Hon. Lucie Moncion: Honourable senators, I rise today to speak on the unceded territory of the Anishinaabe Algonquin Nation at third reading of Bill C-13, an act for the substantive equality of Canada’s official languages.

In speaking to this bill, I must once again acknowledge the colonial nature of official languages and point out the importance of supporting Indigenous people in the reclamation, revitalization and strengthening of Indigenous languages in Canada.

We know that the time to review the Indigenous Languages Act is quickly approaching. I would like to remind senators, as we also did in the report of the Standing Senate Committee on Official Languages, that this act provides for an independent review within five years of its coming into force, which was on June 21, 2019.

It will be our duty to vigilantly monitor that work to make sure that it is done in accordance with the requirements of the act, and especially in accordance with the principles of the United Nations Declaration on the Rights of Indigenous Peoples. More specifically, our report indicates that this work must be done in the following manner, and I quote:

In the spirit of reconciliation and decolonization, your committee expects the federal government to meet — and exceed — minimum legal expectations in respecting the governance and self-determination rights of Canada’s Indigenous peoples.

[English]

The decolonization of Canada’s language rights regime, as called for in our Official Languages Committee report, cannot be achieved within the restrictive framework of the Official Languages Act. This work requires adequate time and space, as my colleague Senator Cormier, the bill’s sponsor, explained in his speech in reference to Warren Newman, Senior General Counsel, Constitutional, Administrative and International Law Section at the Department of Justice Canada, during his testimony before our committee.

In the context of the development of identity-related legislation, Mr. Newman told us that we must respect the different fields of application and the raison d’être of each act, which shall be interpreted in a harmonious and complementary manner.

These principles of interpretation allow me to be optimistic about the future of Indigenous languages. Official language minority communities will be allies in the cause, knowing full well the role of language in the construction — or even reconstruction — of identity. We are and will remain in solidarity with Canada’s Indigenous peoples.

[Translation]

This brings me to the decline of French in Canada, and a justifiably asymmetrical approach. This steady decline in the demographic weight of francophones in the country has pushed the government to propose a reform with an asymmetrical approach.

Although this principle has long been recognized in jurisprudence, it has arguably always been theoretical or even unrealistic in its implementation.

A simple reading of the extensive jurisprudence illustrates the systemic unequal relationship between official language minorities and the majority in a given province. Inequalities are worse when the minority language is French.

Along with a remedial nature and a broad, liberal interpretation of language rights, the principle of substantive equality is one of the key principles for interpreting the provisions of Bill C-13.

By proposing this asymmetrical approach, the government is trying to give meaning to the principle of substantive equality between the two languages, knowing that the vulnerability and fragility of the French language in Canada and North America legitimize and justify this approach.

In an article published today in the newspaper Francopresse, François Larocque, the University of Ottawa Research Chair on Language Rights, was quoted as saying:

To achieve substantive, not formal, equality, we need to do more for the more vulnerable side.

He is convinced that:

 . . . the generic reference to the Charter [of the French Language] will not erase more than 40 years of jurisprudence . . . . Principles of interpretation have been established and will not disappear [because of the reference to the charter].

[English]

This asymmetry is particularly disturbing for Quebec anglophones, who have many concerns and views diametrically opposed to those of their provincial government. I understand their concerns, as I belong to an official language minority community. Provincial policy can, indeed, be crushing for official language minorities. We must therefore remain vigilant.

During the pre-study, our committee received contradictory testimony and briefs on whether it would be appropriate to include a reference to the Charter of the French Language in the Official Languages Act and in the use of French in federally regulated private businesses act. How, you may ask, do we sort out these positions? It was the other place, really, that decided that question.

[Translation]

The grievances of both official language communities in Quebec monopolized proceedings in the other place, which then delayed the bill’s arrival in the Senate. The passage of Bill C-13 by the House of Commons was fraught with uncertainty for several weeks, but an agreement on 11 amendments between the Government of Quebec and the Liberal government unblocked this bill.

I respect the legitimacy, urgency and importance of studying and debating these issues. However, the length of the debate on the situation in Quebec definitely limited the legislator’s ability to pay equal attention to the linguistic rights of official language minorities elsewhere in the country.

The Senate has been studying this matter for a very long time and we understand it very well. That is fortunate, because otherwise it would have been impossible for us to vote on such a bill, which had many amendments in the other place, after less than eight hours of study in committee.

Esteemed colleagues, you will see that I am satisfied with Bill C-13 and its amendments. I mentioned that in my speech at second reading. However, because I care so much about francophone and minority language rights, I must say how disappointed and displeased I am that the Senate was given a very limited amount of time to study the bill.

We all know it: The end of the session is approaching, and several bills must cross the finish line before the Senate adjourns for the summer. I feel uneasy about studying a bill under these circumstances, particularly one that will have such a major impact on official language minorities and on the survival of a language, a culture and an identity, however pluralistic, diverse and colourful it may be.

As a counterweight to the House of Commons, the upper chamber is mandated to look after the rights and interests of minorities and regions by acting as a chamber of sober second thought. This work complements that of the lower house, which is made up of elected representatives, and where partisanship reigns.

[English]

Discussions in the committee in the other place have sometimes given the impression that the understanding of Canadian bilingualism is no more advanced than it was when Hugh MacLennan wrote Two Solitudes in 1945. I would hope that this notion is now outdated, and that we aspire to a less divided vision of Canadian society. By listening to each other, understanding each other’s grievances and empathizing with the most vulnerable groups, we can counter these tendencies towards divisive identity and language politics.

Despite this dissatisfaction with the process, I would like to express my strong support for this bill, as its adoption is vital to the survival of our communities.

[Translation]

In 1997, Justice L’Heureux-Dubé, in the Supreme Court of Canada’s decision in Lifchus, gave an eloquent metaphor for bilingualism and minority rights by offering a more unifying vision than MacLennan’s two solitudes.

She said, and I quote:

Bilingualism and minority language rights are forever as closely linked as Romeo with Juliet or Oberon with Titania and they must be presented together as a unit.

As I tried to show at second reading, Bill C-13 is of capital importance to the survival of francophone minority communities. Canadian bilingualism is the bearer of the rights of its linguistic minorities.

In a more optimistic spirit, I’d like to share another observation that is in the report of the Standing Senate Committee on Official Languages and has to do with the Official Languages Act keeping vigil.

This allays the concerns I just talked to you about and seems especially important for what comes next. As the Commissioner of Official Languages reminded us during our study in committee, we have a bill that, although imperfect, is very acceptable. Now, it will be important for the government to have an effective and comprehensive mechanism for overseeing the implementation of this legislation.

This mechanism should assess compliance by entities subject to the act with its various provisions and include appropriate indicators, particularly the demographic weight of francophone minorities and the enumeration of the children of rights-holders. This oversight role will be exercised mainly by the Treasury Board, but also by the commissioner, with the support of Statistics Canada primarily through the short-form census.

The Standing Senate Committee on Official Languages could also provide this oversight by inviting the different departments and stakeholders to appear. This will make it possible to provide timely follow-up and identify trends in the demographic weight of francophones and the enumeration of the children of rights-holders.

Esteemed colleagues, the work is just beginning, or, actually, beginning again. However, this time it is no longer utopian and we have a real chance of success. Surviving as a francophone in a minority situation means being constantly vigilant and worrying about preserving one’s language from one generation to the next when confronted with the many different pressures to assimilate and to conform to the anglonormativity found across the country.

It could be a lack of services provided in French by an entity subject to the act. However, sometimes and quite often, the injustices are more pernicious and harmful when it comes to health services, the numerous and costly barriers to asserting our rights in court, or the lack of access to a continuum of education in one’s mother tongue in one’s home region.

On that subject, I would like to quote from the 2020 decision of the Supreme Court in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, which reminds us of the raison d’être of section 23 of the Canadian Charter of Rights and Freedoms:

A school is much more than just a place to pass on theoretical and practical knowledge. It is also a setting for socialization where students can converse with one another and develop their potential in their own language and, in using it, familiarize themselves with their culture. That is the spirit in which the right to receive instruction in one of Canada’s official languages was elevated to constitutional status by means of s. 23 of the Canadian Charter of Rights and Freedoms . . . .

It’s important to give credit where credit is due. The Senate, and in particular the Official Languages Committee, whose chair, Senator Cormier, I congratulate, has laid the foundations for this legislative reform. We successfully presented the organizing principles for a piece of legislation that could effectively reverse the downward trend in the demographic weight of francophones and improve access to education in the minority language, which makes me optimistic for the future of our communities and their survival.

Colleagues, I encourage you to vote in favour of this bill, while recognizing that the process has been imperfect and that, in future, it would be wise to respect the unique role of the upper chamber, which legislates with particular attention to the interests of minorities and the regions.

In closing, please allow me to borrow the words of Yves Duteil in his song La langue de chez nous:

It is a beautiful language with splendid words

whose history can be traced in its variations . . .

It is a beautiful language to those who know how to defend it

It offers treasures of untold richness . . .

Bill C-13 allows us as francophones to take our place, today and in the future, so that we can create a better tomorrow by reaching out to one another. Thank you very much.

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.