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]