May 30, 2023
Honourable senators, I rise today to speak at second reading of Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts.
For years, Canada’s two official language minority communities, francophones outside Quebec and anglophones in Quebec, have sought to have the Official Languages Act updated. Bill C-13 modernizes the act and attempts to respond to these minorities’ needs and priorities.
However, these proposed changes are not minor and should not be adopted by us, colleagues, without thorough study. This bill rewrites half a century of official languages policy based on the bedrock principle that the two languages have equal status and rights in law. The clearly stated goal of the new policy is one of substantive equality.
As the Law Society of Ontario summarizes:
In Canada, court decisions at all levels make it clear that both the Charter of Rights and Freedoms** and human rights legislation aim to achieve “substantive” rather than a “formal” equality.
Substantive equality . . . requires “acknowledgment of and response to differences that members of a particular group might experience” in order to be treated equally.
The realities around the risks to French culture and language in Canada are significant. However, the changes in this bill do more than advance substantive equality — they put English-speaking minority communities in my home province at risk.
According to the 2021 census, English is the first official language spoken by over a million Quebecers. Approximately 600,000 live in the Montreal economic region, but there are small communities of English speakers throughout the province. For example, there are over 7,500 Quebecers whose first official language is English in Gaspésie—Îles-de-la-Madeleine; over 4,800 in the Côte-Nord; over 24,000 in Nord-du-Québec; over 3,300 in Mauricie; and over 5,400 in Abitibi-Témiscamingue. There are also English-speaking Quebecers in Bas-Saint-Laurent, Capitale-Nationale, Chaudière-Appalaches, Estrie, Centre-du-Québec, Montérégie, Laval, Lanaudière, Laurentides, Outaouais and the Saguenay-Lac-Saint-Jean.
The struggles of Quebec’s English-speaking communities are not well known. Fortunately, parliamentary committees have studied these issues twice in recent years. In 2011, the Standing Senate Committee on Official Languages released a report entitled, The Vitality of Quebec’s English-Speaking Communities: From Myth to Reality. And in 2018, the House of Commons Standing Committee on Official Languages released a report entitled, Toward a Real Commitment to the Vitality of Official Language Minority Communities.
Representatives of rural communities told our Official Languages Committee that it is difficult to access government services in English, that many young people leave and do not return and that economic prospects are poor for those who stay. We heard that the only English-language primary school in the Lower St. Lawrence has no gym, no music room and no library, and in some regions, students attending English schools spend as much as three hours a day on school buses.
Yet, as Graham Fraser, who was the Commissioner of Official Languages of Canada from 2006 to 2016, told the House committee in their study:
There is … a challenge when it comes to recognizing the reality of anglophone communities in Quebec. There is a sort of erroneous historical impression that the anglophone communities of Quebec are made up of rich landowners and are the owners of large corporations who live in Westmount and do not speak French. In fact, the statistics show that outside of Montreal, anglophones in communities all over Quebec are less prosperous and less educated than francophones, and have higher unemployment and poverty levels than francophones. They have exactly the same problems accessing government services in English as do francophone minorities elsewhere.
In 2021, in this context, the Quebec government introduced Bill 96, An Act respecting French, the official and common language of Québec. Passed in 2022, this bill amended Quebec’s Charter of the French Language. Most significantly, Bill 96 pre‑emptively invoked the “notwithstanding” clause to forestall any Canadian Charter of Rights and Freedoms challenges. This enables the Quebec government to override constitutionally guaranteed rights and freedoms without fear of court challenge.
It was then, in the context of the Quebec Charter of the French Language having been thus amended, that English-speaking Quebecers were disappointed and disturbed to find the Quebec charter itself referenced in the amendments to the Canadian Official Languages Act. The charter is referenced in Bill C-13 not only once but in three places. Most noteworthy is the reference in the bill’s purpose. These references do nothing to strengthen or promote the rights and freedoms of French‑speaking Canadians.
Though the bill references the constitutional provisions that apply to Quebec, Manitoba and New Brunswick, the Quebec Charter of the French Language is the only piece of provincial legislation mentioned by name. This is a problem because the charter could be further amended by a future Quebec government in ways that are even more harmful to the English-speaking community, yet the reference in our Official Languages Act would remain. This change also creates an asymmetry between the rights of official language minority communities, or OLMCs, within and outside Quebec.
As the Honourable Michel Bastarache, former justice of the Supreme Court of Canada, told the Senate Official Languages Committee during their most recent pre-study of Bill C-13:
I am personally opposed to a reference to a provincial act in a federal act. I believe that the federal language regime is very different from the provincial regime. The role of the Commissioner of Official Languages is very different from the role of the Office de la langue française. . . .
. . . The Quebec Official Language Act, with respect to languages other than French, is more a statute on non‑discrimination. It is not an act pertaining to the promotion of English, whereas the federal act promotes minority languages.
When the very purpose of each of the acts is not the same or not compatible, I can’t see the point of it. If the government agrees with certain provisions of the Quebec act, it merely needs to adopt those provisions itself.
Furthermore, because Bill C-13 integrates the Quebec Charter of the French Language into the Official Languages Act, it is said to de facto integrate and sanction the pre-emptive use of the “notwithstanding” clause. It is primarily for this reason, honourable colleagues, that this bill must be studied by our Legal and Constitutional Affairs Committee. We must carefully examine the potential ramifications of this novel endorsement.
The government was warned not to take this path. When Canadian Heritage released a reform document entitled English and French: Towards a substantive equality of official languages in Canada in 2021, the Commissioner of Official Languages, Raymond Théberge, responded:
I . . . share the concerns of Quebec’s English-speaking community that the addition of asymmetrical components to the Act will undermine the equal status of English and French. I therefore strongly recommend that the government focus on substantive equality rather than legislative asymmetry in order to protect OLMCs across Canada and foster the development and vitality of both of Canada’s official languages. This will help my office to intervene, when necessary, to maintain the important balance between our two official languages.
Despite the commissioner’s warning, the reference to the Quebec Charter of the French Language has been included in Bill C-13. It now falls to us in the Senate, colleagues, to study Justice Bastarache’s suggestion to remove the reference to the Quebec Charter of the French Language and instead insert those provisions that officials think should be added to our Canadian Official Languages Act.
Bill C-13 also enacts the use of French in federally regulated private businesses act. This new act sets out rights to communicate in French and obtain services in French from federally regulated private businesses and to carry out one’s work and be supervised in French in those businesses. This act will apply first to federally regulated private businesses in Quebec before being extended to those in regions with strong francophone presence.
Federally regulated private businesses include banks, ferries and buses that cross international or provincial borders as well as telecommunications, for example, telephone and internet companies. So, francophones — first in Quebec and then in regions with a strong francophone presence — will have the right to obtain services from and work in French in these businesses.
I note that the definition or quantification of a “strong francophone presence” remains to be defined in the regulations.
Furthermore, the new act states that federally regulated private businesses in Quebec can instead choose to be subject to the Quebec Charter of the French Language. This particular change underscores the asymmetries being introduced in Bill C-13.
Honourable senators, in closing, I urge all of you to consider that the Constitution gives the Senate two distinct tasks. The first is to act as a counterbalance or check for the cabinet and Commons. Our founders recognized the importance of protecting the right to political dissent from possible attacks by a majority embodied in the House of Commons.
The second is to represent the regions of Canada at the federal level. As former Quebec politician and professor Gil Rémillard and co-author Andrew Turner explain in an essay contained in Protecting Canadian Democracy: The Senate You Never Knew:
The Fathers . . . wanted to assign the Senate the important function of ensuring that minorities, originally the Anglophone population of Quebec and Francophone minorities in other provinces, would be represented in the Senate.
It was on this condition — that the Senate would protect the interests of minorities even when the majority in the House did not — that the Canadian bargain was struck. Protecting minorities, including the English-speaking minority in Quebec, is our raison d’être.
Honourable colleagues, this bill can be improved. It can be changed in minor ways that ensure the principle of substantive equality while protecting the rights of the English-speaking minority in Quebec. So I therefore ask that we do our jobs and send this bill for study to both the Standing Senate Committee on Official Languages and the Standing Senate Committee on Legal and Constitutional Affairs.