MEMORANDUM SUBMITTED TO THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY ON BILL C-35:

AN ACT RESPECTING EARLY LEARNING AND CHILD CARE IN CANADA BY FRANÇOIS LAROCQUE, PHD Francophonie Research Chair on Language Rights and Issues Full Professor, Faculty of Law (Common law Sec@on), University of OEawa Counsel, Power Law 26 OCTOBER 2023

2 RECOMMENDATIONS (IN ORDER OF PRIORITY) 1. That sec@on 8 be amended by adding the following highlighted text: Funding Commitments Engagement Financier 8. The Government of Canada commits to maintaining long-term funding for early learning and child care programs and services, including early learning and child care programs and services for Indigenous peoples and official language minority communi>es.

The funding must be provided primarily through agreements with the provincial governments, Indigenous governing bodies and other Indigenous en>>es that represent the interests of an Indigenous group and its members. 8. Le gouvernement du Canada s’engage à maintenir le financement à long terme des programmes et services d’appren>ssage et de garde des jeunes enfants, notamment ceux des>nés aux peuples autochtones et aux communautés de langues officielles en situa>on minoritaires.

Ce financement doit être accordé principalement dans le cadre d’accords avec les gouvernements provinciaux, les corps dirigeants autochtones et autres en>tés autochtones qui représentent les intérêts d’un groupe autochtone et de ses membres. 2. That the

preamble be amended by adding the following text aRer the 9th paragraph:

Whereas the government of Canada is commiKed under the Official Languages Act to advancing formal, non-formal and informal opportuni>es for members of English and French linguis>c minority communi>es to pursue quality learning in their own language throughout their lives, including from early childhood; Qu’il s’est engagé dans la

Loi sur les langues officielles à renforcer les possibilités pour les minorités francophones et anglophones de faire des appren>ssages de qualité, en contexte formel, non formel ou informel, dans leur propre langue tout au long de leur vie, notamment depuis la pe>te enfance;

3 Submissions 1. Madam Chair, Senators, thank you very much for the invita@on to appear before the Standing CommiEee on Social Affairs, Science and Technology to share my thoughts on Bill C-35:

An Act respec@ng early learning and child care in Canada. 2. Like the other organiza@ons and individuals who have tes@fied before you on Bill C-35, I would like to emphasize the importance of crea@ng and maintaining a na@onal system of early learning and child care. I also welcome the bill's clear inten@on to ensure that this system is sustainable, inclusive and adapted to the specific reali@es of the communi@es it intends to serve, including Aboriginal peoples and official language minority communi@es (OLMCs). 3.

As a professor and university researcher working in the field of language rights, I am par@cularly suppor@ve of the amendments made to Bill C-35 in commiEee at the House of Commons. These amendments make direct reference to OLMCs, thereby ensuring that their collec@ve rights and interests are taken into account when this legisla@on is eventually implemented. 4. More specifically, the House of Commons deemed it useful to make explicit reference to OLMCs on three (3) occasions in Bill C-35: Sec$on References to OLMCs 7(1)

c) Guiding Principles. Federal investments must be inclusive of children from systema:cally marginalized groups, including those from French and English linguis:c minori:es. 7(3) Guiding Principles. Federal investments in early learning and child care programs and services under agreement with a province are guided by the commitments set out in the Official Languages Act. 11(1) Na$onal Advisory Council on Early Learning and Child Care. The Board's composi:on reflects the importance of crea:ng a Board that is representa:ve of the diversity of Canadian society, including official-language minority communi:es. 5.

While these changes are beneficial, they are woefully incomplete in that they are not extended and reflected in the wording of sec@on 8 of the bill, the provision that

4 codifies the federal commitment to long-term funding for early learning and child care programs and services. 6. Sec@on 8 of Bill C-35 should include an explicit reference to "official language minority communi@es", as proposed above on page 2 of this memorandum. 7. Without the proposed amendment to sec@on 8 - which echoes the proposal of Canada's Commissioner of Official Languages and the Commission na@onale des parents francophones - OLMCs risk being deprived of the federal funding necessary for the long-term maintenance of early learning and child care programs and services. 8.

I would like to think that OLMCs were inadvertently omiEed from sec@on 8, and that the current wording does not reflect Parliament's true intent. Fortunately, the Senate is there to correct the record and ensure that the rights and interests of OLMCs are not forgoEen. Historically, the Senate has not shied away from intervening when proposed legisla@on "[transla@on] compromised collec@ve language rights or minority rights".1 The proposed changes are necessary 9.

Some people may be tempted to believe that the proposed amendments are not necessary and that the changes made in the House of Commons are sufficient to guarantee long-term funding for OLMCs. These people, respecfully, are wrong. 10. In my view, a court could reasonably conclude that sec@on 8, as currently draRed, only commits the federal government to guaranteeing long-term funding for early learning and child care programs and services "for Indigenous peoples". I base this view 1 Serge Joyal, « Le Sénat : une incarna>on du principe fédéral », dans (S.

Joyal, dir) Protéger la démocra6e canadienne : le Sénat en vérité, McGill-Queens University Press, 2003, p 326. Voir aussi Linda Cardinal et Sébas>en Grammond, Une tradi6on et un droit : Le Sénat et la représenta6on de la francophonie canadienne, OKawa, Presses de l’Université d’OKawa, 2017.

5 on (

a) Supreme Court of Canada jurisprudence and (

b) ordinary principles of statutory interpreta@on. (

a) The case law insists on the explicit codificaPon of language rights 11. In the Supreme Court's view, in the absence of clear direc@on from Parliament, the courts should not expand the scope of OLMC language rights. In Caron v. Alberta, the Supreme Court refused to recognize the existence of language rights in the absence of explicit guarantees in the relevant cons@tu@onal and legisla@ve documents. “The Court must generously interpret cons@tu@onal linguis@c rights, not create them”.2 The Court goes on to say that “When these rights were addressed […] they were addressed explicitly.”3 I was a lawyer in this case.

It's a lesson that OLMCs have learned the hard way. 12. Consequently, if sec@on 8 does not explicitly men@on programs and services for OLMCs, a Court will not be able to find that the government has commiEed to providing them with long-term funding. On the other hand, this risk disappears completely if the Senate adopts the proposed amendment. (

b) Without explicit inclusion of OLMCs in secPon 8, principles of statutory interpretaPon allow for their exclusion 13. According to the principles of statutory interpreta@on, the courts must “read the words of a statute in their en5re context, following the ordinary and gramma5cal meaning that harmonizes with the scheme of the statute, the object of the statute and the inten5on of the legislature”.4 This rule is now an axiom of Canadian law. 2 Caron v Alberta, 2015 CSC 56 at para 38. 3 Caron v Alberta, 2015 CSC 56 at para 41.

See more generally the discussion at paragraphs 40-49. 4 Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 RCS 27 at para 21; Bell ExpressVu Limited Partnership c Rex, 2002 CSC 42 at para 26.

6 14. Consequently, in interpre@ng the wording of sec@on 8, it is necessary to place this provision in the overall context of the law. A judge seized with the ques@on would note the absence of any reference to OLMCs in sec@on 8, even though they are specifically men@oned in paragraph 7(1)(c), subsec@on 7(3) and subsec@on 11(1) of the same Act. It is in this context that the silence of sec@on 8 with regard to OLMCs risks giving the impression that it is a deliberate and inten@onal choice on the part of the legislator. 15.

In other words, the current sec@on 8 would allow the government to argue before the courts that Parliament implicitly intended to exclude OLMCs, precisely becvause it explicitly included them elsewhere in the statute. As Professor Sullivan explains: An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a par@cular thing within its legisla@on, it would have referred to that thing expressly. Because of this expecta@on, the legislature’s failure to men@on the thing becomes grounds for inferring that it was deliberately excluded.

Although there is no express exclusion, exclusion is implied.5 16. Parliament does not speak in vain, as the saying goes. However, when it says nothing, the courts can also take note. This is the danger facing OLMCs if sec@on 8 is not amended. 17. It is therefore preferable to amend sec@on 8 to dispel any ambiguity as to Parliament's inten@on to codify the government’s commitment to provide long-term funding for OLMCs. 18. In addi@on, to make this inten@on to protect the rights of OLMCs even more explicit, it would also be desirable to amend the

preamble to the Act, as suggested on page 2 of this memorandum. 5 Ruth Sullivan, The Construc6on of Statutes, 7th ed, LexisNexis, 2022, §8.09

7 19. The effect of this change would be to make more explicit Parliament’s inten@on to provide OLMCs with the long-term funding they are seeking. In addi@on, the proposed amendment to the

preamble would confirm the norma@ve link between the guiding principle codified in subsec@on 7(3) of Bill C-35 and the federal commitment in the Official Languages Act to take posi@ve measures to enable OLMCs to learn in their own language throughout their lives, beginning with early childhood. 20. For these reasons, I respecfully recommend that Bill C-35 be amended as described on page 2 of this memorandum. END OF MEMORANDUM