Document Information

Date: 1980-11-17
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 6 (17 November 1980).
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SENATE
HOUSE OF COMMONS

Issue No. 6

Monday, November 17, 1980

Joint Chairmen:
Senator Harry Hays
Serge Joyal, M.P.

Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons an the

Constitution of Canada

RESPECTING:

The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980.

WITNESS:

(See back cover)

First Session of the
Thirty-second Parliament, 1980

SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

Joint Chairmen:
Senator Harry Hays
Serge Joyal, M.P.

Representing the Senate:

Senators:

Asselin
Austin
Goldenberg
Lamontagne
Lapointe
Molgat
Petten
Roblin
Tremblay—(10)

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Crombie
Epp
Fraser
Henderson
Irwin
Knowles
Lapierre
Mackasey
McGrath
Nystrom—(15)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(b) of the House of Commons:

On Monday, November 17, 1980:

Mr. Knowles replaced Mr. Robinson (Burnaby).

Pursuant to an order of the Senate adopted November 5, 1980:

Senator Carl Goldenberg replaced Senator F. McGrand;
Senator Gildas Molgat replaced Senator Paul Lucier;
Senator Renaude Lapointe replaced Senator John J. Connolly;
Senator Martial Asselin replaced Senator Richard Donahoe.

[Page 3]

ORDER OF REFERENCE OF THE SENATE

Extract from the Minutes of the Proceedings of the Senate, November 13, 1980:

“With leave of the Senate,

The Honourable Senator Frith moved, seconded by the Honourable Senator McIlraith, P.C.:

That the Senate do unite with the House of Commons in approving the television and radio broadcasting of the proceedings of the Special Joint Committee on the Constitution of Canada on the basis of the same principles and practice, mutatis mutandis, governing the broadcasting of the proceedings of the House of Commons, including the concept of “electronic Hansard”, provided that any subcommittee of the said Committee, shall not be broadcast by television, but shall be broadcast by radio, except the Subcommittee on Agenda, which shall not be broadcast;

That it be an instruction to the Committee that it undertake the aforementioned action as soon as physically possible without disturbing the proceedings of the Committee now undertaken or planned;

That it be an instruction to the Committee that all decisions concerning the implementation of this Order shall be taken only by the Committee’s Subcommittee on Agenda; and

That a Message be sent to the House of Commons to inform that House accordingly.

The question being put on the motion, it was—
Resolved in the affirmative.”

Robert Fortier
Clerk of the Senate

[Page 4]

Thursday, November 13, 1980

ORDERED,—That, further to the resolution of this House of January 25, 1977, as subsequently implemented, this House approves the television and radio braodcasting of the proceedings of the Special Joint Committee on the Constitution on the basis of the same principles and practice, mutatis mutandis, governing the broadcasting of the proceedings of the House of Commons. including the concept of «electronic Hansard», provided that any subcommittee of the said Committee, shall not be broadcast by television, but shall be broadcast by radio, except the subcommittee on Agenda, which shall not be broadcast;

That it be an instruction to the Committee that it undertake the aforementioned action as soon as physically possible without disturbing the proceedings of the Committee now undertaken or planned;

That it be an instruction to the Committee that all decisions concerning the implementation of this Order shall be taken only by the Committee’s subcommittee on Agenda; and

ORDERED,—That a Message be sent to the Senate asking Their Honours to unite with this House in the aforementioned actions.

ATTEST:

C. B. KOESTER

The Clerk of the House of Commons

[Page 5]

MINUTES OF PROCEEDINGS

MONDAY, NOVEMBER 17, 1980
(12)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 8:05 p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable-Senators Asselin, Austin, Goldenberg, Lamontagne, Lapointe, Petten, Roblin and Tremblay.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath and Nystrom.

Other Member present: Mr. Malepart.

In attendance: From the Parliamentary Center: Mr. Peter Dobell, Director; From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.

Witness: Mr. M. F. Yalden, Commissioner of Official Languages.

The Chairman presented the Fourth Report of the Sub-committee on Agenda and Procedure which is as follows:

Your Sub-committee met today on Monday, November 17, 1980 and recommends to the Committee the following report from Messrs. Austin, Epp and Nystrom:

1.—That the Committee use the services of Mr. Peter Dobell, Director of the Parliamentary Centre, for the purposes of

(a) co-ordinating the selection of witnesses with Messrs. Austin, Epp and Nystrom,

(b) preparing comments on provincial attitudes toward the resolution whether or not expressed in the evidence before the Committee.

2.—That the Committee use the services of the Research Branch of the Library of Parliament for the purposes of

(a) summarizing written submissions and collating oral evidence and written submissions

(b) preparing analysis of oral and written evidence from the point of view of its implications for the various clauses of the resolution.

3.—That, upon request, and subject to the approval of the co-chairmen, resonable living and travelling expenses be paid to witnesses invited to appear before the Committee but up to a maximum of three persons per delegation.

On motion of Mr. Mackasey, the Fourth Report of the Sub-committee on Agenda and Procedure was concurred in.

[Page 6]

Mr. Yalden made a statement and answered questions.

At 10:32 o’clock p.m., the Committee adjourned to the call of the Chair.

Joint Clerks of the Committee

[Page 7]

EVIDENCE

(Recorded by Electronic Apparatus)
Monday, November 17, 1980

[Translation]

The Joint Chairman (Mr. JoyaI): Order, please.

May I ask the press to leave the room with their picture or sound recording equipment so that we can proceed.

Ladies and gentlemen, hon. members of the committee, it is my pleasure to welcome you here tonight although in a bit different kind of a set-up.

On your behalf, I also wish to welcome our listeners and I would suggest that you remain in the same seat all through the meeting so that the cameras can identify you easily.

I would also like to recommend that you address the Chair when you take the floor so that the cameras can follow the debate and for your interventions to be recorded.

Moreover, I would like to bring your attention to the report of the subcommittee on the agenda which was put before us.

I wish to read it, you can then comment on it and I will ask for your agreement.

[Text]

(See Minutes of Proceedings and Evidence)

The Joint Chairman (Mr. JoyaI): Are there any comments or questions on the content of the report of the Subcommittee? [Translation] Are there any comments or questions on the content of the report of the subcommittee on the agenda?

If there are no questions, I think Mr. Mackasey wants to move that it be adopted.

[Text]

Mr. Mackasey: I so move.

Motion agreed to.

[Translation]

The Joint Chairman (Mr. Joyal): I will now give you the schedule of the committee’s work for tomorrow and the list of witnesses that we will be hearing.

Tuesday, November 18, 1980, we will start at 8.30 a.m. with the Canadian Civil Liberties Association . . .

Some hon. Members: 9.30 am.

The Joint Chairman (Mr. Joyal): 9.30 a.m., with the Canadian Civil Liberties Association until 11.30 am. and then we will hear representatives from Positive Action Committee until 12.00. We will adjourn at 12.00 to resume at 3.30 pm. with the Canadian Jewish Congress until 4.30 pm. and then follow with the Federation of Canadian Municipalities until 5.30 pm. when we will adjourn for dinner. The evening session will start at 8.00 p.m. and we will hear the Advisory Council on the Status of Women.

On Wednesday afternoon, at 3.30 p.m., we will hear representatives from the Canadian Chamber of Commerce and from 4.30 pm. to 530 p.m., we will hear groups from minori-

[Page 8]

ties of Quebec and representatives from l’Association des Francophones de l’Ontario who will submit a joint statement.

Ladies and gentlemen, you will notice that our schedule has been a bit changed and this because of the broadcasting of our debate on the same channel that the one used by the House of Commons.

We have to take into account the House of Commons precedent on the air. Our proceedings can be broadcasted directly in the morning, between 9.30 a.m. and 12.30 p.m. since the House of Commons does not sit at that time. So we can go on the air in the morning.

In the afternoon however, between 3.30 pm. and 6.00 p.m., the debates in the House of Commons are broadcasted live, so it was suggested that we sat between 3.30 pm. and 5.30 p.m., for a period of two hours that could be retransmitted between 6.00 pm. and 8.00 p.m., when the House adjourns.

As for our evening sessions that will normally take place between 8.00 pm, and 10.00 p.m., they could be broadcasted as soon as the House adjourns, that is between 10.30 pm. and 12.30 am. so that all the proceedings of the committee can be broadcasted with the same day and there will not be any conflict between our discussions and the debates going on simultaneously in the House of Commons.

This is the reason why our schedule for tomorrow had to be changed somewhat because, as you know, tomorrow morning the House resumes its deliberations exceptionally at 11.00 a.m. in order to make up for November 10 when it did not sit.

If there are no questions on that aspect of our schedule, I shall welcome our witness for tonight. the Commissioner of Official Languages . . .

Yes, Mr. Epp, on a point of order.

Mr. Epp.

[Text]

Mr. Epp: Mr. Chairman, I would just like to point out in the scheduled witnesses that, firstly, you have scheduled Monday a session for the afternoon. You will recall that this Committee had determined that we would not be sitting Monday afternoons in order to prepare for the upcoming sessions during the week.

We recognized that difficulty in scheduling for November 24 and the witness that is tentatively scheduled to appear at that time, and so we accept that scheduling for November 24 only and that it should not be regarded as a precedent or that we will now be scheduling Monday afternoons.

Secondly, in terms of scheduling of witnesses and times given to them. you will note from the order that as little as one hour is given to a number of important groups who are national in scope. That creates difficulties, possibly not as much for the groups that will be appearing before the Committee. but in fact for Committee members themselves because under the schedule that is now proposed it is quite likely that a presentation by the group could be made in a time length of 15 to 20 minutes, and after one round of questioning in which

[Page 9]

each party has 15 minutes in the opening round, it could develop in a manner in which there would only be one question or one opportunity per witness and if there is to be any follow-up by the party it would almost make it impossible to do that.

So that we are willing to accept it at the present time but we want to analyze the effect of that scheduling in terms of giving witnesses an opportunity to not only make their case, but Committee members to question sufficiently in order that we understand the thrust of the presentation.

Additionally, Mr. Chairman, I think it is my responsibility to point out that there was also a proposal made that witnesses be given as little as 30 to 45 minutes, and l want to say to you, Mr. Chairman, on behalf of my colleagues that a schedule of that type would simply be unacceptable.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp.

I will answer to each of the points you have brought up.

Firstly, I wholeheartedly accept what you have just said concerning the appearance of the Honourable Premier of the Province of New Brunswick. I recognize that before the start of our deliberations. we had agreed that there would not be any session held on Monday afternoon but that exceptionally the committee would try to accommodate provincial premiers who would want to come and make a presentation before the committee. Thus, to the extent possible, the committee would try to suit their convenience, in other words, schedule times for meetings according to the premiers’ earlier commitments. As for the first point you are making, you are quite right, and it will be only exceptionally that we will sit on November 24.

Secondly, l also accept your comment on the fact that there is only one hour allocated for certain witnesses appearing tomorrow afternoon and I agree with you that for tomorrow and Wednesday, the subcommittee on Agenda and Procedure should have the possibility to reconsider our times of meetings and make recommendations as it deems appropriate.

I could not agree with you more on that point.

Thirdly, we have not as yet made any definite suggestions concerning the possibility of limiting presentations by witnesses to three quarters of an hour but your views have been expressed and the members of the subcommittee will take them into account when they recommend a schedule to the committee.

Thank you very much. if there are no other comments on our schedule, l would invite Mr. Max Yalden, Commissioner of Official Languages . . .

[Text]

I would welcome on behalf of all the members of this Committee an opening statement and then to be open to questions from honourable members of this Committee.

Mr. Yalden.

[Page 10]

Mr. M. F. Yalden (Commissioner of Official Languages): Thank you. Mr. Chairman and members of the Joint Committee. I am grateful to you for the opportunity this evening to appear before you and to join you in these most important discussions. I shall try to make my opening statement brief and shall confine myself largely to those sections of the Resolution which deal with language rights.

With your permission, however, I should like to begin with one or two more general comments.

As one who is responsible to Parliament for the administration of the law relating to language, I have been struck personally by the extent to which legislation has made real progress in this area of fundamental rights. There are those who question the capacity of any parliament or legislature to legislate morality, as the saying has it. Be that as it may, I think our own experience here in Canada these last 11 years since the adoption of the Official Languages Act, has shown that it is possible to make substantial advances by means of legislation. However imperfect the instrument we have come up with—and my office is the first to draw attention to its imperfections—Parliament can take pride in the Act and in the essential reforms which it has brought about.

But if this is so, why not leave it to Parliament on this occasion, or. rather, to the II legislatures? In other words, why entrench constitutional language rights and why cut off the legislative powers to change the situation for the better? I think all members of this Committee are well aware of the answer. It is because the legislative record has simply not been good enough. Who is there around this table who can really say that in the soon to be 115 years since Confederation, either the federal parliament or the provincial legislatures have acted consistently to protect the official language minorities?

The fact is that neither federal nor provincial actions over the last decade or so should blind us to the historical record of neglect and suppression which has brought those communities to the precarious condition in which they find themselves. Moreover, it takes nothing away from more recent efforts of government to correct past wrongs to suggest that those efforts would only be reinforced by entrenching guarantees without which official language minorities are too much at the mercy of shifting political and administrative winds.

Beyond these very practical considerations in favour of entrenchment, there are, I believe. symbolic reasons which go to the heart of our situation as a Canadian nation. For better or for worse, language has always been a matter of concern in this country; for worse, because it has too often been the cause of deep and painful division; for better, because at times it has shown itself a source of richness and diversity that is the envy of other nations. It is precisely because of this symbolic dimension which will profoundly affect our national cohesiveness in the future, as it has in the past, that we need to keep what Premier Blakeney has called the Confederation bargain by seeing to it that language rights are clearly and unequivocally recognized in our fundamental constitutional law.

[Page 11]

These are the reasons, or the main ones, why I favour entrenchment—why I very much favour it. If, therefore, I am here today to discuss the merits of the proposed resolution, it is not because I disagree with the basic principles underlying the government’s proposals. It is, rather, to ask you to look at the wording as carefully as you can and to see whether the text is acceptable as it stands.

[Translation]

Let us consider the major clauses in turn, first of all sections 16 to 22, which, as you know, deal with the status of English and French as the official languages of Canada.

To the extent that they confirm and enshrine certain basic tenets of the Official Languages Act, I naturally endorse these sections.

However, I believe they contain a number of weaknesses, some technical, some more substantive, and I want to look at them with you in the hope that you may see fit to recommend changes when you report to Parliament.

The Resolution before us is no doubt the fruit of compromise and hence is as remarkable for what it leaves out as for what it includes.

So far as official bilingualism at the provincial level is concerned, it simply perpetuates the status quo.

The rights pertaining to language use in the courts and legislatures in Quebec and Manitoba provided by Section 133 of the BNA Act and by Section 23 of the Manitoba Act are maintained.

But what of Ontario and New Brunswick? The Resolution as drafted extends no such constitutional protection to them. Yet more than 90 per cent of the Francophones outside Quebec live in these provinces and there is little difference between their combined minority populations and the official language minority population of Quebec.

Why then perpetuate this obvious imbalance? If the Resolution as a whole attempts to avoid a checkerboard Canada, why carry forward this particular inequity?

New Brunswick, we know, is ready to accept constitutional provisions relating to the courts and the legislature, in accordance with the basic principles of its own Official Languages Act. This leaves Ontario as odd man out.

Can we really accept, especially when we know that such arrangements would not impose an intolerable burden on anyone, that the province with the largest Francophone minority of all should simply be ommitted from a constitutional requirement to respect the French language in the legislature and the courts? What kind of constitutional rights are we talking about that apply to one official-language minority but not to another, to one province but not to its neighbour?

A further and major omission in the matter of the courts is the right to a criminal trial in the official language of one’s choice.

[Page 12]

Section 19 entrenches the right to use either language in courts established by Parliament, and Section 21 confirms the existing constitutional right to use them in the courts of Quebec and Manitoba. But beyond this, it ought to be a basic principle of justice in Canada that an accused person in a criminal case has the right to a trial in his own official language.

I am of course aware that Parliament amended the Criminal Code in this direction some two years ago and that the new provisions have been implemented by provinces like Ontario and New Brunswick.

Is this not all the more reason, however, for them to be clearly enshrined in the constitution, at least with respect to those provinces in which by far the largest proportion of the minority resides?

On a more technical plane, I should also like to take issue with what I feel are deficiencies in Section 20 which, while it is inspired by the wording of the Official Languages Act, changes it without improving it.

In fact, it introduces a certain vagueness that to my mind can only hamper the objective of making government services as widely available as possible in both official languages.

The Official Languages Act gives the public the right to communicate with and receive services from federal institutions in English or French: a) in the National Capital Region; b) at any head or central office anywhere in Canada; c) at each principal office within a federal bilingual district; d) in other locations where there is significant demand; and, finally, e) anywhere in Canada and abroad where the travelling public is concerned.

The Resolution grants the public that same right with respect to services from: a) any head or central office; and b) any other office “where that office is located within an area of Canada in which it is determined, in such manner as may be prescribed or authorized by Parliament, that a substantial number of persons within the population use that language.”

I will not try to explain how it has come about that there are no bilingual districts established under the Official Languages Act. I would only observe that, whatever the political acceptability of bilingual districts may be, their absence has, in my view. hampered rather than expedited fulfillment of Parliament’s wishes as reflected in the act, and that the considerably vaguer nature of the wording proposed in the resolution is not likely to improve the situation.

[Text]

Turning now, Mr. Chairman, to the vital area of education. we can I think take heart that Canadians are increasingly accepting in every province of this country the principle that minority language children have the right to be educated in their own official language. Even some opponents of entrenchment, as I understand it, are apparently prepared to make an exception for minority language education rights. It is there-

[Page 13]

fore natural that any constitutional document should reflect this widespread consensus.

The present resolution does that, of course and I am glad to see the principle recognized, but I have serious reservations about Section 23 as it is now drafted. The problems that I see with the present formulation are essentially the qualification of citizenship, number one; and the criterion of sufficient number, number two. To these I should add. the further observation that Section 23 offers no guarantee to the minorities regardng the administrative control of their own educational institutions.

Personally, I am already on record as to favouring the widest possible parental freedom with respect to schooling in English or in French. What is more, I expect that most of those engaged in the language debate would be prepared, in an ideal world, to endorse freedom of choice. Unfortunately we do not live in an ideal world. And in Canada as we know it today, not just in Quebec, the realities of linguistic use and the way in which the relative positions of our two official languages are received are such that full freedom of choice is probably not applicable in the immediate future.

But having accepted this I believe we should also accept that the less we circumscribe parental freedom the better. The mother tongue criteria already represents one such limitation; the question is whether we need another in the form of a citizenship qualification which would deprive the landed immigrant of an important individual freedom.

If for a moment we shut out rhetoric and statitsical half-truths and ask ourselves what would be the likely effect of offering immigrants as well as citizens a choice of official language in education based on their mother tongue qualification the result, in my opinion, would be a great deal less alarming than we are sometimes are led to believe. In other words, I am not convinced that a system of minority-language cation based on this criteria would be either a significant threat to the future of French in Quebec or overly difficult of application. And to the extent that this is so. I submit to this Committee, the further requirement of citizenship is neither necessary nor desirable and can only cast grave doubt on the status of any fundamental right as either fundamental or a right.

Finally I might add that the citizenship qualification, particularly when taken in conjunction with the mobility provisions set out in Section 23(2), could give rise to a number of practical difficulties. There could, for example, be families in which one child would have no right of access to an official minority school because his parents were not citizens when the time came for him or her to go to school whereas a younger brother or sister would have that right. There could also be immigrant families going directly to settle in the province whose children would not have access to such schools, whereas their relatives or former neighbours would have that right because they already had their children in school in another province, These may look like minor concerns unlikely to arise very often, but I suggest they could bring about some very

[Page 14]

severe human problems which constitutional draftsmen would do well not to ignore.

On the subject of sufficient number, I have been struck not only by the inclusion of this provision as by the way it has been formulated. Citizens. and I quote:

have the right to have their children receive their primary and secondary school instruction in that minority language if they reside in an area of the province in which the number of children of such citizens is sufficient to warrant the provision out of public funds of minority language educational facilities in that area

As I have suggested, the purpose of a constitution is to enshrine in broad but unambiguous terms those fundamental and generally applicable principles we hold to be important.

The provision I have just read seems to me to miss this mark on several counts, and I quote:

1. it clearly sets out to distinguish between those who can and those who cannot enjoy this right;

2. the more words are added for greater precision (e.g. “warrant the provision out of public funds of minority language educational facilities in that area”), the more they suggest new problems of interpretation;

3, it suggest that minority-language education may sometimes cost more than our society can or wishes to pay.

The first objection has to do with limiting what is ostensibly an individual right; the second is based on my suspicion of too much fine print, but it is the third which touches the heart of the matter. Given modern technologies, given our experience in providing special education, given a modicum of ingenuity and administrative world power, how many situations are there in Canada where the cost of minority language education would prove prohibitive, however small the numbers?

I am not sure I know whether providing “educational facilities in that area” would cover busing or television or correspondence courses, or whether an area may be as small as a school district or as large as a province. My point is simply this. If it is possible in this day and age, as I believe it is, to give these terms a generous interpretation in any particular case, why then de them at all as a general statement? Why put them in a constitution?

If on the other hand someone is out to protect the state from outrageous demands by otherwise responsible parents, then we should in my view be asking ourselves very seriously whether that is what constitutions are for.

In conclusion, Mr. Chairman, I should like to observe very simply that language rights are similar to other fundamental rights in that they limit, or should limit, the power of the state to encroach on the liberty of the individual. Indeed, other such rights often do not mean much unless one is allowed to live in ones own language.

[Page 15]

In this sense, of course, language rights have another dimension as well, for they also create the conditions in which languages and the cultures they express can flourish in dignity and without fear of assimilation.

Are the language provisions in the resolution before us likely to bring about such conditions while at the same time protecting English and French speakers from possible encroachments by the state? The answer, I believe, is yes and not I am glad they are there but I wish they were better, I wish they were more generous and open and less mindful of political considerations and social apprehensions.

It is in this sense that I believe that significant improvements can be made to the present text without risking any undue trauma to the body politic and I urge you in your work over the next few weeks, and in your report to Parliament, to try and bring those changes about.

Thank you, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. JoyaI): Thank you Mr. Yalden for your presentation which will certainly stimulate the discussion.

I will first give the floor to the Hon. Jake Epp, followed by Mr. Lorne Nystrom,

Mr. Jake Epp, please.

[Text]

Mr. Epp: Thank you, Mr. Chairman, and Mr. Yalden, I would like to thank you for appearing as a witness today and for your brief,

I would like to concentrate the first part of my questioning on the principle of entrenchment and specifically as it relates to the proposed resolution before this Committee.

On September 5, Mr. Yalden, on CTV’s Question Period, you remarked concerning minority language education rights that you do not see how the federal government can entrench an educational right in a constitution because the provinces, by everyone’s admission, have absolute and sole jurisdiction.

In your brief, Mr. Yalden, you come out in favour of the entrenchment of language rights, Could you give us a little more insight into your views as to the position you expressed on September 5 and your concern at that time, if I understand It correctly, over the imposition of entrenchment as apart from the principle of entrenchment, how you would relate that to the proposed resolution before the Committee now?

Mr. Yalden: Yes, Mr. Chairman. I think I said on that occasion on September 5, and I will say it again now, that I am not a lawyer, constitutional or otherwise, and I was replying to a question. of course, about what the federal intention was with respect to entrenching educational rights and I said I thought it was difficult for the federal government

[Page 16]

to do this, not impossible, for the reasons Mr. Epp has just given.

Of course, I would have to say now that without presenting myself as a constitutional lawyer, that on this occasion it will not be the federal government that will be doing it, it will be Westminster and I think that makes a cardinal difference in terms of what can be done.

Now, in terms of what one likes to see done. I, I think like many Canadians, have doubts about moving unilaterally in this kind of situation;

On the other hand, and I am not trying an answer which is in any sense a cop-out, I am speaking as sincerely and as truthfully as I can when I say, on the other hand I would wish to see those language rights in the constitution.

I cannot answer to a situation which is not of my making, I cannot say that I would prefer to see the government not move on language rights because that would not be true, nor can I say that I am happy with the unilateral aspects the resolution because that would not be true. So all I can say is that I do not much like this way of moving, on the other hand I do like to see language rights entrenched and if someone were to ask me whether I thought they would be entrenched in the foreseeable future with unanimous, near unanimous or even majority consent on the part of the provinces, if I were asked that question I would say no, I would not foresee that.

So I present not really an open and shut answer to Mr. Epp’s question, but rather an explanation of my own personal dilemma, when I look at this constitutional bill and I suspect there are many Canadians who involved the development of language rights and who have thought about entrenchment of language rights in Canada and who examined the present bill and feel the way I do.

Mr. Epp: Mr. Yalden, I want to get your remarks quite accurately. When you were speaking on September 5 and you were referring to the process, was it specifically the process you were referring to, namely you saw the federal government not having the right to entrench unilaterally, but now, if we are asking Westminster to do that, that first condition that you expressed would in fact be taken care of.

Mr. Yalden: Well, sir, again I repeat Mr. Chairman, that I am answering as a layman. However, it is my understanding that there is a very considerable difference between what the Parliament of Canada can do in respect of the present constitutional arrangements, the British North America Act, and what the Parliament at Westminister can do. I would repeat that when l was asked that question on September 5, the context was, although I do not have the record here, indeed I had forgotten all about it, it was more than a couple of months ago, but my recollection is that the journalist who asked it was developing a hypothetical line of questioning about possible unilateral moves by the federal government, and in fact he was telling me that the federal government had legal opinions to the effect they could do this and I replied, if I remember rightly, that I was not a lawyer but they had a legal opinion as to what they could do to the Senate and it had not turned out that way.

[Page 17]

Now, I was talking about what the Government of Canada could or could not do as I, a layman, understood it. What we are talking about now, as I understand the matter. is what the Parliament at Westminster can do.

Mr. Epp: Mr. Yalden, you mentioned that you would prefer that we would not be moving unilaterally. Would you give us the benefit of your thoughts as to the effects in the provinces, and the delivery of minority language education in the provinces, what your assessment might be of the effect in those provinces if unilateral action in fact is taken?

Mr. Yalden: Well, one thing, Sir, I will say directly and as forcefully as I can, and that is that however cross the provinces may or may not be, I hope they do not take it out on the minority, and therefore I do not give you really an answer, Mr. Epp, I give you a hope that because the provinces, all of them, have said in Montreal in the early days of 1978, through their Premiers, that it was their intention to ensure to the best of their ability that the minorities should have an education in their own official language, I would hope that they would continue on in that vein and that there would be no question of some sort of constitutional peak taking precedence over a clear duty and responsibility to communities which are often in fragile and difficult conditions and who require education in their own official language as the most important, the sine qua non of their continued existence.

So I hope they are not going to react that way. I assume they are not going to be very happy.

Mr. Epp: Since 1978, and you referred to that period of time and the position of the provinces in 1978 relative to minority language education rights, without entrenchment what progress have you seen in the country which would have resulted in a progress that might have been more rapid had we had this proposed resolution entrenched from 1978 to the present?

The Joint Chairman (Mr. Joyal): Mr. Yalden?

Mr. Yalden: Well, if I understand, Mr. Chairman, the nature of the question, it is: Do I think that progress towards a better regime of minority language education would have been more rapid between 1978 and 1980 had there been a constitutional provision. I have no reason to think it would have been more rapid than it has been. I think that the provinces in the last decade or last dozen years, I would place it around 1968 or so, have made an effort which, while by no means fast enough or sufficient in terms of quantity or quality of delivery. is nevertheless the effort that they have been able to make in that period and we have gone from a situation in which the possibility for minority language education, always outside the province of Quebec which has had an exemplary record in this area traditionally speaking, where we were in a very, very spotty state of affairs indeed in 1968, to a situation where now it is possible to obtain education in the minority languagee from coast to coast. The last province coming on stream, if that is the expression, being British Columbia a few months back.

I do not believe necessarily that that process in the last couple of years would have been more rapid had there been a constitutionally entrenched requirement of the sort we see in

[Page 18]

Section 23 of the resolution. However, that is not the point, I think. The point is that Section 23, or a similar clause, preferably with the changes that I have been discussing earlier this evening, provides that educational service not as a matter of something which is offered out of the goodness of the Government’s heart; it would be there as a matter of right.

Most of the provinces are providing these educational services as a matter of regulation, sometimes as a matter of law, often enough as a decision which flows as an administrative decision from the provincial Ministry of Education, not a very stable situation, I submit, at least not, I would not think, if I were a member of the minority and I would be more pleased, as I have often said, with clear legislation setting out the rights of the minority and I would be yet more pleased with a constitutional provision which would take it beyond the possibility of any of the 11 governments to change it, and that to me is the important thing.

Plus we all know that there have been some epic battles and problems across this country, and we can think about a few in the province in which we are now sitting where, perhaps, the minority may have been more effectively protected by the courts had there been a constitutional provision of the sort we are now talking about; and I think that is important; but on the pace of change, not necessarily, no.

The Joint Chairman (Mr. Joyal): Mr. Epp.

Mr. Epp: Mr. Yalden, you have spent some time in your presentation questioning the wisdom of the provisos “where numbers warrant” and “provision out of public funds”.

I would like to stay with the first one just for a minute. I would like to deal with “where numbers warrant”. In discussions in Parliament earlier, a number of members, while endorsing the language provisions, that is to say the principle contained therein, felt that there had to be some provision as well whereby departments of education, namely, the provinces as well as school boards, had to have some criterion where they could judge “where numbers warrant”; in other words, if there were a sufficient number of students and their parents were asking for special minority language educational rights, it could be granted, but there had to be a numerical provision.

Now, I grant you that in the proposed resolution that numerical provision is not defined.

Could you give me some more thought as to “where numbers warrant”, how would a province or a school board follow your suggestions whereby that provision would be removed, and how would they deliver that service?

Mr. Yalden: Mr. Chairman, I was trying to suggest in my remarks that it might well be that you would have to have busing or you might have to use correspondence courses or something of that sort.

I believe that we do not normally, in respect to other minorities, impose this particular “where numbers warrant” criterion.

[Page 19]

We do not say that we will only provide education where numbers warrant. We have in this vast country of ours people who live in pretty isolated circumstances, where there are not very many people and where the construction of a school complete with swimming pool, gymnasium and the like is not possible. But we do not say we are not going to educate those people.

In Quebec, as far as I am aware, there is no “where numbers warrant” provision, and there never has been.

I am saying that this notion of “where numbers warrant” somehow or other—and I do not want to be facetious—has crept into the literature, and somehow, every time I see a right to education in a minority language stated, it is always with the wording “where numbers warrant” along, as though the minority, be it the English speaking minority in Quebec or the French speaking minority in anglophone provinces are a totally irresponsible lot and are going to demand all sorts of educational institutions and arrangements which are beyond the capacity of the community to pay for, and beyond the taxpayer’s ability to pay, and beyond the ability of any reasonable taxpayer to pay.

I do not believe that. Therefore, I do not think that this statement, which, to me, has an air of grudging, ungenerous, attitude towards the minority, is necessary.

I was very pleased, by the way, to hear at the Constitutional Conference in September, Premier Hatfield make a similar point. I think Premier Hatfield is as familiar with the problem as anyone is ever likely to be in this country, and he is a man who has to face the electorate if there is unwarranted expenditure of the taxpayers money. I believe he is right in not wishing to see that criterion maintained.

I am not trying to be starry-eyed or unrealistic about the matter. I really believe we do not generally say that. They have been running minority education systems in Quebec for many, many years, and they do not say that Therefore we do not need to put it in the constitutional package.

The Joint Chairman (Mr. Joyal): Mr. Epp.

Mr. Epp: I would like to get back to that exact point,

Up to this time it has not been entrenched, and there has been an ability both on the part of the provincial government, the departments of education and the school boards to be flexible and to provide the service after they have made a considered decision, and by entrenching this, this does change it somewhat, I would suggest.

I am asking you, therefore, whether, in terms of entrenching it at this point in time, if you were to remove those provisos, how would the school boards or the departments of education in fact to deliver that service?

You say you do not believe people would be so inconsiderate as to be asking for their language education rights. I accept that viewpoint, But, on the other hand, I would suggest that the conditions whereby that delivery has been given heretofore are different from those which would exist should this proposed resolution in fact find life in the constitution.

[Page 20]

Mr. Yalden: Well, Mr. Chairman, I cannot put a percentage on it, but in more than 90 to 95 per cent of the cases there would be no change. Most of the areas of the country we are talking about already have these institutions and are already providing the service.

We are talking, I suppose, about those rather exceptional cases where there would be a difference of opinion between the minority group, on the one hand, say, a board of education or a school board, on the other.

Even today there are ways of resolving those difficulties; for example, in the Province of Ontario. There are other instances to which the minority group can appeal, and usually those differences are resolved. Of course, we know of one or two exceptions where, unfortunately, the minority has been forced to the wall. But they are very few. The difficulties are usually resolved. I suspect—and I presume—that would be the casein the future. I refer you, once again, to the ease of Quebec where that is the case.

Therefore I hope we are talking about a handful of cases and not some sort of vast, menacing crowd of people trying to get a school off in the tundra in minority languages.

When we come down to the small number of cases—and here, I suppose, we are trying to foresee the future—I would imagine that if there is a dispute the courts would have the last word on the matter; presumably, the courts, the learned judges, would themselves try to take a look at the numbers involved and, depending on the numbers involved, look to see what the group in question was asking for, I do not see that necessarily they would require a school to be built for a very tiny minority. They might say, you have to do something. They might say, “We do not care how you do it, but you have to do it.” It might be by correspondence courses or by means of educational television and what have you.

I would imagine that even within the present context there must be an appeal to someone beyond the local administration in the province.

I do not think that the situation would change that much. I have not had the impression that we are such a litigious people, as perhaps our neighbours to the south sometimes are, that the minority group would spend its time. efforts and energy that much of the time in court. I do not think the situation would change that much.

[Translation]

The Joint Chairman (Mr. JoyaI): Thank you, Mr. Epp. Mr., Lorne Nystrom now has the floor, he will be followed by Mr. Ron Irwin.

Mr. Nystrom.

Mr. Nystrom: First of all, I wish to thank Mr. Yalden for coming here tonight. I would also like to congratulate him for his work in the Official Language Board of Canada.

Canada’s duality is very important and historically we have had in our country two languages: English and French. Your board has done a lot of work on language equality and I am totally in agreement.

[Page 21]

[Text]

The Joint Chairman (Mr. Joyal): Mr. Nystrom.

Mr. Nystrom: I wanted to ask Mr. Yalden whether or not he had taken a look at Section 34 and Section 43 of the resolution before us. I am impressed by what he said about the board of education and minority language rights and such rights in general in the country.

There may be some problems with respect to Sections 34 and 43.

Let me read Section 43 for the Committee:

43. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

Section 34 says the same thing. but applies only until we have our amending formula.

The concern I have here is, taking for example francophone rights in, say, the Province of Manitoba. where under Section 23 of the Manitoba Act, they have rights which are similar to anglophone rights under Section 133. Under Section 43 of the resolution before us the legislature in Manitoba could pass a resolution taking away those rights if the House of Commons were to pass a similar resolution; in other words, the House of Commons. the Senate and the Legislature of Manitoba could pass a resolution to amend our constitution which would take away those rights. We would not have to go through an amending formula, nor have the right of going through a referendum.

And the same could apply in Quebec or in Manitoba where you are dealing with a small group of francophones, a very small minority. You are dealing with a small minority. It could apply in a different way in Quebec. For political reasons the federal Parliament or the federal government could decide that it is pretty unwise politically for them, and under Section 133 where the anglophones get all these rights; and for the same reasons Quebec’s Legislature could feel the same way and pass a resolution along with Parliament taking away these rights.

Have you thought about these two sections and whether or not there should not be some exception to the application of Sections 34 and 43? We had the Justice Minister a few days ago saying that these rights should not be taken away. Should that be the case in these circumstances, how do you feel about it? Have you given any thought to the matter?

The Joint Chairman (Mr. Joyal): Mr. Yalden.

Mr. Yalden: Yes. Mr., Chairman.

My understanding of the matter—the lawyers around the table will soon correct me if I am wrong—is that Section 50 provides that the Canadian Charter of Rights and Freedoms can only be altered in accordance with Section 41 or Section 42, and therefore cannot be altered under Section 43.

[Page 22]

Whether we have some sort of contradiction here where, by taking the Section 43 end of the stick. you arrive at a conclusion that you can change fundamental language rights in respect of Manitoba by the act of the federal parliament or a decision of the federal parliament or the Manitoba legislature, on the one hand, but taking the Canadian Charter of Rights or the fundamental rights end of the stick. you come to a conclusion that you cannot, I had thought that Section 50(b) was intending to say that you could not touch anything relating to the Charter of Rights, which includes language rights, without following out this rather more complicated procedure proposed by the federal government in Sections 41 and 42. But I may be wrong.

Mr. Nystrom: Section 50 says there are certain things we cannot do unless we go through the amending formula, we cannot change the Canadian Charter of Rights and Freedoms.

But I am not talking about that, l am talking about Section 133 and also Section 23 of the Manitoba Act which are beyond the charter. and therefore rights can be taken away through Section 43.

Mr. Yalden: it seems to me that we have to sort of wrap up Section 23 and Section 133 along with the language rights that are stated in the present resolution.

In other words, it seems to me that it would be unconscionable that we should emerge from all of this with Section 23 of the Manitoba Act or Section 133 of the British North America Act being weaker provisions than the one set out in the Charter of Rights on exactly the same question, so that we would have to amend them in different ways to bring the two types of provisions together to give them equal force of law—and constitutional lawyers would have to help, because it seems to me that under the British North America Act you cannot change any provisions all that easily.

In other words, I am not sure that Mr. Nystrom is not creating a situation where, on the one hand, you could get at Section 133 and Section 23 via the Section 43 amending- formula. because it is not part of the new constitution, nor is it part of the old constitution, where you could not change in respect of language without going through some pretty difficult requirements.

In any event, assuming that these sections are subject to change and that the purpose of this Committee is to seek out weaknesses in the resolution and remove, if. Mr. Chairman, Mr. Nystrom is correct in saying that there are two kinds of language rights being created by this very resolution, one of which is retained from the past, Section 23 in Manitoba. and Section 133 of the British North America Act—the other being created by this new resolution. and if it is the case that one is stronger than the other, then that should be changed, and changed forthwith.

But that was not my impression. But l, certainly, am impressed by Mr. Nystrom’s line of questioning and thinking on the matter, and i would hope that wiser legal heads than mine are taking note of these observations and making very. very sure that the provisions on the matter of language rights are water tight.

[Page 23]

I would not consider it to be water-tight if language rights in the matter of education of a minority could be changed overnight by the Parliament of Canada and the province concerned. I would certainly not think that was part of what we have been calling the Confederation bargain or part of the effort towards entrenchment, which would be very shallowly entrenched.

Mr. Nystrom: We are dealing with an amending formula under the constitution, and we should take a very close look at it. My understanding is that Premier Hatfield would be opting under language, and he could opt under Section 44 if he went right away, or 43 in two years, and he can do so. Presumably one of his successors might be able to opt out. and the Committee should take a look at it; but, switching the topic back a bit, you mentioned your concern without any elaboration over the administration of schools. You talked about school boards. One thing has always struck me as being unfair in the present setup in this country. It is that francophones outside Quebec do not have the right to form their own school boards. In particular. Mr. Yalden, I am thinking about the national capital. I find in the national capital. despite the fact that we have tens of thousands of people in French schools, yet, their parents do not have the right to form a school board. On that, I wanted to ask you

[Translation]

Do you believe that a French minority group should have the right to administer the school board, I am thinking about the National Capital in particular. Do you believe it is very important to entrench this act in our constitution?

The Joint Chairman (Mr. Joyal): Mr. Yalden.

Mr. Yalden: As for the National Capital. Mr. Chairman, I have said several times that I am totally in agreement with those who advocate the creation of a so-called school board. in other words, a Francophone school board which would cover the national capital territory on the Ontario side.

It is very difficult for a minority to accept that their affairs be administered, and that extremely important decisions for the minority be taken by a majority.

[Text]

I do not think there is any doubt about that. Personally I have been pleased to see that in the budget paper published sometime back in the Province of Quebec there is a proposal for a provision giving minority rights to administer their own educational institutions, to be included in the constitutional document. I think that is a’ good idea and should be in the constitution.

I am very glad that Mr. Nystrom has raised it. The simple truth of the matter is I hope it is recognized that I was making a point. and if I had made several of the points with the kind of detail and forcefulness as I would like, I would never finish my statement.

[Page 24]

Mr. Nystrom: I would like to ask you a question about Section 133. I was very pleased with your comments that Ontario and New Brunswick should be bound to Section 133 the way Quebec is, because of equality in our country. We have heard some complaints from some people, particularly in Ontario, that that would be very difficult to do; that it is very complicated, with tremendous implications and I found that very. very hard to understand.

In your view would there be many difficulties of any major consequence for Ontario to bind itself? Are there some major ramifications that are a great mystery to us? I have been very mystified by the reaction of some of the politicians and others in Ontario.

Mr. Yalden: Mr. Chairman, I am sure that in view of what I am about to say I shall hear tomorrow that I should mind my own business. but the answer as far as I am concerned is no, it would not cause any overriding difficulty. I do not say that any of these things can be done without some difficulty, without the need to exercise some imagination and without the need to work at it and work hard at it; but I do not see why, if these provisions can be made to apply successfully in other provinces, they cannot be made to apply in Ontario.

I do not know whether if they were accepted in Ontario there would have to be or if there need not be a phasing in provision but I do believe they can be brought in without difficulty.

As far as the legislature is concerned. I cannot see what difficulty that would create. Even if Ontario were to set up a system of simultaneous interpretation at Queen’s Park, which would not be required by this resolution, even if that were to be done, it would be costly but not difficult.

The translation of the records of the legislature and the Committees of the Legislature and so forth is not difficult. It may cost a certain amount of money; a lot of things cost money in this day and age. I submit to this Committee that it has a symbolic and a real importance in the province which happens to have the largest French speaking minority, which happens to be the neighbour of the Province of Quebec which is required to translate and to have the records and journals of the Legislature of the National Assembly in both languages; that it is important that this take place in Ontario. If it is important, it is worth spending the money.

The same comment I think would apply as far as the courts are concerned. There has developed in the vocabulary, in the terms that are used in this field, a tendency to use expressions like official bilingualism or institutional bilingualism and that apparently are designed to suggest some very, very evil things indeed. Institution has a nasty ring about it. It is the sort of place you put someone you to get rid of for a time and therefore institutional bilingualism has that same pejorative tone and taste about the word.

But what in fact are we talking about? We are talking about the use of the two languages in the Legislature and in the records and journals et cetera of the legislature and we are talking about the use of the two languages in and before the courts, which I would have thought most Canadians would consider of capital importance as far as the courts are con-

[Page 25]

cerned. The Government of Ontario already has bound itself by implementing the revised Criminal Code.

We are not talking about a whole host of new ideas that have never been considered and that would shake the foundations of my home province, I do not believe, and therefore I believe that Ontario should be bound.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Mr. Nystrom: Do I have the time to ask another question?

The Joint Chairman (Mr. JoyaI): I am sorry, your time is up.

[Text]

I would like to invite now Mr. Irwin followed by Senator Tremblay. Mr. Irwin.

Mr. Irwin: Many of the things you have said I find quite discouraging, Mr. Yalden.

In 1978, further to what Mr. Epp said, the Premiers did agree, that

each child of the French speaking or English speaking minority is entitled to education in his or her language in the primary and secondary school in each province wherever numbers warrant.

They went further to make a provincial distinction. The Canadian Unity Task Force talked about entrenchment in the constitution; the Canadian Bar Association study in 1978 opted for the free choice approach and these things to me seem to move in the right direction.

Is it still your opinion in view of what has happened since 1978 that there is not significant movement?

Mr. Yalden: Mr. Chairman, I think I may not have expressed myself as clearly as I should. I thought I had replied to Mr. Epp to the contrary that there had been considerable movement since 1968, and since 1978 in particular, and that there force the crucial point was not whether the provinces would have moved more quickly had there been a constitutional guarantee but rather that the constitutional guarantee is just that, it gives the minority a solidity and an assurance which is lacking as long as you do not have that constitutional guarantee.

I agree with what the Bar Association has had to say on the matter and it is true of course that the Pepin-Robarts Task Force talked about the matter although in a rather more permissive way than I personally would like to see.

It is true that the Ryan beige paper talked about it. It is true that the Premiers of the provinces produced the resolution of which you spoke at Montreal in 1978. I think all these are extremely encouraging signs. I think, as I said in my prepared text, there is a real consensus on this matter across the Country. I was very, very pleased to see, I think it was earlier this year in the summer if I recall correctly or perhaps early autumn, a Gallup Poll which suggested very high percentages, in the 80s, of Canadians who considered it right and proper that the minority should have access to education in their own language, and that was right across the country from one end to the other.

[Page 26]

I think all these are very encouraging things and I think Section 23, despite my words about the unilateralism which we discussed earlier, is a good idea. I have said I think it should be a more liberal text. I do not think it should try and give the right only to citizens, as I said earlier, and I do not think that where numbers warrant it is either necessary or desirable.

Mr. Irwin: You are asking us, as you said, to go further as far as free choice of noncitizens, but do you agree that we do not—l do not know how to phrase this without having to agree with the Opposition—but they do make legitimate points, Mr. Yalden. We do have 10 Premiers and we have a federal state and I assume that no man becomes a premier without having a genuine concern for his country as well as his province.

Would it not be better to go as far as we went in Section 23 and leave what you are suggesting to future First Ministers conferences or extensions by the provinces themselves, or perhaps a referendum some day; once there has been the necessary discussion.

Mr. Yalden: The whole logic of the government’s approach, if I understand it, is that they are not likely, so they feel, to have a change to do this again for quite some time and indeed if they were to try to negotiate with the provinces right now they would not get what we find in Section 23(1) and Section 23(2). I do not think this is something that is going to happen again very quickly and I say that it is unworthy of us to deny to immigrants, to whom we have never denied basic rights in this country; and to whom, by the way, we do not deny the other basic rights in this charter of rights, only the language rights and of course the right to vote and the explicit right to be able to return to the country. which are very special. We do not deny political rights, legal rights, and so on to immigrants because they are people like everybody else, but we do deny to their children and to them any constitutional guarantee in the matter of education which is a basic, fundamental, human individual right. I think that is wrong, and I think now is the time to do something about it, because I do not believe that there is going to be a conference at which that can be done very readily in the next year or two or three, and I would say the same thing mutatis mutandis about the matter of where numbers warrant, and for that matter as well the point made earlier by Mr. Nystrom, the question of the minority having some degree of administrative control over their own school.

The Joint Chairman (Mr. Joyal): Mr. Irwin?

Mr. Irwin: You expressed a great deal of concern in your comments about New Brunswick and Ontario, and I must say that I agree with you. I have been to Cheticamp and I have been to Baie des Chaleurs and I have listened to the Acadians; and I have been to Kapuskasing and St. Boniface and anyone who does not understand, as you quoted, the neglect and the suppression of the francophones in Canada does not really understand our country.

The problem that I see is as follows. The Premier of New Brunswick and the Premier of Ontario have been, I think, providing very good leadership, and I think they are going to reach desired goal. I suggest to you, and I would like your

[Page 27]

response, that perhaps in today’s context we would be pushing too hard to put into the constitution what you are suggesting.

Mr. Yalden: Mr. Chairman, it is not for me to offer political comments, I think there are enough political ladies and gentlemen around the table to make their own judgments about why Ontario is not included in Section 133, and I will not comment on that.

I have to say again that I do not think these occasions arise very frequently. I do not think that the constitution. if this document becomes the constitution, if this proposed charter of rights becomes the entrenched charter of rights, l do not think that it is something that will be discussed and adjusted and fine tuned once every month or once every year or maybe once every decade. I think if ever the cliche, “there is no time like the present” applied. it applies now.

You, ladies and gentlemen around this table, you members of Parliament and Senators, are addressing yourself to this very serious and profoundly important matter of what the constitution of Canada is going to look like, and I say it is not a constitution which I consider satisfactory if in the four provinces of Central Canada where you have the vast proportion of the minorities, that is to say New Brunswick, Quebec, Ontario and Manitoba, you have two of those provinces which are already governed by a constitutional requirement and you have the third of those provinces where the Premier. Mr. Hatfield, has said he will opt in and then you have the fourth which, as it happens, is the province which has the largest francophone minority in Canada saying, “No, we do not need it”. That. to me sir. I can only say as seriously as l possibly can, is wrong; and now is the time to change that, I think. Now is the time for the members of this Committee to accept their responsibility, to make recommendations, design, not just throw the baby out with the bathwater but to improve the resolution.

Mr. Irwin: Thank you, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): The Honourable Senator Tremblay will have the floor, he will be followed by Mr. Jean Lapierre.

Mr. Tremblay.

Senator Tremblay: Thank you. Mr., Chairman.

Mr. Commissioner of Official Languages, I wish to associate myself to Mr. Nystrom to congratulate you for the work you have been doing, but our time being limited, i will not elaborate on your virtues as Commissioner of Official Languages.

My first question is rather general, it is dealing with Section 1 of the Canadian Charter of Rights.

This Section reads as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out hereafter, subjet only to such reasonable limits as are generally accepted in a free democratic society with a parliamentary system of government.

Because of your duties, I understand that you have to deal particularly, if not exclusively, with linguistic rights.

[Page 28]

My first question is the following: are the limits mentioned in Section 1 whatever may be the individual linguistic rights mentioned elsewhere in the Charter, embarrassing for you as Commissioner of Official Languages.

Mr. Yalden: Mr. Chairman, broadly speaking this part of the first section embarrasses me a little, not necessarily as Commissioner of Languages, but as a citizen reading the text, I do not understand it very well. I find it so broad that whatever it says does not represent in my view a requirement for a legislature who should guide the courts very clearly, very explicitly.

If it is the case, it seems to me that this section should be more specific, not stricter than it is.

I have followed the discussion here in the Committee, and I said several times tonight I am not a lawyer, consequently, I cannot really express a categorical opinion.

It is embarrassing for me for very broad reasons.

As for the linguistic aspect, would the linguistic rights mentioned in Sections 16 to 23 be affected by this short paragraph? I really could not give you an answer, precisely, because I find these words:

subject only to such reasonable limits as are generally accepted in a free democratic society with a parliamentary system of government

so vague that I do not know what they mean. If I knew, I would answer you.

I must admit that I see no threat in these words, but except . . .

Senator Tremblay: Except for the uncertainty.

Mr. Yalden: Inasmuch as uncertainty is a threat, yes, Mr. Senator.

Senator Tremblay: Thank you very much.

It is important, I believe, to have raised this question because in a way it governs the whole Charter.

Since we are dealing with rights in a constitution, I will be more specific. I imagine that a hierarchy could be established among the various legal categories in the area of language rights.

In your brief, you referred to the language of the courts, the language of Parliament and the language of education, and you even said a few words about the language in which public services are provided.

If these legal categories had to be more or less strictly defined, what sort of hierarchy would you establish?

[Page 29]

My question is based on something that to me seems obvious. Insofar as the language of the courts, and in particular of the criminal courts, is concerned, I would imagine that the statistical half truths that you mention in your brief would not count for the individual who is risking his neck or his freedom. All he cares about is being alive and free.

You say that the right to a trial in one’s own language should be enshrined in the constitution. at least in the provinces in which by far the largest proportion of the minority resides. This qualification, which appears on page 3 of your brief, brings us back to the principle of providing service where numbers warrant it, a principle which you said should not be applied to the language of’ education. And yet it seems to me that the right to plead one’s case in one’s own language is even more basic, because one’s life and freedom are on the line.

Do you not feel that this should be an absolute right, not subject to Section 1 or to any other condition?

The Joint Chairman (Mr. Joyal): Mr. Yalden.

Mr. Yalden: I would say so, Mr. Chairman.

As for the first part of the Senators question, with regards to hierarchy, I would prefer not to have to hierarchize language rights.

Of course in a court case, nothing is more important than an individual’s life and freedom.

But in another sense, nothing is more important to a people than the right to education.

So I cannot really say. Collectively speaking, education may be more important than the life of an individual. On the other hand, in a democracy, nothing is more important than an individual’s life. So i cannot answer that part of your question,

As to whether this right should be unconditional, I have no trouble agreeing with the Senator. On page 3 of my brief, I say:

But beyond this, it ought to be a basic principle of justice in Canada that an accused person in a criminal case has the right to trial in his own official language.

Further on, I say:

at least with respect to those provinces in which by far the largest proportion of the minority resides.

That is true.

But I would prefer that this right be absolute and unconditional. I refer to provinces with significant minorities because I was thinking of the four provinces in which almost all of that minority resides.

In order to avoid any possible misunderstanding between myself and my friends who are part of the francophone minority in provinces other than the four I have mentioned, I

[Page 30]

want it clearly understood that i did this to ensure that, if a choice had to be made, if more emphasis had to be placed on certain provinces than on others. the four central provinces where most of the minority resides would be covered.

In any case, my answer is clear. I would prefer that all language rights apply across the country, and not only in areas where the strongest or largest minority groups reside.

Senator Tremblay: Would you go so far as to say, Mr. Yalden, that the right to trial in one’s own language, particularly in criminal cases, should be extended not only to francophones and anglophones, but also to natives and other language groups?

The Joint Chairman (Mr. Joyal): Mr. Yalden.

Mr. Yalden: Mr. Chairman, I find the question of native languages and languages other than French and English somewhat difficult, but i think we should try to be as generous as possible.

A person who speaks a language which the court does not understand or who does not understand English or French should certainly have access to an interpreter.

Should we go further than that? Should entire trials be conducted in another language?

I do not think so.

Native languages are another matter. Members of the Committee have perhaps noticed that l have not referred this evening to languages other than the official languages, English and French.

Senator Tremblay: I can see why.

Mr. Yalden: This raises some very important questions, questions which call into play our generosity towards native peoples. i would be very tempted to put native languages on the same footing with official languages.

I note that that is precisely what the beige paper has done. I feel that this approach has a great deal of merit and, while it is not up to me, as Commissioner of Official Languages, to formally recommend it, I feel that it is valid.

Senator Tremblay: Thank you, Mr. Yalden.

The Joint Chairman (Mr. Joyal): I will put you down again, Mr. Tremblay.

I now recognize Mr. Jean Lapierre, followed by the honourable David Crombie.

Mr. Lapierre,

Mr. Jean Lapierre: I am very happy to have your support on the basic principles of our proposal and. I particularly appreciate your constructive suggestion as to how to make the text as liberal as possible.

[Page 31]

I see from your brief that you are in favour of enshrinement, except that the legislative record is not very encouraging.

Do you think that enshrining language rights in the Constitution would advance the cause of minorities in Canada and promote language equality within federal institutions? Many argue that common law does not allow for this type of enshrinement or codification of rights. It is also said that Parliament is supreme. I remember hearing at university that Parliament could do anything except change a man into a woman. Does this dilemma not bother you, since you support enshrinement? Have you weighed all of these arguments?

The Joint Chairman (Mr. Joyal): Mr. Yalden.

Mr. Yalden: When I say that the legislative record is not very encouraging. I am simply saying that we cannot, after 115 years, accept a doctrine that recognizes the absolute supremacy of Parliament and legislatures.

I do not know of any member of a minority who would accept that principle. It is not that I am against British parliamentary tradition, on the contrary. We have ample reason to be proud of this tradition, but where the spiritual and intellectual welfare of the minority is at stake, we cannot simply accept the verdict of the majority and its Parliament. It is as simple as that.

In all of the instances that I am aware of throughout the world, in every country where there is a minority, there is a tendency to try to provide constitutional protectin for these minorities. Even in Great Britain, with the advent of the Common Market, United Nations conventions and other agreements to which the British have agreed, the absolute power of Parliament is new subject to certain limitations.

Mr. Lapierre: You claim that the provisions of Section 133 could be extended to Ontario and other provinces without causing undue hardship.

When Mr. Nystrom raised the question, I told him I wanted the provisions of Section 133 to be applied across the country. and you referred to this earlier. In your brief, you limit your comments to Ontario and New Brunswick. and I would like to know whether you think that the minority rights and the rights before the courts conferred by Section 133 should be extended to everyone.

[Page 32]

Mr. Yalden: I have not changed my mind since I responded to Senator Tremblay’s question and comment. Ideally, I would prefer that the provisions of Section 133 and Sections 17, 18 and 19 of the resolution we are dealing with this evening be applicable and applied throughout Canada.

I mentioned the four central provinces because that is where most of the minority reside. but I would certainly prefer that the 40,000 francophones living in British Columbia have the same rights.

I know that what is more important for these 40,000 people, more important than the symbolic gesture of publishing these proceedings of the provincial legislature in English and French and providing education and social programs, is that the provincial and federal governments try to give them the means of existing, developing and fulfilling their potential, this is more important than using both official languages in the provincial legislature.

The courts, however, are another matter.

Of course it is important. But we have to ask ourselves whether British Columbia has the capacity to hold trials in French. I do not think that the issue is the same in Ontario.

Would judges, juries, court reporters and court staff be capable of working in French?

I do not think that this is impossible in the long run, but it is doubtful that it could be done at this time. While I am fully in favour of the principle and would like to see it acted upon, I would hesitate to apply it at this time in British Columbia, Alberta, Newfoundland, Prince Edward Island or some of the other provinces. What I am saying is that we should do it where it is feasible, that is, in Ontario and New Brunswick and in the two provinces where it is required by the existing Constitution.

Mr. Lapierre: You have serious reservations about the drafting of Section 20, particularly with respect to bilingual districts. We know that there are in fact no bilingual districts. Do you think that this section should be amended to include the concept of bilingual districts? Do you think that the notion of bilingual districts should be left out of the new section altogether? Do you have other, more general suggestions to make, or would you prefer that the whole thing be dropped?

Mr. Yalden: Just the opposite, Mr. Chairman. I said in my opening statement that the absence of bilingual districts has hindered rather than helped in achieving Parliament’s goals.

I, myself, am in favour of bilingual districts. What I am saying therefore is why, after 11 years experience with the Official Languages Act, why, therefore, twice create a consul-

[Page 33]

tation committee for bilingual districts and then ignore its recommendations?

After 11 years of not having declared bilingual districts, how have we arrived at a constitution text which, by its formulation, is close to that of the Official Languages Act on bilingual districts, except that it is much more vague?

If we are in favour of a slightly territorial approach, then it should be said honestly and openly, and we must accept the conditions set forth by the Official Languages Act; if we wanted to, we could perhaps even add these Official Languages Act clauses to the constitution.

I think, personally, that that would bring about a much too detailed constitution, but it would be possible. What puzzles me here, is that we have a declaration of situations where a minority or an individual would have the right to demand governmental services in English or in French. whatever the case may be, but when time comes to define where an individual would have this right. the text is very vague and says

… in such a manner as may be proscribed or authorized by Parliament.

I find that so very, very vague that I just simply want to remove it altogether.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre.

I would now like to give the floor to the Hon, David Crombie, who will be followed by the Hon. Bryce Mackasey.

[Text]

Mr. Crombie.

Mr. Crombie: Thank you, Mr. Chairman. Mr. Commissioner, in your brief and also in your verbal testimony, you were quite clear on the point that, in your judgment, minority language rights could not be well protected in ordinary legislation, and, therefore, you welcomed the opportunity for minority language rights to be entrenched; so that they could be best protected against the will of the minority who would take away those rights.

In that connection, I would like to direct your attention to Sections 50 and 42. i would like to query you as to your view as to the adequacy of that protection.

Section 50 as you know, Mr. Commissioner, indicates the way in which the constitution can be amended, and, therefore, the minority language rights can be amended—in Section 50(b) of the Canadian Charter of Rights and Freedom; and it is only through Sections 4i and 42. Section 42 allows for an amendment to the constitution by referendum, that is to say, a majority of Canadians can change the constitution, and, therefore, change minority language rights.

I would like to have your comments. is there any difficulty in your mind with the fact that we can change the constitution by a majority vote when, indeed, the reason why you are entrenching the constitution in the first place is to protect the minority from the majority?

[Page 34]

Mr. Yalden: Well, Mr. Chairman, I suppose, again, as a general answer speaking as a layman, all constitutions are changeable. I do not know of any constitutional document where a given clause or given set of rights are absolutely immutable and can never be changed in any way, that is to say where there is no amending formula to cover that kind of thing.

Therefore, the first part of my response would be that I accept the need for some kind of an amending formula, even when it applies to this very basic matter of language or other types of fundamental rights.

The question that arises is whether the formula proposed in this document is an adequate one.

I do not think it would be useful for me to elaborate upon whether this formula or the one known as the Vancouver consensus or other formulae which have been put forward over the years are better or worse.

But, I would say that, contrary to what Mr. Crombie said a moment ago, Mr. Chairman, it is not a case that a simple majority of Canadians would change the constitution in a matter of language rights.

It requires, of course, a resolution of the Senate and of the House of Commons, and it also requires resolutions of those provinces which are required to pass resolutions under Section 4l; that is to say, Ontario and Quebec, and two of the western provinces, having 50 per cent of the population, and two of the maritime provinces.

So you have to have a majority which includes six provinces and the federal Senate and federal House of Commons.

I think it would be pretty difficult to get this kind of massive majority support without a rather good reason for wishing to change the constitution.

I can only express the hope that that would occur only when Canadians, because they were more generous in the future than they are now, might wish to change one or other of those fundamental rights, including the language rights—for the better.

I hate to think of what we would have come to in this country if you could get together with that kind of majority for a repressive measure. I would rather not be around the day that happened. Now, I am not saying you could not do it. We are all human, and we can all do things; but i would hope that would never happen.

My short answer to the question is that that amending formula, or an amending formula of the sort-and it is not for me to pronounce myself on that-but something of that sort which requires considerably more than a simple majority is a pretty good protection against abuse.

Mr. Crombie: Thank you.

I would like to direct your attention to Section 6 which deals with mobility rights.

[Page 35]

Section 6(2)(b) to be precise. allows every citizen of Canada and every person who has the status of a permanent resident of Canada the right—and this is Section 6(2)(b) to pursue the gaining of a livelihood in any province.

The concern of—if I may use an example—many French speaking Quebekers in the past has been their inability to move about the country to gain a livelihood and the problem rested on the inability to find a home both in their culture and language and in their workplace, educationally and so on.

I wonder if you felt that the provisions, both in terms of the mobility rights and in relation to their language rights, that we would have improved the situation in any way by this resolution, and, if not, is there any other change you might make?

Mr. Yalden: On this specific point, Section 6(2)(b) I would suppose that would turn out to be useful to persons whose language is the French language, moving out of Quebec and into the nine other provinces, or vice versa, in the sense that someone might, or example, go to court on the educational question we were talking about earlier.

If there were no educational facilities available, such a person might argue that he was being impeded from pursuing the gaining of a livelihood in the particular province.

How can you gain a livelihood in a province if you cannot educate your children or get any services from the government and are completely barred from living in your language? I would have thought that would provide a form of additional protection for the minority. I do not really know whether that is so in fact, because l think it is the kind of clause that lawyers are going to find to be of very intriguing effect if and when it comes before the courts.

I do not have any change to propose in respect of that type of mobility right. I did argue in respect of Section 23(2) that, by giving a mobility right in respect of a language of education in Section 23(2) and by including the citizenship requirement in Section 23(1), you could create all sorts of confusion, both administrative and human, at the family level, by various people going through other provinces and having a right which their neighbours or relatives have not, because they went directly to a province.

I do not, in any sense. come out against a mobility right. I think the motivation to give to a person who moves to a province unequivocally the right to continue his children’s education in the language in which they began is a good idea. It is both humane and a sensible provision. I just do not like the way it combines itself with Section 23(1) and the possible consequences of it.

I do not propose to bore the Committee by saying that I believe it to be iniquitous to restrict this right to citizens. Fundamental human rights are granted to individuals. no matter what their citizenship status is. I believe this language right should be granted to all individuals in this country.

[Page 36]

But the mobility right as such I think…

Mr. Crombie: I want to make sure I am clear on this and as to your response.

My question was not whether or not you favoured mobility rights. I assumed you did.

I wondered whether you felt that the language rights which are also contained in the resolution would follow the mobility rights. I suppose you are saying yes to that?

Mr. Yalden: I think the courts would like to look at it that way. It strikes me that Section (2)(b) which you drew to the attention of the Committee. is one which, as I say, may have all sorts of significance as and when it has worked its way through the courts. I honestly could not say what effect it might have now.

Mr. Crombie: With respect to Section 23, as you mentioned, Mr. Chairman, to the Commissioner, I want to understand your comment with respect to two classes of immigrants in Section 23(1).

But may I direct your attention to Section 23(2). It may be my reading of it. But if I can put a case to you in relation to the first four or five lines:

(2) Where a citizen of Canada changes residence from one province to another and,

I would like to underline the next four words,

prior to the change, any child of that citizen has been receiving his or her primary or secondary school instruction in either English or French, that citizen has the right to have any or all of his or her children receive their primary and secondary school instruction in that same language

Now if I had two children, aged 11 and 8 before I made a change from one province to another, would I stand in a different situation in relation to my brother who had two children, aged 1 and 3. and, therefore, had not had his children start school, would I then stand in a different relation to the education of my children than he would?

Mr. Yalden: Mr. Chairman, my understanding is that the answer to that question is yes. With the children aged II and 8 who, by the wording of Section 23(2) prior to the change of address were in school, those children would have the right to continue in the language in which they were being educated, say, moving from Toronto to Quebec or the other way around; whereas, if you had children who were not in school, and therefore did not fall within the wording

any child of that citizen has been receiving his or her primary or secondary school instruction

and so on, they would not have that right.

Mr. Crombie: May I have one more question.

[Page 37]

Mr. Commissioner, we have now established the fact that I now stand in an entirely different relationship in the education of my children than my brother does with his, and this is by the mere fact of the age at which my children were when I moved.

I am wondering, given your concern for individual rights, what rule of individual equity is being served or what objective of public policy is being served by creating two classes of educational rights within one family?

Mr. Yalden: Mr. Chairman, these things are complicated and are not made any easier, with great respect to the draftsman, by this language, which is less than limpid and crystal clear.

However, my understanding is that as a citizen he would have that right once he found himself in the province, if we were to refer back to Section 23(1), in other words, which reads:

23.(l) Citizens of Canada whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside have the right to have their children receive their primary and secondary school instruction in that minority language.

I think when you, as a citizen, go to another province and establish a residence there, I suppose eventually you would have that right.

Mr. Crombie: Section 22(2) says . . .

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Crombie.

Mr. Crombie: Thank you very much, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Crombie.

[Text]

Mr. Crombie: Thank you very much, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): It is now the hon. Bryce Mackasey’s turn, followed by the hon. Perrin Beatty.

Mr. Mackasey.

[Text]

Mr. Mackasey: Thank you, Mr. Chairman,

I want to refer Mr. Yalden back to a point raised by Mr. Nystrom earlier on, namely, the possibility of using Section 43 to offset or negate a minority language right which appears in Section 23.

I think if you were to read Section 43 rather carefully, you would be relieved to know that it cannot affect Section 23. The limitation in Section 43 makes it clear that you could amend

the Constitution of Canada in relation to any provision that applies to one or more, but not all. provinces

Section 23 applies to all.

However, if that makes you happy, I shall now make you unhappy by suggesting that Section 43 can be used to negate Section 133.

Mr. Yalden: That was his point, sir.

Mr. Nystrom: Section 23 of the Manitoba Act is the same as Section 133 of the BNA.

[Page 38]

Mr. Mackasey: I am sorry. I apologise.

Mr. Yalden, I have been one of your admirers for some time and I hesitate to take issue with you too strongly this evening. I think your role is an extremely difficult one, and it is almost a dedication or vocation to preach minority language rights in this country.

Perhaps, just to capitulate or summarize what you have said tonight, am I right in saying that you want entrenchment, not because there has not been progress, but you do not want that progress wiped out by the stroke of a pen of some provincial legislation. Am I right?

Mr. Yalden: Well, Mr. Chairman, I think I said that I wanted entrenchment precisely because I want the assurance given to the majority that you cannot have without entrenching constitutional provisions. I did, however, also say-and I suppose if I had the time to concentrate on the history of the thing I could have said more clearly that whilst there has been progress, that progress has been very recent and that progress is hardly sufficient, and there were many, many decades as Mr. Mackasey, who has great concern for these matters of individual rights, knows very well where there was no progress, where on the contrary we were going backwards, where we had what happened in Ontario or New Brunswick or Manitoba in the 19th and early 20th Centuries, where there was no question of progress.

I said both things. I think. that we simply cannot say here. around this table in the Parliament of Canada or in any Legislature of the province: do not worry fellows, trust us. That has been tried and that was a flop. The trust was misplaced.

I also said that even though latterly in the last decade or so there has been progress, real progress, that you still need the constitutional protection to ensure that that progress will not suddenly dry up one of these days.

Mr. Mackasey: Well, I think this is a very valuable contribution, Mr. Yalden, because there are too, too many people who are not convinced that we need to entrench individual rights in the constitution and your testimony following that of Mr. Fairweather, which can certainly be considered very non-political at this stage of your careers. I think will help a lot of people who watch these hearings or read about our progress or lack of progress, will still have an open mind as to whether these rights should be entrenched or not. I think your testimony and that of Mr. Fairweather goes a long way to at least help Canadians come down on the side of entrenchment, and maybe I am being naive but I sense that same feeling developing in the Committee, which is the purpose of the Committee, I suppose, to treat these things objectively.

I share your reservation, Mr. Yalden, that this is not a perfect document by any means. I would like to see freedom of choice in our constitution, as you would, and if we had freedom of choice you would not need the rather tortuous language that you refer to dealing with minorities and immigrants and all the rest of it, but having said that and having

[Page 39]

spent some time in the Quebec Assembly, I have to take a little issue with Page 5 where you talk about statistical half truths and I think what you are referring to there is the concern of people in the Province of Quebec and in the Quebec National Assembly that somehow the assimilation of the new Canadian to Quebec by the English community was a determined threat to the culture and language of Quebecers. Am I right in that?

Mr. Yalden: Yes, sir, I hesitated over that phrase, when I left it in I thought somebody was going to . . .

Mr., Mackasey: Well, I am doing it only for clarification because I share their views at times. I feel despite certain discrimination in Bill 22 and Bill 101, Quebec is probably the only province with an impeccable record insofar as it treats its minorities, and the reason that I can sit here and endorse this resolution, Mr. Yalden, despite these imperfections, despite the fact that it is less than perfect, despite the fact that it is a lot less than I have advocated as a very simple backbencher up and down the country in the sixties. It stems from the fact that the people who are denied freedom of choice in Quebec are indeed the majority. Do you agree with that? It is the French speaking Canadians who do not have the freedom of choice in Quebec, not the English speaking Canadians?

Mr. Yalden: Well, i will say, Mr. Chairman, there are at the moment in Quebec, under Bill 101 there are different groups, as Mr. Mackasey knows, and not all of them have freedom of choice. One group that does not have freedom of choice is the majority, of course.

I have had it put to me on many occasions, as I am sure he has in the National Assembly, that the majority does not need protecting because if the majority does not like it, they kick the government out and get another one. I personally think that is too simplistic an approach and I have said this evening that I am in an ideal world, a believer of freedom of choice, and moreover, I think I said that most of those who are engaged in this debate are fundamentally believers in freedom of choice. I notice the Prime Minister made remarks to this effect before the Chamber of Commerce in Quebec a short while ago. We have all of us heard on a number of occasions the Premier of Quebec, Mr. Levesque, say that it is humiliating to have to legislate in the manner of Bill I0], so lots of people are in favour of freedom of choice, I think.

Mr. Mackasey: Well, maybe I am rationalizing my position, but when the people of Quebec, I am convinced, are sure that the statistical half truths are no longer applicable, or as the science becomes more sophisticated, that extending freedom of choice to all citizens of Quebec no longer holds a threat to their language and culture, my belief, based on my many years in the province, is that the French-speaking Canadians would generously, and without reservation, extend that right to their minority.

[Page 40]

I just want to say that, because of the time and because Mr. Beatty wants to speak, that I share the same agony as you do in that this is not a perfect document. but I suggest to you, Mr. Yalden, that as imperfect as it is, it does provide an opportunity in the future for the provincial Premiers to sit down and forge the perfect document since this time they will be sitting down with the bare minimum of rights, which is all this bill can pretend to include. We would be wrong to create the impression that we are not unilaterally amending the constitution; we are all adults, we know we are. The question is: how far do you go when you are amending the constitution unilaterally and not really taking into consideration the provinces’ views?

We are doing it, obviously. because the very injustices that you have pointed out and Mr. Fairweather pointed out cannot be resolved in any other fashion, but having said that, is it too idealistic to presume that in the future the 10 provinces, reflecting the goodwill of all people on this Committee and with an amending formula at their disposal, could very well sit down one day and forge a bill of rights that you envisage and I envisage”! Do you not think this is possible?

Mr. Yalden: Well, yes, Mr. Chairman, I think it is possible.

I would like to say two things very, very briefly: firstly, on this matter of half truths, I would not like to leave the impression anywhere that when I used that expression I was referring to the very deeply felt views of some Quebeckers about the threat to the French language in that province. That is not what I am referring to. What I had in mind was a reference to the kind of debate that you read raging back and forth in the press between those who claim that there are x or y thousands of people emigrating and immigrating and the net flow is this and the net outflow is that, and where there is a tendency never to quote any statistic that does not favour your own thesis. You will read one day in Le Devoir or the Gazette one view of this sort and the next day you will read a totally contrary thing. There is a sort of demographic guerilla warfare going on and that is what I was referring to.

The second point, about this being an imperfect document, sure, that is the case. Thinking of the old cliché about half a loaf being better than none, no doubt that is the case as well. My reason for coming to the Committee this evening, to have a chance to discuss this with you, was in the hope that we can get at least three quarters of a loaf, that we do not have to content ourselves with half a loaf,

It may well be that in the future changes will be possible which, based upon the present document or something like it, will make for a better charter of rights. All I will say is that the better it is when it emerges for this Committee. the better I will like it.

Mr. Mackasey: I will just conclude by saying hope springs eternal in the human breast.

[Page 41]

Mr. Yalden: Indeed, sir.

Mr. Mackasey: Thank you.

[Translation]

The Joint Chairman (Mr. JoyaI): Thank you, Mr. Yalden. I must admit, of course, that it is time to adjourn.

Unless there are other questions or comments on the continuation of our work, I could receive a motion to adjourn.

Mr. Malépart.

Mr. Malépart: Please, I ask the leave of the committee to ask two short questions to the Commissioner of Official Languages before the adjournment?

The Joint Chairman (Mr. Joyal): I am in the hands of the committee to decide on that.

It has been the procedure of this committee to hear, Mr. Malépart, members of Parliament or honourable senators that were not members of this committee after the list of members of this committee had been exhausted.

But I see that I still have names on my list. I notice I have the names of two members from the Official Opposition and also one member from the ministrial party, but, of course, I am in the hands of the committee.

Mr. Nystrom.

[Text]

Mr. Nystrom: I think it is a very important issue, Mr. Chairman, and I would be in favour of extending the clock for a few more minutes to recognize, say, at least two more questionners.

[Translation]

The Joint Chairman (Mr. JoyaI): We have the proposal from Mr. Nystrom that we pursue our work.

Do the members of the committee agree that we should hear two more persons?

Mr. Lapierre: I agree.

The Joint Chairman (Mr. Joyal): Mr. Epp?

[Text]

Mr. Epp: Mr. Chairman, I would like to indicate if that were to be the case we would insist on following the list and have Committee members being heard first. That does not necessarily follow the wishes of the member, but from our perspective it would have to be done along those lines.

[Translation]

The Joint Chairman (Mr. Joyal): Well, Mr. Epp, to follow up your suggestion, I could give the floor to the honourable Perrin Beatty, who was the following member of the Official Opposition on the list and if I had to recognize somebody from the ministerial side, I could then recognize Mr. Jean-Claude Malépart.

If the members of the committee are agreeable, I would ask the honourable Perrin Beatty to pursue a discussion with Mr. Yalden, if he agrees to do so because it was understood with him that we would stop at 10 o’clock.

Mr. Beatty, please.

Mr. Beatty: Thank you very much, Mr. Chairman.

[Page 42]

[Text]

Mr. Yalden, you obviously have been wrestling with one of the issues which is of great concern to this Committee and that is that we cannot separate the question of content from the question of process here. I notice that earlier you had mentioned your concern over the element of unilateralism involved in the government’s decision to go ahead and to make many major changes in the constitution over the opposition of the provinces and I wonder whether you might elaborate on some of your concerns here?

The Joint Chairman (Mr. Joyal): Mr. Yalden?

Mr. Yalden: Well, Mr. Chairman, my concern is, and I think I have said earlier the concern of perhaps many Canadians, is that a process as important as that of changing our constitution and bringing it home should be done in an atmosphere of division and argument, if you will; three provinces in the courts, others who would just as soon as be and so on. I would prefer that that not be the case. I cannot elaborate on those comments any more than that, really.

I was asked I think earlier whether I thought it would affect the degree to which provinces would be prepared to live up to the spirit of a clause like Section 23 where only they, after all, can deliver the service, it being an educational service which is within their jurisdiction, I replied that I hoped whatever came of these disputes, that it would not create problems for the minority, would (not be done on the backs of the minority, as one says, and I hope that is not the case.

My misgivings are, of course, those that I referred to earlier. We are doing things in the area of education and there is no doubt about it. The government is doing things in that area via Westminster and I will not return to that particular aspect, which are not, in the view of some of the provinces, desirable. Now, I as a Canadian feel that is a very unfortunate state of affairs.

I also said, however, and I repeat, that it is to me very important that those sections, or sections similar to them, find themselves in the constitution. I have not said that I am happy with Section 23(1), and I have given a number of reasons why I am not and I think when we were discussing, Mr. Crombie and I a little bit earlier, we found yet another one of these anomalies where it is possible that two sets of persons would have different rights.

I thought, by the way, and I notice that Mr. Crombie is not there anymore, that I should have said at the time that the difference, really, is not between him and his brother, since presumably they are both anglophones, but between him and his next door neighbour who, in the latter case, may not be an anglophone and who would have that right upon moving to Quebec because his children were in an English school in Toronto, That is the real difference, but Mr. Crombie’s point is well taken because it creates yet another type of difference among Canadians that I think is unwise.

You will forgive me that digression, Mr. Chairman, but I wanted to be a little clearer about that point. However, my answer in short to Mr. Beatty can only be what I said earlier: I do not like it but I also would like to see those rights entrenched and were it put to me do I think agreement of this sort would be reached now or next year or in the next three,

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four or five years by general entente by the federal government and provincial governments, my answer would be no, it would not.

Mr. Beatty: I suppose the real issue in this instance is whether you felt the end justifies the means. There is no quarrel around the table with the goals which are shared by each of us, I think each of us want to find language matters dealt with in a manner of generosity and in a spirit of harmony in this country. I guess the real question is whether or not the federal government, in ignoring the wishes, as Mr. Mackasey said, of the provinces and acting unilaterally, injures the cause of linguistic justice by going ahead unilaterally, or whether in fact the cause of harmony in the country is fostered by the action which is being taken which appears to have caused a great deal of divisiveness within the country and a great deal of bitterness. Does it help the cause of linguistic equality or linguistic justice to reach a situation in Canada where six provinces have indicated that they would like to see this matter challenged in the courts, or do you feel that progress can better be made in the spirit of harmony and goodwill, where agreement is sought and where the federal government attempts not to do something through the back door, through Westminster, that it cannot do legally here in Canada?

Mr. Yalden: Mr. Chairman, on the matter of linguistic justice, if I thought that this resolution were harmful to linguistic justice in this country, I should be of course opposed to it. I do not think it is harmful to linguistic justice. Whether the manner of proceeding is harmful to or tends to diminish the degree of harmony in this country, I do not really have much of a comment. I read the newspapers like everybody else. It is not a very harmonious country at the moment and in fighting about the way in which the government has proceeded over the constitution of course does not contribute to harmony. For me to reply in that way is giving a pretty obvious sort of comment, I think, but I do not believe that the manner of proceeding is harmful to linguistic justice.

It would be, perhaps, if the provinces, and this harks back to the comments exchanged earlier, if the provinces were so cross about the manner of proceeding that they decided to take it out on the minority, but I do not believe that our provincial Premiers and our provincial legislatures, whatever the province and whatever the political party, would do that. I hope they would not.

Mr. Beatty: I hope not, too. You are put in a difficult position with your desire to see the goals here achieved. It is rather like being in the position of coming across a person dynamiting the vault door on a bank and saying: I do not approve of what you are doing, but remember the poor when you are in there.

It may be that the goals you want to see achieved are furthered by it but I wonder whether the process is one that is justified and I think this is the concern that many Canadians have, and clearly the indications have been in recent days that the actions of the government have been divisive and have led to a poisoning, perhaps, of the climate in Canada, and have made it much more difficult to ask for the sense of generosity which we both would like to see.

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Mr. Yalden: Well. Mr. Chairman, I am not sure about the bank image, but I think I have said about all I can say on the subject short of Mr. Beatty and myself engaging in a discussion for the rest of the night about whether the end justifies the means. We would not be very likely to emerge from that discussion, we all know what a difficult point of moral philosophy it is.

I will say what I have said earlier, I do not like to be stronger, the unilateralist approach, but I do wish to see a charter of rights entrenched in the constitution. If that is a contradiction, sir, I will live with that contradiction.

Mr. Beatty: Let me ask you in terms of a compromise, what about the possibility of opting in, of having rights written into the charter, to extend. to the extent possible the federal government can write them into law, but whereas they apply to areas that are provincial jurisdiction, provincial Legislatures would have the right to opt in at the time of their choosing so it would not involve the federal government unilaterally imposing a regime on the provinces in areas where it has no jurisdiction?

Mr. Yalden: Well, Mr. Chairman, I think my comment on that is this, that in general I of course have no objection to opting in as a procedure, we know of that and it is part of the Canadian way of life, or opting out for that matter. I do not object to opting in in general and in principle, but in this particular case I am not sure and I speak now strictly as one who is interested in Section 16 to Section 23 of this draft, not as a Canadian speaking of the whole thing, but in my professional capacity I am not sure what the purpose of the exercise would be because Section 23 with an opting-in clause along with it would not be opted into except by one or two provinces so we will be back where we started.

We know from the debates at the Constitutional Conference in September, and many other debates of a similar nature over the years, that most of the provinces, and I am speaking now of Section 23, most of the provinces other than New Brunswick and Ontario, because the Premier of Ontario has said he is in favour of this section, would not opt in. I do not know of another one that would. Maybe Saskatchewan would, I am not sure.

Mr. Beatty: Would not opt in today perhaps, but you indicated to Mr. Epp that you have seen substantial progress made over the course of the past decade, that attitudes had indeed change and substantial progress had been made at the provincial level?

Mr. Yalden: Sure. We have a declaration from the Premiers and I have not a moment’s reason to think that that declaration does not represent a firm commitment on the part of the Premiers, but the very same premiers—and I am not questioning their judgment, it is their judgment, however it happens to be the truth that the very same Premiers who made that declaration, always with the exception of Mr. Davis and Mr. Hatfield and possibly Mr. Blakeney, have not been prepared to accept a constitutionally-entrenched clause which is very similar to that declaration because they do not, in some certain cases, believe in entrenchment at all. of any kind, and they do

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not believe in the Charter of Rights. l saw you, Mr. Beatty, at the conference listening as carefully as l was to the various premiers expressing their views and we all know that those views were expressed around the table. There are certain who do not believe in entrenched fundamental rights, there are others who might believe in certain types of rights but not other rights, and there are some that believe in language rights and some that do not believe in language rights, and so on.

So I do not see them opting in in the foreseeable future. It may be in a time of much greater harmony than we know today they would. but I do not see that happening tomorrow or the next day.

Mr. Beatty: Thank you, Mr. Yalden. Merci, monsieur le president.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Beatty. Mr. Jean-Claude Malepart.

Mr. Malepart: Thank you, Mr. Chairman, and members of the committee.

You have admitted, Mr. Yalden, that there cannot be freedom of choice.

Do you also admit that it is the duty of the Province of Quebec, which is part of Canada, and of the provincial government, whether it be Liberal, Péquiste or Union nationale, to ensure that the Province of Quebec continues to develop in French?

My second questin is this: determing a person’s mother tongue, which is the criteria used in the proposal, implies language tests. These tests would be devised by the provinces and administered by school board officials, and parents would have to take them, There could be a conflict in that the provincial government could devise a test that was so difficult that an anglophone in Quebec could not pass it. And if we use language comprehension as the criteria, a francophone outside of Quebec who has unfortunately lost a lot of his French would not be able to send his child to a French school.

Mr. Yalden: Fist of all, Mr. Chairman. I agree that it is the duty of the provincial government to protect the voters, citizens and residents of the province. I am of course referring not only to anglophones in Quebec, but to francophones as well. No one disputes that.

As for the other point made by the member, he is assuming that the mother tongue requirement implies language tests. I am not sure that it does.

I do not need to undergo a language test to know that my mother tongue is not French and most of the anglophones I know, even if they speak beautiful French, are still anglophones, And I think that the same is true of francophones.

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There will always be some men and women who speak both languages and who were born and raised in such exceptional circumstances that they do not know what their mother tongue is, but I think that these individuals are rare.

For most of us, there is no problem. We know who is what.

What happened in Quebec is that language tests were required for children and there was some doubt as to the language spoken by a child of Italian descent raised in an English neighborhood in Montreal. Mother tongue was not a consideration. To be admitted to an English School, the child had to show some degree of mastery of the language. It was a problem, whereas it would not be a problem in your case or mine.

Mr. Malépart: How do you know that my first language-…my first language is the one I learned before I went to school. That means that any francophone, anywhere, can go to a school board and say: the first language I learned is such and such. The school board would have to administer tests, because that would be the language his parents spoke.

How do you intend to apply this principle without creating conflicts?

Mr. Yalden: As is the case with many of the clauses in this proposal, the government is trying to be specific where it is not necessary or desireable to do so,

If they had simply said “mother tongue”, I think I would have understood. Instead of saying “mother tongue”, they have used the expression “first language learned and still understood”, which is how mother tongue is defined for the purposes of the Statistics Act and the Official Languages Act. It is not necessarily the best term.

As the member rightly pointed out, the first language he learned and still understands could, theoretically, be Hindu, or just about anything, although I believe that he is francophone.

Mr. Malépart: Yes.

Mr. Yalden: Pure, as they say. And I am anglophone.

The only other comment I might make is that, if we want to be reasonable about it, there must not be very many cases where someone who is obviously francophone comes along with a little boy in two and tries to convince the shcool principal that the child is anglophone. If this did happen. the principal would not have any problem proving that it was not true.

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Mr. Malépart: This right will not be given to the child, but to the parents.

Mr. Yalden: To the parents.

Mr. Malépart: One of my colleagues, Denis Dawson, could claim that the first language he learned was either English or French. Soemone could go before the courts and prove that the first language he learned was English or French, and he would have to be tested. The principle is sound, and I agree with it, but if we use the criterion of language of education instead, we could avoid subjecting people to tests and handing out certificates as proof.

Mr. Yalden: I have two comments, Mr. Chairman.

First of all, I do not think that very many people would try to prove that they belong to the other linguistic group.

Let us look at a hypothetical situation. Supposing there is a francophone who, for one reason or another, wants to educate his children in English. If he approaches the English school, it will be obvious that he is francophone, unless he speaks English so well that it is impossible to tell what his mother tongue actually is.

Mr. Malépart: In that case . . .

Mr. Yalden: But how many people are there in that situation?

Mr. Malépart: Let’s deal with facts. There are children in Quebec who are attending English school illegally. This would indicate that the matter is of considerable concern. I am not referring to anglophones or francophones, but to people who speak another language.

Mr. Yalden: I am not denying that this is a cause for concern. On the contrary, as I said in my opening remarks.

Also, you and I are not talking about people who speak other languages. Under this proposal, non-citizens have no rights, just as they have no rights under Law 101.

I maintain that if we are to use mother tongue as a criterion, we should not add the citizenship requirement as well. Under this proposal, even a citizen who speaks neither English nor French has no rights, just as he has not rights under the appropriate provisions of Law 101.

The Joint Chairman (Mr. Joyal): This will be your last question, Mr. Malépart.

Mr. Malépart: I have no more questions. Thank you.

The Joint Chairman (Mr. Joyal): On behalf of the committee, I would like to thank Mr. Yalden for having appeared this evening and I will receive a motion to adjourn until 9:30 tomorrow morning.

Mr. Henderson moves that the meeting be adjourned.

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The meeting is adjourned until 9.30 tomorrow morning when we will have as witnesses the Canadian Civil Liberties Association and at 11:00, the Positive Action Committee.

WITNESS

Mr. M. F. Yalden, Commissioner of Official Languages.

Other Issues: