Senator Chaput moved, seconded by the Honourable Senator Ringuette:
Standing Senate Committee on Official Languages be authorized to study and
to report from time to time on the application of the Official Languages Act
and of the regulations and directives made under it, within those
institutions subject to the Act;
Committee be authorized to study the reports and papers produced by the
Minister of Official Languages, the President of the Treasury Board, the
Minister of Canadian Heritage and the Commissioner of Official Languages as
well as any other material concerning official languages generally;
That papers and
evidence received and taken during the Thirty-eighth Parliament be referred
to the Committee; and
Committee report from time to time to the Senate but no later than June 30,
being put on the motion, it was adopted.
Paul C. Bélisle
Clerk of the Senate
27, 2006, your committee was asked to study and report on the application of
the Official Languages Act and the regulations and directives made
under it, within the institutions subject to the Act. Your committee hereby
submits a report on the proposed Regulations introduced in response to the
Federal Court decision in Doucet v. Canada.()
7, 2006, the government published a proposed amendment to the Official
Languages (Communications with and Services to the Public) Regulations
in the Canada Gazette()
in order to make it consistent with the decision handed down by the
Federal Court in Doucet v. Canada.
Doucet case began in March 1998 when the applicant was arrested for
speeding by a Royal Canadian Mounted Police (RCMP) officer on the Trans-Canada
Highway in Amherst, Nova Scotia. The RCMP officer was unable to speak
French. Under section 20(1) of the Canadian Charter of Rights and
Freedoms, a member of the public in Canada has the right to communicate
with a federal institution in the official language of its choice where
there is a significant demand for services in both languages or where, due
to the nature of the office, services from that office in both English and
French are justified.
in the Official Languages Regulations, "significant demand" is
evaluated primarily on a numerical basis. According to the criterion set out
in section 5(1)h)i) of the Regulations, there is no significant
demand in the Amherst area because there are fewer than 500 French-speakers
in this rural area and account for less than 5 per cent of the local
contested the validity of this subparagraph, which determines significant demand
solely on the basis of the local population and therefore fails to consider the
number of Francophones travelling on the Trans-Canada Highway. Amherst is
located close to the border with New Brunswick, specifically the border with a
part of New Brunswick where Francophones make up 38 per cent of the population.
The Court ruled that the number of Francophones travelling on this section of
the Trans-Canada Highway was high enough to constitute significant demand,
pursuant to Charter paragraph 20(1)a).
Court thus ruled that subparagraph 5(1)(h)(i) of the Regulations, which
determines the existence of significant demand solely on the basis of the local
population, was inconsistent with Charter paragraph 20(1)(a). This
violation of a constitutional right is not justifiable under Charter Section 1.
The Court ordered that the Official Languages Regulations be amended
within 18 months; the deadline was later extended to 36 months.
As we mentioned
above, the proposed Regulations were published in the Canada Gazette on
October 7, 2006 in response to the order from the Federal Court. However, the
proposed Regulations put forward by the government did not amend subparagraph
5(1)h)i) of the Official Languages Regulations, but rather added
the following paragraph to Regulations subsection 6(1) under “Specific
office or facility is a Royal Canadian Mounted Police detachment that provides
services in a province to sections of the Trans-Canada Highway where there is a
point of entry to another province that is officially bilingual, and over a year
at least 5 per cent of the demand from the public for those services is in that
an RCMP detachment would have the obligation to provide services in the language
of the minority:
- if it provides services on
a section of the Trans-Canada Highway;
- if there is a point of
entry to a bilingual province (New Brunswick) along the highway section; and
- if at least 5 per cent of
the demand for services from the public is in either official language.
these cumulative criteria, it may be concluded that the only detachment affected
by the new paragraph is the one in Amherst, Nova Scotia.
86(1) of the Official Languages Act states that interested persons may
make representations concerning the proposed Regulations to the President of the
Treasury Board within 30 days after the date of publication of the notice. Only
the days where both Houses of Parliament are sitting are taken into account.
In the fall of
2006 and early winter 2007, your committee heard evidence from five witnesses
about the proposed Regulations. Their testimony is summarized in the following
of Official Languages
appearance before your committee on November 6, 2006, the Commissioner of
Official Languages described the government approach as “minimalist” since the
proposed Regulations would impose language obligations on a single RCMP
detachment, the one in Amherst. The Commissioner said he would have preferred
that the government take the opportunity to look at modernizing the Regulations.
The Commissioner added that he could not support the proposed Regulations as
they were currently worded. It was his view that the requirement to show that
the annual demand for services of at least 5 per cent ignored the Federal Court
decision in the Doucet case. In this case, the judge had accepted the
evidence that the demand for services in French on the part of the travelling
public was well in excess of 5 per cent of the annual overall demand. The
Commissioner then suggested that the proposed Regulations be amended by removing
the obligation to assess the level of demand.
Association des juristes d’expression française de la
from AJEFNE appeared before your committee on November 20, 2006. The Association
is of the view that the proposed Regulations do not respond to the concerns of
the Federal Court in the Doucet case. Furthermore, it is not consistent
with the commitment made by the government in Part VII of the Official
Languages Act. According to AJEFNE, the government's restrictive approach
does not encourage members of the public to use either official language with
RCMP officers. AJEFNE would like to see an amendment to the Regulations
acknowledging the special mandate of the RCMP detachments that patrol the Trans-Canada
Highway, to ensure that services are always available in both official languages.
The Association suggests that the following paragraph be added to section 8 of
an office or facility is a detachment of the Royal Canadian Mounted Police that,
in a province, provides services on sections of the Trans-Canada Highway.
would also like to see changes to the significant demand criteria to recognize
the right of travellers on the Trans-Canada Highway to be served by the RCMP in
the official language of their choice. It suggested that the following be added
to section 7 of the Regulations dealing with the rights of the travelling
(4)f) the office or facility
is a detachment of the Royal Canadian Mounted Police serving the public
travelling on the Trans-Canada Highway in a province where the total number of
travellers on the Trans-Canada Highway is at least 500,000 a year.
paragraph would ensure that the public travelling on the Trans-Canada Highway
are entitled to the same rights as those using the services of an railway
station or a ferry terminal or traveling on board an aircraft, a train or a
ferry. The Association also believes that the establishment of criteria based on
the travelling public on the Trans-Canada Highway instead of a criteria based on
local population numbers, would be more in keeping with the Federal Court’s
decision in the Doucet case.
Fédération des communautés francophones et acadienne du Canada
appeared before your committee on November 27, 2006. It concurred in the views
expressed by the Commissioner of Official Languages and AJEFNE. The FCFA
believes it is futile to require that demand be over a specific percentage when
the Federal Court has already determined based on the evidence submitted that
the demand for service in French in the Amherst area was far in excess of 5 per
cent of the annual overall demand. Furthermore, the FCFA would have wanted to
see the government acknowledging the need for services in both official
languages by the public travelling on the Trans-Canada Highway. Because of a
lack of legal resources, the FCFA was unable to give your committee an
alternative wording for the proposed Regulations under consideration.
the Treasury Board
appeared before your committee on December 4, 2006, the Honourable John Baird,
then President of the Treasury Board, was questioned about the minimalist
approach to the proposed Regulations, an issue raised by the various witnesses
who appeared before your committee. The Minister stated that the proposed
Regulations were intended to provide a specific response to a specific problem
and, in his view, the proposed Regulations were consistent with the letter of
the Federal Court's order. The Minister mentioned, however, that he was willing
to consider other suggestions.
With regard to
including people travelling on the Trans-Canada Highway in the definition of
travelling public, Minister Baird replied that he was prepared to consider any
advice from your committee on this issue. He also suggested that the definition
of travelling public could be
high on Treasury Board's list of priorities, in order to promote tourism
by Canadians within Canada.
Finally, with regard to modernizing the
Regulations, the Minister stated that he had not yet discussed the issue with
the Honourable Josée Verner, Minister responsible for Official Languages, but
that he was prepared to consider counsel provided by your committee.
from the RCMP appeared before your committee on February 5, 2007. They mentioned
that the Amherst detachment now has two bilingual positions. One of them has
already been filled by a bilingual officer and the other one will likely be
filled before April 2007, to ensure the bilingual capacity of the detachment and
to respect the new paragraph 6(1)f) of the Regulations. As a federal
institution, the RCMP is prepared to comply with its language obligations under
the Act and the Regulations. Consequently, it is ready to comply with the
requirements of Parliament in the event that amendments are made to the Act and
the Regulations that increase its language-related responsibilities.
In answer to
questions about the possibility that RCMP services might be available in both
official languages along the entire Trans-Canada Highway (in jurisdictions where
the RCMP acts as the provincial police force), the RCMP representatives stated
that a change of this kind would have a major impact on recruitment and training
of new recruits, and on force deployment. Currently, 47 of the 122 detachments
serving the Trans-Canada Highway are designated bilingual. The RCMP has not
estimated the financial impact of providing bilingual services along the entire
Trans-Canada Highway, nor does it have a plan for enhancing, on its own
initiative, services provided to the travelling public along the Trans-Canada
With regard to
its bilingual capacity in general, the RCMP estimates that bilingual officers
make up about 18 per cent of the force; it feels this proportion is satisfactory
because it is the same as the proportion of bilingual Canadians.()
In 2006, 88 per cent of the incumbents of bilingual positions providing service
to the public met the language requirements of their position. In terms of
language training, the RCMP said that it had recruited 40 unilingual French
cadets last year and that they had taken a mandatory intensive English-language
course before beginning their training at the RCMP Training Academy in Regina.
French-language courses may be provided to unilingual English recruits. However,
this training remains optional.
the evidence, your committee believes that the proposed Regulations reflect a
minimalist approach as they impose language obligations on a single RCMP
detachment. The proposed Regulations could have had a broader reach to include
situations analogous to the one found in the Doucet case in order to
impose obligations on more RCMP detachments that, like the one in Amherst,
patrol major highways used significantly by people of a minority official
language. Moreover, this was implied in the
Federal Court decision at paragraph 77.()
shares the view expressed by the Commissioner of Official Languages, when he
states that the Federal Court decision accepted the evidence that the demand for
services in French on the part of the travelling public was well in excess of 5
per cent of annual overall demand. Therefore, your committee recommends:
requirement to show that the demand by the travelling public for services from
the RCMP in either official language is in excess of 5 per cent of the annual
overall demand be deleted from the current wording of the proposed amendment.
recognizes that the RCMP has made some progress in recent years to increase the
bilingual capacity of its police force. However, it notes a lack of will on the
part of the RCMP to take a proactive approach and develop a plan to improve the
offer of bilingual services along the Trans-Canada Highway. During their
appearance before your committee, the RCMP representatives clearly stated that
they wish to wait until the Act and Regulations are modified before taking
action. The RCMP is a federal institution subject to Part VII of the Act and as
such it has the duty to ensure that positive measures are taken for the
implementation of its commitment to promote Canada’s linguistic duality.
It is your
committee's view that the time has come for an in-depth revision of the
Official Languages (Communications with and Services to the Public) Regulations
to ensure, among other things, that the Regulations take into account the
language rights of all those travelling on the Trans-Canada Highway. As stated
in the most recent annual report of the Commissioner of Official Languages, “the
Trans-Canada Highway is not used exclusively by the local population, but by the
Canadian public as a whole”.()
Your committee is of the opinion that the Regulations must reflect this reality.
explored the question of revising the Regulations in its report entitled
Understanding the reality and meeting the challenges of living in French in Nova
Scotia, tabled in the Senate on October 5, 2006. In this report, your
committee made two recommendations to the government. The first one recommended
that the government begin a revision of the Official Languages
(Communications with and Services to the Public) Regulations to follow up on
the decision handed down in the Doucet case, and is already underway.
Your committee would like to take this opportunity to reaffirm its second
recommendation, dealing with the provision of bilingual services by the RCMP on
the Trans-Canada Highway. This proposal responds to much of the testimony heard
during the session, and your committee would therefore like to reiterate it by
reformulating it as follows:
government revise the Official Languages Regulations to take into
account the language rights of the travelling public on the Trans-Canada Highway
and the obligation arising therefrom upon the RCMP to provide service in both
official languages along the portions of this highway where it has jurisdiction.
government require of the RCMP and transmit to the Committee, a plan outlining
how the RCMP will proceed to give effect to this obligation.
Doucet v. Canada  FC 144.