Thursday, February 22, 2007

The Standing Senate Committee on Official Languages has the honour to table its


FOURTH REPORT

Your Committee, which was authorized by the Senate on Thursday, April 27, 2006 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, now tables its fourth report, an interim report on the proposed Regulations introduced in response to the Federal Court decision in Doucet v. Canada.

Respectfully submitted.

MARIA CHAPUT
Chair


Interim Report on the proposed Regulations introduced in response to the Federal Court decision in Doucet v. Canada

Standing Senate Committee on Official Languages 

The Honourable Maria Chaput, Chair
The Honourable Andrée Champagne, P.C., Deputy Chair

February 2007


membership

THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES

39th Parliament, 1st Session 

The Honourable Maria Chaput, Chair
The Honourable Andrée Champagne, P.C., Deputy Chair 

and 

The Honourable Senators:

Gerald J. Comeau
* Céline Hervieux Payette, P.C. (or Tardif)
Mobina S.B. Jaffer
*Marjory LeBreton, P.C. (or Gerald Comeau)
Rose-Marie Losier Cool
Lowell Murray, P.C.
Claudette Tardif
Marilyn Trenholme Counsell 

* Ex officio members 

Other Senators who have participated from time to time on this study:
The Honourable Senators Carstairs, P.C., Munson, Nolin, Ringuette and Robichaud, P.C. 

Analysts from the Parliamentary Information and Research Service of the Library of Parliament:

Marie-Ève Hudon
Élise Hurtubise-Loranger  

Committee Clerk:
Gaëtane Lemay


Order of reference

Extract from the Journals of the Senate, Thursday, April 27, 2006:

The Honourable Senator Chaput moved, seconded by the Honourable Senator Ringuette:

That the 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;

That the 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

That the Committee report from time to time to the Senate but no later than June 30, 2007.

After debate,

The question being put on the motion, it was adopted.

Paul C. Bélisle
Clerk of the Senate


On April 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.([1]) 

 

Background 

On October 7, 2006, the government published a proposed amendment to the Official Languages (Communications with and Services to the Public) Regulations in the Canada Gazette([2]) in order to make it consistent with the decision handed down by the Federal Court in Doucet v. Canada

The 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.

As defined 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 population. 

The applicant 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).

The Federal 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 Circumstances”:

f) the 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 language.

 

Consequently, 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.

 

According to these cumulative criteria, it may be concluded that the only detachment affected by the new paragraph is the one in Amherst, Nova Scotia.

Subsection 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.

 

EVIDENCE 

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 paragraphs.

 

Commissioner of Official Languages

In his 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 Nouvelle-Écosse (AJEFNE)

Representatives 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 the Regulations:

d) where 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.

The AJEFNE 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 public:

(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. 

Adding this 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 (FCFA)

The FCFA 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.

 

President of the Treasury Board

When he 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.

 

RCMP

Representatives 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 Highway.

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.([3])  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.

 

OBSERVATIONS and recommendations

Having examined 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.([4])

Your committee 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:

 

Recommendation 1

That the 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.

 

Your committee 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”.([5]) Your committee is of the opinion that the Regulations must reflect this reality.

Your committee 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:


 

Recommendation 2

That the 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. 

 

Recommendation 3

That the government require of the RCMP and transmit to the Committee, a plan outlining how the RCMP will proceed to give effect to this obligation.

 

Respectfully submitted

 

([1])     Doucet v. Canada [2004] FC 144.

([2])        http://gazetteducanada.gc.ca/partI/2006/20061007/html/regle6-e.html.

([3])     According to the 2001 Census data, 18 per cent of Canadians reported that they were bilingual.

([4])     Doucet v. Canada [2004] FC 144, para. 77.

([5])     Office of the Commissioner of Official Languages, Annual Report 2005-2006, Ottawa, 2006, p. 27.


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