supreme Court declared that all legislation that hadn't been passed in French and English was null, but valid during the time it would take to be translated. That's what was done. It was the greatest decision that the Supreme Court had ever made. It was heard around the world, throughout the Commonwealth.

» (1720)

No country had ever had such a decision like that one.

I don't know what will happen with section 41, but one thing is sure, I think it is executory, and if we cannot convince our colleagues, then we must act, and go one step higher. The higher step is the court or Parliament, one or the other. The best is both. Perhaps Parliament should declare that it is time to amend section 41, and make it executory. It may be contested, and at that time we would go to court. There is no other solution. This is what law is all about; we can't escape it.

I told my colleague Gauthier that I would support him. I prefer that section 41 be amended, because it is contested. Some say that it doesn't mean anything, and others say yes, it does. By amending it, we go one step higher. If it is contested, at one point we will have to go before the Supreme Court. What other solution is there?

If Parliament does not act, the courts act in its place. Never forget that. Look at what we have done with the Charter of Rights and Freedoms. When we could not resolve the problems of euthanasia, suicide, abortion, etc., who resolved the problem? The Supreme Court solved the problem. This has always been the case. So we take note. Our country is a great democracy. I really like our country, but we have to know how it works. If we don't succeed in doing what we must, if we don't have the courage to do what we must, the court will do it instead. We can't escape this fact. It's one or the other, or both. We have solved many problems in this manner. You will tell me that it takes time and money. That is not my problem. I am not the Minister of Finance, I am a jurist. Legally speaking, this is what must be done. Politically, there are those who say that it will cost too much.

The Supreme Court may find it to be obligatory, but that doesn't mean that Parliament is obliged to accomplish everything in one day. That is not the case. Parliament can do what it wishes. The Court will never blame Parliament for not doing something within a matter of hours. That simply doesn't happen. Things must be reasonably accomplished. I always say that power is there to be exercised. It is exercised in Parliament and in the courts. I don't criticize the Supreme Court when it interferes in a given case. If we in the Senate and the House have not had the courage to do what we should, at that point I do not criticize. The Court has solved a problem that we perhaps did not have the courage to solve ourselves. Unilingualism in Canada will last for centuries.

The Joint Chair (Mr. Mauril Bélanger): They are not elected, and that's why.

Senator Gérald A. Beaudoin : The justices are not elected to the Supreme Court. We are not going to go toward an elected court, of course.

» (1725)

The Joint Chair (Mr. Mauril Bélanger): That is the work of another committee.

Senator Gérald A. Beaudoin : Either we go with amendments, or we go...Or we accept an amendment such as this one, which I think... We can improve it, of course. There is nothing perfect on this Earth, but we can improve it. At least, I find that we are going ahead on something. Discussions on the “executory” and “declatory”, continue until the Supreme Court tells us that we are wrong, it is executory. Once the Supreme Court has spoken, it's over.

[English]

The Joint Chair (Mr. Mauril Bélanger): Professor Magnet, you wanted to react.

Prof. Joe Elliot Magnet: Thank you.

Going to court is very interesting.

Some hon. members: Oh, oh!

Prof. Joe Elliot Magnet: All sorts of things happen.

If this question, which is the same question, had been asked in 1988 of the Supreme Court, my colleague would perhaps agree with me the answer would have been different. The Mercure case was then decided; SANB was the rage; and Shakespeare said, “There's a tide in the affairs of men that, taken at the flood, leads on to fortune”. It's a question of timing and of the constellation of forces.

I agree with my colleague that now the Supreme Court would give the answer he thinks. But again, it depends on the case; it depends on the factual complexion; it depends on what kind of procedural mess is made or isn't made. It depends on many things, and then the court may also say nothing and will start again. Delgamuukw is a good example: a great premise, but sent back to trial for another generation.

Senator Gérald A. Beaudoin : Which one?

Prof. Joe Elliot Magnet: Delgamuukw, dealing with aboriginal people.

Senator Gérald A. Beaudoin: Oh, it will come back.

Prof. Joe Elliot Magnet: Not in this generation. My point is that many things need to happen. In other words, I don't think we would be subscribing to a thesis that there is some magical button that some genie presses so that particular problem and everything attendant... The problem is the development of the linguistic communities so that they are equal and have a vitality, not to prove abstract propositions of law. The problem is the communities and how best to accomplish their development.

The reason I think perhaps judicial action was right, as Senator Beaudoin has suggested, and to have legislative action is also correct, as Senator Gauthier has amended--there were some other amendments offered by the language commissioner before the Senate committee--the reason I think these are right is my colleagues at this end of the table have identified some problems that need to be corrected. They go to the vitality and the equality of the communities.

I think the focus needs to be on those problems, and this committee is engaged in the study of section 41. Its focus needs to be on the vitality and the equality of the communities so that this spirit that we seem to be agreed about works out. It may well be if there is a blockage, the court will have to unblock it, and that will be a question of timing and many other things. It may be that your study will persuade you that legislative activity of the type of Bill S-42 or some other type is a means of moving forward. I think it's this coordinated view that is necessary.

» (1730)

The Joint Chair (Mr. Mauril Bélanger): I'm having to interrupt, Mr. Magnet, because the light is blinking on and off, which means the bells are ringing for a vote in the House of Commons. Time is usually two hours, so I will, on behalf of my colleagues, thank you very much for your interventions. They're very much appreciated, and I suspect they'll be very useful as we go on in this way.

[Translation]

I would like to remind you of our next meeting. It will be held next Monday, the 18th, and it will be an extended meeting. Mr. Pagé, could you briefly tell us what it will be about.

The Joint Clerk of the Committee (Mr. Jean-François Pagé): We will hear organizations from each province, Monday, from 15:30 to 19:00 hours at least, because 13 organizations will appear. Therefore, we will split the group in two. The first part will last until 17:00 hours, and then we will have the second part.

The Joint Chair (Mr. Mauril Bélanger): A meal will be served.

Senator Gauthier.

Senator Jean-Robert Gauthier: If I understand correctly, the committee will deal with part VII. Today, you have mainly dealt with section 41. Was this the intent?

The Joint Chair (Mr. Mauril Bélanger): This was what the committee had decided and ratified at a previous meeting.

Next week, you will recall, we will be following up on the motion presented by Mr. Sauvageau, which was adopted by this committee; it proposed a meeting with the representatives of the minority official languages groups to help Mr. Dion's reflections.

With that, I thank you all very much. The meeting is adjourned.

Senator Jean-Robert Gauthier: It's part VII.

The Joint Chair (Mr. Mauril Bélanger): We are open to dealing with both.

Thank you.