Hon. Joan Kingston: Honourable senators, I am honoured to have my first opportunity to speak in this chamber. I didn’t think that I would speak here so soon after taking my seat, and I do not have any stories prepared to share, but I am certain that I could never equal the storytelling of Senator Prosper. I am just going to leave it at that.

I am, however, hopeful that, over the next months and years, I will show my spark, as he has asked us to do.

I am speaking in favour of this amendment to Bill C-35 because it fits with my goals to give voice to equity-seeking groups and to address the issues that impact the social determinants of health and social justice.

Colleagues, Bill C-35 is an important piece of legislation to support the federal government in working with the provinces, territories and Indigenous people to build an affordable, inclusive and high-quality early learning and child care system for families across Canada, and to support equitable access to early learning and child care.

I have to say that early learning is my priority because of the implications around early childhood development and how it impacts that.

Bill C-35 is another significant step toward ensuring the system remains in place long into the future so that generations of young Canadians can get the best possible start in life.

[Translation]

Both of New Brunswick’s official languages are spoken in my family. My husband is a proud Acadian.

[English]

Our family and our children were fortunate to live near the capital city of New Brunswick, where we had access — in the late 1980s and early 1990s — to quality early learning and child care in French, thanks to the existence of the Centre communautaire Sainte-Anne, and later they went to École Sainte-Anne as well.

I would just like to say that, historically, this was made possible by Louis Robichaud, followed by Richard Hatfield. They were two New Brunswick premiers, who, although they were on different sides, and one after the other, were both committed to equal opportunity: Chances égales pour tous.

This is how my children received the opportunities that they did.

I wish for and want all children to have those experiences, especially the English and French linguistic communities across this country. Early learning is vital to early childhood development as a social determinant of health.

Early learning should be recognized as an important part of the education of our children, and we should put in place whatever we can to ensure the protection and promotion of that education for our linguistic communities. In fact, in New Brunswick, education is protected under section 16 and section 16.1 of the Constitution. However, early learning has never quite made it as a real part of education, and it needs to be.

I will be voting in support of this amendment. I would urge you all to do so.

Thank you. Meegwetch.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): Thank you, Senator Cormier, for the amendment. Thank you all who have contributed.

I have a prepared text that I am going to read.

Let me begin by saying that what I will try to do is present the government’s position. The government does not support this amendment, as Senator Cormier knows — I was in committee for the clause-by-clause consideration. I will try to do so in as clear a way as I can as a member of a minority language community whose government is not particularly friendly to my community despite the privileges that we have enjoyed for centuries. We have had a far easier time than those of you in the French communities outside of Quebec.

I do understand the importance of this to you. I certainly understand the passion with which you and others in this chamber have embraced the amendment. I respect that. Our identities are important to us. They are precious to us. They are who we are. Our language is the vehicle through which we see the world, much less express ourselves in the world.

I hope you hear my remarks in the spirit in which I am offering them. I am not going to put on my constitutional lawyer hat, although it probably comes out that way when I give you the legal analysis that the government, at least, believes is correct. As well, I am not going to pretend that this amendment, if it passes, is going to kill the bill or — what was the expression — cause the cathedrals to fall or something. It was “sink the armada” — no, none of that.

I have argued against amendments before in this place with less and less success, it seems, as the appetite for amendments in this place seems to grow more than to my taste. However, the will of the Senate is what — we are all here to serve Canadians, and I signed up for this gig seven years ago believing, as I still do, in the independence of the Senate and our duty to do the best we can to improve legislation.

I also believe that it is never possible as humans to be rational as opposed to emotional. Our intelligence and our judgment as we now understand them through neuroscience and, indeed, through the wisdom of our traditions, frankly — we did not need neuroscience to teach us that — as human beings, we bring everything to the table.

You can read it, and what you will hear me say, I am saying to you through my own eyes and wearing the hat that I wear. You can take it. You can discount it. I do appreciate your attention to the preamble. Now I will get to my speech.

I will speak briefly to this amendment, but the government cannot support it. It is not because the objective is not worthy. It is because, in the government’s view, this amendment is actually not consistent with the fundamental intent and purpose of this bill. The purpose of the bill is set out in clause 5.

The purpose is to:

(a) set out the Government of Canada’s vision for a Canada-wide, community-based early learning and child care system and its commitment to ongoing collaboration with the provinces and Indigenous peoples to support them in their efforts to establish and maintain such a system . . . .

Responsibility for early childhood care is exclusively provincial or territorial or is in the hands of the Indigenous communities that have the constitutional right to self-government and have the responsibility. It is their responsibility to set up, manage and determine it.

Further, the purpose is to:

(b) set out the government’s —

— the Government of Canada’s —

— commitment to maintaining long-term funding for the provinces and Indigenous peoples for the establishment and maintenance of that system;

(c) set out the principles that guide the ongoing federal investments in that system . . . .

[Translation]

Colleagues, Bill C-35 only applies to the federal government, which is enshrining in legislation a long-term commitment to building and maintaining a Canada-wide early learning and child care system. The bill respects provincial and territorial jurisdictions and does not impose any conditions on the provincial and territorial governments or on Indigenous peoples. The provinces and territories will maintain their jurisdiction and responsibilities regarding early learning and child care.

Colleagues, let me remind you that all of the Canada-wide early learning and child care agreements signed with the provinces and territories, apart from Quebec, contain clauses about supporting and respecting the rights of official language minority communities according to every jurisdiction’s context and priorities.

[English]

As an example, the existing bilateral child care agreement between the federal government and the Government of New Brunswick includes the following:

New Brunswick commits to develop and fund a plan to ensure that new space creation ensures diverse and/or vulnerable children and families — including children with disabilities and children needing enhanced or individual supports, Indigenous children, Black and other racialized children, children of newcomers, and official language minorities — have spaces equivalent to or greater than their share of the population in the province or territory.

Senator Cormier’s proposed amendment, as we know, intends to include reference to official language minority communities in clause 8 of the bill. The intentions are laudable, but it would be inconsistent, colleagues, to recognize English and French linguistic minority communities alongside the provinces, territories and Indigenous peoples responsible for the design and delivery of the early learning and child care programs and services outlined in clause 8 of the legislation. Legally speaking, English and French linguistic minority communities do not have the same status or the same role in delivering early learning and child care programs and services, nor in building and maintaining this Canada-wide system, as do the provincial, territorial and Indigenous partners.

It has already been mentioned that the bill contains multiple provisions highlighting that the funding for child care must include investments for official language minority communities. Clause 7 specifically articulates the federal principles guiding how federal investments are directed for early learning and child care across Canada. These include the efforts in the development of agreements with provinces, territories and Indigenous peoples — the specific bilateral agreements upon which this framework sits and guarantees the ongoing federal funding to those funding partners.

The Government of Canada is absolutely committed to supporting official language minority communities in early learning and child care. For example, the government’s Action Plan for Official Languages 2023-2028 contains an existing investment of more than $60 million over five years into early learning and child care in francophone minority communities.

In relation to Bill C-35, clause 7 highlights the funding commitments for the official language minority communities. Let me put on record these specifics:

[Translation]

Paragraph 7(1)(c) states that the investment must support the provision of early childhood care:

 . . . from English and French linguistic minority communities, that respect and value the diversity of all children and families and that respond to their varying needs . . . .

Subclause 7(3) states that federal investments in respect of early learning and child care programs and services must be “guided by the commitments set out in the Official Languages Act.”

Subclause 11(1) states that the minister must take into account the importance of forming a council that includes official language minority communities, referring here to the National Advisory Council on Early Learning and Child Care.

[English]

Colleagues, I would like to point out that in both paragraph 7(1)(c) and subclause 7(3), the definitive use of the word “must,” rather than the subjective use of the word “may,” is used. This is a commitment of the federal government in its responsibility to fund those partners acting within their jurisdiction.

Clause 8 of this bill speaks to the funding and delivery mechanisms of early learning and child care. These are the provinces, territories and Indigenous partners who are constitutionally responsible, not official language minority communities.

The bill was drafted to ensure that the government respects the constitutional jurisdiction of the provinces and territories, as well as respects and upholds the rights of Indigenous people, including the right to self-determination.

Colleagues, this was not incoherent. This is not ambiguous. This is not an oversight. This was very deliberate. This was a deliberate distinction drawn between the principles to guide the funding and the beneficiaries, including language communities in minority situations as well as others to whom access to fair, affordable child care is a priority, and those bodies — provinces, territories and Indigenous governments — who have the constitutional responsibility to create and deliver these systems and to receive the funding for these systems.

Respectfully, despite the arguments that you have heard, there is, in fact, a potential problem for including the linguistic communities in situations of minority in clause 8. A government official stated it at committee. I will quote again for those of you who were not at committee. This is a repetition of the point that I just made to some degree, but I’m quoting from the government official at committee, who said:

. . . legally speaking, English and French linguistic minority communities do not have the same status or role in delivering ELCC programs and services and in building and maintaining this Canada-wide system as the provincial, territorial and Indigenous partners do. Adding a reference to that group, then, in clause 8 would create the expectation for dedicated and increased funding. . . .

. . . support for specific groups, such as English and French linguistic minority communities, are very importantly and appropriately captured in that guiding principles clause, which was already amended at HUMA in clause 7 in subclauses (1) and (3).

The official went on to say:

Adding another mention of official languages in Bill C-35 could, per our understanding, legally be seen as specifically excluding federal support for other systematically marginalized groups, such as children with disabilities, who aren’t listed.

Beyond jurisdictional roles and responsibilities, I think this amendment also raises questions around support for Indigenous languages, which are not mentioned in the legislation . . . .

Colleagues, sometimes best efforts may result in unintended consequences. I have no doubt that neither Senator Cormier nor anyone else in this chamber who has spoken for or who will vote in favour of this amendment has the intention of potentially excluding support for other marginalized communities not listed. However, the balance between constitutional jurisdiction and the federal commitment to fund relies on specific wording — or lack of wording in this case.

We have heard reference to statutory interpretation, but it cuts both ways. If there is a risk that the exclusion of language might cause a potential consequence down the road for those communities seeking vindication from their province because that is where the responsibility lies, so, too, would the inclusion of some words potentially cause problems, applying the same principles of statutory interpretation to those who would not be otherwise included in the amendment to clause 8. The government lawyers reviewed this carefully. They considered it in the other place. It is their view that the amendment is not appropriate for these reasons.

Senator Moodie outlined the following in her second reading speech:

. . . clause 8 of the bill commits Canada to maintaining long-term funding, primarily through agreements with the provinces, Indigenous governments and Indigenous entities.

Amending clause 8 with an additional entity could conceivably, as a matter of potential statutory interpretation, add another funding commitment, and it is concern for that that underscores the government’s opposition to this amendment because provinces and Indigenous peoples have legal and jurisdictional roles to play in the creation and delivery of these whereas minority language communities — like my own in Quebec or those of yours in other provinces — simply do not.

Notwithstanding that our rights are constitutionally protected in many ways in education and the like, our status is, nonetheless, different from the provinces, territories and Indigenous governments.

[Translation]

Bill C-35 also aims to respect and enforce the rights of Indigenous peoples, including the right to self-determination. As officials have pointed out, Senator Cormier’s amendment could raise questions about support for Indigenous languages. This is certainly not what Senator Cormier and those who support his amendment intend to do, but it could lead to section 8 being amended or split.

Senator Cormier is right to say that the wording he proposes in his amendment is found in other bills. This point was not necessarily raised in today’s debate, but it was, and rightly so, during the committee study of Bills C-11 and C-18.

In these bills, however, the wording is used in a specific context. The suggested wording for section 8 of Bill C-35 does not appear in these bills. As I said earlier, this is not necessarily consistent with the fundamental objective of this bill, which is to guarantee federal funding to the provinces, territories and Indigenous governments who are responsible for providing daycare spaces for Canadian families.

[English]

Please don’t misunderstand me. The Government of Canada sees the value of official language minorities in early learning and child care. That is why it is referenced in every single provincial and territorial bilateral agreement, again, outside of Quebec, which has an asymmetrical arrangement. The existing funding agreements actually lay out the official language minority communities’ intentions, and clause 7 of the framework legislation in Bill C-35 captures that as a matter of principle.

However, it is the position of the government that amending clause 8 would be improper. Here I’m clearly testing your patience by repeating the same thing over and over again, but clause 8 is exclusively focused on who and what actually delivers what these bilateral agreements promise, and that is the provinces, the territories and Indigenous partners.

[Translation]

What’s more, as you may have seen this week, early childhood education advocates from across the country, including New Brunswick, publicly called for us to pass this bill without any other amendments. Groups such as the YWCA, Child Care Now and the Canadian Labour Congress wrote to remind us that, 50 years ago, the Royal Commission on the Status of Women recommended that the federal government take immediate measures to adopt a “national Day-Care Act” under which federal funds would be made available for the building and running of child care centres.

[English]

They wrote that, at this stage, colleagues, Bill C-35 is sufficiently robust to ensure equitable access to child care for generations to come.

For all of these reasons — and I appreciate that you have indulged me longer than I had intended to speak — the Government of Canada, and I as its representative, simply cannot support Senator Cormier’s well-intentioned amendment, and I would invite you to consider my remarks and vote against the amendment.

Thank you so much for your patience.

Hon. Jim Quinn: Would the senator take a question?

Thank you for your remarks, senator. My question is pretty simple, and that is that I think all of us, when we were appointed — certainly since 2016 — had a tremendous interaction with the Prime Minister who reminded us that he would like us to give serious consideration to his policies but to add value where we thought value was necessary and strengthen that process.

Clause 8, I think, is greater certainty, and if this chamber, in its wisdom, decides that, “Yes, we are going to accept the amendment,” would you agree that it’s not the government that we send it back to? We send it back to the elected chamber, which includes government members, of course, but it also includes the entire chamber. Shouldn’t that be our job, if we agree, to let the elected chamber vote and decide whether they agree or not?

Hon. Ratna Omidvar: Thank you, Senator Gold, for your comments, and in particular the preamble to your comments about identity. I appreciate them; they were authentic and sincere.

I’m going to invoke the law professor in you — rusty or not — by reading from the witness testimony of Professor Larocque, who had a great deal to say about clause 8. He said this:

. . . when Parliament is silent in one part of the law but explicit in other parts of the law, courts are entitled to infer from that that it was an intentional silence.

He continued, saying:

By not mentioning official language minority communities in clause 8, we essentially allow a court to eventually conclude that this was the legislator’s intention, since specific mentions are included elsewhere in the bill, but it is silent . . .

— in the founding clause.

I wonder how the law professor in you would rebut that.

Hon. Frances Lankin: Senator Gold, thank you for your speech. You raised a number of important considerations that we all need to take into account. I appreciate all the other contributors to the conversation tonight.

I am, on the one hand, very attracted by the amendment — and by the essence, goal and spirit behind our approach in this chamber of supporting equality measures; however, I’m very troubled by the points that you bring forward with respect to federal-provincial jurisdictional issues.

Having been in a provincial government and knowing when we railed against the feds for stepping into our territory, and knowing this is the exclusive jurisdiction of the provinces, I think that we may be in danger of doing what we believe from a policy perspective would improve the bill. But is that our job here from a policy perspective? If it could endanger the bill or its effectiveness, I want to know more.

Can you be more explicit about why this could be detrimental to the goal that we’re all expressing support for here in terms of Senator Cormier’s amendment? Are there other related examples, like health care — where the provinces deliver most of it, but it is a bit of a shared jurisdiction compared to others — or immigration or climate control agreements with the provinces, or is there something different about how this has been constructed? If this is different, tell us. If it is not different, then I may start to question supporting the amendment because maybe it’s just not our jurisdiction.

Hon. Renée Dupuis: Would Senator Gold agree to take a question?

Hon. Rose-May Poirier: Senator Gold, would you take another question?

The Hon. the Speaker: Would you take a supplementary question, Senator Gold?

[English]

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?

Hon. Diane Bellemare: I have a very brief question for the Government Representative. Do you have an alternative to propose with regard to the protection of linguistic minorities?

Hon. Marc Gold (Government Representative in the Senate): For once, I will be very brief with my answer.

No, I have no alternatives to propose. The government is of the view that this amendment is unnecessary and inappropriate. Ultimately, we will soon put it to the vote and see. At least I hope that’s the case. Ultimately, it is up to us to decide. I’ve done my best to explain the government’s point of view. Ultimately, we will proceed with the vote. If the amendment passes, the House of Commons will consider it with the respect it typically gives our amendments, and we will see whether a message comes back or not. That’s all I can say. No, I have no alternative to propose.

[English]

Hon. Brent Cotter: Will Senator Gold take a question or two on this bill and the amendment?

Hon. Andrew Cardozo: Honourable senators, this is one of the most exciting and interesting debates that I’ve seen in this place for a long time. I say “exciting” from an intellectual perspective. I listened to the speeches made by Senators Moodie, Cormier, Aucoin and many others. I wish to pick up from the question that my colleague Senator Bellemare put forward.

In sober second thought, we often give our best advice to the elected chamber. If we were to pass this amendment and say, “This is our best advice, and these are the reasons why” — and my colleagues have outlined them much better than I can — it gives the elected government and the House of Commons the opportunity to consider what we are saying to them. They can either accept it or put something else forward. As Senator Bellemare said, “What other suggestions are there?”

That’s what’s happened in many cases where we’ve made amendments, they have accepted some, changed some and then come back. We would be saying to them, “This is what we think needs to happen. You’ve perhaps got some concerns about, perhaps, the constitutionality. Can you come back with something that takes care of those concerns and meets these concerns?”

I am asking: Isn’t this a good opportunity to have that kind of dialogue between the Senate and the House of Commons?

Hon. Éric Forest: Senator Gold, we see that being a professor is in your DNA. I sense that the government’s big concern has to do with respect and meeting its obligations under our Constitution. The proposed amendment in this case may help create an opening.

A comparison has often been made between education and health, both of which fall under provincial and territorial jurisdiction. As you said, the role of the federal government is to provide the funding, through agreements, to help the provinces and territories assume that responsibility.

The second part of the amendment says exactly the same thing. I do not understand why the left hand does not do the same thing that the right hand is doing when it comes to health care. The second part of the amendment says the following:

(2) The funding must be provided primarily through agreements with the provincial governments . . . .

If there are indeed agreements, then we can assume that both parties have agreed on a situation that is mutually satisfactory and meets the constitutional obligations of each party. I do not understand. The amendment clarifies and confirms certain things. In the context of these agreements, respect is a guarantee by which the constitutional obligations will be met.

The Hon. the Speaker: Senator Forest, you had a question?

The Hon. the Speaker: Are senators ready for the question?

The Hon. the Speaker: You are not ready for the question? Sorry, I heard a “no.”

All those in favour of the motion, please say “yea.”

Some Hon. Senators: Question.

An Hon. Senator: No.