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37th PARLIAMENT, 1st SESSION

Standing Joint Committee on Official Languages

EVIDENCE

CONTENTS

Tuesday, April 30, 2002

1530

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

The Joint Chair (Mr. Mauril Bélanger)

Mr. Martin Cauchon

1535

1540

1545

The Joint Chair (Mr. Mauril Bélanger)

Mr. Martin Cauchon

1550

Mr. Michel Bellehumeur

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

Senator Jean-Robert Gauthier (Ontario, Lib.)

1555

1600

The Joint Chair (Mr. Mauril Bélanger)

Senator Jean-Robert Gauthier

The Joint Chair (Mr. Mauril Bélanger)

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

1605

Mr. Martin Cauchon

Mr. Yvon Godin

Mr. Martin Cauchon

Mr. Yvon Godin

The Joint Chair (Mr. Mauril Bélanger)

Mr. Martin Cauchon

1610

Mr. Yvon Godin

The Joint Chair (Mr. Mauril Bélanger)

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

Mr. Gérard Binet

Mr. Mario Dion (Associate Deputy Minister, Department of Justice)

1615

Mr. Gérard Binet

M. Mario Dion

Mr. Gérard Binet

M. Mario Dion

The Joint Chair (Mr. Mauril Bélanger)

Mr. John Herron (Fundy--Royal, PC)

1620

Mr. Martin Cauchon

Mr. John Herron

Mr. Martin Cauchon

Mr. John Herron

1625

The Joint Chair (Mr. Mauril Bélanger)

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

1630

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

Mr. Michel Bellehumeur

Mr. Martin Cauchon

1635

Mr. Michel Bellehumeur

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

Senator Jean-Robert Gauthier

1640

Mr. Martin Cauchon

1645

Mr. Yvon Godin

Mr. Martin Cauchon

Mr. Yvon Godin

Mr. Martin Cauchon

Mr. Yvon Godin

Mr. Martin Cauchon

Mr. Yvon Godin

Mr. Martin Cauchon

Mr. Yvon Godin

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

Mr. Yvon Godin

Mr. Martin Cauchon

Mr. Yvon Godin

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

1650

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

M. Mario Dion

The Joint Chair (Mr. Mauril Bélanger)

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

M. Mario Dion

1655

The Joint Chair (Mr. Mauril Bélanger)

M. Mario Dion

The Joint Chair (Mr. Mauril Bélanger)

Mr. Michel Bellehumeur

Mr. Martin Cauchon

Mr. Michel Bellehumeur

Mr. Martin Cauchon

Mr. Michel Bellehumeur

1700

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

Senator Jean-Robert Gauthier

Mr. Martin Cauchon

Mr. Yvon Godin

1705

Mr. Martin Cauchon

The Joint Chair (Mr. Mauril Bélanger)

CANADA

Standing Joint Committee on Official Languages

NUMBER 036

1st SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, April 30, 2002

[Recorded by Electronic Apparatus]

¹ (1530)

[Translation]

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

Today, we resume the study of Part VII of the Official Languages Act with regard to the Department of Justice. Our witness this morning is the Minister of Justice, the Honourable Martin Cauchon. He is accompanied by Mr. Dion, Associate Deputy Minister of Justice, who is the official languages champion at the department.

First, we will hear the Minister, then we will proceed with the question period as we usually do. We will begin with the opposition and then alternate until everyone has had a first round, and we will then do a second round.

Mr. Minister, you have the floor.

Hon. Martin Cauchon (Minister of Justice and Attorney General of Canada, Lib.): Thank you very much, Mr. Chairman.

I would like to say that it is with great pleasure that I appear before the committee today to discuss Part VII of the Official Languages Act. As you very appropriately mentioned, Mr. Chairman, I am accompanied by Mr. Mario Dion, Associate Deputy Minister of Justice, who is responsible for the issues that we will be dealing with today.

The Joint Chair (Mr. Mauril Bélanger): I'm going to ask the cameras to leave the room. In any case, this is being broadcast live.

Go ahead.

Mr. Martin Cauchon: In addition to Mr. Dion, I am accompanied by representatives of the department who are studying the question before us today.

I am here today for essentially two reasons. As legal counsel, I will present the department's position with respect to the legal scope of Part VII of the Official Languages Act. I will then outline what my department does, in its areas of responsibility, in order to fulfill the objectives of Part VII.

I am proud to be part of the government which, for the first time in over fifteen years, eloquently reaffirmed, in last year's Speech from the Throne, the federal government's commitment towards the protection and promotion of our two official languages and its commitment to support official language minority communities.

In order to breathe life into this commitment, the Prime Minister announced that Minister Dion would assume responsibility for coordinating issues related to official languages. He also asked Minister Dion to consider strong new measures that will continue to ensure the vitality of official language minority communities and to develop a new policy framework to strengthen the official languages program. However, note that the appointment of a coordinating minister has in no way altered my official language roles and responsibilities or those of my colleagues at the Treasury Board or Heritage Canada.

In the same vein, the Prime Minister created a Reference Group of Ministers on official languages, thereby indicating the importance he accords to constructive discussions on the major issues relating to official languages.

Allow me now to turn my attention to Part VII of the Official Languages Act. From the start, I wish to point out that, on March 18, 2002, my officials appeared before the Standing Joint Committee on Legal and Constitutional Affairs and explained in detail de department's position on the scope of Part VII. With your permission, I will give the clerk of your committee copies of those texts. I invite you to read them.

¹ (1535)

[English]

As you know, in 1988 Parliament adopted the second Official Languages Act, which for the very first time set out the federal government's commitment to support and assist the development of the English and French linguistic minorities and to foster full recognition and use of both English and French in Canadian society. This government commitment is set out, as you know, in part VII.

Section 41, the first of part VII, therefore contains a formal statement of policy on behalf of the Government of Canada. Only a statute enacted by the Parliament of Canada could amend or modify this commitment taken by the federal government more than 15 years ago.

It is the Minister of Canadian Heritage who, pursuant to section 42 of the act, is responsible, in consultation with other ministers, for coordinating the implementation by federal institutions of the commitment.

Furthermore, section 43 of the act sets out the specific mandate of the Minister of Canadian Heritage to take such measures as the minister deems appropriate “to advance the equality of status and use of English and French in Canadian society”. This mandate, like part VII as a whole, is clearly built upon the principle of advancement of official languages that underlies subsection 16(3) of the charter.

The commitment of the federal government in section 41 and its implementation under section 42, as well as the specific mandate set out in section 43, are indeed very broad. Their realization depends not only on establishing and managing priorities and allocating funds and other available resources, but also, to a large extent, on the cooperation of many other actors, including provincial and territorial governments, private sector enterprises, voluntary organizations, and other institutions and associations that are not all within the legislative and regulatory control of the federal government.

[Translation]

It is evident, from a reading of the Act as a whole that Parliament clearly wanted to distinguish the first five parts of the Act, which set out rights and duties, from Parts VI and VII, which set out governmental commitments regarding the full participation of English-speaking Canadians and French-speaking Canadians within federal institutions, and the advancement of English and French within Canadian society.

This legislative intent is evident from three things. Firstly, the language used in Part VI is a language of promotion that is very general. This contrasts with the one used in Parts I to V, which clearly sets out rights and duties in very precise circumstances.

Secondly, although Parliament decided to recognize the special nature of the first five parts of the Act by providing, in section 82, a primacy clause to the effect that the provisions of Parts I to V prevail “over any other Act of Parliament”, Part VII does not take precedence over other federal statutes.

Lastly, the judicial recourse to the Federal Court created by the Act is limited to Parts I, II, IV and V. Parliament thus chose to exclude Part VII from the judicial recourse.

For all these reasons therefore, my department has always been of the view that this Part of the Act is not judicially enforceable.

This is not to say that Part VII of the Official Languages Act, as it was conceived in 1987 and is applied at present, is but a “pious wish”, an “empty shell”, or a “dog without teeth” or that there exists no effective remedy concerning the application of this part of the Act. Part VII is an integral part of the Act. It binds the government.

As well, parliamentary, administrative and governmental recourses exist. Under section 44 of the Act, the Minister of Canadian Heritage must submit an annual report to Parliament on matters relating to official languages for which she is responsible.

Under section 88, Parliament created your Committee, specifically mandated to review the administration of the Act and the reports of the Commissioner, the President of the Treasury Board and the Minister of Canadian Heritage.

Under section 56, it is the duty of the Commissioner of Official Languages to take all actions and measures within her authority to ensure recognition of the status of each of the official languages and compliance with the spirit and intent of the Act in the administration of affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society.

The powers of Parliament, of its senior official and agent, the Commissioner of Official Languages, and the parliamentary committee are therefore far from negligible.

You will agree that we have given ourselves, since 1988 and since the last Speech from the Throne, the necessary means to fully give effect to the commitment set out in Part VII.

I mentioned earlier that in addition to my role as a legal counsel, I also have my own specific responsibilities in the area of the official languages. My Department takes all the necessary measures to ensure respect, among others, for the requirements of bilingual legislation, the right of Canadians to use either official language before federal courts and in criminal proceedings instituted by the Attorney General of Canada, the right of the public to receive services from the Department in either official language as well as the rights of the employees to work in English or in French in the designated regions.

Beyond the obligations set out in the Charter and the Official Languages Act, the Department of Justice, in consultation and in partnership with the Minister of Canadian Heritage and Minister Dion, fully participates in the implementation of the federal government's commitment under Part VII.

¹ (1540)

For the past 20 years, the Program for the Integration of Both Official Languages in the Administration of Justice (POLAJ) has been developing legal and jurilinguistic tools for Canadian members of the legal profession who represent citizens who belong to the official language minority communities. It is very tangible evidence that enhances the vitality of the French-speaking persons outside of Quebec and English-speaking individuals in Quebec in the area of justice.

In addition, for the past 8 years, my Department has been providing funding to the legal information projects and seven associations of French-speaking jurists in the common law provinces and their national federation.

It should be recalled that the administration of justice falls generally within the jurisdiction of the province and this undoubtedly limits considerably the latitude to have some progress made to access to justice in both official languages. It is only with the collaboration of the provinces that we could achieve progress in all areas of their responsibilities. For instance, in partnership with Manitoba, two pilot projects are under way in Manitoba, one in Saint-Pierre-Jolys and the other in St-Boniface, those two regions have a high concentration of French-speaking members to implement a unique box office for legal services in both official languages.

In order to identify other possible options that might be achieve with federal levers, my Department has ordered a national study on the state of minority official language legal and judicial services. This study, with will be released this summer, will provide precious information for the Department's strategic plan as well as for our action plan for the implementation of the commitment set out in Part VII. The data and possible solutions provided will also be examined in the context of Minister Dion's renewal plan with respect to official languages.

I fully understand the impatience that is sometimes felt by those who are fully engaged in the enhancement of the vitality of our official language communities. I would like to assure you that we have the will to do everything we can to improve access to justice in both official languages as quickly as possible and in a context where competition is very strong with other governmental priorities.

¹ (1545)

[English]

I thank you for your attention.

[Translation]

Mr. Chairman, I would be pleased to answer any questions you may have, together with my colleague today, Mr. Dion.

The Joint Chair (Mr. Mauril Bélanger): Mr. Bellehumeur, you have seven minutes.

Mr. Michel Bellehumeur (Berthier--Montcalm, BQ): Thank you, Mr. Chairman.

Mr. Minister, you are also Attorney General and the federal legislation compliance watchdog. Here's my first question.

Mr. Dion, as you pointed out, is the minister coordinating official languages issues, and he should very soon be tabling strong measures in favour of French. What do you think of Mr. Dion's remarks on the choice the Francophone communities have made to defend their rights through court action rather than other types of action? We are aware that the Francophone communities sometimes have no other choice but to go to court to have certain rights recognized. Mr. Dion has criticized them very openly.

As Minister of Justice, Attorney General and defender of rights and legislation compliance, what do you think of that?

Mr. Martin Cauchon: Mr. Chairman, as the committee members will no doubt understand, I'm not here to comment on a colleague's comments. I'm essentially here to explain the position of the Department of Justice, more particularly concerning Part VII. What concerns us more specifically is probably section 41. Second, I'm also here to outline the situation at the Department of Justice: where we are in our three-year action plan, which recently expired, and will be renewed after the status report is filed.

However, I could say that I believe my colleague Stéphane Dion is working hard at this time to ensure that we can develop a new action plan which he himself will have the opportunity to announce. I can also tell you that Justice Canada is currently working with Mr. Dion's team so that we can include in the action plan certain elements and measures which we feel are of interest and can contribute to the advancement of the official languages issue.

¹ (1550)

Mr. Michel Bellehumeur: Mr. Minister, I know it is always a delicate matter to comment on a statement by one of one's colleagues, but it wasn't just any colleague who made that statement. It was the minister responsible himself.

If we take the Minister's statement together with the strong measures he says he has taken in this matter, for which he has been responsible for a year, we see that he has not filed much to date. If we take that together with your speech and certain reports I have glanced through, we see that Part VII as a whole only has moral, political value. You very clearly said that, in your view, it is not binding. It's not even declaratory; it's moral. When you add up all that, we wonder whether you are abandoning the Francophone communities. We can ask ourselves that question, and I believe a lot of people are doing the same.

I believe you have an opportunity to show that you are now abandoning them by giving your support to a bill which is already before you, Bill S-32, which was introduced by Senator Gauthier.

As Minister of Justice and legislative compliance watchdog and so on, what is your position on Bill C-32, which could greatly help the Francophone communities in defending their rights?

Mr. Martin Cauchon: Mr. Chairman, there are two things.

First of all, with respect to the member's remarks on Part VII, and more specifically section 41, his analysis leads him to conclude that section 41 of Part VII has no teeth. According to the member, it's there for purely symbolic reasons. I believe my opening remarks were quite clear on the scope of Part VII. There is also the fact that Part VII and section 41 are binding on the government. It is without a doubt a policy statement that is binding on the government. At the present time, through Mr. Dion's plan, we are adopting additional tools to enable us to better exploit the potential of section 41 and Part VII as a whole.

That said, what can we say about the bill introduced by Senator Gauthier, for whom I have enormous respect? Senator Gauthier has fought all his life for the official languages issue, as many members are still doing. He has an enormous amount of merit and I have a great deal of respect for him. The objectives of Bill S-32 are extremely laudable. My view of the matter is that we must ensure we are able to continue contributing to the advancement of the official languages question in Canada. I believe that objective is entirely laudable.

However, as Minister of Justice, I must tone down the tool used, the method used. Why? Section 41 has existed for 15 years now, as we speak. Section 41 is ultimately a policy statement which has enormous scope and is binding on the government, but, at the time it was passed, it was an enormous concern for all the provinces and territories, all our Canadian partners. Why? Because, it was said, the influence of section 41 was so great that that statement enabled the Canadian government to intervene in fields outside its jurisdiction. The reaction was quite simply to say that it had no binding force, that we were intervening under the federal spending power and that there was a policy statement binding on the Canadian government, which had to work hard to advance the official languages.

In my view, if we added elements to section 41 that would make this part binding, we would risk jeopardizing the important tool this section represents. I very humbly submit that court challenges would result that would jeopardize section 41. I believe that this element alone shows how important it is to address section 41 from the standpoint of its very meaning, which is that of a policy statement. Parliament wanted it that way, as it very eloquently said. Section 41 is not subject to the court remedy provided for in the Official Languages Act.

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

Senator Gauthier.

Senator Jean-Robert Gauthier (Ontario, Lib.): Good morning, Mr. Minister.

I'm going to agree with you. I admit the government has made serious efforts since 1994 to assist the official language minority communities. The survival and vitality of the official language communities are essential to Canada's survival.

¹ (1555)

I'm going to give you a few examples. You know my position on Bill S-32, but that's not what's on the agenda. It is Part VII, which is not judicially enforceable. The Commissioner of Official Languages cannot help us on this point.

In the Blais judgment, with which you are familiar, the Federal Court held that it did not have jurisdiction under the Official Languages Act to punish the failure to comply with Part VII of the Act. Judge Blais added that there was a possible remedy under section 18.1 of the Federal Court Act. Some of the media reported that it would cost between $10 and $20 million to implement the judgment, that Ontario had to pay out large amounts. Last February, I asked questions and I have not obtained satisfaction.

One question I put to Ms. Carstairs, the government leader in the Senate, concerned the enforcement of the Contraventions Act, and she answered, and I quote:

The costs are not yet known since they depend on a number of factors related to the way a provincial system operates.

As you will understand, time does not permit me to elaborate on that, but, according to Ms. Carstairs, the federal government has another option. I quote Ms. Carstairs:

If the Province of Ontario were to refuse to sign an agreement in response to the Federal Court judgment, we would suspend the Contraventions Act in Ontario and return to the Criminal Code summary procedure.

There are other examples of situations in which you have transferred a court proceeding to the provinces. One case is currently before the Supreme Court of the Northwest Territories involving the Fédération franco-ténoise, the Government of the Northwest Territories and the Government of Canada. If I have correctly understood—I may be mistaken, I'm not a lawyer—the Government of Canada claims it has no linguistic obligation toward the official language minorities of the Northwest Territories under the Charter or under the Official Languages Act. Explain to me why you adopted that position.

In the parents case, that is to say the case of Doucet-Boudreau et al., because there were other intervenors, the Government of Nova Scotia is challenging the judge's decision before the Supreme Court of Canada. The province is appealing from that decision. Canada has sought leave to intervene without indicating the position it will state. It is possible, and I wouldn't be surprised, that other provinces will intervene on this constitutional matter under section 23. Without presuming as to the basis of your intervention, I hope it will not be contrary to the position of the parents involved in the Doucet-Boudreau case. You will talk to me about that in a moment.

Mr. Minister, federal statutes apply asymmetrically in this country. They are supposed to be symmetrical, that is to say the same everywhere, and to apply fairly, but that's not true.

The Official Languages Committee is interested in particular in the Contraventions Act, the Bankruptcy and Insolvency Act, the Divorce Act, the Bank Act, the Criminal Code and others. Part VII of the Official Languages Act, which we are considering today, and section 41 are not judicially enforceable. I was there in 1988 when that act was passed. I tried hard to make it judicially enforceable, but the government resisted, as it is doing today. Why? I've never understood why. I'm going to explain why.

The administration of a federal statute by courts constituted by the provinces raises the question as to whether language laws protected constitutionally and legislatively at the federal level apply to those proceedings in the provinces. That's the key question.

The Bankruptcy and Insolvency Act and the Divorce Act are federal statutes, and their implementation is administered by the provincial courts. As those acts, except for the Criminal Code, which contains certain provisions, contain no language provisions, litigants very often do not have access to justice in both the official languages of Canada. This entire question depends on the procedure established by the provinces, which say that no one should bother them with official languages because that doesn't concern them.

It can be said that, in conferring the power to administer federal legislation on courts established by the provinces, as you have done in the case of court challenges, the federal government renders the constitutional and other statutes inapplicable to the litigants of a number of Canadian provinces. There are certain exceptions—Quebec, Manitoba and New Brunswick—but all the others have problems.

You will understand, Mr. Minister, that the situation is difficult when you live in a minority, when you are a Francophone in Ontario.

Do I still have time?

º (1600)

The Joint Chair (Mr. Mauril Bélanger): You have 30 seconds.

Senator Jean-Robert Gauthier: I'll continue on the second round.

The Joint Chair (Mr. Mauril Bélanger): We'll give the Minister time to answer.

Senator Jean-Robert Gauthier: On the contraventions question, the court held that we were not right, that we had not challenged, that we had not appealed from the decision.

In the Northwest Territories case, there is a problem. You've taken a position, but we don't know exactly where you're going to stand. Will they be for or against minorities? Usually they're against them. The tradition here in Canada in the West and in the East, in all language cases concerning the schools—

The Joint Chair (Mr. Mauril Bélanger): Senator, I must interrupt you. I'm going to ask the Minister to answer.

Senator Jean-Robert Gauthier: You tell me we can't go before the courts with the Commissioner of Official Languages on the subject of section 11. That's also true in the case of other statutes. Can you tell me that everyone has access to the same justice in Canada?

Mr. Martin Cauchon: Mr. Chairman, I would like to thank Senator Gauthier for his remarks, which raise a number of very real concerns.

Obviously, in some cases, we can say there are federal statutes which are part of and are administered in the federal context. We know perfectly well that the administration of justice falls to all the provinces, which have their responsibilities.

Of course, when you talk about the Criminal Code, there are certain obligations which arise from the Charter. There are also certain judgments which have clarified the official languages question, more particularly with regard to the Criminal Code. I'm thinking, for example, of the Beaulac decision concerning the language of the accused, or the Supreme Court judgment on the question of informations. It must be ensured that the handwritten portion of informations can be translated at the accused's request. It's a detailed judgment, of course, but, ultimately, that's the interpretation that must be made of it.

The other judgment you referred to, and which I dwelled on a little, was the decision by Judge Blais. As you know, Mr. Chairman, last March, we obtained a second continuance in that case to enable the parties to continue negotiating. Judge Blais said that, if we delegate one of our responsibilities, it's not because that responsibility has been delegated that we must therefore abdicate our responsibilities, particularly our official language responsibilities. That case concerned contraventions in Ontario. An agreement had been signed by the Government of Ontario and contraventions were in English only. We are negotiating with Ontario to ensure we meet the expectations of the Blais judgment.

I would like to conclude by saying that, notwithstanding the fact that the Blais judgment essentially concerns the agreement with Ontario, we know perfectly well that there are other agreements between the Canadian government and other provinces. I can simply say that discussions are under way with the other provinces so that we can assume our responsibilities and discharge our obligations in light of the judgment rendered by Judge Blais.

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

Mr. Godin.

Mr. Yvon Godin (Acadie—Bathurst, NDP): Good morning, Mr. Minister.

I have trouble when you say that, if we had an act with a little more teeth instead of an act that contains a policy rather than binding declaration, that might jeopardize section 41.

Since when do we make laws that jeopardize things? On the contrary, if we pass a law with teeth, it's because we want it to be enforced. To enforce it, can't the federal government agree to make it binding or to give it more teeth? Why wouldn't it pass a real Official Languages Act in Canada, those languages being English and French? Otherwise it's just a lot of talk.

º (1605)

Mr. Martin Cauchon: Mr. Chairman, that's a very timely question. It is important.

You have to clearly understand how section 41 of Part VII works. First of all, I think it is perfectly clear, and I don't think anyone around the table can deny it, that Parliament's intent is to ensure that it is a policy statement that is binding on the government. Parliament's intent is also very clear in the case of the application of the remedy and in that of the precedence of certain components of the Official Languages Act, a precedence which Part VII itself does not enjoy.

There is another element, which I have not yet touched on, but which I will briefly discuss, with your permission. Obviously, if Bill S-32 were passed, a kind of judicialization of the system would follow which might not be desirable at this time.

This leads me to the argument concerning section 41. When section 41 was passed, it was a section that enabled the Canadian government to contribute to the advancement of the official languages, to make efforts for their advancement in many fields and many jurisdictions as well. When that section was passed, as I said a moment ago, the provinces were a bit concerned, and they were reassured when they were told that we could not go to court under that section. That's important for me because the ultimate purpose of Part VII, and particularly section 41, is to ensure that we can work together, in harmony, on this question of official languages and move forward.

If we want Part VII to be truly effective, we have to work at it in a context of the partnership that must exist: a partnership with the provinces, with the private sector and with volunteer groups. In the circumstances, if we pass Bill S-32, in my view, the partners' reaction would be such that there would probably be a challenge against section 41 of Part VII, which would jeopardize a tool which I think has not yet been explored as it should. There are still a lot of things we can do, starting with implementing the action plan my colleague Stéphane Dion is establishing.

Mr. Yvon Godin: Mr. Minister, time is passing. During that time, the RCMP is settling into New Brunswick, where there is a challenge because the Official Languages Act of Canada is not being complied with. During that time, the RCMP is settling in. During that time, Air Canada, which is a partner and which was sold to the private sector, is violating the Official Languages Act every day. I don't blame the company for violating it: the Official Languages Act has no teeth. It's merely a policy statement. We're polite, we're waiting and we're hoping. That's the problem, Mr. Minister.

The Minister of Justice, the Minister of Canadian Heritage, the minister responsible for official languages, Mr. Dion, all say the same thing: be nice and polite.

You mentioned contraventions. You said you had entered into an agreement with the province and that you were negotiating with it. What kind of negotiations should there be? Do we have an Official Languages Act or not, or is it just political and polite? We have to be frank and tell Francophones, with their small proportion of 25%, that they have to live with that act.

Mr. Martin Cauchon: Mr. Chairman, with regard to Air Canada, my comments will have to be brief since legal action is under way as we speak. The action nevertheless—

Mr. Yvon Godin: Mr. Chairman, the witnesses came here to answer committee members' questions. If they don't want to answer, that's all right, but that's my question.

The Joint Chair (Mr. Mauril Bélanger): Mr. Godin, you have asked your question. We're going to give the Minister the opportunity to answer it.

Mr. Martin Cauchon: If I clearly understand your question on Air Canada, that company is required to comply with the principle of the Official Languages Act under section 10 of the Act governing it. At the present time, it is more Part IV of the Official Languages Act that applies to Air Canada. I am told that a case is pending at the present time. That court remedy is being exercised under Part X of the Official Languages Act, which makes provision for possible remedy.

So, in the act as a whole, there are some sections that are judicially enforceable. There are also, in the act as a whole, means that are provided to the Commissioner and to parliamentarians to advance the question of official languages. I of course cannot testify on the merits of the case, nor can I attempt to speak to the legal thinking in the Air Canada case. Allow me, however, to tell you, Mr. Chairman, that I believe—

Mr. Yvon Godin: But the RCMP? It's settling into New Brunswick.

Mr. Dominic LeBlanc (Beauséjour--Petitcodiac, Lib.): [Editor's Note: Inaudible]

The Joint Chair (Mr. Mauril Bélanger): Mr. Godin, please, let the Minister answer. Mr. LeBlanc, please.

Mr. Minister.

º (1610)

Mr. Yvon Godin: On a point of order, Mr. Chairman, my colleague Dominic LeBlanc has nothing to teach me. You're the committee chairman. I would like you to conduct your meeting, please.

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

Mr. Minister.

Mr. Martin Cauchon: Mr. Chairman, the government's intent is clear. The Prime Minister has made this a priority and that was part of the Throne Speech. There's a minister who is in charge of preparing an action plan, which he will announce at the appropriate time. That couldn't be any clearer either.

At Justice Canada, we have decided to replace our three-year plan with another plan. We have decided to conduct a status review. We will announce the findings soon and we hope that many of the elements in that study will be part of my colleague's action plan.

I believe there's a firm and clear determination on the part of the machinery of government to go ahead with that, but I believe there is also a firm intention on the Canadian government's part to ensure that the scope of section 41 can be maximized in a manner consistent with Parliament's intent.

As I said a moment ago, I believe section 41 of Part VII is not being used as it deserves.

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

Mr. Gérard Binet (Frontenac—Mégantic, Lib.): Thank you, Mr. Chairman.

Mr. Minister, I've been here for a year and a half. Judging from what one hears from the other side, everything is truly black: there's no sun, just clouds. I can tell you that, when I joined the committee, we wondered who handled official languages. We learned that it was Heritage Canada, Justice Canada and the Treasury Board, but who really handles them?

When Mr. Dion arrived, a ray of sunshine appeared, because today we see that there have been good changes. That's true. Under Ms. Jane Stewart, $24 million was invested in bilingualism at the university level. With regard to Air Canada, we met Mr. Milton and heard him on the radio—I haven't seen him on television—where he said that, in future, he would hire only persons who spoke English and French. I believe that was a good gesture. There are also the investments that have been made for the City of Ottawa, in Moncton and elsewhere.

All I can say is that things are not really black. I believe we are really doing good work here at the Committee of Official Languages. I know there are a number of new people here today.

My father-in-law told me that even the worst of out-of-court settlements was as good as the best of court settlements, and I believe it.

I now come to my question. I was waiting for the champion, and I couldn't wait to see him.

The Joint Chair (Mr. Mauril Bélanger): He's here.

Mr. Gérard Binet: Mr. Cauchon, excuse me, but my question is for Mr. Mario Dion.

Can you tell us about your duties? This is the Official Languages Committee here. Perhaps I missed a meeting, but I've never had your duties explained to me.

Mr. Mario Dion (Associate Deputy Minister, Department of Justice): First, there is an official languages champion in each of the departments. That has been the case for two or three years now. The Treasury Board Secretariat introduced that to reinforce the official languages program in each department. At that time, since I had responsibilities related to official languages, I was asked to play the role of champion.

What is a champion? This doesn't just exist at the Department of Justice. There is one in every department, and there are even departments where there are two. “Champion” is an odd word borrowed from English. In English, they are champions. It comes from the vocabulary of management. That stems from the fact that we are generally fairly high-level officials with a certain influence and knowledge of the department where we work. We are there to support those who have less influence, authority or knowledge of the internal workings of a department to advance the situation regarding the language of work and language of communications and with regard to the internal implementation of the Official Languages Act in the department.

In addition, we are one of the 29 departments that have to prepare an annual plan under Part VII of the Official Languages Act. In each of those departments, the champion must ensure that the plan is developed and approved by each of the ministers and that its implementation is evaluated.

I hope I have clearly answered your question.

º (1615)

Mr. Gérard Binet: Yes, but I have another one.

As we know, you are paid to perform the duties of a position. So you must not be paid for a number of hours. Do you spend a truly enormous amount of time on that in the course of a week?

M. Mario Dion: I was appointed champion approximately two years ago, and I would say I devote roughly 15% of my time to it. You will do the calculation yourself, not knowing the total number of hours I work in a week. Just remember I devote one-sixth of my time to it. As we've already explained to the committee, I believe, there are three units at the Department of Justice that are concerned with official languages.

First, there is the Bureau de la Francophonie, which prepares the Part VII plan and POLAJ, which the minister referred to earlier. That is my responsibility.

A second unit provides opinions and advice on official languages law, interprets the Official Languages Act, the Charter and the provisions of the Criminal Code and other federal acts concerning official languages. That unit, which is headed by Marc Tremblay, who recently appeared before the Senate Committee, is also under me.

As for the third unit, as in each department, there are people in the Human Resources Branch who are concerned with the provisions of the Official Languages Act as regards position profiles, language training and all other matters pertaining to the use of official languages. That unit is not under me.

I want to emphasize that I spend perhaps one-sixth of my time on this, but there are some 20 individuals at the Department of Justice who also spend considerable time on official languages matters.

Mr. Gérard Binet: You are not a politician, and I would like to have a frank answer. Do you find there has been any change?

The Joint Chair (Mr. Mauril Bélanger): If you make comments such as that, Mr. Binet, the committee chair may be rising on a point of order.

Mr. Gérard Binet: I'll reword my question. Can you tell me in a direct manner whether you can really see that there have been any changes or that we will be seeing changes?

M. Mario Dion: There's a clear will at my level, and the government's will is clear. I'm a member of the Committee of Deputy Ministers on Official Languages. We had eight meetings last year. So that committee has not been inactive. There is also the reference group which was created, to which the Minister referred in his opening remarks, as a result of which I will be here until nine this evening.

There's a considerable amount of movement. I've been at the Department of Justice for 22 years, and I can assure you that the importance attached to official languages matters in that department today is much greater than it was when I started 22 years ago. Thirty-nine percent of employees at the Department of Justice are Francophone. Many things have improved. We are clearly headed in the right direction. We are working increasingly hard to correct a certain back-slipping that occurred on the official languages question a few years ago.

The Joint Chair (Mr. Mauril Bélanger): Mr. Binet, you're out of time.

Mr. Herron.

[English]

Mr. John Herron (Fundy--Royal, PC): Thank you, Mr. Chair. I don't know if I can follow that act. Perhaps I'll take a different approach, if I may.

Thank you, Mr. Minister, for attending today. I'd like to seek some clarity with respect to the debate going on about the scope and interpretation of section 41.

In your remarks you said—and I'm paraphrasing—that it was more than an aspect of law that is seculatory, that in fact it binds the government, that it's more than just a shell. In your interpretation, does this actually bind the Government of Canada throughout all its statutes?

º (1620)

Mr. Martin Cauchon: Basically, my understanding of the situation is that the pretension we have on the table with Bill S-32 is they would like to allow people to go to court with the section we find within part VII of the Official Languages Act.

What I'm saying basically is that when you look at part VII—and to be more precise, just have a look at section 41, for example: beside section 41 in the marginal notes, it says “Government policy”—it seems clear to me the intention of the legislature was to make sure we wouldn't be able to proceed in court with such a section. Notwithstanding that fact, there's a role that has to be played by the government in making sure, as we see in section 41, of “enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development”, andso on.

What I'm saying here is that when we proceeded with the full enactment of section 41 some years ago, as I said in my opening remarks, it raised some concern from the provincial governments, because they had the feeling at the time that if we were involved with such a section we would be involved in their jurisdiction. What we said is it's government policy. The government has a role to contribute with what we find within part VII and, to be more precise, in section 41. Because of that, we've been able to proceed with the full enactment of this tool, which is a great tool. In my mind, if we proceeded with Bill S-32, we would take the risk of losing such a fantastic tool, because some people would raise more than concern: they would start to go to court in order to declare invalid section 41 and part VII.

Mr. John Herron: On that note, since there is a divergence of opinion about how binding or how declaratory it actually might be, even in your own remarks you made reference to there being solutions to sort that out. One solution that's been advocated by the language commissioner, Dyane Adam, has been that it may be helpful to have a regulatory annex to provide some clarity about how binding it should be on the government. Is that a solution you think the Government of Canada may want to follow?

Mr. Martin Cauchon: At this point, my answer on that is quite simple, and I said it earlier: I believe we haven't taken yet each and every step we have to take to fully and totally explore the scope of section 41. I guess if there's a political will, which is the case--there's really a political will; the Prime Minister sent a strong message.... In the last Speech from the Throne as well there was mention about it. My colleague Stéphane Dion is working hard with his reference group to develop an approach and a comprehensive plan as well. With that, we will be able to go further with the use of section 41.

Mr. John Herron: Maybe I can help you with establishing that political will, because the committee report we tabled in the House just this month made it very clear on page 2, section F, that the minority communities are really calling on the Government of Canada to ensure that there's a stronger binding nature in section 41 for the preservation of minority language rights in those particular communities. This is a report that's been signed off by this particular committee. I think the will is certainly there, so with respect to Minister Dion's action plan, this is something that should be considered.

My last comment, Mr. Chair, is we've heard much about the energy Minister Dion is applying with respect to having an action plan for the preservation of minority language rights. We applaud that initiative. What sort of interaction would you have with Minister Dion on that particular issue? Can you explain what your role is and how often you would have a chat on this particular issue?

º (1625)

The Joint Chair (Mr. Mauril Bélanger): Before you answer that, Minister, I want to make sure that we're clear on the report Mr. Herron is mentioning concerning section 41. It is what the committee heard. As such, it is not something the committee has endorsed. This is not to say it might not later, but as of now that's not necessarily the position of the committee. This is just to be clear.

Mr. Martin Cauchon: I will answer the question in two parts, Mr. Chair, first with some general comments.

When I was listening to the question, it seemed that one thing was that there's no legal remedy within the act, which is not the case. In part X it's quite clear that there's legal remedy. One of your colleagues was earlier referring to a case pending in court, so it means there's something somewhere within the act; there's remedy. What is clear is that part VII of the act doesn't fall within part X; therefore, the remedy doesn't apply. It doesn't mean that it's used less--on the contrary. And I've said many times that if there's a good political will, which is the case at this time, we will be able to go one step further in using all the power of section 41.

That being said, the second part of your question is how will the department get involved in the action plan of Minister Dion, and have we met. We all know that as members of the reference group, we've met many times. As well, Mr. Dion, officials of our departments, and I have met to discuss the situation and the action plan he's preparing at this point in time.

Of course, at this time I can't provide you with any details, but as I said earlier, Mr. Chair, there's now an analysis underway about the situation with regard to the mandate and the interests of the justice department. There's an analysis underway across Canada, and as I said, we will get the results later on this spring. We do hope that a strong component of that study will be incorporated into the action plan of my colleague, Minister Dion, but to what extent we don't know yet. We know exactly what sorts of items we would like to put in there, but there are interesting steps that could be taken by the justice department based on the report we will see pretty soon.

[Translation]

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

Mr. LeBlanc.

Mr. Dominic LeBlanc (Beauséjour—Petitcodiac, Lib.): Thank you very much, Mr. Chairman.

Mr. Minister, allow me to add to the comments by my colleague Mr. Binet. It was my pleasure to accompany you on a trip to New Brunswick a few months ago. I must tell you that the interest that you, the legal experts and the bench of my province, New Brunswick, take in the question of Francophone minority rights and Francophone minority access to courts, for example, was very much appreciated. The people you met in New Brunswick during the few days you stayed there were touched and very much appreciated the support you gave to Francophones working in a legal system which is much more accessible than those in other provinces. Which leads me to my question, Mr. Chairman.

It concerns the judiciary. We are lucky in New Brunswick because we have a lot of bilingual or Francophone judges who were appointed very many years ago and who can hear cases in French in New Brunswick. I wonder what importance you attach to the presence of bilingual judges in Western Canada, for example. Many Francophone minorities in the west do not have easy access to courts in their language. How do you view the judiciary, and what importance do you attach to the presence of bilingual judges who can afford those Francophone minorities access to the courts in their language?

º (1630)

Mr. Martin Cauchon: That's an important question, Mr. Chairman.

When the Prime Minister appointed me Minister of Justice and Attorney General of Canada, the appointment of judges was one of the duties I took up. A certain number of factors must be taken into consideration. The criterion of qualifications is without a doubt foremost, but there are other factors. The representation of women on the bench is an important factor in my view. Linguistic representation is also an important element. Every time I have to analyze candidates from across the country, I always pay special attention to those factors. For example, we recently appointed certain judges in Alberta and had the opportunity and honour to appoint a Franco-Albertan judge, Judge Vital Ouellette, the former President of the Association des juristes de langue française.

So as you can see, it's a concern and concrete measures have already been taken.

Mr. Dominic LeBlanc: Thank you very much, Mr. Chairman.

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

We will now begin the second round. These are five-minute periods. At the end of this round, with my colleagues' permission, I would also like to ask a few questions.

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Mr. Minister, I would like you to explain something to me because I must have missed something.

You are a jurist. In my mind, Parliament is not deemed to speak for no reason. I have before me the Official Languages Act and its section 41. You say that that section is not binding, but that it exercises pressure on the government. I have read the briefs, and they say that it is a solemn declaration, that it has a political value and so on. Let's consider a case, for example. I know you will deny it, but it is said that you as a central government are doing nothing to promote the vitality of the Francophone minorities. You are doing nothing. If a Francophone minority in New Brunswick disputes that and wants to sue the government, what recourse does it have? If I have quickly understood, it has no recourse because this is not binding. Is that indeed what we are to understand?

Mr. Martin Cauchon: Mr. Chairman, I believe the member is vastly simplifying the problem. A lot of acts contain sections concerning the protection of linguistic minorities across Canada and have teeth, are binding, provide for court remedies. In particular, consider the Canadian Charter of Rights and Freedoms.

When we talk about section 41, Mr. Chairman, we're talking about a very specific part. There are many other possibilities. Other parts of the Act are subject to Part X, which essentially concerns remedies. So we can't say there are no possible remedies. There are an enormous number of remedies. Part VII, with which we are concerned, is not judicially enforceable, but there are a lot of other possibilities. For example, the committee is studying this question, thus exercising pressure on the government. The Commissioner of Official Languages, through her reports, can intervene with the government. Parliament can also intervene. So there are a lot of ways to pressure the government.

Having said that, I believe we are dealing with a quite curious question. As Senator Gauthier said a moment ago, official languages and linguistic minorities are one of the fundamental components of our country. I believe it is in the interest of every government to ensure that we fully assume our responsibilities in that area. When we talk about fully assuming them, we are undoubtedly alluding to Part VII and section 41.

º (1635)

Mr. Michel Bellehumeur: From what I understand, the minorities of New Brunswick, Alberta and elsewhere can't force the government to do something based solely on section 41.

So in those cases, Parliament has spoken for no purpose and solely to clear its conscience. If you wanted to correct it without encroaching on the jurisdictions of the provinces, would you agree to have section 41 become binding solely on federal institutions, not only 29 institutions, but on the 150 federal institutions? In that way, you would not be encroaching on provincial jurisdictions. You are responsible for those 150 institutions and you would be giving Parliament what it wanted, that is to say protecting Francophone and Anglophone minorities, particularly the Francophone minorities, because the Anglophones in Quebec are very well served by Shiela Copps and company.

Mr. Martin Cauchon: Mr. Chairman, we're talking about section 41 of Part VII. Perhaps we should read section 41 to see its content and to better understand that the doctrine that Parliament does not speak for no purpose clearly applies. That section reads as follows:

41. The Government of Canada is committed to: enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and fostering the full recognition and use of both English and French in Canadian society.

It is a commitment, a statement of principle which is binding on the government and on me as well. I'm essentially saying that this commitment has implications. I understand that my colleague wants it to have implications solely for the Canadian government, but the everyday reality is that this section has implications for a large number of partners. If we want to build the Canada we want together, based on the values which we know, we must continue working together to ensure this declaration becomes as meaningful as Parliament intended. I'm essentially saying that we have not yet fully exploited section 41. Given the government's political will at this stage, I believe we are prepared to do more to exploit section 41 politically.

The action plan of my colleague Mr. Dion, which you will be seeing shortly, I hope, will enable us to see what the government's attitude is.

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

Senator Jean-Robert Gauthier: I was in this room in 1988 when we discussed this act. The witness at the time was the Secretary of State, Lucien Bouchard. To one question I asked him, he answered that section 41 created obligations for the government. I believed him. There were 40 of us Liberal members and 210 or 212 Conservatives. That's democracy, the opinion of Parliament? The decision was obviously that of the government. Since then, every Minister of Justice, each of your predecessors, Mr. Minister, has always repeated the same thing: section 41 is declaratory.

Recently, Ms. McLellan, who preceded you, told me that it was political. I told her at the time that, if it was political, I was going to introduce a bill. That's what I did, but then I was told that that would result in court cases, in “judiciarisation”. That's our colleague Mr. Dion's neologism.

I don't know your basis for saying that, if we permit court remedies, everyone will go to court to have the act invalidated. I don't believe I have heard that before now. It was probably your officials who inspired you to say that.

An hon. member: That's good!

Senator Jean-Robert Gauthier: It's true. He follows their advice, and if he doesn't follow their advice, he'll eat... You know what I mean.

When the Charter of Rights and Freedoms was passed in 1982, no one asked whether it would increase the number of court actions. It took five years for section 15 of the Constitution to be proclaimed. Since then, there have been 719 cases under section 15, which concerns equality rights. Since 1982, there have been five official languages cases under subsection 16(1). There have been 31 education cases under section 23 in particular.

Talk about contraventions isn't recent. The Commissioner of Official Languages at the time, Mr. Goldbloom, recommended that Justice Canada make provisions for language guarantees in agreements negotiated for the transfer of legal responsibilities. It's clear; it's in Mr. Goldbloom's report. I can send you a copy if you want. Your department refused to do that, and that's why the Commissioner of Official Languages and French-language jurists went to court. And they won, the judge told them they were right. You said you would need another year to put that in place. I don't understand. What are you going to do in one year? Request another stay, another extension?

It makes no sense. I don't understand why you claim this would make the situation more litigious. I don't know whether you know that we don't abuse the laws. We are simply trying to ensure that there are equal rights, no more, no less. You're telling me people will abuse this and that we'll be buried under court cases. Let's be a little realistic.

The Divorce Act and the Bankruptcy and Insolvency Act need amendments, Mr. Minister. That's clear. The provinces administer those acts for you, but they are federal acts which are implemented asymmetrically.

One witness, Mr. Tory Colvin, came to tell us that it was impossible for a Francophone to get a divorce in her language in London, Ontario because she had trouble being heard by a judge who spoke French. Why? Because there are none in the region. She was told to come back three months later, but that, if she wanted her divorce in English, she could be heard the following week. That was in Ontario, where there are 500,000 Franco-Ontarians. I'm not talking about Timbuktu. I'm talking about something real. There is a shortage of judges who speak French in Ontario, Mr. Minister. You are the person responsible. Look into the matter and you will see that things may need to be stirred up a little. In any case, it is not easy to be a minority official language community, particularly when there are no judges to uphold our most democratic and fundamental rights.

º (1640)

What efforts is the Department of Justice making to appoint French-speaking judges? If you want to take the example of Ontario, take Ontario.

Mr. Martin Cauchon: I take note of the comments made by the senator, who deserves a great deal of credit for the positions he adopts. Of course, as I explained in a previous answer, civil procedure and the administration of justice are essentially provincial jurisdictions.

As to the matter of judicial appointments, I had the opportunity to answer a question raised by one of our colleagues, Dominic LeBlanc. He asked me whether, based on my analysis, when the time came to select candidates for the judiciary, I attached any importance to language. I of course answered that I did.

Moreover, senator, I cited a very recent and entirely appropriate example of the recent appointment of Judge Ouellette, in Alberta, who is a Franco-Albertan. The same is true in Ontario. I attach special importance to the language question to ensure that people can have access to the courts through judges.

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

Mr. Godin.

º (1645)

Mr. Yvon Godin: Thank you, Mr. Chairman.

Mr. Minister, my colleague Mr. Binet said that he saw black on this side of the table. I thought we were merely discharging our responsibilities as parliamentarians on the committee. When a minister comes here, we should be able to ask him questions. That's democracy in our country.

Second, my colleague Mr. LeBlanc said that you had done a tour in New Brunswick and that you had met lawyers. Could we know how many Francophone lawyers you met in New Brunswick?

Mr. Martin Cauchon: When I went to New Brunswick, I met several tens of lawyers.

Mr. Yvon Godin: Did those lawyers say that everything was fine and nice? I recall that I attended the conference of the Lawyers Association in Moncton last year. Mr. Justice Bastarache of the Supreme Court and the lawyers said that the Official Languages Act did not go far enough. Mr. Justice Bastarache also said that, since he was a Supreme Court judge, he could not talk too much, but... The talk is still perhaps about the teeth that the act should have, but that was the opinion of the New Brunswick lawyers last year. What has changed in the act since then for them to be so happy?

Mr. Martin Cauchon: Mr. Chairman, I don't at all see the link between my visit to New Brunswick and the member's statement.

Mr. Yvon Godin: Mr. Minister, it was my colleague Mr. LeBlanc who thanked you for going to New Brunswick and who said that everything was fine.

Mr. Martin Cauchon: Mr. Chairman—

Mr. Yvon Godin: Excuse me. I'm asking the question.

Mr. Martin Cauchon: Look, I didn't even answer the first question.

Mr. Yvon Godin: Mr. LeBlanc said that you went to New Brunswick and that the lawyers said that everything was fine, and now you're saying you don't see the link between that and my question. You went to New Brunswick and I'm asking you the question. Are things going as well as that? I would like you to tell us if things are going well or not.

Mr. Martin Cauchon: Mr. Chairman, I'm being asked how many lawyers I met in New Brunswick. I met several tens of lawyers. I did not have the time to say anything at all. The member tells me that the New Brunswick lawyers said that things were going poorly with regard to the Official Languages Act. I don't at all see the link between the meetings I might have had and the essentially gratuitous statement the member made. I don't know where it comes from. When I had the opportunity to go to New Brunswick, that did not come up in conversation. I went to meet the people of the Canadian Bar Association.

Mr. Yvon Godin: Okay. It's just—

The Joint Chair (Mr. Mauril Bélanger): Let the Minister finish.

Mr. Yvon Godin: All right. So it's clear that when the Minister went to New Brunswick, there was no talk of official languages.

Mr. Martin Cauchon: It was not raised. I went to meet the Canadian Bar Association.

Mr. Yvon Godin: Thank you. That's all I wanted to know.

Mr. Martin Cauchon: You could have asked your question immediately. It would have been less complicated.

Mr. Yvon Godin: It's just that Mr. LeBlanc's question troubled me a bit. He said things were going well at home, but they don't seem to be going as well as he says.

The Joint Chair (Mr. Mauril Bélanger): Thank you. Do you have any further questions, Mr. Godin?

Mr. Yvon Godin: No thank you.

The Joint Chair (Mr. Mauril Bélanger): Mr. Minister, with your permission, I would like to ask you a few questions.

First, when the department's officials appeared on April 15, we asked them to send us certain documents which have not yet been sent. It would have been good to receive them before your appearance today.

You of course received the minutes of that meeting, at least in draft form, because Mr. Dion referred to them a moment ago. I was speaking at the time of the Beaulac decision of 1999, I believe, which imposed something important on the Government of Canada. I don't have the exact words, but I believe it required that there be an institutional or organic capability in the entire system, from sea to sea, instead of transferring individuals to go hear criminal cases in French.

Could Mr. Dion or Mr. Cauchon tell us what plan has been established since 1999 and what steps have been taken to enable the department to do what the Beaulac decision has charged it to do?

º (1650)

Mr. Martin Cauchon: I'm going to start, but Mr. Dion, who is our champion in the field, will be able to provide details if necessary.

The Supreme Court's decision in Beaulac, written by Mr. Justice Bastarache, is indeed a very important decision, which has an impact in the courts. You are aware of its subject: it concerns the language of trials.

We at the department reacted quickly and positively to implement the entire philosophy of the Beaulac decision. First of all, as is proper, there was an analysis of the decision. Then briefing documents were sent to our various regional offices. There were also information sessions in our regional offices to inform our lawyers. I've also been told that documents were sent to our agents so that they could understand the scope of the Beaulac decision.

The Joint Chair (Mr. Mauril Bélanger): Is there a specific action plan to meet the requirements of that Supreme Court decision, or has that been integrated into the department's action plan?

Mr. Martin Cauchon: The question is entirely appropriate, Mr. Chairman. As I mentioned a moment ago, the department's three-year action plan recently expired and we want to renew it based on recent decisions, but also on the basis of the status report, which is the study we are currently conducting.

The Joint Chair (Mr. Mauril Bélanger): Mr. Minister, my remarks are not necessarily aimed at you because you were not there at the time, but, between the Beaulac decision in 1999 and now, shouldn't that decision have been integrated into the department's action plan?

M. Mario Dion: I would like to remind you for a distinction that must be drawn. The Beaulac decision concerns all criminal prosecutions. The Minister's answer indicates that the Department of Justice very quickly assumed its responsibilities regarding the prosecutions for which it is responsible, by ensuring that our Crown counsel and agents, that is to say the private sector lawyers who conduct prosecutions on behalf of the Attorney General of Canada, act in accordance with the decision in Beaulac.

On the other hand, there is the whole. I believe that 85% of all criminal prosecutions in Canada are conducted by the provinces, by provincial attorneys. Compliance with the Criminal Code by provincial attorneys is not the responsibility of the Department of Justice Canada. We can of course take part in disseminating the Beaulac decision, which we did by giving briefings for the provincial and territorial deputy ministers. We made a presentation to make them aware of the consequences of Beaulac. That will be an important part of an action plan for the Department of Justice, which will consider the possibility of giving the provinces the levers to ensure implementation, if that has not already been done.

The Joint Chair (Mr. Mauril Bélanger): Pardon me for interrupting, but I don't have much time left.

In developing the plan that will follow the status report... Incidentally, I admit I find it a bit troubling that there was an interim plan for two years before an implementation plan was formed, given the timetable of the... I find that two years is long for an interim plan.

Will the capability of our courts as required by the Beaulac decision be integrated into the department's action plan?

Mr. Martin Cauchon: Yes, in our area of jurisdiction. Moreover, we have already begun to do a certain number of things which I have just mentioned and which are without a doubt incorporated. The question is an entirely valid one.

The Joint Chair (Mr. Mauril Bélanger): Following the Blais judgment, a new policy was announced to the Treasury Board by your colleague Ms. Robillard, who came to discuss it with us here. It was a kind of recovery policy. Whether there is an agreement with a third party, a provincial government, a municipality or any other third party, that third party will be subject to the same linguistic obligations to which the Government of Canada is subject. You know what I'm talking about.

Does the Department of Justice play a role in implementing that policy, and, if so, which role?

M. Mario Dion: The new Treasury Board policy, which went into effect a few weeks ago, will be managed by my group, together with others. I am responsible for the implementation of that policy at the Department of Justice.

º (1655)

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

Here's my final question. Can we take it for granted that all existing agreements will be renewed, where applicable, in compliance with the new policy? I imagine your department has a mandate to review and verify all formal agreements with the other departments and the provinces.

M. Mario Dion: My answer concerned the Department of Justice's compliance with the new Treasury Board policy in its affairs, but the Treasury Board Secretariat is responsible for implementation of that policy in each of the federal departments.

Obviously, there are legal advisors in all the departments who advise those with agreements that must be renewed and remind them of the Treasury Board policy, but implementation as such is the responsibility of the Treasury Board Secretariat.

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

Mr. Bellehumeur, would you like another turn? We're going to end with Senator Gauthier.

Mr. Michel Bellehumeur: I'm reading the comments by Marc Tremblay, legal advisor, who discusses the position of the Department of Justice on Part VII of the Act. At page 4 of his brief, he states:

Part VII of the Official Languages Act is an expression of the principle of advancement toward the equality of status of the official languages by legislative means, confirmed in subsection 16(3) of the Charter.

Do you agree with that, Mr. Minister?

Mr. Martin Cauchon: Yes.

Mr. Michel Bellehumeur: The Beaulac decision addresses subsection 16(3) of the Charter, which entrenches the notion of advancement toward equality of the official languages of Canada expressed in the Jones decision. It is confirmed. But it is also said that Mr. Justice Bastarache has previously noted that the application of the advancement principle was illustrated by the passage of the Official Languages Act of 1988.

Since that's somewhat Mr. Dion's hobby-horse, haven't you considered, for the greater benefit of the Francophone and Anglophone minorities, calling upon the Supreme Court of Canada, by a reference, to examine section 41 to decide once and for all the actual scope of that section, in view of developments and in view of the principle of advancement toward equality, which it seems can be amended with the years? Hasn't the time come to petition the Supreme Court of Canada, by means of a reference, to determine Parliament's intent in section 41, instead of making the interpretations you are currently making?

Mr. Martin Cauchon: Analyses and interpretations have been made of Part VII in the past. You refer to the notion of the reference. The scope of section 41, the analysis that must be conducted of it and Parliament's intent with regard to section 41 we think are quite clear.

When you refer to a reference, you're talking about an exceptional procedure. A reference is something exceptional. Over the past century, I believe that 75 references have been made to the Supreme Court under section 53 of the Supreme Court Act. I don't think a reference to the Supreme Court would be appropriate in this case.

Mr. Michel Bellehumeur: Mr. Justice Bastarache, who talks about this principle of advancement, which is illustrated by the Official Languages Act of 1988, is nevertheless not unfamiliar with the case. He is a Supreme Court justice. Do you maintain it is not necessary to decide this question? Are you saying that Anglophone and Francophone minorities do not deserve to have a specific point in this act checked? Clearly, Mr. Minister, there are not a lot of people around this table who share your enthusiasm, even members who were there at the time do not necessarily share your vision. Nor do they share the vision of any of your predecessors, if I understand them correctly. After so many years, we still don't know exactly where we stand and we wonder. The minorities wonder whether it's binding or declaratory. You say it's political, and another one says it has a moral, solemn value, and so on. It seems to me that the minorities deserve our taking a little time to have this question decided and to clarify the meaning of section 41. Subsequently, we could adjust matters if you thought that was necessary.

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Mr. Martin Cauchon: Mr. Chairman, in the questions, members should avoid insinuating that there are no remedies with regard to official languages. We know that is completely false. There are a number of remedies with regard to official languages, and Part X is proof of that fact. There are also other acts besides the Official Languages Act which make provision for this matter and afford a certain number of remedies.

What we're dealing with today, that is to say Part VII and, more particularly, section 41, is a part of the Official Languages Act. It is a statement, a government commitment which, in my view, is fundamental to what we are as Canadians. It is an element which, in political terms, forces the government to advance the official languages and to ensure we can continue working in partnership.

I explained a moment ago and I repeat that the interpretation of section 41, on the basis of Parliament's will and intent, seems to me to be clear. I don't think a reference to the Supreme Court is appropriate in this case.

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

Senator Gauthier.

Senator Jean-Robert Gauthier: Mr. Minister, I acknowledge that there have been changes. Over the past five years, there has been the appeal to the Supreme Court in the Beaulac case, there has been Arsenault-Cameron in Prince Edward Island, a schools case, there has been the Reference re Secession of Quebec, there has been the Blais judgment on contraventions and there have been others. There was the Beauregard case on bankruptcies. I've been told the Divorce Act may be amended. I'm a mere mortal. You have the legislative authority to designate your own courts to hear cases on the acts I have just mentioned: the Divorce Act and the Bankruptcy and Insolvency Act. Why don't you do it? I can cite you a number of cases if you want. If the provinces are so opposed to official languages that they refuse to use them in their courts, why continue to refuse? Why not constitute your courts at the federal level? You can do it, at least in theory. I believe it would be legal. You should think about it a little. I think it is high time to review the entire Official Languages Act, the Bankruptcy and Insolvency Act and the Divorce Act. Perhaps those acts should even be amended to include sections clearly stating language rights. They currently do not.

If you don't want to accept Bill S-32, at least agree to do something to amend statutes that currently pose a problem. The situation has changed, Mr. Minister. Do you know the old adage, “festina lente,” “make haste slowly”? Make haste, Mr. Cauchon. It's urgent.

Mr. Martin Cauchon: I take note of the senator's comments. Obviously, one must always understand the question of the administration of justice. Certain aspects in the questions raised by Senator Gauthier are included in the action plan.

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

Mr. Yvon Godin: Mr. Minister, the act speaks of advancement. When the decision was made to pass legislation increasing the speed limit on the highway to 110 kilometers an hour, it was not said that that would be promoted. There is an act. I believe that's the difference. If the country has passed legislation providing that there are two official languages in the country, it's no longer the time to promote anything or play at being the nice guy. You accept the fact that there are two official languages in the country and you have to provide services in both languages.You don't seem to agree that we have a rigid act. You mustn't beat about the bush and hide here and there. No penalties are provided for in the act. When I drive on the road and exceed 110 kilometers an hour, a police officer comes and gives me a ticket. I have to pay a price for that.

A moment ago, I cited the example of Air Canada, but it's not the only one. There are even departments violating the act every day. The act simply states that the official languages will be advanced.

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Mr. Martin Cauchon: When I answered Mr. Bellehumeur, I said we had to avoid creating the perception that the Official Languages Act as a whole has no teeth. When you look at Part X, you realize that a remedy exists. When you look at the powers conferred on the Commissioner of Official Languages, you also realize that there are enormous and considerable possibilities, which moreover are used very appropriately.

Here we are essentially talking about Part VII, which, in my view, is a major statement of principle which is binding on the government and commits it to advancing the content of section 41. We're talking about building Canadian society on the basis of values fundamental to Canadian society. Section 41 of Part VII must be part of a major partnership, in my view. The entire potential of Part VII and section 41 has not yet been exploited, Mr. Chairman.

The Joint Chair (Mr. Mauril Bélanger): Mr. Dion, Mr. Cauchon, I thank you for appearing here today. We will definitely be talking about this in our hearings on Part VII with regard to the Department of Justice.

Next week, we will hear from the representatives of the minority communities, then we will come back to immigration. Those are our next two meetings, and they will take place on Monday and Tuesday of next week. Thank you and good evening.

The meeting is adjourned.