Hon. René Cormier: Honourable senators, I rise today at third reading stage of Bill C-35, An Act respecting early learning and child care in Canada.

I want to acknowledge that the land on which I am speaking to you today is part of the traditional unceded territory of the Anishinaabe Algonquin nation.

I thank the bill’s sponsor, Senator Moodie, and my colleagues on the Standing Senate Committee on Social Affairs, Science and Technology for their very careful study of this bill.

In short, Bill C-35 seeks to enshrine in a legislative framework the government’s financial commitment to early learning and child care systems in Canada.

It is important to mention, honourable senators, that the initial version of the bill at first reading in the other place did not provide any assurances that official language minority communities would be taken into account. As a result, during clause-by-clause consideration, some additions were made to the guiding principles set out in clause 7 and to the national advisory council on early learning and child care set out in clause 11.

I also want to point out that, when the bill was studied in the other place, clause 8 was not carefully examined in order to make sure that it was consistent with the additions regarding official language minority communities, or OLMCs. Let’s not forget that clause 8 is at the heart of this bill and that it codifies the federal government’s long-term funding commitment.

In light of the foregoing, the Social Affairs Committee’s study of the bill in its present form revealed some serious problems with the terminology used and the lack of consistency and accuracy with respect to official language minority communities.

[English]

Colleagues, as mentioned by Senator Seidman, there is an inconsistency in the bill’s terminology. Paragraph 7(1)(c) refers to “. . . English and French linguistic minority communities . . .” whereas subclause 11(1) refers to “. . . official language minority communities . . . .”

Second, organizations and experts from official language minority communities expressed serious concerns during the committee study about the federal government’s lack of long-term financial commitment to official language minority communities in clause 8.

Moreover, witnesses before the committee demonstrated a clear causal link between the implementation of the financial commitment in clause 8 and the vitality of daycare centres in minority language communities. Allow me to reiterate the situation of the French fact in Canada and describe the reality of daycare centres in a minority language context.

As you may know, colleagues, it was acknowledged many times during the study of Bill C-13, which modernized the Official Languages Act, that French is in decline in Canada. This is an undisputable fact — an inescapable reality that we must consider in all our work as legislators.

You will not be surprised to hear that learning the minority language — French outside Quebec and English inside Quebec — from an early age is crucial to maintaining our two official languages and ensuring the vitality of official language minority communities.

It is clear that a young person born into a family where French is the first language spoken and who subsequently attends a French-language daycare centre is much more likely to pursue his or her primary, secondary and post-secondary education in French. However, colleagues, this young person still needs to have access to French-speaking daycare facilities.

[Translation]

Need I add that it’s been proven that learning and developing high-quality French in the preschool years has a direct impact on the future academic abilities of young people who pursue their studies in francophone schools?

[English]

Although imperfect, current federal legislation provides tools to protect the continuity and quality of educational services offered to linguistic minorities to ensure their development and vitality, known as “the continuum.”

As Senator Moncion reminded us in her second reading speech, section 23 of the Canadian Charter of Rights and Freedoms provides for the right to minority language education, and access to minority language daycares is essential in implementing this Charter right.

Moreover, as per the Official Languages Act:

The Government of Canada is committed to advancing formal, non-formal and informal opportunities for members of English and French linguistic minority communities to pursue quality learning in their own language throughout their lives, including from early childhood to post-secondary education.

Given the reality experienced by official language minority communities, the danger of compromising access to minority language daycares and the existing legislative framework that recognizes this reality by establishing rights to minority language education and government commitments, we could have hoped for a clear and robust bill to reflect all of this. However, with all due respect, this is not the case with Bill C-35.

[Translation]

In Bill C-35, clause 7 lays out the guiding principles for federal investment in the establishment and maintenance of a Canada-wide early learning and child care system.

Clause 8 sets out a binding funding commitment and, as such, it is the very heart of Bill C-35. In other words, it’s the key to creating the education continuum for official language minority communities. That’s why I urge everyone to recognize the importance of this at third reading.

The first sentence of clause 8 currently reads as follows:

The Government of Canada commits to maintaining long-term funding for early learning and child care programs and services, including early learning and child care programs and services for Indigenous peoples.

The second sentence of this clause states the following:

The funding must be provided primarily through agreements with the provincial governments, Indigenous governing bodies and other Indigenous entities . . . .

The wording of the clause appears to set out two specific objectives. It points to the federal government’s long-term funding commitment and the mechanism by which the funding is to be provided.

Considering how important it is to provide good support for the education continuum, it goes without saying that implementing clause 8 will have a significant impact on the vitality of OLMCs. Former Supreme Court of Canada Justice Michel Bastarache, a leading expert on language rights, stated in a message sent to the Social Affairs Committee, and I quote:

In clause 8, it seems to me that the intention is to guarantee ongoing funding for groups facing assimilation, Indigenous peoples and francophones outside Quebec.

However, colleagues, there is absolutely nothing in clause 8 on the federal government’s commitment to official language minority communities.

[English]

In committee, we heard that clause 8, in its current form, could give the impression to a judge hearing a case that its silence with respect to official language minority communities is a deliberate and intentional choice by the legislator. In other words, the legislator implicitly wanted to exclude official language minority communities from the scope of clause 8 since they were explicitly included elsewhere in the bill; namely, in clause 7.

This principle of implicit exclusion is supported by work conducted by the distinguished Professor Ruth Sullivan. In short, we have heard that the principles of statutory interpretation, as well as the Supreme Court of Canada’s jurisprudence on language rights — notably in Caron v. Alberta — suggest that the current legislation must be clear and explicit if official language minority communities’ rights are to be duly respected.

Colleagues, in the past, ambiguities in legislation have created a great deal of harm for official language minority communities, which too often have had the burden of defending their rights in court. A clause 8 that explicitly states the federal government’s commitment to official language minority communities would essentially prevent official language minority community organizations from being burdened by potential litigation to have their rights recognized.

I would like to thank Senator Moodie for stating, on the record, that clause 8 implicitly includes a funding guarantee for official language minority daycare centres, but that statement is not legally binding.

[Translation]

During clause-by-clause consideration of the bill in committee, I introduced an amendment to add the term “official language minority community” to the first sentence of clause 8, after the words “for Indigenous peoples”. The purpose of the amendment was to correct the absence of any explicit mention OLMCs, thereby clarifying the legislator’s intent to require the federal government to commit to maintaining long-term funding for these linguistic communities. Unfortunately, that amendment was defeated in committee.

I want to reiterate that such an addition would not have created a new negotiating mechanism requiring the federal government to negotiate directly with official language minority communities. This interpretation is based on expert testimony heard by the committee.

According to Professor François Larocque, legal counsel with Power Law, and I quote:

Section 8 specifies that funding is passed on through agreements between the federal government, the provinces and the territories, and not directly to the communities, and that’s not what’s being asked for and reflected in the suggested amendments.

In order to clearly specify that intention to not create a new funding mechanism with OLMCs, my amendment divided clause 8 into two separate paragraphs.

[English]

Colleagues, as we heard in committee, there is consensus among both the English-speaking communities in Quebec and the French-speaking communities outside Quebec on the essential nature of the rejected amendment to clause 8. They all agree that there is a lack of clarity in clause 8 and that the federal government’s commitment to official language minority communities must be specified.

[Translation]

The Commissioner of Official Languages of Canada, an independent officer of Parliament, says that if OLMCs do not receive adequate funding as part of the early learning and child care plan, the capacity of the early childhood sector in official language minority communities will continue to be compromised. He is also of the opinion that clause 8 needs to be amended to explicitly include OLMCs.

Clearly, the government does not share our concerns over the potential impact of omitting an explicit reference to OLMCs in clause 8, even though it claims to be the champion of official languages, especially in the context of modernizing the Official Languages Act.

During clause-by-clause consideration of the bill in committee, we heard government representatives make bold statements about the merits of my amendment sought in section 8. I will clarify.

Those government officials said that explicitly including provinces and Indigenous peoples in clause 8 is a deliberate choice because they are responsible for designing and delivering child care programs and services. In other words, according to them, clause 8 would cover only the financial mechanism by which the federal government gives funding to the partners who are responsible for the design and delivery of child care programs and services.

However, again according to the government officials who spoke in committee, including OLMCs in clause 8 would create an expectation of increased funding, exclude federal support for other groups that are systematically marginalized and raise questions about support for Indigenous languages. Colleagues, with all due respect, this reasoning seems very inconsistent.

In its comments, the government implicitly concedes that the scope of clause 8 is much broader than the simple codification of a negotiation mechanism with some key partners. In fact, the government concedes that this clause will have financial repercussions on many minority and Indigenous groups in Canada.

[English]

Allow me to clarify this: Nothing in the wording of the amendment rejected in committee would have created an expectation of increased funding for official language minority communities or recognized that these linguistic communities have the same status as the provinces and Indigenous peoples in the design and delivery of childcare programs and services.

Therefore, for the foregoing reasons and considering the role of the Senate of Canada as a legislative body complementary to the House of Commons, which must exercise a sober second thought so that no minority community is left behind, I will hereby table an amendment that adds the words “official language minority communities” to the first sentence of clause 8 after “for Indigenous peoples” and splits clause 8 into two subclauses. The first subclause sets out the government’s financial commitment. The second subclause lays out the mechanisms via which the federal government will provide the funding.

[Translation]

Hon. René Cormier: Therefore, honourable senators, in amendment, I move:

That Bill C-35 be not now read a third time, but that it be amended in clause 8, on page 6, by replacing lines 13 to 20 with the following:

Hon. René Cormier: Senator Gold, I’d like to hear your thoughts on the federal government’s responsibility under the Official Languages Act, Part VII in particular, and on taking positive measures. Under the new Official Languages Act, the government committed to working on taking positive measures in its relationships with its partners to ensure the development and vitality of official language minority communities.

How can the government justify its commitment to taking positive measures under Part VII of the act when it comes to the problems that you identified? How can the government justify not agreeing to include something that, as we already said, doesn’t infringe on Indigenous people’s rights, or any rights?

My underlying question is this. Can you tell me how you determine the difference between a guiding principle and what is referred to in clause 8 as a funding commitment?