Mr. Speaker, as a member of Parliament who represents a great many anglophones, a minority community with unique needs in the Quebec context, I have studied Bill C-13 with a critical eye.
First, I would like to say that my community is not impressed by the Quebec government’s pre-emptive, and one could say almost perfunctory, use of the notwithstanding clause to escape judicial and political scrutiny of its recent language legislation, Bill 96, and its law on religious symbols, Bill 21.
Quebec anglophones have a unique political perspective because they are a minority within a minority. This makes the community particularly understanding of the importance of minority rights, including francophone minority rights. This perspective leads to an inherent sense of fairness and moderation among Quebec anglophones that makes the community wary of government overreach that can harm not just minority-language rights, but minority rights generally.
My colleague from Mount Royal has put it well. Section 1 of the Charter of Rights and Freedoms allows for an override of rights where reasonable in a democratic society. Recourse to the clause when section 1 is otherwise available but deemed insufficient by the legislator is by definition a tacit admission that rights are being unreasonably suppressed.
The timing of Bill C-13 unfortunately intersects with the Legault government’s heavy-handed approach to a legitimate objective, which is the strengthening of the French language against unrelenting pressures in the proverbial sea of English, pressures heightened by the new Internet-based communications technologies, a challenge our government is addressing through Bill C-11 and Bill C-18.
I believe Bill C-13 and Bill 96 have been conflated and a narrative has taken root that obscures key facts about this legislation and minority-language guarantees in Canada. Anglophones in Quebec have legitimate grievances with aspects of Bill 96, but Bill C-13 is not Bill 96.
As former Supreme Court Justice Michel Bastarache said, the objective in Bill C-13 is to give special attention to the French-speaking minority outside Quebec and it is not inconsistent with the interests of the anglophone community in Quebec. Let me quote the former Supreme Court justice:
I don’t really know what it is in the bill [Bill C-13] that worries them. I don’t think that promoting French takes anything away from anglophones.... One can help a community in trouble [that is, francophones outside Quebec] without harming another.... I don’t think the anglophone issue in Quebec has anything to do with the federal government, but rather the Quebec government.
That said, in my view, we could have done without the preamble in Bill C-13, with its reference to the Charter of the French Language, and the confusion and controversy this has sown. In fact, there was an attempt to remove the reference, but that attempt was blocked by the opposition parties in committee. One would not expect co-operation from the Conservatives or the Bloc, but the lack of support from the NDP was disappointing.
Bill C-13’s preamble refers to the fact of the existence of the Charter of the French Language, just as it also makes reference to iron-clad constitutional guarantees for minority-language communities across Canada, including the anglophone community in Quebec.
For example, the preamble states:
the Government of Canada is committed to enhancing the vitality and supporting the development of English and French linguistic minority communities—taking into account their uniqueness, diversity and historical and cultural contributions to Canadian society—as an integral part of the two official language communities of Canada, and to fostering full recognition and use of English and French in Canadian society;
Preambles, however, are not the substance of a law. They are not normative, nor determinative. In fact, they have not always been included in Canadian legislation. According to an article by Kent Roach in the McGill Law Journal, between 1985 and 1990, only nine statutes had long and substantive preambles. Since then, there has been an increasing trend to incorporate preambles into legislation. As Mr. Roach puts it, “Once departments and ministries saw their colleagues using preambles, this created a demand for more preambles.”
The same article outlined different types and uses of preambles. In some cases, preambles are meant as a recognition of “the complexity...of modern governance” and as “an appeal...to embrace tolerance and diversity as part of what it means to be Canadian.” Roach gives the example of the preamble of the Canadian Multiculturalism Act, which states that “the Government of Canada recognizes the diversity of Canadians as regards race, national or ethnic origin, colour and religion as a fundamental characteristic of Canadian society”.
He continues by saying, “The symbolic nature of preambles means that they are often concerned with the politics of recognition” and they “frequently recognize goals that are in some tension with each other.”
He then adds, “By definition, preambles will be better in securing expressive as opposed to instrumental purposes because they do not impose rights and duties.” Here is a final quote: “courts have frequently been reluctant to give great weight to preambles.”
This all sounds a lot like Bill C-13’s preamble. I will quote from the preamble: “the Government of Canada recognizes the diversity of the provincial and territorial language regimes that contribute to the advancement of the equality of status and use of English and French in Canadian society”.
In response to those who argue that preambles are interpretive, I would say that this is typically the case only when the body of the law in question is not clear, which is not the case with Bill C-13. I will quote British case law in Attorney-General v. Hanover: “It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail.”
I will quote Ruth Sullivan, from her book The Construction of Statutes, in chapter 14 on page 445: “Preambles must be measured against other indicators of legislative purpose or meaning, which may point in the same or a different direction. If there is a contradiction between the preamble and a substantive provision, the latter normally prevails.”
Finally, I will quote former Supreme Court Justice La Forest: “it would seem odd if general words in a preamble were to be given more weight than the specific provisions that deal with the matter.”
Bill C-13, in its body, is specific in its language, including with respect to the need to protect the interests of Quebec’s anglophone minority. This would avoid any confusion that would otherwise require the courts to rely on the bill’s preamble for interpretation.
For example, Bill C-13 would add, in black and white, the following to section 3 of the Official Languages Act: “For the purposes of this Act...language rights are to be given a large, liberal and purposive interpretation”. The body of the text also reiterates phrasing from the preamble on the federal government’s commitment to enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development.
This brings me to the fear that Bill C-13’s preamble endorses the pre-emptive use of the Constitution’s notwithstanding clause.
Some contend that the reference to the Charter of the French Language in the preamble of Bill C-13 endorses the Quebec government’s pre-emptive use of the clause, but the federal government has been clear that it does not approve of the pre-emptive use of the clause, whether against organized labour in Ontario or in both Bill 96 and Bill 21. The Attorney General has said clearly that the federal government will argue the point in court, specifically when Bill 21 reaches the Supreme Court.
Parliament also made its view known when it recently voted against the Bloc motion seeking to affirm the legitimacy of the pre-emptive use of the clause. I note that the Conservatives voted with the Bloc to support the motion affirming pre-emptive use. However, both together failed to carry the day.
These official parliamentary and governmental expressions of opposition to the pre-emptive use of the notwithstanding clause matter. As the Supreme Court said in 2023 in the case of Murray-Hall v. Quebec, “To analyze the purpose of a law, courts rely [also] on...extrinsic evidence, such as parliamentary debates and minutes of parliamentary committees”. This would include, in my view, statements by the government and votes in Parliament.
As such, there should be no confusion in a future court’s mind that the federal government has no intention of legitimizing Quebec’s pre-emptive use of the clause by referencing the Charter of the French Language in Bill C-13.
Finally, something that has been lost in this debate is that the notwithstanding clause cannot override minority-language education rights, nor the right to speak English in Quebec in the courts or in the National Assembly.
Some suggest that Bill C-13 would allow the Quebec government to ignore obligations to the anglophone community under federally funded programs delivered through negotiated agreements with the province, but those agreements are governed by section 20 of the Charter of Rights and Freedoms, which refers to the right of the public to communicate with and receive services from federal institutions in English and French, and by part IV of the Official Languages Act, which is meant to implement section 20.
Mr. Joël Godin (Portneuf—Jacques-Cartier, CPC):
Mr. Speaker, my colleague from Lac-Saint-Louis and I do not necessarily have the same views on this.
I would like to remind him that today, we are not debating the bill at third reading. We are debating the bill at report stage. The Liberals have moved 10 motions. I repeat that these motions should have been moved in committee when we were working on the amendments.
There has been some confusion, and the Liberals presented many duplicate amendments. These amendments were identical and when the Liberals presented them in committee, they had to rescind them. There seems to be a breakdown in communication in that party.
I would like to thank my colleague for recognizing the work that the official opposition accomplished in collaboration with the Bloc Québécois with respect to what was done in Quebec to recognize that in Quebec, the common language is French. It is a rather unique situation in North America. We need to recognize that in Quebec, the language that is vulnerable is French. I would like to know whether my colleague thinks that English is in danger in the Province of Quebec. That is a big question mark for me.
I have another example that illustrates the prevailing confusion. My colleague just spoke about the preamble. He is questioning whether it is valid and wondering if it will be recognized by the courts. This demonstrates the lack of clarity in the Liberal government’s work on the official languages bill. It is chaotic and messy. It is difficult to make heads or tails of it.
I would like my colleague to comment on that. I will listen carefully.
Mr. Speaker, I talked about the preamble to reassure my community that the government will not have the power to take away the rights of the anglophone community.
With respect to the anglophone community, the English language is obviously not under threat in North America. Nevertheless, a community can face challenges without its language being under threat. The anglophone community has many cultural institutions. It has its own arts scene and culture. For a community to feel at home, for a community to flourish, it must have access to these types of cultural institutions, for example, not to mention its educational institutions.
The action plan for official languages will help the community maintain institutions that it considers to be important. I believe that the member opposite must recognize this.
Mr. Luc Thériault (Montcalm, BQ):
Mr. Speaker, the more I hear the Liberals talk, the more discouraged I become.
They always confuse words and concepts, but these things matter. The member from Nova Scotia was speaking earlier about the anglophone minority in Quebec. In the same sentence, he was talking about the anglophone minority in Quebec and the court challenges program. Even the UN has said that there is no anglophone minority in Quebec. There is an anglophone community, which is part of the Canadian and North American majority. That is a fact.
Pierre Elliott Trudeau’s fantasy was to establish bilingualism throughout Canada. I have here a table from Statistics Canada that contains data on bilingualism in Canada from 1971 to 2021. In 1971, Canada’s bilingualism rate was barely 6%, and today it is 9%. The bilingualism rate in Quebec in 1971 was 26%, while in 2021 it was nearly 50%. After that, people want to tell me that the anglophone community deserves those levels of investment and that it feels threatened, even though it has universities and hospitals.
I challenge anyone to show me a francophone community that has as many services in the rest of Canada.
Mr. Speaker, the member brought up hospitals. I can say that I fully supported the efforts of Gisèle Lalonde, who recently passed away. She was the leading figure in the fight to maintain all services at Montfort Hospital, and she was able to use the court challenges program to lead that fight.
I want francophones outside Quebec to have their institutions. It is thanks to the Canadian Charter of Rights and Freedoms that they can have their schools. It is thanks to my colleague, the member from Nova Scotia, that the census will now include a question on rights holders. Obviously, this includes francophone rights holders outside Quebec.
