Hon. Marc Gold (Government Representative in the Senate): I will answer it. You are wrong, dead wrong. Once again, I wish that the opposition in this place was not —

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Klyne, bill referred to the Standing Senate Committee on Indigenous Peoples.)

On the Order:

Resuming debate on the motion of the Honourable Senator Gold, P.C., seconded by the Honourable Senator LaBoucane-Benson:

That the following Address be presented to Her Excellency the Governor General of Canada:

To Her Excellency the Right Honourable Mary May Simon, Chancellor and Principal Companion of the Order of Canada, Chancellor and Commander of the Order of Military Merit, Chancellor and Commander of the Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.

MAY IT PLEASE YOUR EXCELLENCY:

We, Her Majesty’s most loyal and dutiful subjects, the Senate of Canada in Parliament assembled, beg leave to offer our humble thanks to Your Excellency for the gracious Speech which Your Excellency has addressed to both Houses of Parliament.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read second time.)

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Klyne, bill referred to the Standing Senate Committee on Indigenous Peoples.)

On the Order:

Resuming debate on the motion of the Honourable Senator Gold, P.C., seconded by the Honourable Senator LaBoucane-Benson:

That the following Address be presented to Her Excellency the Governor General of Canada:

To Her Excellency the Right Honourable Mary May Simon, Chancellor and Principal Companion of the Order of Canada, Chancellor and Commander of the Order of Military Merit, Chancellor and Commander of the Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.

MAY IT PLEASE YOUR EXCELLENCY:

We, Her Majesty’s most loyal and dutiful subjects, the Senate of Canada in Parliament assembled, beg leave to offer our humble thanks to Your Excellency for the gracious Speech which Your Excellency has addressed to both Houses of Parliament.

Hon. Judith G. Seidman: 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. Thank you.

The Hon. the Speaker: Is that a question?

Some Hon. Senators: Yes.

[English]

The Hon. the Speaker: Is leave granted?

The Hon. the Speaker: The time has expired. Are you asking for five more minutes, Senator Seidman?

The Hon. the Speaker: Is that a question?

Hon. Tony Loffreda: Honourable senators, I rise today to speak to 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.

As a lifelong resident of Montreal whose third language is French, I felt personally compelled to say a few words on this bill.

[Translation]

First and foremost, I want to make sure there’s no doubt in people’s minds. I’m very proud to be a Quebecer, proud to speak French, proud to live in a province where French is the common language of the people and the official language. Most of all, I’m proud and honoured to represent Quebec in the Senate. I consider myself extremely fortunate to have been born and raised, to have been educated, to have had a career and to have raised a family in Quebec. I’m very grateful for that.

I want my message to be clear: I think protecting and promoting French in Quebec and across Canada is essential. The fact is, francophones are a minority in Canada, and we must do everything in our power to ensure the vitality of the French language.

My comments today have nothing to do with the need to better protect French language rights. On the contrary, I support and endorse the objectives of Bill C-13 and the gains it will provide to francophones as soon as it is passed.

Rather, I very humbly rise to defend another language minority in the country, the one we often forget, the anglophone minority in Quebec.

[English]

We all saw what happened in the other place a few weeks ago when the entire House voted in favour of Bill C-13 with one exception: Anthony Housefather, the Member of Parliament for Mount Royal, my neighbouring riding, who in good conscious voted against the bill.

Bill C-13 is a very important bill that will change linguistic rights in Canada. Amendments to the Official Languages Act are long overdue, and I congratulate the Senate’s Official Languages Committee for the comprehensive study it conducted on it a few years ago. I know that the study was very well received across the country.

My remarks today will focus exclusively on the inclusion of Quebec’s Charter of the French language in Bill C-13. Along with many in my community, I am concerned that the bill includes three references to the Charter. I am also a little disheartened that the bill is almost silent on English rights in Quebec, which begs the question: Has the government given up on a fully bilingual country?

I think most of us are quite familiar with the amendments made to the Charter of the French language with the passage of Bill 96 last June at the National Assembly of Quebec. English‑speaking minorities in Quebec felt targeted, and in some ways personally attacked, when the provincial government introduced and adopted that bill which pre-emptively used the “notwithstanding” clause — section 33 — of our Canadian Charter of Rights and Freedoms. Forty years ago, the late Morris Manning, a legal authority in Canada, was also uneasy about the inclusion of the “notwithstanding” clause in our Charter. He said:

If our freedom of conscience and religion can be taken away by a law which operates notwithstanding the Charter, if our rights to life and liberty can be taken not in accordance with the principles of fundamental justice, what freedom do we have?

Mr. Manning was onto something.

In my assessment, the intention behind the pre-emptive use of the clause is to avoid any challenge by those who would argue that Bill 96 is discriminatory or contrary to the Charter of Rights. As Mr. Housefather explained, this basically deprives Quebecers of their rights to go to court if their Charter rights are violated and to have the court order a remedy. In my humble opinion, if a government pre-emptively uses the clause, they know there is a potential for court challenges.

I understand that section 33 is part of our Charter, and governments have the right to use the “notwithstanding” clause, but I strongly believe using it should be as a last resort. Some of our colleagues in the other place agree. The Attorney General of Canada is not favourable to the pre-emptive use of the notwithstanding clause either. Last fall, when the Ontario government used the clause in a labour dispute, he clearly stated that section 33 of the Charter was meant to be a last word for a legislature, not a first word. He explained that using it pre‑emptively is exceedingly problematic and “completely eviscerates judicial scrutiny.”

His colleague the labour minister also thought the use of the clause on workers was used in a “cavalier manner” and was “an affront to democracy,” as it was only meant to be used “in the most extreme circumstances.” And yet, for whatever reason, the Government of Quebec, using section 33 in Bill 96, did not attract the same level of criticism. Why?

As John Ivison wrote in the National Post:

There is a place for the notwithstanding clause, but it should not be reached for by provincial justice ministers to camouflage the defects in their legislation.

As Russell Copeman, executive director of the Quebec English School Boards Association and a former MNA, said before our Official Languages Committee last fall:

 . . . I don’t think one succeeds in promoting and protecting a language — which one must do in Quebec — by reducing the rights and access to service of the linguistic minority community.

He goes on to explain that this is precisely what Bill 96 did. As he put it:

. . . that’s one of the reasons why many of us feel that the explicit reference to the Charter of the French Language, as amended by Bill 96, is inappropriate in Bill C-13.

I think it’s wrong — or, at the very least, rare and confusing — for a federal law to include a reference to a provincial law that uses the “notwithstanding” clause. I’m not a lawyer, so I can’t speak to the constitutionality of this inclusion. However, I am a legislator — like all of us here in this chamber — and I’m afraid the Liberal government may be establishing a troubling precedent and may be leading us down a slippery slope.

In fact, I would even argue that including the Quebec charter in the federal law is in some respects an endorsement of Bill 96, and some experts agree.

[Translation]

Before the House of Commons committee, attorney Janice Naymark raised a very interesting point about the reference to Quebec’s Charter of the French Language in Bill C-13. She suggested that this reference muddied the boundary between federal and provincial jurisdictions. She also said that by incorporating references to Quebec’s Charter of the French Language into the Official Languages Act, the federal government was indirectly supporting Quebec’s Bill 96 and, as such, was implicitly legitimizing it. You won’t be surprised to learn that I’ve been bombarded with email and calls from acquaintances, former colleagues and residents of Montreal who have expressed serious reservations about Bill C-13 since its introduction more than a year ago. I’m following this file closely.

[English]

In fact, I even had the opportunity to attend meetings of our Official Languages Committee last fall as it conducted its pre‑study of Bill C-13. When I asked Robert Leckey, Dean at the Faculty of Law at McGill University, to share his views on the inclusion of the Charter of the French Language in the bill, here is what he said:

One of the striking things about Bill C-13 is that it refers to the Charter of the French language. . . . It’s kind of elevating the Charter of the French language by treating it like it’s part of the Constitution, and to me, by the time you are doing that, if you are referring to it in such an approving fashion, I do think you are kind of putting Parliament’s stamp of approval on it.

[Translation]

Professor Leckey is not alone in this opinion. On October 3, the Standing Senate Committee on Official Languages heard from eminent jurist Michel Bastarache, former justice of the Supreme Court of Canada. Here’s what he said when I suggested that including a reference to Quebec’s Charter of the French Language in the Official Languages Act could be interpreted as indirect support from the federal government. He said, “I am personally opposed to a reference to a provincial act in a federal act.” Then he added the following:

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 these provisions itself.

For his part, Benoît Pelletier, Professor of Law at the University of Ottawa, former MNA and Minister responsible for Canadian Intergovernmental Affairs, Francophones within Canada and the Reform of Democratic Institutions in the Charest government, said he was, and I quote:

 . . . in favour of some reference to the application of the Charter of the French Language, including in a federal act.

Although his opinion differs from Justice Bastarache’s in this respect, Mr. Pelletier shares Mr. Leckey’s view that the reference to Quebec’s charter in the federal statute gives legitimacy to the provincial statute. If this is indeed the case, I still say that any reference to the provincial act should probably be removed from Bill C-13.

[English]

Just yesterday, I received a letter from the English Montreal School Board, or EMSB, reminding that the incorporation by reference of Quebec’s Charter of the French Language in the federal law represents a serious flaw. The EMSB is concerned that federal legislation would be subject to a provincial law and that other provinces could be free to legislate their own restrictions on official language minorities.

Honourable colleagues, how often are we reminded of our role as protectors and defenders of minorities? Senators are here to give a voice to the voiceless, which is why I felt compelled to share with you the legitimate and deep concerns of the English‑speaking minority in Quebec. We are not subjected to electoral constraints and pressures, and we are thus able to examine government legislation with the utmost openness and impartiality.

I have no doubt our Committee on Official Languages will take the necessary time to review Bill C-13 and I hope it will give serious consideration to the issue I raised today. And as Senator Seidman also advocated for in her speech, sending the bill to the Legal and Constitutional Affairs Committe should be explored. I say this not to delay the passage of the bill — I support the overarching intention of the bill — but I would feel much more comfortable if this legal and constitutional issue was properly and fully reviewed.

The Quebec Community Groups Network, or QCGN, a not‑for-profit organization linking English-language groups across Quebec, is also advocating for this. In a May 15 news release, it renewed its concerns with the law’s incorporation by reference to Quebec’s Charter of the French Language, arguing that:

It is in this provincial legislation where we find constraints to English-speaking Quebecers’ rights, and C-13 lends its support to that.

As Marc Garneau, who recently stepped down as my MP, reasoned, to incorporate a provincial law into a federal law “. . . is not logical, and it does not make for clarity.” We have a responsibility to seek that clarity.

I would invite us all to consider what Dean Leckey told us in committee on October 24, 2022, when referring to the inclusion of the “notwithstanding” clause in the Quebec Charter of the French Language. He reminded us that:

. . . the Charter of the French language in its current form . . . involves this sweeping override of all the Charter rights that are amenable to override in the Canadian Charter and all the rights in the Quebec Charter of human rights and freedoms that you can derogate from. That’s part of what the Charter of the French Language now means and represents.

He challenged all of us in committee: If that’s not what we want to endorse with the passage of Bill C-13 and if we don’t feel right about it, maybe we need to think about those references.

Perhaps it is up to us in the Senate to achieve what the House was unable to do when amendments to remove the references were defeated by the opposition parties. I earnestly implore us to examine these important constitutional issues judiciously, objectively and, as the QCGN puts it, in a “dispassionate manner.”

So far, I have heard no convincing argument as to why the references need to be included in the bill. On the contrary, to avoid any misunderstanding, to ensure clarity and logic and to reduce judicial confusion and complications, it might make more sense to remove the references altogether, which in no way would detract from the bill’s central objectives, even though some advance that their inclusion is completely inoffensive from a judicial point of view.

I remain steadfast in my belief that these references do nothing to promote the rights and freedoms of French-speaking Canadians, either in Quebec or elsewhere. It only harms the largest linguistic minority in the country.

[Translation]

Colleagues, I will close by reiterating my support for official language minority communities across Canada. Most importantly, I want to tell francophones and francophiles in Quebec that I sincerely believe in the need to protect French and that I hope that Bill C-13 will eventually be given Royal Assent. However, I want the bill to be properly studied in committee and for the concerns that I raised today to be thoroughly examined. Thank you.

The Hon. the Speaker: Is leave granted?

The Hon. the Speaker: The time has expired. Are you asking for five more minutes, Senator Seidman?

Hon. Percy E. Downe: I have one other question. In all your years here in the Senate and in all my years here in the Senate, I have never experienced before where the sponsor of the bill and the critic of the bill have been chair and deputy chair of a committee. Have you seen that before? Do you think that’s another reason it should go to the Legal Committee? I’m not questioning the qualification of the committee members. They are very competent as well. But I have never seen that before.

The Hon. the Speaker: Senator Seidman, your time has expired. There are two other senators who wanted to ask a question. Are you asking for more time?

Hon. Renée Dupuis: Senator Seidman, would you take another question?

The Hon. the Speaker: Senator Seidman, your time has expired. There are two other senators who wanted to ask a question. Are you asking for more time?