Hon. Tony Loffreda: Honourable senators, I rise today at third reading to speak to Bill C-13, an act for the substantive equality of Canada’s official languages.

I support the vision and intention of this bill, but not in its current state.

[Translation]

Let’s not forget that I’m a proud Quebecer. I am proud to live in a province where French is the common language of the people as well as the official language.

As I explained when I spoke at second reading, I’m simply concerned that including a reference to Quebec’s Charter of the French Language is highly problematic from both a bureaucratic and legal point of view. Quebec’s English-speaking community also shares my concern.

[English]

Many believe that the inclusion of Quebec’s Charter of the French language, which was recently amended with the passage of Bill 96 last year is a serious flaw in the current bill we have before us. I will not repeat everything I said in my second reading speech. My views are on the record, and I stand by those comments.

What worries me is that once this bill receives Royal Assent, the French charter will now be included in the Official Languages Act. This troubles me, because we all know that the charter includes the pre-emptive use of the notwithstanding clause. I continue to believe that pre-emptively invoking the notwithstanding clause is not the way for a government to govern.

I think our former senator colleague Joan Fraser summarized it elegantly when she appeared before our Official Languages Committee last week. She said:

As you know, the French-language charter was modified last year by Bill 96. It now pre-emptively invokes the “notwithstanding” clauses of both the constitutional Charter of Rights and Freedoms and Quebec’s own Charter of Human Rights and Freedoms. This has only been done once before — in Quebec’s Bill 21. The inclusion of references to the French-language charter in Bill C-13 thus tacitly accepts this pre-emptive use of the “notwithstanding” clause, and I submit that that should be of concern to all Canadians.

She goes on to say:

We know that arguments have been made, that including the Charter of the French Language in the Official Languages Act will not diminish the rights of English-speaking Quebecers. I suggest that those arguments were perhaps conceived before Bill C-13 was amended to include a reference to the Quebec law in the purpose clause of the Official Languages Act. Our legal assessment has always been that to mention Quebec’s French-language charter within the Official Languages Act does pose a danger to our community’s rights.

As I have urged during my second reading speech, and as Senator Fraser offered in committee:

. . . withdrawing the references to the Charter of the French Language from Bill C-13 would in no way diminish or abrogate the rights of, or support to, French-speaking minority communities. There is, however, danger in retaining those references — danger to the English-speaking community of Quebec and also danger in setting up an official-language regime that creates a precedent for other provinces to impose restrictions on their own linguistic minorities, as Quebec has done.

In response to a question from Senator Cormier, Marion Sandilands, a lawyer and member of the Quebec Community Groups Network explained that to see the Charter of French Language:

. . . referenced in the federal Official Languages Act, whose purpose before Bill C-13 was to protect and uphold minority language rights, is a contradiction.

Ms. Sandilands asks:

How can a provincial act that infringes constitutional language rights be referenced and upheld in the federal Official Languages Act?

She argues that:

. . . citing a provincial law that pre-emptively and sweepingly uses the notwithstanding clause . . . will make it very difficult for a court to accept submissions from the Attorney General of Canada if the Attorney General of Canada ever gets up and opposes the use of the “notwithstanding” clause in that manner. It is contradictory to, on the one hand, disclaim it and, on the other hand, endorse it in this bill.

With all due respect to the Minister of Official Languages, the answer she provided to Senator Gold last week during her appearance before the Official Languages Committee was not reassuring at all, despite her many efforts.

[Translation]

The minister told us, and I quote:

The reference to the Charter of the French Language in the bill is simply a description of the Quebec law. At no time do we say that we are in favour or not of the Charter of the French Language.

That doesn’t inspire confidence.

In my opinion, by including the charter in the Official Languages Act, the federal government is saying that it agrees with the charter and its content, even though some argue that it doesn’t constitute incorporation by reference.

I don’t buy into the argument that it’s simply a description of Quebec’s reality. In fact, it is the reality in Quebec and the provincial government’s use of the notwithstanding clause that is so worrisome and that poses a problem for anglophones in Quebec.

The minister also said that there was a lot of confusion when this bill was debated. I agree, and including the charter in the bill is only making things worse.

To avoid any confusion, I think that the reference to the charter should be removed from the bill entirely. In fact, I haven’t heard any argument so far that would justify including it in the federal legislation. We’ve been told over and over that it doesn’t infringe on the rights of anglophones, but no one is saying how it will help or benefit francophones in Quebec.

Why is the federal government insisting on keeping the references to the charter? In response to a question from Senator Mégie, the Commissioner of Official Languages, Raymond Théberge, explained that he shared the concerns of Quebec’s anglophone community and that he could see how this might create problems down the line.

He stated that there was a great deal of speculation. He asked the following question:

If changes are made to the charter at some point, will changes have to be made to the Official Languages Act?

That’s a very legitimate question that continues to create confusion and uncertainty.

[English]

The commissioner acknowledges that English speakers in Quebec have a right to be worried. The community has genuine concerns regarding the impacts of the bill on the community and in no way do we want to harm the promotion or protection of the French language in Quebec.

As Eva Ludvig of the QCGN said before the Official Languages Committee, “English-speaking Quebecers understand the challenge of protecting and promoting French and support efforts that genuinely seek to do so.” Anglophones truly do support increasing the use of the French language in the province, of protecting it and ensuring its vitality, provided their rights are not infringed upon or reduced.

In general terms, allophones and anglophones have integrated well into Quebec society, and many work hard to improve their knowledge of the French language and have embraced the culture.

In another op-ed I read recently on a different topic, I was inspired by its co-authors who wrote about the responsibility we have as members of the Senate to do the right thing with the legislative powers we have. They wrote:

As legislators, we believe that any legislative, regulatory or policy approach should at all times aim to advance rights rather than limit them.

I definitely agree.

Yet, here we are today on the verge of adopting a federal bill that basically signs off on a provincial law that many believe is harmful to Quebec’s English-speaking minority and that has limited its rights. Why are we holding the allophone and anglophone minorities in Montreal and throughout Quebec to a different standard than other minorities?

Again, I want to be clear: I support what Bill C-13 seeks to achieve. Its overarching goals are worthy and deserve our support. I simply want to remove the references to the charter that have many within the English-speaking minority in Quebec worried.

If we know the references to the charter will not contribute to the protection of the French language in Quebec or provide francophones any additional rights, yet we know that the English-speaking community completely opposes them and feels their rights are being breached and diminished, why not remove the references altogether?

I am reminded of what Dean Robert Leckey of McGill University Law School told the committee when referring to the inclusion of the “notwithstanding” clause in the Quebec language charter. He explained 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.

Dean Leckey challenged all of us. 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, then maybe we need to think about those references.

I, for one, do not feel right about it. I have given a lot of thought to those references. Including the references to the Quebec charter does not provide any additional protections to the French language in the federal law. Rather, if we adopt the bill as is, I feel Parliament will be putting its stamp of approval on a provincial law that is currently being challenged in the courts for its unconstitutionality and for its pre-emptive use of the “notwithstanding” clause. Personally, I cannot vote in favour of a bill with such an approach and endorsement, whether it be implicit or not.