Hon. Lucie Moncion: Official language minority communities refer to groups who have historically faced discrimination, and continue to face discrimination through policies, legislation and funding of their institutions by provincial and territorial governments. These communities are afforded special constitutional guarantees to address historical and ongoing challenges.

Official languages, on the other hand, undeniably served as a tool of colonization, contributing to the eradication and weakening of numerous Indigenous languages — a regrettable legacy that we now seek to reverse. My hope is that Bill C-35, along with other legislation that this government brought forward, such as the Indigenous Languages Act, can facilitate the revitalization and reappropriation of these languages by Indigenous peoples.

We need to collaborate and stand united in an effort toward reconciliation. Polarizing politics should have no place in this chamber, and both the government and this chamber have a duty to protect minorities.

Both official language minority communities and Indigenous peoples benefit from specific constitutionally guaranteed rights. It is essential to give due consideration to these rights in our deliberation on Bill C-35. As is often the case in government bills, numerous constitutional rights and guarantees coexist within the same legal framework. It does not mean that they are the same, or that they need to be compared. Explicit references to the holders of some guaranteed rights do not, in any way, diminish those of other groups.

[Translation]

Hon. Lucie Moncion: We heard this afternoon, on three occasions, the mention of interpretation of laws. I would like to add to this versus “legally binding wording.” There is an important nuance that has to be brought into this context. So I start out of my text, but going into my speech.

[Translation]

I rise to speak to the amendment moved by Senator Cormier at third reading of Bill C-35, An Act respecting early learning and child care in Canada.

The amendment seeks to explicitly include a guarantee of long-term funding for official language minority communities, or OLMCs, in clause 8 of Bill C-35. I thank Senator Cormier and his team for all their work on this matter. His office and mine have worked together on this. During my speech at second reading, I expressed concerns about the fact that a department could draft such a critical piece of legislation for the vitality and survival of OLMCs without even mentioning them.

My concerns grew during clause-by-clause study of the bill at the Standing Senate Committee on Social Affairs, Science and Technology. I observed that Employment and Social Development Canada officials showed a very poor understanding of the constitutional rights and guarantees of OLMCs, as well as a certain absence of curiosity and sensitivity towards these communities in terms of the realities they experience and the potential impact of this legislation on their vitality and growth.

In this speech, I will outline the risks associated with the fact that clause 8 lacks any such guarantee, as well as the impacts of the proposed amendment, while also taking into account the relevant jurisprudence. As part of my analysis, I will attempt to refute the government’s interpretation of the so-called potential problems that the amendment in question could create.

In my opinion, the interpretations put forward are erroneous and even worrisome. They could be of particular concern if the courts were to draw on the comments that certain officials made to the committee when analyzing the legislator’s intent regarding the interconnectedness between the rights of Indigenous peoples and those of official language minorities.

First, I will talk about the proven dangers of omitting official language minority communities. Why is this amendment so important? As I argued at second reading, access to child care services in the language of the minority is key to the implementation of section 23 of the Canadian Charter of Rights and Freedoms, which guarantees the right to minority language education.

The bill seeks to create a national early learning and child care system in order to make services accessible to all. Under current bilateral agreements, funds are spent specifically to guarantee services for the children of rights-holders and Indigenous peoples. The government and its officials have tried to reassure us by pointing out the terms of these agreements, but you will understand that the purpose of the study is Bill C-35, not the agreements.

In addition, as a francophone in a minority situation, I fully understand the legal hierarchy between a bilateral agreement and federal legislation. Accordingly, including OLMCs in these agreements does not reassure me in the long term. I’m also mindful of the fact that governments change while statutes endure, hence the importance of considering an amendment to clause 8, as suggested by Senator Cormier.

Moreover, when it comes to services funded as part of the exercise of the federal spending powers, we must expect services of equivalent quality to be offered to both francophones and anglophones in this country. It is also imperative that Indigenous peoples receive adequate funding, in keeping with the exercise of their rights under section 35 of the Constitution Act, 1982.

With regard to OLMCs in particular, the facts, as documented over many years of jurisprudence and by the stakeholders who were heard at the committee, highlight the systemic and structural barriers these communities face when it comes to having their constitutional rights to access education in their language recognized and exercising those rights.

This jurisprudence also points to a history of tensions between OLMCs and provincial governments when it comes to upholding the rights of these minorities. These tensions are fuelled by omissions similar to those currently found in clause 8, which have allowed provinces and territories to justify infringing on the rights of OLMCs across the country for years. It is time to change this dynamic and grant these communities the means to assert their rights before the courts.

The bill, in its initial form, provided no specific guarantees for OLMCs. Although three mentions were added at the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities in the other place, François Larocque, a professor, lawyer and language rights expert, and the Honourable Michel Bastarache, former Justice of the Supreme Court of Canada, both highlighted, in their testimony to the Social Affairs Committee, the persistent inconsistencies and risks associated with omitting official language minority communities from clause 8 of the bill.

Clarification enshrined directly in the act is critically important. It plays a decisive role in the courts’ analysis of the legislator’s intent, taking into account the intrinsic evidence.

Indeed, Canadian jurisprudence on language rights is clear in this regard. François Larocque, in his brief to the committee, refers to the decision in Caron v. Alberta, in which the Supreme Court of Canada refused to acknowledge the existence of language rights because of the absence of explicit guarantees in the relevant legislative and constitutional documents.

Colleagues, the legal risks inherent in this omission are real and substantiated by the facts and by the relevant jurisprudence on language rights. The absence of any explicit reference in clause 8 is therefore deeply concerning to official language minority communities. In my opinion, the committee should have taken the opportunity to clarify the legislator’s intent directly in the wording of the bill in order to minimize, as much as possible, any risk of causing harm to official language minority communities.

[English]

However, the government was unequivocally against any amendment and misled the committee in several aspects of its arguments.

New funding mechanism: Initially, the government claimed that the suggested amendment would establish a new funding mechanism for the official language minority communities. Respectfully, this interpretation of the proposed amendment is inaccurate.

Michelle Lattimore, Director General, Federal Secretariat on Early Learning and Child Care, Employment and Social Development Canada, stated:

 . . . 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. . . .

While the official was correct in distinguishing roles in program delivery, the interpretation of the amendment is misleading. Nowhere in the amendment was there a suggestion to treat official language minority communities as a governing body entitled to direct funding from the federal government.

In response to a specific question posed by the bill’s sponsor at the Social Affairs Committee, Professor Larocque provided the following statement to assist the committee in their deliberations:

Clause 8, on the other hand, 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.

So it’s not a new mechanism that’s being proposed here, but quite simply, as my colleague suggests, taking into account the linguistic rights of official language minority communities in a firm long-term commitment.

Clause 8 currently reads:

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. . . .

We can observe that the scope of the commitment in clause 8 extends to the Canada-wide early learning and child care system, while specifying a commitment for the long-term funding of programs and services for Indigenous peoples because of the word “including.” However, the inclusion or exclusion of official language minority communities from this commitment is unclear, and that is the problem. Following this, the clause states:

The funding must be provided primarily through agreements with the provincial governments, Indigenous governing bodies and other Indigenous entities that represent the interests of an Indigenous group and its members.

This enumeration establishes that funding must be granted through the appropriate mechanism. For official language minority communities, if they were to be included in clause 8, it would be done through the provinces. Official language minority communities do not have a nation-to-nation relationship with the federal government, unlike Indigenous governing bodies. Adding a reference to official language minority communities will not substantially change the law of the land, and it would be absurd to pretend that it will.

Adding an explicit reference to official language minority communities regarding guaranteed long-term funding by the federal government does not, in any way, diminish the protection and guarantees afforded to Indigenous peoples under this bill and under our Constitution, nor does it grant official language minority communities any rights that they don’t already possess. It provides them with a legal tool if the services in their languages are fewer and of lower quality than those provided to the majority of a given province.

The second argument brought forward by the government was regarding competing rights. Officials stated that the amendment could be detrimental to Indigenous languages. Cheri Reddin, Director General, Indigenous Early Learning and Child Care Secretariat, Employment and Social Development Canada, said the following:

I’ll highlight that we officials were following the testimony of Indigenous representatives here last week. As Senator Moodie highlighted, President Obed was quite vocal about the absence of Indigenous Languages Act references and suggested the exclusive references to official languages came at the detriment of Indigenous languages.

First and foremost, this statement would be inconsistent with clause 3 of the bill which explicitly guarantees the rights of Indigenous peoples. It states:

This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

The statement of Natan Obed, the President of Inuit Tapiriit Kanatami, was distorted both in committee and at third reading of the bill. In committee, when I asked Mr. Obed for his thoughts on this potential amendment to clause 8, he answered the following:

I was not aware of the amendment that you reference, but very often official language status for French and English is a sledgehammer that allows for those two languages to dominate in our communities. The very history of Inuit participation in Canada through health care delivery, education and government is the dispossession of Inuktitut in the face of federal, provincial and territorial legislation that empowers English and French even in our Inuktitut-dominated communities.

In this context, Mr. Obed addressed official languages while committee members were led to believe that his statement related to the amendment, which specifically concerns official language minority communities rather than official languages. The use of “official languages” and “official language minority communities” interchangeably by government officials and the bill’s sponsor created confusion when informing senators about the amendment’s impact on Indigenous peoples. Let me elaborate on the distinction between these two concepts.

[Translation]

Hon. Lucie Moncion: Honourable senators, I rise today at second reading of Bill C-35, An Act respecting early learning and child care in Canada. I welcome the arrival of this bill in the Senate because it delivers an essential blueprint for society that will allow Canadian parents, especially Canadian mothers, to access the labour market. For many mothers, accessing the labour market depends in large part on access to affordable child care.

[English]

The purpose of my speech is to shed light on the issues of equity in access to child care services for children belonging to official language minority communities. The enactment of this law is an opportunity to give ourselves the means to achieve our ambitions so that these children have access to early learning and child care services of equivalent quality to those of the English‑speaking majority.

For francophone parents, access to French-language child care services is a question of language survival in the context of the steady decline in the demographic weight of francophones in Canada. For these parents, the transmission of the language — from early childhood onward — enables their children to enter the French-language education continuum. Serving as a vehicle for linguistic and cultural transmission, early childhood education and child care services contribute to the survival and vitality of official language minority communities from generation to generation.

[Translation]

Protecting linguistic vitality through early childhood education is also a matter of rights for these communities.

Access to child care services in the language of the minority is key to the implementation of section 23 of the Canadian Charter of Rights and Freedoms, which guarantees the right to minority language education.

To give francophone children an equal chance at success, they must have access to educational services in French, beginning in early childhood. The early childhood learning environment prepares children for school by giving them the language skills that are essential to their scholastic and academic success.

The other side of the coin is assimilation. Before they even begin to speak, children who don’t have access to child care services in their language are faced with significant pressure to assimilate that could compromise their chances of living in French.

Practically speaking, if these children end up in anglophone child care facilities because they don’t have access to French services, their parents could end up sending them to an English school because they are worried that their child doesn’t have the language skills they need to succeed in a minority language school. That’s one of the factors that might explain why we are seeing the demographic weight of francophones in Canada dropping little by little.

Indeed, access to French-language education throughout the education continuum is a monumental challenge for many francophone parents in predominantly English-speaking provinces and territories.

In a 2016 report entitled Early Childhood: Fostering the Vitality of Francophone Minority Communities, the Office of the Commissioner of Official Languages highlights some of the important issues facing francophone parents. The report states the following:

Programs and services for young children have been developed with various systems of governance, funding streams and training for staff. As a result, families face a highly fragmented early childhood landscape of unconnected options, diverse eligibility criteria and payment requirements.

These comments from the commissioner suggest that the needs of francophone minority communities must be at the forefront in the development of a national system of early childhood learning and child care.

The legislative framework for this system should clearly include a commitment from the federal government to ensure solid core funding for these communities.

Let me give you a few figures to illustrate the disparities that currently exist in some provinces.

[English]

According to Statistics Canada’s 2021 census data, we have 141,635 children aged zero to four who are French-speaking rights holders under section 23 of the Canadian Charter of Rights and Freedoms. These children have a constitutional right to instruction in their language from early childhood. However, according to the Commission nationale des parents francophones, it’s estimated that only 20% of these children are served in French, as there are about 29,000 of these children in French‑language preschool daycare — it’s a difference of more than 110,000.

In New Brunswick, for example, 1,900 daycare spaces were announced — only 300 of these are reserved for francophones. This figure represents barely 16% of the population, whereas New Brunswick’s French-speaking population is around 30%. In Alberta, out of the 1,500 new spaces announced, only 19 are reserved for francophones — representing 0.013% of spaces for francophones, who account for 2% of Alberta’s population.

This is a trend observed across Canada, from province to province and territory to territory. According to data from Ontario’s Early Years and Child Care Annual Report 2022, there would be a shortfall of 36,567 French-language spaces to meet the needs of mother tongue French-speaking children in the province — not counting children whose first official language is French, but whose mother tongue is not French.

I propose to give you an overview of the bill as it relates to official language minority communities. It’s worth noting that the first version of the bill tabled in the House of Commons makes no mention of official language minority communities or official languages. This touches Quebec as much as it touches everywhere else in Canada. Needless to say, I was disappointed that the official language minority communities must constantly remain vigilant so as not to be forgotten by governments, whether provincial, territorial or federal.

[Translation]

Is that due to a lack of knowledge or an oversight of children’s language rights on the part of Employment and Social Development Canada, or a lack of collaboration between different departments, including Canadian Heritage?

I have in-depth knowledge of the modernization of the Official Languages Act, and I know that oversights like this one are, unfortunately, all too common within the government. We have to do better and expect better if official language minority communities are to be taken into account in legislation right from the start, when appropriate.

The bill was passed by the House of Commons Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities on May 2, 2023.

Thankfully, amendments made by the committee of the other place greatly improved the bill in that regard. These amendments reassured communities, but concerns still remain. The Commission nationale des parents francophones, or CNPF, and the Fédération des communautés francophones et acadienne du Canada, or FCFA, who speak for francophone parents in Canada, expressed their concerns about the legislation as it was passed in the other place, especially regarding the omission of official language minority communities, or OLMCs, in section 8.

Three amendments passed by the committee added mentions of OLMCs in the bill.

Clause 7 sets out the objectives of federal investments in the area of early learning and child care. An amendment was made to this clause by adding the words, “. . . and of children from English and French linguistic minority communities, that respect and value the diversity . . . .”

The second amendment adopted by the committee adds a paragraph to clause 7 that sets out the government’s commitments. The new clause specifies that:

Federal investments in respect of early learning and child care programs and services subject to an agreement entered into with a province must be guided by the commitments set out in the Official Languages Act

The third amendment amends clause 11, which has to do with the appointment of members of the National Advisory Council on Early Learning and Child Care. The amendment specifies that official language minority communities must be represented on the council. Indigenous peoples were also added to this clause in the same amendment. It is rather strange that this was omitted.

This clearly shows the importance of a strong, unambiguous legislative text.

The government already has many obligations under Part VII of the Official Languages Act when spending money on early childhood education. Despite the lack of investments, the envelopes related to this act are usually given to the Department of Canadian Heritage.

As I said earlier, the first version of the bill did not include official language minority communities. OLMCs have fallen through the cracks at the Department of Employment and Social Development. That’s why it’s important to be cautious in drafting legislation to govern how the department manages its funds.

That makes me wonder if the text of the bill, with the amendments by the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities, is sufficient to ensure implementation consistent with the language rights of OLMCs under section 23 of the Charter and with the government’s obligations under Part VII of the Official Languages Act.

Even though most of the bilateral agreements between the federal government and provincial and territorial governments include provisions designed to meet the needs of OLMCs, they’re vague and don’t include specific targets.

Official language minority communities know these agreements are fragile and temporary. These bilateral agreements are based on legislation that should be muscular and unambiguous.

These are the lessons we learned during our study of Bill C-13 to amend the Official Languages Act.

As far as implementing the act goes, the omission of OLMCs in certain sections can have an impact on programs rolled out by the government through the public service, policies resulting from the bill and the negotiation and implementation of future agreements with provinces and territories.

In terms of statutory interpretation, when considering a bill, legislators must also examine the interconnection between the actual text of the bill and how the courts may interpret it in the future. Statutory interpretation requires judges to take into account a series of weighted factors in order to determine the true or best meaning of an act’s wording.

With the judicialization of language conflicts in Canada, legislators have to take this exercise seriously and make the wording as clear as possible and as close as possible to its true intention. We have to take a close look at the impacts of omitting to mention OLMCs, notably in clause 8, which codifies the commitment to maintaining long-term funding for early learning and child care programs and services.

Bill C-35 could be improved to better consider the needs of OLMCs. I hope that my colleagues on the Standing Senate Committee on Social Affairs, Science and Technology will study this bill from the perspective of including official language minority communities, and francophones in particular.

I support sending this bill to committee as soon as possible.

Thank you for your attention.

Senator Moncion: Of course, Senator Cormier.

Senator Moncion: Thank you for the question.

I completely agree with you, senator. It’s important to hear from the people involved in those calculations because they can connect those dots for us — we’re running out of time, and I don’t know if senators want to give us a little more.

Senator Moncion: Thank you, colleagues.

The group that deals with that sent us the dollar amounts and number of child care spaces, and, yes, we’ll give you that information. We’re going to ask the Standing Senate Committee on Social Affairs, Science and Technology to invite those people because they really have a lot of information gathered from coast to coast to coast. These people, who are with the FCFA, will be able to provide guidance as we revise the act to ensure that it recognizes and enforces the rights of francophones outside Quebec and anglophones in Quebec.

I don’t think I answered your question fully, but I believe that, as we study this matter, we’ll monitor things carefully and some people will keep an eagle eye on the bill and its potential impact on francophone families outside Quebec and anglophone families in Quebec.

[English]