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: Does the senator have a supplementary question?

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

[English]

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.

Some Hon. Senators: Nay.

Hon. Pierrette Ringuette: Senator Gold, I need to ask you a question. Responsibility for minorities in this country lies in the federal government’s spending power and responsibility. What I am reading here in this amendment is not something we have seen before. In any case, I didn’t see it, and I asked different people if they had seen a copy of the agreement signed between the federal government and the Government of New Brunswick, for example, which, according to you, contains certain obligations.

As Senator Poirier pointed out, the province of New Brunswick provides only 16% of seats when it should be providing 33% of seats for New Brunswick’s francophone community. It is therefore up to the federal government, using this provision, to make up for what it is unable to accomplish through the agreement with the province. That’s where I see the federal government’s responsibility. Apart from New Brunswick, no other province in Canada has a constitutional responsibility to its minority communities. Some provinces have legislation, but in practice, if an agreement exists with a province that does not respect minorities or the commitments made to them, that becomes a federal responsibility.