The Hon. the Speaker pro tempore: Senator Moncion, there appear to be two senators who wish to ask questions. Would you take some questions?

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): I tip my hat to you, Senator Moncion, for this initiative. Having worked in a university for more than 25 years, I understand the complexity and opacity of the way universities are funded, especially in the case of establishments that serve official language minority communities.

You effectively demonstrated that post-secondary education in the Canadian francophonie is in crisis. The collapse of Laurentian University, a bilingual institution, highlighted how vulnerable French language programs are across Canada.

Do you find that the structural challenges are preventing post-secondary education in French in francophone minority communities from enjoying the same conditions prevalent for the anglophone majority?

Hon. Lucie Moncion moved second reading of Bill S-215, An Act respecting measures in relation to the financial stability of post-secondary institutions.

She said: Honourable senators, I rise at second reading as the sponsor of Bill S-215, the Post-Secondary Institutions Bankruptcy Protection Act.

The post-secondary sector is an industry that generates $55 billion a year and represents roughly 2.4% of the national economy. The contribution of the post-secondary sector to Canada’s economy is considerable, and for francophone minority communities, it is colossal. Post-secondary institutions play an indispensable role in the economic, social and cultural development of communities. We must act now to save communities from the same fate as northern Ontario, with the restructuring of Laurentian University under the Companies’ Creditors Arrangement Act. The case of Laurentian University is a first. It sets a dangerous precedent, but above all, it is a call to action.

Well before the health crisis, many post-secondary institutions were in a precarious financial situation. We know that some of them have been suffering from chronic structural and operational underfunding for years. To cope with this situation, these institutions turn to volatile sources of funding and are often forced to make budget cuts that affect the programs they offer and jobs.

[English]

I am particularly concerned about the institutions serving francophone minority communities, which have the additional responsibility of fostering the vitality of the French language and francophone cultures across Canada. I’m thinking in particular of Laurentian University, Université de Moncton, the University of Alberta’s Campus Saint-Jean, Université de Saint-Boniface, Université de l’Ontario français, University of Sudbury, Université de Hearst and so forth.

The cuts at Laurentian University are compromising access to post-secondary education in French in northern Ontario. French programs that have been cut include engineering, political science, law, education, history, philosophy, literature, drama and midwifery.

Despite the emergence of institutions by and for francophones such as the University of Sudbury, which has clear unified community support, governments have been slow to act. For example, the Government of Ontario took over one year to intervene in the case of Laurentian University and only intervened because it was compelled to. Laurentian University was losing its operational funding, which would have accelerated the actual bankruptcy. This waiting game lasted a year with the Government of Ontario. In the meantime, the francophone community’s next generation is being undermined with devastating consequences to ensure that minority language communities have ownership and control over the institutions that support a strong and prosperous francophonie.

[Translation]

In an interview with ONFR+, Carol Jolin, president of the Assemblée de la francophonie de l’Ontario, reacted to the significant drop in applications to Laurentian University from francophones by saying, and I quote, “The message is clear: Our Franco-Ontarian youth have lost faith in Laurentian University.”

People no longer say “francophones at Université Laurentienne;” they just say “Laurentian University.” He also said, and I quote, “The exodus of northern youth to other parts of the province and the country has begun.”

I recently spoke to the president and vice-chancellor of the Université de Moncton, Denis Prud’homme. He explained that his institution runs a structural and operational deficit every year. Because of inflation, the Université de Moncton has to pay an extra $2 million to $3 million per year, which is not covered by the provincial funding framework. The deficit is already starting to affect programs, human resources, infrastructure and student services, including mental health. The Université de Moncton needs a solid funding base because project-based funding may be good for governments, but it’s not sustainable for small institutions. Competitions for federal subsidies have criteria that favour big universities because they have the capacity and resources to do large-scale projects.

For an institution that has few resources to begin with, project‑based funding requires additional effort to prepare and manage the project. Plus, it’s all temporary. He confided in me, saying:

It’s exhausting, destabilizing and unpredictable. We need core funding with cost-of-living indexing.

[English]

Looking at Laurentian’s situation, President Prud’homme told me that the only thing keeping the University of Moncton from a similar fate is the fact that every year, they take the difficult decisions to make cuts.

Out West, the situation at the University of Alberta’s Campus Saint-Jean is unsustainable. There, the money that the university gets in tuition is not based on actual enrolment numbers but instead on a quota. As a result, Campus Saint-Jean does not receive funding for at least one third of its enrolment. On top of the chronic operational and structural underfunding that has been going on for several years, the Alberta government announced budget cuts in 2019 and prohibits post-secondary institutions from using the reserve funds. For the University of Alberta, this is a cut of 34%.

For at least the past two years, the university has been going through a restructuring process and making several budget cuts that threaten Campus Saint-Jean’s very survival.

[Translation]

I recently spoke with the dean of Campus Saint-Jean, Pierre‑Yves Mocquais. He explained, and I quote:

There is a real trend towards centralizing the university, and this is constantly encroaching on the campus’ autonomy through a gradual erosion of its capacity to function as a francophone institution.

Campus Saint-Jean is treated as though it’s just another department, which is completely unrealistic considering its francophone mandate.

This crisis, which continues to this day, has led to civic action. The community is mobilizing to put pressure on governments through the “Save Saint-Jean” campaign. The budget cuts required to maintain the financial viability of the institution threaten the existence of entire programs and may force students to complete their degrees in English. The university has already laid off more than 1,000 people, and the layoffs continue.

In what the president of the Association canadienne-française de l’Alberta, or ACFA, described as a David-versus-Goliath battle, ACFA is advocating on behalf of the community to save Campus Saint-Jean by suing the Government of Alberta and the University of Alberta. To illustrate how lopsided this battle is, ACFA requested between $1 million and $1.3 million for the 2020 school year, while the Alberta government spent $1.5 million on legal fees to avoid providing this funding.

Several sectors have been affected by the pandemic, but it is too early to determine its actual impact on the financial viability of the post-secondary education sector in Canada. However, we have noted certain effects, particularly on the share of revenue generated by foreign students’ tuition fees, which dropped considerably because of the pandemic.

Bill S-215 seeks to prevent post-secondary institutions from becoming financially unstable and to improve the position of those on the brink in order to ensure the vitality and development of communities across the country.

[English]

In my speech today, I will first provide a general overview of post-secondary funding in Canada. I will then explain how funding issues are compounded when it comes to institutions providing French language minority education. I will bring attention to the problems with the legal status quo, including the ability of universities and colleges to make use of bankruptcy and insolvency law. This will provide context for my legislative proposal, Bill S-215, which calls for concrete and effective government action to address this crisis and prevent the use of inappropriate legal tools as part of the restructuring process. I will conclude by presenting some of the solutions proposed by stakeholders.

Funding the post-secondary sector. What does the sector’s funding look like and why is it cause for concern? The State of Postsecondary Education in Canada, 2021 report by Higher Education Strategy Associates reveals various trends seen in the sector over the past 20 years. Post-secondary funding comes from three main sources: government grants, tuition fees and private sources. Prior to the 2008-09 fiscal crisis, the three main sources of funding for post-secondary education grew by 5% per year on average. After the crisis, tuition fees, particularly those by international students, have played a significantly more important role. Tuition fees went from accounting for 19% of funding in 2000-01 to 29% in 2018-19.

What about government funding? Over the past 20 years, the portion of funding coming from provincial governments has decreased. Nationally, the provincial share, which was 43% in 2000-01, dropped to 35% in 2018-19. Federal funding has been stagnant since about 2008. In real dollars, funding for the Official Languages in Education Programs has been in steady decline.

The important thing to note is that proportionately, we are seeing the government steadily backing away from the post‑secondary sector. The decline is largely what is behind the sector’s precarious financial situation.

[Translation]

The Hon. the Speaker pro tempore: Senator Moncion, it is now 6 p.m. Pursuant to rule 3-3(1) and the order adopted on November 25, 2021, I’m obliged to leave the chair until 7 p.m. unless there is leave that the sitting continue.

Accordingly, the sitting is suspended until 7 p.m.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

[English]

On the Order:

Resuming debate on the motion of the Honourable Senator Moncion, seconded by the Honourable Senator Dean, for the second reading of Bill S-215, An Act respecting measures in relation to the financial stability of post-secondary institutions.

Hon. Lucie Moncion: Honourable senators, the important thing to note is that, proportionally, we are seeing the government steadily backing away from the post-secondary sector. This decline is largely what is behind the sector’s precarious financial situation.

Institutions are increasingly vulnerable to the ups and downs of Canada’s economy, and it is being left up to them to find reliable and sustainable sources of funding.

Then, on top of an already precarious financial situation, came the pandemic. According to the data collected by Statistics Canada and analyzed by the Library of Parliament, pandemic-related health measures have resulted in a significant decline in revenue for many universities, particularly from ancillary services. Examples include student housing, food services and parking.

Some universities anticipated deficits due to the pandemic and announced plans to cut operating costs. This was the case for the University of Ottawa, the University of Manitoba, Laurentian University, the University of Alberta and McGill University, among others.

In Ontario, tuition fees are replacing government funding as the primary source of revenue for colleges. In general, universities that rely heavily on international students for funding have suffered the most, such as those in British Columbia and Ontario.

In contrast, universities in Newfoundland and the territories are entirely publicly funded, shielding them from some of the negative impacts of the pandemic. Quebec’s universities are also predominantly publicly funded.

Clearly, larger institutions with robust funding structures and longer histories in communities able to support them have been faring better despite the pandemic. Typically, these are institutions serving the English-speaking majority.

[Translation]

I will now talk about funding for institutions serving official language minority communities. Things get more difficult when it comes to institutions that provide French-language programming in minority communities.

Canada’s 22 French-language colleges and universities face significant financial hardship. According to the Association des collèges et universités de la francophonie canadienne, or ACUFC, and I quote:

Structural challenges mean that French-language post‑secondary education in the FMCs does not benefit from conditions equivalent to those granted to the English-speaking majority.

The communities are waiting to see a move toward real equality in education.

Lynn Brouillette, Chief Executive Officer of the ACUFC, is asking us to come up with solutions to ensure the long-term sustainability of the sector. She said, and I quote:

Ad hoc measures are no longer enough to ensure the strength and well-being of this sector, which makes an enormous contribution to the vitality of francophone minority communities. The time has come to bring together those who care about the French-language post-secondary education sector in order to come up with sustainable solutions.

The president and lead researcher at Sociopol, Mariève Forest, who studied the French-language post-secondary education sector, said, and I quote, “Funding is the biggest challenge to the sustainability of French post-secondary education in minority communities.”

Volatile revenue is a threat to the sector’s long-term survival and has a direct impact on community vitality. The researcher noted that, in 2018-19, an estimated 30,000 francophones did their post-secondary studies in English, in part because of lack of access. At Laurentian University, the number of students wanting to study in French fell by 52% — 52% is a lot at Laurentian University — and that is for the northern Ontario campus.

Institutions serving francophones in a minority context are more fragile because they’re smaller. These institutions generally came along fairly recently, most of them in the 2000s, when the federal government introduced its Action Plan for Official Languages. Volatile revenue in that situation can mean the end of these institutions and especially the end of French-language programming.

Chiara Concini, a student in the second year of her B.A. at the University of Alberta’s Campus Saint-Jean, put it like this in an interview with Radio-Canada:

Now I can’t even finish my B.A. entirely in French. . . . Next year I’ll have to take some classes in English because they’re mandatory but not available at Saint-Jean.

[English]

This gap in the minority language education continuum is tragic. For francophones who have studied in French all their lives, being forced to study in English because of a lack of access is troubling.

The government’s increasingly hands-off approach forces a vision on post-secondary institutions that is strictly profit-driven, ignoring the other functions of post-secondary education that benefit communities. Institutions will, for example, focus on attracting greater numbers of international undergraduate students while neglecting to invest in research and less profitable programs, including French-language programs that typically have lower enrolment.

This growing privatization of post-secondary education is explained in the 2021 study on the “State of Postsecondary Education in Canada, 2021” by Higher Education Strategy Associates that I cited earlier. This is what the study says about the general trend towards privatization:

. . . Canada is moving further from a Western European model of a largely publicly funded system towards the model of other anglophone countries where postsecondary education may be mostly publicly owned, but it is ”publicly-aided“ rather than ”publicly-financed.”

[Translation]

This growing trend of relying on sources of private funding and tuition fees disproportionately disadvantages French-language minority institutions, which necessarily serve a smaller client base.

Charles Castonguay reminds us of the importance of demographics for the French fact in Canada. He said the following in his article entitled “L’intérêt particulier de la démographie pour le fait français au Canada,” or the significance of demographics for the French fact in Canada, and I quote:

The number shapes . . . virtually every aspect of life in French in Canada, from the quality of the spoken language to the availability of services in French, to the rate of anglicization and even to the way francophones perceive themselves and act as such.

I will step away from my text and tell you my story. I studied French my whole life, and I fought hard to study at university. I was living in the regions where we did not always have access to French-language universities. I took correspondence courses, I studied at Laurentian University, I moved to Sudbury to study in French.

During my French courses, when I was given books in English, I always complained saying, “I am taking a French course and the material is in English. Why is this material not available in French?”

I worked in a francophone community my entire life. That is very rare. I am a bit of an anomaly in the Ontario system. I’ve worked all over Ontario and always in French. I’ve tried to instill these values in my family, in the hopes that they would come to respect and understand the importance of the francophonie and the French language and also the importance of supporting our French-language institutions, through education, buying books, and so on. It’s such an important part of preserving a language. In my case, I was helping preserve the French language. I’m an anomaly in Ontario, I would say, since I’ve worked for 38 years exclusively in French. I don’t know whether there is anyone else in Ontario who has done that.

Universities and colleges in francophone minority communities do extra work to support the survival of the francophonie. To ensure that students can learn in French, it’s important that the university or college environment can foster linguistic security and that students can live a student experience in French outside the classroom.

However, the funding does not reflect the specific needs of minority communities and the long-standing catching up that needs to be done. In order to access additional funding, institutions must negotiate with their respective provincial governments. I will let you imagine how that works out with hostile governments or governments that don’t understand the challenges that francophone minority communities face. If you only knew how many university and college presidents are forced to lobby decision makers to get a little money so that the schools can meet the bottom line — it’s unbelievable.

Recruiting French-speaking students is also more complex. Francophone populations are often spread out and isolated. In terms of international recruitment, the centralized administrations of primarily anglophone institutions offering French-language programming do not always value or understand the importance of recruiting from francophone countries. This is a major challenge for Western Canadian institutions. The federal government also has a role to play here with respect to francophone immigration and recruitment.

Francophone communities are in the best position to understand their needs and challenges in post-secondary education. The example of Laurentian University has shown us that without the “by us, for us” approach, francophones risk being the worst hit when budget cuts need to be made. The restructuring of Laurentian University has been damaging in many ways, but francophones have suffered the most.

Let’s now turn our attention to the blind spot in post-secondary funding.

Researchers who study the issue of post-secondary funding and other stakeholders have long denounced, and with good reason, a lack of transparency and accountability with respect to federal transfers and provincial funding under agreements seeking to enhance the vitality of francophone minority communities.

[English]

It is important to understand that the financial picture of the sector I have presented is only a summary. It is incomplete not just to keep my speech from running too long but also in terms of academic and stakeholder knowledge. There are a lot of unknown variables, making it difficult to come up with solutions. We lose track of the funding when it is sent from the federal government to the provinces, and things get even murkier when it is sent to the various institutions.

For bilingual institutions in minority communities, we have no way of knowing whether, for example, federal money is actually being used to fund minority-language post-secondary education. Transfers from headquarters to the various programs or campuses are another unknown variable.

Funding earmarked for post-secondary education in the francophonie needs to be documented. The lack of transparency and accountability in federal transfers leaves many unanswered questions. This explains why the communities are reluctant to get excited about blank cheques sent to the provinces and why there were mixed reactions from the communities to the federal government’s announcement last August of $121.3 million to be invested over three years in support of minority-language post‑secondary education. Communities are calling for the ability to track the money and to hold governments accountable for the support they claim to provide.

[Translation]

Transparency and accountability are part of the solutions that can significantly help the financial viability of post-secondary institutions, and the federal government is fully aware of this. There is a way for the government to respect provincial jurisdictions while ensuring that its investments on behalf of the francophonie get to the right place, in accordance with its constitutional obligations.

At this time, I would like to speak to you about Bill S-215, which has two specific objectives.

First, it seeks to make the federal government responsible for finding solutions by requiring that it consult key stakeholders, specifically the communities and post-secondary institutions and, in particular, provincial governments.

Second, it seeks to prevent these institutions from having recourse to the Companies’ Creditors Arrangement Act, the CCAA, or the Bankruptcy and Insolvency Act to prevent situations similar to what happened with Laurentian University.

The bill proposes to require the designated minister to develop federal initiatives designed to reduce the risk that an institution becomes bankrupt or insolvent; protect students, faculty and staff in the event that an institution becomes bankrupt or insolvent; and support communities that would be impacted, if necessary. The minister must develop solutions in consultation with institutions, provincial and municipal governments, groups and associations of students, faculty and staff, and parties advocating on their behalf. Development of the proposal must be completed as soon as practicable, but no later than one year after the day on which it comes into force. The proposal must be tabled both in the House of Commons and the Senate and it must be made public.

The federal government could do the minimum or it could exceed our expectations. The provincial governments and the institutions must also be prepared to work with the federal government to find solutions. Stakeholders must all assume their responsibilities and work together in the best interests of the sector and their communities.

Second, the bill prevents the use of inappropriate legal tools, such as the CCAA or the Bankruptcy and Insolvency Act.

[English]

Facing insolvency, Laurentian University filed for protection under the Companies’ Creditors Arrangement Act on February 1 to begin a restructuring process. The fact that a publicly funded educational institution can use this act is appalling and sets a dangerous precedent.

However, Laurentian University’s situation is not unique. The case of Laurentian University is a wake-up call because this underfunding threatens the economic, social and cultural vitality of the communities as well as the constitutional rights of official language minorities.

To address this issue, the bill amends the Bankruptcy and Insolvency Act in clause 5 and the Companies’ Creditors Arrangement Act in clause 6 to exclude post-secondary educational institutions from the definitions of “corporation” and “company” under those acts respectively. The amendments to the BIA and CCAA only come into force on a day or days fixed by order of the Governor-in-Council, on recommendation of the minister that would be designated by the Governor-in-Council for the purposes of the act in clause 2. It would therefore prevent post-secondary institutions from using the BIA and CCAA when insolvent or bankrupt.

These legal tools are inadequate for this sector, more importantly, considering that their implementation — as we have seen with Laurentian University — is detrimental to the social, economic and cultural vitality of communities, especially in a minority context.

The bill provides a lot of flexibility to the government but forces it to act to address pressing issues. It also provides the government with a framework within to work and important elements to consider.

Among the possible solutions for the federal government to consider the ACUFC proposes the creation of a new permanent support program for francophone minority post-secondary institutions that would allow the federal government to intervene in needs categories related to areas under federal jurisdiction.

The government could also create a regime separate from the CCAA and the Bankruptcy and Insolvency Act to govern the restructuring of post-secondary institutions that run into difficulty. The restructuring process should consider the particular characteristics of the institutions concerned, including its role in serving official language minority communities and its importance to their vitality. It should promote a restructuring plan that considers the unique functions of post-secondary institutions and should include communities and other stakeholders in decision making. In other words, the interests of an institution that delivers programming in French cannot be represented by a Bay Street law firm that has no understanding of the language rights at stake.

Campus Saint-Jean is the only institution in Alberta that trains French-language teachers, a function essential to implementing section 23 of the Canadian Charter of Rights and Freedoms. According to counsel for Campus Saint-Jean, the right to an elementary and secondary education of a quality truly comparable to that of the majority is rendered meaningless if, in practice, the post-secondary infrastructure in place does not make it possible to train teachers and other staff needed to actually implement section 23.

[Translation]

Section 23 of the Charter guarantees a sliding scale of rights to instruction in the minority language. In her ruling regarding the Rose-des-Vents school in Vancouver, Justice Andromache Karakatsanis stated, and I quote:

What is paramount is that the educational experience of the children of s. 23 rights holders at the upper end of the sliding scale be of meaningfully similar quality to the educational experience of majority language students.

If we do not have teachers who have been trained in French‑language post-secondary institutions, how can we guarantee the exercise of these rights? We need to do everything in our power to keep Campus Saint-Jean from meeting the same fate as Laurentian University. The constitutional rights of francophones are in jeopardy.

To conclude, the bill that I am proposing seeks to make the federal government accountable and responsible for finding solutions and making decisions to help a sector in difficulty. The post-secondary institutions of official language minority communities are fundamental to their sustainability and survival.

Esteemed colleagues, we must act now if we are to protect the gains we have made with post-secondary education and to enhance the vitality of the Canadian francophonie. The survival of the linguistic and cultural heritage of our communities depends on it. Too often we end up preaching to the choir about the francophonie. However, we all have a responsibility to the Canadian francophonie and to the future of post-secondary education in French. The Commissioner of Official Languages wrote the following in a report entitled Learning from the Past, Shaping the Future: 50 Years of Official Languages in Canada:

Our unity is fragile, however. A lack of vigilance has led to complacency, which in turn has led to the erosion of language rights. And the less we talk about it, the more erosion will occur. But Canada needs to work on its own advancement as a nation. The recent actions of some governments are alarming, yet the greatest threat to Canada’s linguistic duality is indifference.

Linguistic duality is not just for Francophones, nor is it just for Anglophones in Quebec. It’s a valuable asset that belongs to all Canadians.

Colleagues, as senators, we have a duty not to remain indifferent to the needs of minorities. My Bill S-215 is a response to the heartfelt pleas from francophone minority communities. I am sharing the burden our communities have been carrying for far too long. Thank you for your attention.

Senator Moncion: Yes.

Hon. Paula Simons: Thank you very much, Senator Moncion. I’m glad you mentioned Campus Saint-Jean, which is dear to my heart.

[English]

But I want to understand exactly how this bill would help an institution like Campus Saint-Jean which is part of a larger university. Federal funding for Campus Saint-Jean; funding levels were frozen in 2002-03. Since that time, the francophone population of Edmonton and Alberta has skyrocketed. I believe at the time the funding was frozen we had something like 3,500 or 4,000 students enrolled in francophone schools in Alberta. Now it is closer to 10,000.

So I’m struggling to understand precisely how this bill would help an institution like Campus Saint-Jean, which is part of a larger anglophone university. It is never going to go bankrupt. It is never going to go out of business. Is there something in the legislation, a subtlety I’m missing, that would compel the federal government to increase funding for francophone universities outside of Quebec?

[Translation]

Senator Moncion: In the case of Campus Saint-Jean, if we look at the enrolment, there are currently close to 750 students, but it gets funding for only 450 students. The campus gets no funding at all for the other 300 students. It is already underfunded by the provincial government.

The other thing you asked is how the Bankruptcy and Insolvency Act can help. That’s the point of this bill. We want provincial governments to be accountable for their education responsibilities toward both anglophones and francophones.

Campus Saint-Jean’s situation is unusual because there is a main campus, which is anglophone and provides funding for the francophone group, but when there are cuts to be made all across campus, they cut deeper for the francophone campus.

One thing the University of Alberta can do is gradually reduce the resources available to Campus Saint-Jean so that it can no longer function. In the comments received from Dean Mocquais, we learned that they had no money to invest in infrastructure, so their laboratories are aging. Students want modern labs. Once they enter the labour market, they’ll be working in modern facilities. The campus doesn’t even have the money to improve its labs and its library. There are infrastructure problems. Campus Saint-Jean is being squeezed as much as possible, while the university keeps its funds for the main campus.

What can the federal government do? One of the solutions we propose is that federal government funding for francophone institutions go directly to the institutions rather than through the provincial government.

How can the Bankruptcy Act help Campus Saint-Jean? I’m not sure that it can, since Campus Saint-Jean depends on the University of Alberta, but by no longer being subject to the Bankruptcy and Insolvency Act, universities would no longer be able to use that mechanism to walk away from their creditors. The goal is to make provincial governments accountable and responsible. We also want to ensure adequate funding so that universities function optimally, so they can offer all the required services and so francophone universities get the funding they are due.

[English]

Senator Moncion: Thank you.

That is one of the elements. We would also like to ensure that the federal government is no longer able to use the mechanism through the provinces. There are certain areas, for example in health, where a sector receives federal money. A precedent was created, and we would like to see the federal government fund francophone initiatives such as Campus Saint-Jean so that the money is no longer channelled through the general campus.

That was one of the problems at Laurentian University, where there was a federation agreement. The main campus controlled the money and crumbs were given to partner campuses. There were three other campuses, including Huntington University and the University of Sudbury. The federation was dissolved and now four institutions are grappling with financial problems. However, Laurentian University continues to receive all the funding. We must find mechanisms for sending the money directly to the educational institutions.

We are also putting pressure on the federal government to ensure that funding for official languages programs is indexed annually so that post-secondary institutions will no longer be chronically underfunded.

Hon. René Cormier: I thank Senator Moncion for so eloquently speaking to the challenges facing universities in francophone minority communities.

Esteemed colleagues, I rise today to speak to Bill S-229, An Act to amend the Language Skills Act (Lieutenant Governor of New Brunswick), which was introduced in this chamber by Senator Carignan on December 1, 2021.

I want to acknowledge that I am speaking to you today from the unceded territory of the Algonquin Anishinaabe people.

Bill S-229 would guarantee that any person appointed to the office of Lieutenant-Governor of New Brunswick is able to understand and communicate clearly in the two official languages of our country, French and English.

In order to do so, Bill S-229 would amend section 2 of the Language Skills Act.

[English]

Section 2 of the Language Skills Act prescribes that a person must be able to speak and understand clearly both official languages to be appointed to some key offices, namely the Auditor General of Canada, the Chief Electoral Officer, the Commissioner of Official Languages of Canada, the Privacy Commissioner, the Information Commissioner, the Senate Ethics Officer, the Conflict of Interest and Ethics Commissioner, the Commissioner of Lobbying, the Public Sector Integrity Commissioner, the President of the Public Service Commission, and the Parliamentary Budget Officer.

Unquestionably, these various offices play a fundamental role in the governance of our country and in our Canadian socio-political landscape. In addition, while the individuals fulfilling these offices could rightly be considered as officers of Parliament — also called agents of Parliament — nothing in the Language Skills Act explicitly prevents Parliament from adding other positions. So, with Bill S-229, the position of Lieutenant-Governor of New Brunswick would simply be added to this illustrious list of important functions subject to the Language Skills Act.

[Translation]

As the critic for this bill, I looked at it from four different perspectives that I would like to share with you today: the historical context of the evolution of language rights in New Brunswick, the duties and responsibilities of the Lieutenant-Governor, the constitutional issues this bill raises, and the modernization and transparency of the appointment processes for the highest offices of this country.

In his speech at second reading on December 14, Senator Carignan gave various reasons why this bill should be passed. He talked about everything from the provisions of the Canadian Charter of Rights and Freedoms that confer unique status on New Brunswick in terms of language rights to the importance of promoting and protecting the French language by describing the specific historical context in which French acquired its status as one of New Brunswick’s two official languages.

In so doing, he noted that the creation of language obligations specific to New Brunswick, namely those set out in the Charter, was a way of moving away from a situation of “advanced diglossia” in that province, which he explained as a situation in which French had a “lower sociopolitical status.”

As an Acadian senator from New Brunswick, I obviously agree with this historical perspective and I support the intent behind Senator Carignan’s remarks. I would like to sincerely thank him for introducing this bill, which raises the importance of ensuring and promoting bilingualism in high-level public positions. This is a necessary bill that is more than symbolic for our two official language communities in New Brunswick.

That being said, notwithstanding my unwavering support for the main principles of Bill S-229, I cannot help but notice that it raises some complex issues, of a constitutional nature in particular, with regard to the appointment process for this position. After carefully examining the bill, conducting research and consulting an eminent constitutional expert, I wish to express some concerns about the feasibility of the bill. However, before I talk about these important points to consider, I would like to talk about the main reasons I support this bill at second reading.

As a province, New Brunswick is home to a unique socio-cultural, political and constitutional reality when it comes to the protection and promotion of bilingualism and linguistic duality. Since it is the only officially bilingual province in the country, one need only look at sections 16 to 20 of the Canadian Charter of Rights and Freedoms to understand that New Brunswick holds a unique place in Canada’s constitutional space. The Charter contains clear language provisions specific to New Brunswick. Among other things, it provides for the following:

English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

The English linguistic community and the French linguistic community in New Brunswick have . . . the right to distinct educational institutions and . . . distinct cultural institutions . . . .

Any member of the public in New Brunswick has the right to communicate with . . . any office of an institution of the legislature or government of New Brunswick in English or French.

New Brunswick actually recognized the principles stated in the Charter in its own Official Languages Act in 2002.

Esteemed colleagues, this recognition of New Brunswick’s special status in the Charter provisions did not happen by accident. It is the result of years of hard work and tenacity on the part of many New Brunswickers. I’d like to share two examples to illustrate that.

First, before 1981, the draft version of the Charter contained no paragraphs specific to New Brunswick. It was not until the Premier of Nova Scotia at the time, the Honourable Richard Hatfield, appeared before the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada that the federal Justice Minister at the time, the Right Honourable Jean Chrétien, decided to put forward New-Brunswick-specific amendments on the linguistic issue.

[English]

In committee, then-Premier Hatfield stated the following:

. . . it is possible and it is to the betterment and the advancement of the people to acknowledge and to enjoy the benefits of two languages and all that comes from that.

Although New Brunswick initially led the foundation for institutional bilingualism in 1969 with the enactment of its first Official Languages Act — a legislative initiative spearheaded by then-premier Louis Robichaud or, as we call him in Acadie, “Petit Louis” — it was the enactment of the Charter in 1982 that consolidated New Brunswick’s place within Canada’s constitutional framework — a remarkable feat by no stretch of the imagination.

[Translation]

However, esteemed colleagues, despite this progress, in 1982, the Charter still did not recognize the principles set out in the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, which had been passed in the province the year before and recognized the right of the francophone and anglophone linguistic communities to “distinct institutions.” It took determination on the part of New Brunswick’s premier at the time, Frank McKenna, to get the principles of this provincial statute enshrined in the Charter in 1993 with the addition of section 16.1.

[English]

Mr. McKenna once affirmed in committee that section 16.1 of the Charter would essentially make New Brunswick a distinct society. In my opinion, this notion of a distinct society is not only rooted in the Charter provisions but also embedded in the very fabric of New Brunswick society, socially and culturally.

[Translation]

The current demographic reality in New Brunswick clearly demonstrates this situation. In 2016, more than 31.9% of the New Brunswick population reported French as their first language, while English was the first language of 64.8% of the population. Some regions, like the Acadian Peninsula in the northeast of the province, have a high concentration of francophones, accounting for about 96% of the population, while other regions, for instance in the southwest of the province, are predominantly anglophone, accounting for about 98% of their population. In this respect, two distinct linguistic communities co-exist in New Brunswick. This still poses significant challenges, particularly with respect to the substantive equality of these two communities.

A recent report by the Canadian Institute for Research on Linguistic Minorities found that, and I quote:

The language vitality indices signal that the gap between the two official languages continues to widen, at the expense of French.

The report later states, and I quote:

The use of the official languages at work varied between the three levels of government present in the province in 2016 . . . . The higher the level of government, the more employees spoke mainly English, to the detriment of French. The percentage of public servants who spoke English most often increased from 74.5% among municipal and regional governments to 76.0% in the provincial government, and 79.2% in the federal government in New Brunswick.

[English]

While New Brunswick citizens have indeed acquired language rights, I should still remind this chamber that a right is not in itself a guarantee that both linguistic communities in that province will flourish equally in the future. A right by itself is meaningless without associated actions protecting and defending it.

The social contract binding New Brunswick citizens in their collective appreciation and understanding of bilingualism and linguistic duality needs to be sustained by direct actions. Like a living tree — if I may — it cannot survive entirely on its own.

Ensuring that the Lieutenant-Governor of New Brunswick speaks and comprehends both official languages is a critical step in maintaining and revitalizing the social cohesion among citizens of New Brunswick with respect to language rights.

Colleagues, it is with that reality in mind and through these very lenses that we should try to grasp the overarching objectives behind Senator Carignan’s proposed bill.

[Translation]

In this context, what role does the Lieutenant-Governor of New Brunswick play? As elsewhere, the Lieutenant-Governor of New Brunswick is the provincial representative of Her Majesty the Queen and serves the two linguistic communities of this province by taking on a number of official duties or traditional activities. The Lieutenant-Governor opens, prorogues and dissolves the legislative assembly, grants Royal Assent to all bills, gives the Speech from the Throne, participates in official ceremonies honouring the achievements of New Brunswickers, and welcomes members of the Royal Family, heads of state, ambassadors and other representatives of foreign countries, to name just a few. In addition to these official duties, the Lieutenant-Governor of New Brunswick is also a unifying symbol of the province.

Former lieutenant-governors, such as the Honourable Jocelyne Roy Vienneau, Herménégilde Chiasson, Gilbert Finn and Hédard Robichaud, performed their official duties admirably and also fostered stronger ties between the province’s two linguistic communities. Because they were able to speak and understand both official languages with all New Brunswickers, they helped strengthen the public’s appreciation for this high office and built linguistic and cultural bridges between the province’s French and English linguistic communities.

Also, in light of this reality, we can say that maintaining and promoting bilingualism and linguistic duality in New Brunswick represent true vectors of integration and democratization, which promote better social cohesion between citizens. That’s why it is only natural for the people of New Brunswick, the only officially bilingual province in Canada, to expect anyone who fills the position of lieutenant-governor to be able to clearly speak and understand both official languages, as set out in Bill S-229.

That being said, as I mentioned from the outset, this bill raises some complex questions, particularly of a constitutional nature, regarding the appointment process for this position, and they merit further study in committee.

[English]

Currently the Lieutenant-Governor of New Brunswick is appointed by the Governor General-in-Council according to section 58 of the Constitution Act, 1867, and usually for a period of five years. The term “Governor-in-Council” simply refers to the Governor General acting by and with the advice of the Queen’s Privy Council for Canada. Factually, the Privy Council’s advice is generally understood as made by the cabinet by means of an order-in-council; and yet, the appointment of a lieutenant-governor is specifically one made through an instrument of advice from the Prime Minister to the Governor General rather than through a cabinet process.

This power of recommendation reserved to the Prime Minister could be described as a special prerogative, as duly recognized in a 1935 order-in-council. In fact, the legal instrument also lists other special prerogatives of the Prime Minister, such as recommending the appointment of senators or the Speaker of the Senate.

[Translation]

Colleagues, in light of this information, can we establish a distinction between the Prime Minister’s power of recommendation, as stated in this order, and the Governor General’s power to make official appointments, as set out in section 58 of the Constitution Act, 1867? At first glance, the answer could be yes.

Paul Daly, the University Research Chair in Administrative Law and Governance at the University of Ottawa, has suggested, based on a United Kingdom Supreme Court ruling commonly referred to as Miller (No. 2), that it would be possible to make a distinction between the advice of a prime minister and the decision of a governor general, including when it comes to the process for appointing a lieutenant-governor.

In that case, how are we to interpret the scope of Bill S-229? Does it apply to the recommendation of the Canadian prime minister or the Governor General’s power to make official appointments?

In other words, does this bill act on the Constitution or on the so-called “special” prerogative of the Prime Minister? That is the question I have, and I would like to address it with you through two possible interpretations that seem to lead to different conclusions.

The first assumes that this bill would guide the process for appointing a Lieutenant-Governor of New Brunswick, as set out in section 58 of the Constitution Act, 1867. Formally, it is the Governor General, not the Prime Minister, who appoints a person to the position of lieutenant-governor, although it is true, as the 6th edition of Constitutional Law states, “that the governors essentially engage in solemn acts that authenticate certain government decisions.”

By making it a requirement that any person appointed to the office of Lieutenant-Governor of New Brunswick be bilingual, we could be undermining the office of the Governor General.

In order to make such a change at that level, we must consider subsection 41(a) of the Constitution Act, 1982, which states, and I quote:

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

Benoît Pelletier, the eminent legal scholar, constitutional expert and professor of law at the University of Ottawa, said the following:

 . . . Her Majesty and her official representatives are an integral part of the composition of these institutions and have many powers associated with them. This status and these powers could only be assigned in accordance with subsection 41(a) of the 1982 Act.

On that basis, is it possible that Bill S-229 could affect the powers of one of the official representatives of Her Majesty the Queen, namely the Governor General? At first glance and from what we just heard, that could be the case.

In his speech at second reading, Senator Carignan explained that section 12 of the Constitution Act, 1867, “clearly gives Parliament the power to amend, through simple legislation, the powers to appoint the Governor General.”

In light of Professor Pelletier’s observations concerning paragraph 41(a) of the Constitution Act, 1982, can we support Senator Carignan’s interpretation? I think we need to ask that question and examine it more closely.

The second possible interpretation of Bill S-229 that I would like to discuss with you assumes that it would regulate the recommendation process used by the Prime Minister within the meaning of the 1935 order-in-council.

As I mentioned earlier, it is actually the Prime Minister, not the Governor General, who recommends someone for the position of lieutenant-governor. If we look at it that way, the bill would likely force the Prime Minister to recommend someone who is proficient in both official languages.

Again according to Professor Pelletier, it would be possible to limit the Prime Minister’s discretion or prerogative because, while that discretion or prerogative is constitutional, it is still derived from conventions “which are not, strictly speaking, rules of law.”

What exactly is a “constitutional convention?”

Appearing before the Special Senate Committee on Senate Modernization, law professor Kate Glover reminded us that constitutional conventions are, and I quote:

 . . . political creatures that have three features. First, there has to be a precedent. Second, it has to be experienced as normative or obligatory by the political actors. Third, there has to be a reason justifying the rule or practice.

In the same vein, Chief Justice Laskin of the Supreme Court of Canada and Justices Estey and McIntyre stated the following in Re: Resolution to amend the Constitution:

 . . . a fundamental difference between the legal, that is the statutory and common law rules of the constitution, and the conventional rules is that, while a breach of the legal rules, whether of statutory or common law nature, has a legal consequence in that it will be restrained by the courts, no such sanction exists for breach or non-observance of the conventional rules. . . . The sanction for non-observance of a convention is political in that disregard of a convention may lead to political defeat, to loss of office, or to other political consequences, but it will not engage the attention of the courts which are limited to matters of law alone.

“If” — and I do mean “if” — the Prime Minister’s power to recommend arises from a constitutional convention as understood by Professor Pelletier, and “if” Bill S-229 truly does infringe on or limit the Prime Minister’s discretion, the drawbacks of this bill would be more political than anything else.

Honourable senators, without seeking to undermine the purpose of Bill S-229, which is particularly advantageous for New Brunswick’s two linguistic communities, I do have some questions that are worth going into and that should be studied in committee by subject-matter experts such as Professor Pelletier.

[English]

To put it mildly, I totally agree with the intention of Bill S-229, but we need clarity so as to avoid any unintended negative effects that would undermine its implementation. We must do it right, colleagues.

With that in mind, I’m now turning to the fourth and final point of my speech, which is that this bill raises the transparent nature of the appointment process of the lieutenant-governor. Again, colleagues, please indulge me for a few moments while I share my thoughts on the matter.

[Translation]

On December 15, 2021, while asking the Government Representative in the Senate a question about the upcoming Senate appointments, I reminded the chamber that an independent advisory board is mandated to “provide non-binding merit-based recommendations to the Prime Minister on Senate nominations.”

I also said that:

 . . . the board members seek to support the Government of Canada’s intent “to ensure representation of . . . linguistic, minority and ethnic communities in the Senate.”

What about the process of appointing a lieutenant-governor? Should an advisory committee be struck to ensure a transparent and open process?

In 2012, Prime Minister Harper created the Advisory Committee on Vice-Regal Appointments, which would, and I quote:

 . . . provide non-binding recommendations to the Prime Minister on the selection of the Governor General, Lieutenant Governors and Territorial Commissioners.

One of the interesting features of this committee, which is similar to the process for appointing senators, was its composition. It was composed of individuals from outside of government, the idea being that when it came time to appoint a lieutenant-governor, there would be a selection of temporary members from the province in question, thereby adding a regional perspective.

However, that committee has not met since 2015. Instead, it is the Prime Minister’s Office, in collaboration with the Privy Council Office, that searches for candidates for such appointments.

Colleagues, public trust is one of the cornerstones of our system of parliamentary governance. We must ensure that our decisions are made within a framework of openness, accountability and transparency. The vitality of our democratic institutions depends greatly on this.

These major principles are at the heart of my parliamentary commitments as the second vice-president of the ParlAmericas Open Parliament Network.

Canada is an important member of this network, which promotes legislative openness through efforts to increase transparency and access to public information, strengthen the accountability of democratic institutions, promote the participation of citizens in legislative decision-making, and ensure a culture of ethical behaviour and probity in the national legislatures of the Americas and the Caribbean.

Following up on these comments, it may perhaps be appropriate to formalize, with a law for example, a mechanism such as that of the 2012 advisory committee, to make it permanent and stable. This tool would ensure that current and future prime ministers are accountable, and this mechanism could complement the objectives of Bill S-299.

[English]

In conclusion, honourable senators, I indicated at the beginning of the speech that I would approach the bill from four aspects. In fact, there is a fifth aspect underlying this analysis, which is more profound and central to our country’s identity. This dimension touches on our ability as a country to truly recognize the place of Indigenous peoples in the foundation of Canada.

Unfortunately, this matter goes beyond debating a piece of legislation about the official language requirements of a lieutenant-governor. This is a complex issue that needs to be examined in depth in a broader context.

In the spirit of truth and reconciliation, I recognize that, as parliamentarians, we must strive to support and promote the use of Indigenous languages, as indicated in the Indigenous Languages Act, and it is the responsibility of all of us to do better, to do more, and to engage actively in real dialogue, in a space free of prejudice and judgment of one another. Honourable senators, I sincerely look forward to participating in that conversation with you and with all Canadians.

[Translation]

I will conclude by quoting the Commissioner of Official Languages, Raymond Théberge, who stated the following in an article published for the fiftieth anniversary of the Official Languages Act:

Both official languages, English and French, are at the heart of our Canadian identity. They are at the core of our history. Together with Indigenous languages, Canada’s true first languages, they are the foundation of the values of diversity and inclusion in our society. Indigenous languages are an important part of Canada’s cultural landscape. In the spirit of reconciliation and in accordance with the fundamental values that unite us, all Canadians can support their country’s first languages and their country’s official languages.

Thank you. Meegwetch.

Senator Moncion: Absolutely. This has been going on for a long time. Education in francophone minority communities is underfunded. There are no equivalents, including when it comes to infrastructure.

Earlier I talked about research laboratories. There is not a lot of funding for specific research in French. It is a poor community. Post-secondary institutions that provide education in French or have a French campus have been getting by with very little for a long time. They perform miracles, as far as I am concerned, since they continue to offer top-notch courses. They have few resources for expanding and gaining the recognition of major universities. They are the poor relations of education.

(On motion of Senator Plett, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Carignan, P.C., seconded by the Honourable Senator Housakos, for the second reading of Bill S-229, An Act to amend the Language Skills Act (Lieutenant Governor of New Brunswick).