Hon. Lucie Moncion: Honourable senators, I rise today to speak on the unceded territory of the Anishinaabe Algonquin Nation at the second reading of Bill C-13, an act for the substantive equality of Canada’s official languages. In speaking to this bill, I must above all acknowledge that the official languages are also a symbol of colonialism for Indigenous peoples in Canada. Besides the issue of territory, the predominant use of English and French has been at the expense of Indigenous languages and much more.

Having grown up in a minority community as a francophone, I acutely understand the role of language in identity construction and in understanding and preserving a people’s collective memory. It is important to remember that Indigenous languages are also part of the rich linguistic, cultural and identity tapestry of our beautiful and great country. We must recognize this facet of our history and take an interest in these languages and their vitality.

[Translation]

Of course, English dominance has also come at the expense of the francophone community in Canada. Let’s face it, the reform of the Official Languages Act is necessary and urgent. The demographic weight of the francophone minority has been steadily declining for decades, based on the criteria of mother tongue, language used at home and first official language spoken. We must act now to reverse this trend that threatens the vitality and development of our communities.

From the outset, I want everyone to know that I support Bill C-13 and want it to be passed as soon as possible. However, I believe it is important to point out the elements that are missing from this bill. My speech will take a critical look at this bill, given the importance of the language rights of francophones in minority situations and the fact that we have been waiting for a substantial reform of the Official Languages Act for over 50 years.

Confederation in 1867 marked the first time that the Constitution Act recognized the use of both English and French in Parliament as well as before the federal courts. In 1969, the first federal Official Languages Act was passed. The breakthrough at the time was section 9 of the act, which required every federal government department and agency to ensure that “the public can obtain available services from and can communicate with it in both official languages.”

The language rights of Canadians were further strengthened when the Canadian Charter of Rights and Freedoms was entrenched in the Constitution in 1982. The Official Languages Act was then revised in 1988, affirming the government’s commitment to enhancing the vitality of official language minority communities and supporting and assisting their development. This brings us to today, May 2023, and the arrival of Bill C-13 in the Senate.

As the Italian poet and philosopher Giacomo Leopardi said, “Patience is the most heroic of the virtues precisely because it has not the least appearance of heroism.”

With the finish line so close, this quote highlights the heroes who have been working behind the scenes on this reform for several years in order to present the Government of Canada with a thoughtful and restorative reform proposal. I am thinking in particular of all the individuals and organizations working to defend francophones in minority situations, many of which have been working hard on this file for nearly 10 years and served as the catalysts for the modernization of the legislation.

[English]

It is also worth mentioning the patience of Canadians who aspire to become bilingual or to have their children do so. As an officially bilingual country, Canada should establish a legislative framework that allows for substantive equality of rights holders, but also for equal access to language immersion and learning of the other official language. Canada must provide itself with the means to achieve its ambitions.

Despite all these legislative developments, juxtaposed with developments in the courts, from the Société des Acadiens case to the Beaulac case, the demographic weight of francophones has declined over the years, as has the use of French in Canada. The proportion of people outside of Quebec whose first spoken language is French has decreased from 6.6% in 1971 to 3.9% in 2011.

In its current form, Bill C-13 is the result of hard work by French language minority communities and could possibly reverse this trend. However, this bill also has significant shortcomings.

[Translation]

Based on the pre-study conducted by the Standing Senate Committee on Official Languages and the testimony of several witnesses, I have identified what I believe to be the most important elements that are not in the version of Bill C-13 that we just received from the other place. By the way, I congratulate Senator Cormier on his excellent presentation of Bill C-13.

If you participated in any of the discussions about the Official Languages Act reform, then you surely heard that the stakeholders’ main request is for the Treasury Board to be responsible for coordinating and ensuring the implementation of the Official Languages Act. That was also one of the recommendations that the Standing Senate Committee on Official Languages made in its report entitled Modernizing the Official Languages Act: The Views of Federal Institutions and Recommendations.

Minister Joly’s white paper, which gave rise to Bill C-13, explains that, when it comes to official languages, and I quote:

Accountability measures are fragmented into multiple processes and reports, and they are not always conducted in a timely manner.

It also states, and I quote:

The Treasury Board already has considerable powers . . . but the use of these powers has declined over time . . . .

The government then commits to, and I quote:

Strengthen and expand the Treasury Board’s powers, notably the power to monitor compliance with Part VII of the Act . . . .

The government also commits to, and I quote, “[a]ssign the strategic role of horizontal coordination to a single minister. . . .”

The bill does not make the Treasury Board responsible for implementing the entire Official Languages Act, but only Parts IV, V and VI and certain sections of Part VII, specifically subsection 41(5), which deals with positive measures, and paragraph 41(7)(a.1), which deals with bilateral agreements.

Clearly, Bill C-13 is inconsistent given that it requires the Treasury Board to exercise this role only for certain sections of Part VII, contrary to the intention expressed by the government in the white paper. When the time comes to review the act, I would like to see if it would be better to extend these duties to all of Part VII.

It does not make sense to me that the government, the House of Commons and the official languages committees of both chambers agree on this point, but that Bill C-13 restricts the scope of the Treasury Board’s powers in this manner.

Nevertheless, this bill and the amendments concerning the central agency partially address the concerns of organizations representing the interests of official language minority communities by expanding the Treasury Board’s powers and replacing its discretionary powers with duties.

For years, the act has been applied in a haphazard and incomplete manner, and this change will strengthen official languages oversight and accountability throughout the Government of Canada.

Bill C-13 was inconsistent in another way, in that it gave a leading implementation role to Canadian Heritage. The Official Languages Committee at the other place set matters straight by giving the Treasury Board the responsibility of assuming this leading role within the federal government as regards the implementation of the act. I am pleased with this correction that was made by the other place.

Although the Commons committee adopted an amendment to promote the inclusion of language clauses in agreements with the provinces and territories, the provisions on bilateral agreements are not binding and the minimum content of the language clauses was not defined.

The wording is so weak that I doubt if incorporating this provision will actually produce a result.

However, the federal government’s legal duties in relation to official languages do not stop at the moment it transfers money to the provinces and territories. Far too often, official language minority communities do not have access to the funding they are entitled to in order to grow and thrive. This systemic problem is seen at every level in our communities, from early childhood to the post-secondary level, and in community services.

Given that Bill C-13 lacks provisions to make the language clauses binding, we will have to monitor the implementation of those provisions vigilantly as a chamber of sober second thought. The federal spending power must respect its duties toward official languages. It may even be a constitutional rights issue, if it involves rights holders under section 23 of the Canadian Charter of Rights and Freedoms.

That is the segue to my third point.

Access to comprehensive data on primary and secondary school attendance is essential, since access to these schools is subject to a numerical criterion. “Where numbers warrant” means parents and school boards must be able to justify their demand for minority language educational facilities by proving to the provincial and territorial authorities that there are a sufficient number of children who have that right under section 23 of the Charter.

The provisions of Bill C-13 concerning the enumeration of rights holders are neither binding nor broad enough. For example, the Fédération nationale des conseils scolaires francophones, or FNCSF, asked that the bill provide that the federal government commit to periodically enumerating children under section 23 of the Charter.

An amendment was presented at committee in the other place to require the enumeration, not the estimation, of the number of children of rights holders under the proposed subsection 41(4) of the Official Languages Act. However, an amendment to the amendment modified the text as follows, and I quote: “The Government of Canada periodically estimates, using the necessary tools, the number of children . . . .” That weakens the proposed amendment severely.

The public servant who appeared before the committee explained the alternatives as follows, and I quote:

In short, enumerating means counting. If we really want to count rights-holders, then we need to be able to use other tools that fall under the jurisdiction of the provinces and territories. . . .

If we are talking about coming up with an estimate, then only the federal government can do that. We would be using a snapshot. If we choose the term “enumerate”, then we really need to go through the provinces to get the exact numbers on an ad hoc basis . . . .

I am having a hard time understanding how shared jurisdictions present an obstacle to creating an obligation to enumerate children who have the right to minority language education. The promotion and respect of official language minority rights are a federal government responsibility. The government has a duty to advance the equality of status and use of the official languages under section 16(3) of the Charter. I hope that we will carefully study the matter of enumeration at the Standing Senate Committee on Official Languages.

The FNCSF also asked that the Official Languages Act require federal institutions to take into account the needs of the rights holders’ school system when disposing of federal real property.

An amendment adopted by the House of Commons provides that federal departments and institutions must consult with minority communities and take their needs and priorities into account when developing a disposal strategy.

The Standing Senate Committee on Official Languages will have to examine the details of that amendment.

In Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, the Supreme Court of Canada found that rights holders are entitled to an educational experience that is substantively equivalent to the experience at nearby majority language schools.

Including provisions in Bill C-13 regarding the disposal of federal lands could prevent similar cases, with a view to achieving substantive equality between majority and minority communities in a given province or territory.

This situation is repeated too often in our communities.

I would be remiss if I didn’t also point out some positive things about Bill C-13.

Francophone immigration is a determining factor in the demographic weight of francophones in Canada. Immigration is also one area of jurisdiction where the federal government can act and exert a significant influence on the make-up of new arrivals to Canada.

Even though there has been a 4.4% francophone immigration target for nearly 20 years, it is outdated, since it does not help maintain the demographic weight of francophones in Canada. The government recently reached that target, but that was a first.

Clearly, we need much more than a simple francophone immigration policy. The elected members at the other place really understood this issue and its importance for the vitality of our communities and the French fact in Canada.

As a first step in the right direction, the bill sets out Canada’s duty to adopt a policy on francophone immigration that includes objectives, targets and indicators to increase immigration to francophone minority communities.

In order to improve this provision, the Official Languages Committee in the other place unanimously adopted an amendment that provides that the federal government must recognize the importance of francophone immigration by restoring and increasing their demographic weight, which suggests an obligation of result.

As far as francophone immigration is concerned, Immigration, Refugees and Citizenship Canada in Bill C-13 finally gets a clear, precise, binding mandate. The public service must operationalize a cultural shift that is promising for the future of our communities.

Senator Moncion: Thank you, colleagues.

[English]

Bill C-13 is very important for official language minority communities because the Official Languages Act in some way counterbalances a decentralized federal system for implementing language rights in a minority context. As a proud Franco‑Ontarian who grew up in a province that has long and often trampled on the language rights of its French-speaking minority from Regulation 17 to the threat of abolishing the Université de l’Ontario français and the Hôpital Montfort, to name but a few linguistic crises, I’m aware of the importance of the federal language rights regime in representing the interests of people from an official language minority community in Canada.

In most provinces and territories other than Quebec, there is no legal protection for French. New Brunswick is the exception, being the only officially bilingual province, and, in some way, the Province of Ontario as well, with its French Language Services Act. Consequently, official federal bilingualism has long been a guarantor of the rights of French-speaking minorities in Canada. The implementation of the Official Languages Act directly affects respect for the language rights of francophones in minority communities.

[Translation]

Bill C-13 is a breakthrough because it recognizes French as a minority language in Canada and North America due to the predominant use of English, expands and strengthens the Treasury Board’s powers as the central agency responsible for implementing much of the law, clarifies the positive measures, and requires IRCC to adopt a francophone immigration policy.

Several of the amendments that were adopted at the Standing Committee on Official Languages in the other place strengthened the proposed legislative framework.

The Standing Senate Committee on Official Languages released a report on the modernization of the act that inspired various proposals for reforming the Official Languages Act. Colleagues, in order to enable us to start our review as soon as possible, please send Bill C-13 to the Standing Senate Committee on Official Languages as soon as possible.

Thank you.

[English]

Hon. Lucie Moncion: The financial sector recognizes the existence of black swans. Could you tell us about black swans that are specific to the environmental crisis?

Senator Galvez: Are you referring to the issue of greenwashing?

Senator Moncion: I am referring to environmental disasters that occur suddenly and were not expected. In the financial system, a black swan is an economic disaster that was not expected, such as the situation in 2008. We now speak of black swan events associated with climate change.

Senator Galvez: You reminded me that at some point we were talking about “unknown unknown” risks. We were talking about radical uncertainty. As an engineer, I know how to manage risk when we are able to measure it, model it, and predict it. That is what we do in engineering when we adapt our infrastructure.

The problem, financially speaking, is that according to experts, this risk is unknown. We cannot really measure it, because these factors are convergent, cumulative and exponential, and they are truly very difficult to predict. That is why experts are telling us that we must use microprudential and macroprudential approaches to ensure we can resolve the problem both on an individual entity level and on a systemic level, because the risk is systemic.

Hon. Lucie Moncion: Honourable senators, I rise today as the critic for Bill S-206, An Act to amend the Criminal Code regarding disclosure of information by jurors.

As you know, I’ve spoken on this topic twice in previous sessions.

The legislative amendment proposed by Senator Boisvenu has strong support that transcends political and partisan allegiances. The House of Commons Standing Committee on Justice and Human Rights has already carried out a thorough study of the proposed amendment to section 649 of the Criminal Code, and it also studied Bill C-417, the precursor to Bill S-206. As such, I am confident calling for the rapid passage of this bill through the Senate.

In 2018, the Justice Committee responded to testimony from numerous former jurors, jurists and health professionals by recommending the creation of an exception to the jury secrecy rule.

This rule prohibits jurors from disclosing information about the jury’s deliberations to anyone at any time. The scope of this rule is very broad as it covers any information that a juror could disclose, including emotions, feelings of frustration, helplessness, fear, anger and confusion, and negative thoughts associated with difficult interactions with other jury members. The bill would put an end to the suffering and silence by allowing jurors to disclose information about the deliberations to a mental health professional.

[English]

Let me now speak on the main subject matter of this legislation: the well-being of jurors. From a legal point of view, jurors are part of a special category of people who are denied complete health care. This bill aims at improving the mental health of former jurors, because everyone’s mental health matters.

Jurors may be exposed to disturbing evidence. They may experience stressful situations by rubbing shoulders with the accused at the courthouse or other jurors with whom they may not get along or agree. They may develop a sense of guilt, unable to come to the desired verdict expected by the victim or their family, or become a victim of the media’s relentless harassment by coming to a verdict that would not render justice in the public’s opinion.

Jurors can be sequestered for long periods, sometimes weeks, losing access to their support systems and feeling guilty that they often leave their spouses or children alone for several weeks.

Dr. Patrick Baillie, who testified in front of the Justice Committee, said that with respect to the deliberation process specifically, research has shown that it can be the most difficult and stressful part of jury duty and can lead to anxiety, PTSD and depression.

Mark Farrant, CEO of the Canadian Juries Commission and former juror, who also testified in front of the committee, said that jury duty is a civic duty, but not a duty to suffer psychologically.

[Translation]

People who serve as jurors can develop anxiety, post-traumatic stress and depression and even have problems with their interpersonal relationships. Yet there is no consideration for well-being and mental health in the juror experience.

I would like to share with you the results of a Canadian Juries Commission study of panels of jurors who had served at murder trials. Although it is not exhaustive, this information will give you a better understanding of the impacts of a juror’s experience, and I quote:

[English]

Most jurors reported being dismissed with cursory words from the judge.

Almost all of the jurors spoke of a troubled and difficult transition back into civilian life.

Some are unable to return to work for months or years; some quit their jobs.

Some take months — or a year — before their friends and family feel they’ve returned to even a semblance of normality.

Some continue to agonize and process their part in the trial long after the event.

Many experience ongoing feelings of isolation and abandonment, which for many have never gone away even years after the end of their service.

They speak of:

. . . lack of empathy, sympathy, understanding, or consideration from work/employers, friends, and family, who simply have no idea and cannot grasp the depth of the experience they’ve suffered.

Many believe the experience has marred them for life. They will never be the same again or feel they’ve “gone back to normal.”

As one Ontario juror said:

And I was a wreck. I was crying. I was expecting to be happy because I was done with it, but I was a wreck. All of this just kind of unleashes afterwards. It’s not at all what you expect. I expected to be relieved, and instead I was left with a whole new set of lingering emotions that I had to deal with on my own that I did not foresee at all. And the court . . . your job is done, get out.

[Translation]

The secrecy rule for jury deliberations can prevent jurors from seeing a mental health professional. Mark Farrant, a former juror and CEO of the Canadian Juries Commission, has post-traumatic stress from his experience as a juror. He was turned down many times by mental health professionals before he was able to get help. Mark was suffering in silence, but he was systematically being denied help. That is incredibly unfair and worrisome.

Health care professionals are understandably afraid to provide services to former jurors, knowing that their client could violate the secrecy rule and end up with a six-month prison sentence or a $5,000 fine, or both.

This experience, which is shared by many former jurors who have been denied access to the services of health care professionals, illustrates the major flaws associated with the scope of the rule. When the Criminal Code ends up denying access to essential health services, that is a big problem.

How can jurors manage their mental health problems appropriately when the judge’s final instructions include a reminder that they cannot discuss their deliberations with anyone?

Our courts are creating victims, the jurors, and denying them access to the means of remedying the harm they have suffered while performing a civic duty. Other members of the justice system, such as investigators, judges, lawyers, and clerks, have access to psychological support programs. Jurors get nothing.

The very nature of the rule makes it hard to study the impact of jury duty on individuals’ mental health. Jurors are left to shoulder this enormous burden virtually alone. The consensus among legal scholars is that the rule can be modified to provide a very specific exception without compromising its substance or functionality.

In the report of the Lamer Commission of Inquiry, published in 2006, Justice Lamer identified the following principles: fostering free and frank debate among jurors; protecting jurors from harassment, censure or recrimination at the hands of convicted persons and their families; and ensuring the finality of the verdict.

Because it would apply only after the deliberations, the exception to the rule proposed by this bill respects the principles identified by Justice Lamer in his report. Bill S-206 provides that much-needed reasonable balance.

Professor Vanessa MacDonnell, a member of the Criminal Lawyers’ Association, testified before the committee and stated that introducing a very narrow exception to the juror secrecy rule would in no way undermine the underlying principles of that rule.

The state of Victoria, in Australia, was a trailblazer in this area, having introduced an exception in its legislation. The Standing Committee on Justice and Human Rights used Victoria as its inspiration in making this recommendation. In its report, the committee recognized from the start that the regulation of juries falls to the provinces and territories, which have jurisdiction over the administration of justice.

To make a real difference, the proposed bill must be accompanied by other measures to assist jurors in Canada. A concerted approach that fosters collaboration between the different levels of government and the relevant organizations is required here.

We must work on implementing the recommendations from the Improving Support for Jurors in Canada report, which gives an overview of what a comprehensive reform of the Canadian jury process would look like. I suggest that you take a look, colleagues.

In particular, I suggest having a look at the third recommendation in the report from the other place, about offering debriefing sessions after the deliberations. The federal government could provide funding on its own initiative by exercising its spending power to support the administration of provincial and territorial programs as part of the implementation of the report’s recommendations.

The federal government could also provide funding to organizations that support jurors’ mental health, to ensure that they have the means to implement these recommendations. This report warrants the attention of the government and parliamentarians because we have not yet done enough on this.

The pandemic has put and is putting unprecedented pressure on various key players in the justice system, including jurors. Despite that pressure, certain rights inherent to the administration of justice remain. Individuals charged with an offence still have the right to be tried within a reasonable time under paragraph 11(b) of the Charter, and delivering a verdict within a reasonable time is crucial for public safety and victims of crime.

[English]

The Supreme Court ruling known as the R v. Jordan rule imposes limits on the amount of time an accused person can wait for trial. The COVID-19 pandemic pushed many cases past the 18- and 30-month Jordan deadlines because the courts deemed that the delay was justified under the “exceptional circumstances” exception.

Coming out of the pandemic, in what many would call a mental health crisis where many also face socio-economic challenges with inflation rates that make it difficult to make ends meet, we can project that jury duty will not be top of mind for Canadians. Public opinion and potential lack of willingness to perform jury duty will become a problem for the functioning of our justice system if issues such as the well-being of jurors are not addressed in a timely manner.

There was a young lady, a business owner, who told my husband that she had received a summons for jury duty. I told my husband to tell that young lady to find every way out of it. She is a business owner and she cannot afford to be on jury duty for a long period of time.

[Translation]

According to a poll by the Canadian Juries Commission, Canadians rated jury duty lower in terms of civic importance than donating blood or volunteering within the community. These opinions are a direct result of decades of underinvestment in jury duty across the country and an inadequate legislative regime that doesn’t concern itself with the psychological well-being of jurors during and after a criminal trial.

Parliamentarians have a duty to individuals charged with a crime, to victims of crime and to the principle of public safety to provide the courts with the necessary support. Fulfilling that duty begins with paying special attention to the well-being of jurors.

It’s clear that Bill S-206 tackles a problem that transcends partisanship, namely the mental health of jurors in Canada. Besides being a civic duty that is crucial to ensuring the accused’s fundamental rights and the victims’ well-being, forming a jury is one way to introduce the public’s perspective into the machinery of justice.

Currently, jurors are becoming collateral casualties of the justice system, and the Criminal Code is perpetuating their suffering. Jury duty should not come at the expense of the mental health of the citizens summoned to perform it. I know from personal experience that this bill is absolutely necessary and essential for former jurors who suffer in silence. As Senator Boisvenu mentioned, in 1989, when I was a busy working mom of two young children, I was summoned to jury duty at a first-degree murder trial. I spent nearly two months in court. The trial ended on a Saturday. The following Monday, I flew to Val Gagné in northern Ontario to convert a bank’s computer system. I was picking up my life where I had left off two months earlier. But I was not the same person anymore.

As a result of that trial, I suffered from post-traumatic stress disorder, a condition that has affected every aspect of my life, including my family.

[English]

Mental health used to be stigmatized and is a new reality in the political arena. We now know too well and cannot ignore the psychological damage suffered by jurors when they exercise their jury duty.

I would like to warn you, honourable senators, that the next part of my speech contains graphic details.

Just ask yourself in what state you would be if you were shown graphic pictures of a 6-year-old child tied to a chair with duct tape, the duct tape covering the child’s face and nose, and learning that this malnourished child died of asphyxiation? What about this other 8-year-old girl who was raped and murdered with a hammer? What about watching videos of two girls, 14 and 16 years old, being repeatedly raped and shown pictures of their bodies found in a ditch?

Now, try to rationalize and ask yourself why did this happen? Who does that? How can someone be so evil to even think of doing this to anyone?

You are a decent person when you come into court. You are confronted with atrocities. You know what? It stays with you. Every time you hear of a murder, you cringe. You remember. I could go on, but I’m certain you get it.

The law of silence no longer holds and the secrecy rule needs to be changed.

Colleagues, Bill S-206 is not a government bill. It’s a Senate public bill that has been extensively studied in the House of Commons and has wide support among MPs as the previous versions of this bill passed unanimously.

Now this bill needs to be sent to committee and studied in the Senate so that it can be returned to this chamber, adopted and sent to the other place expeditiously.

[Translation]

This is the fourth time this bill is being introduced in the Senate, and I sincerely hope that it is the last time and that it will be passed in the Senate and in the House of Commons as soon as possible.

Madam Speaker, honourable colleagues, supporting Bill S-206 will allow us to help the Canadians who are summoned to jury duty to better experience and survive this civic duty. Let us discuss this issue and refer the bill to the committee for study. Thank you for your attention.