Canada's Original Think Tank

Motion to Reaffirm the Importance of Both Official Languages

Motion to Reaffirm the Importance of Both Official Languages

Motion to Reaffirm the Importance of Both Official Languages

Hon. Serge Joyal: 

Honourable senators, I am joining in this debate for two reasons in particular. The first is because I am a trustee of the Baxter & Alma Ricard Foundation, a private foundation established with an endowment of $35 million bequeathed by a couple from Sudbury, Ontario, who operated a hardware store for many years. As they had no children, this couple dedicated their financial assets to creating scholarships for francophone students outside Quebec. The eligibility criteria established by this foundation exclude francophone Quebecers who wish to pursue post-secondary studies. This Ontario-based foundation is exclusively for francophone students outside Quebec. Since its creation in 1998, the foundation has helped over 320 francophone students across Canada and has awarded over $21 million.

As soon as I learned of the Ontario government’s decision to withdraw the funds that had been promised to the French-language university, my first reaction, as a trustee of that foundation, was that this meant a dead end for many of the opportunities that would have been available to the foundation, whose assets I administer with the other trustees.

Honourable senators, the second reason for my intervention on Senator Miville-Dechêne’s motion is that I must confess that I am a veteran of linguistic debates in Canada, specifically regarding the recognition of the equal status of both official languages in this country. Last April, I had a chance to appear before the Standing Senate Committee on Official Languages, which had invited me to come and outline the conditions under which linguistic equality is respected in our country.

I will say this was one of the reasons I ran for office in 1974 when Quebec was in the midst of a national unity debate. Quebec separation aside, I thought that francophones should have the same opportunity as all other Canadians to live their lives in their mother tongue and to participate in national governance, the public debate and the advancement of Canadian values, regardless of which official language they spoke by virtue of their birth, education, community and choices they had freely made.

Some of you know that one of the first decisions I had to make as an MP back in 1974 was to take Pierre Elliott Trudeau’s government to court. If anyone wants to talk about independence, I have a thing or two to say about that. As a member of the Liberal Party of Canada and a caucus member, I decided to champion the use of French in cockpits following an announcement by then transport minister, the Honourable Otto Lang, and Air Canada, which was a Crown corporation at the time, about requiring English to be used when maintaining and servicing Air Canada planes.

To me, that decision ran completely contrary to my ideal of Canada, because I believed that Canada was a country where anyone could earn a living in either language working for the Canadian government. I felt that if a court did not confirm the equality of English and French as set out in section 2 of the Official Languages Act, which, at the time, was the only legal protection available, the Canadian ideal was in the hands of the majority, which could always find good reasons for limiting or banning the use of French.

If the use of French was banned in cockpits on the grounds that it jeopardized air safety, a similar argument could be made for highly sensitive military operations, for example. Someone could say that we could not take the risk that soldiers might not understand orders, so it would be better to proceed in English only, because lives are at stake.

As they said back in 1976, is it worth the risk of creating unsafe conditions in flight, either because two co-pilots can’t understand each other, since one is anglophone and the other is francophone, or because the control tower doesn’t understand French? It was very easy to exaggerate and turn us into doctrinaires seeking to impose the use of French with flagrant disregard for aviation safety and for the lives of the 350 passengers who might be on board.

I therefore decided to personally sue Air Canada in order to seek the repeal of a regulation implemented by the then minister of transport banning the use of French in cockpits and in air traffic control communications.

Honourable senators, at the time, public feeling reached an emotional pitch that you can hardly imagine. In July 1976, one week before the Montreal Olympic Games, all of Canada’s airports were shut down because pilots were demanding that the government maintain the directive concerning the use of English in air traffic control communications. Imagine it for a moment, all Canadian airports being closed just as about 100 delegations were arriving in Montreal for the Olympic Games. Email did not exist back then, but the amount of letters and call-ins in Canada showed just how public opinion was becoming an almost unstoppable factor for the government.

Like many of you, I participated in the debate on the postal strike. I can tell you that compared to what I experienced in 1976, the pressure exerted on the government in the postal strike was “small beer,” to use an expression that my friend Senator Maltais would like, with all due respect for the postal workers, who generally provide us with impeccable service.

Faced with that deadline, I therefore had to take my own government to court with my own money. There was no financial assistance program offered by the Canadian government to ensure that the equal status of French and English was respected. Not only were there no public financial resources, but the position of the Canadian government and the then Commissioner of Official Languages, Keith Spicer, was to oppose the fact that linguistic equality was a principle that could be used in court to obtain a remedy for a violation of rights.

[English]

The position of the federal government was that the principle recognized and entrenched in the Official Languages Act was not enforceable in the courts. Our friend Senator Sinclair will well understand, and Senator Dalphond knows what it means. It means you cannot go before a court and obtain a decision on the proof you have in front of the court, on the facts, the expertise and everything the court might want to consider to decide that yes, there was a violation of your rights.

What was applicable for French-speaking Canadians was also applicable for English-speaking Canadians in Quebec. It was the same protection — that is, no protection. The protection was as valid as the paper on which it is printed.

[Translation]

You will therefore understand, honourable senators, that the first decision I made when I became Secretary of State was to expand the financial assistance program to include the rights set out in the Charter, more specifically those set out in sections 16 to 23, so that Canadians who felt that their rights had been violated could get financial assistance from the government. Obviously, that mechanism was managed by an independent committee so that the government could not pick and choose which causes it would fund.

That program was very useful, honourable senators. Let me give you some statistics. From 1984 to 1992, 97 rulings from the highest courts in Canada supported the principle of linguistic equality on the basis of individual claims.

As some of you may know, in 1993, the Court Challenges Program was abolished by the government of the day, only to be restored in 1994 by the following government, and 51 rulings based on the principle of linguistic equality were handed down between then and 2006.

Those many rulings prove that the Court Challenges Program plays an important role in promoting the principle of linguistic equality in Canada. Approximately 148 decisions since 1984 probably would not have made their way through the courts without that public assistance. Few people can afford to mortgage their house, sell one of their cars or use credit to pay for legal fees to achieve such a remedy for a rights violation, without any financial gain at the end of the process. We would all love to embark on such a venture as a matter of principle or for a good cause, but the sheer magnitude of the legal fees that it takes is very discouraging. This is essentially tantamount to denying a Canadian citizen their ability to go before a court of law.

Issues associated with the recognition of education rights are as old as Canada. As you all know, our Confederation was established in 1867. In 1871, the New Brunswick government tried to limit access to education in French. In 1888, the same thing happened in the Northwest Territories. Then, in 1890, it was Manitoba’s turn. I see the Honourable Senator Harder nodding. The Manitoba government decided, in violation of section 23 of the Manitoba Constitution, to ban education in French and to prohibit the passage of laws in both official languages. It wasn’t until 1979 that the Supreme Court struck down this legislation. This ruling gave the government two years to translate the bulk of the statutes stored at the Legislative Assembly of Manitoba. At the time, I was Canada’s secretary of state, and with the support of my colleagues in cabinet, I was able to provide the translation services required to meet the requirements of the court’s ruling in Forest. Senator Gagné knows what I’m talking about.

Premier Ford’s decision last week sadly reminds us of Regulation 17 imposed by the Ontario Ministry of Education in 1912, which made it illegal to speak or teach French in public and private schools. Ontario became a unilingual English province in no uncertain terms. This regulation was not only contested, it became a bone of contention that divided Canada almost irreparably during the First World War.

The Hon. the Speaker: Senator Joyal, I’m sorry, but your time is up. Honourable senators, do you agree to give Senator Joyal five more minutes?

[English]

Some Hon. Senators: Yes.

Senator Plett: No.

Some Hon. Senators: No.

The Hon. the Speaker: I’m sorry, Senator Joyal. I hear a “no.”