REPORT OF THE COMMITTEE Thursday, June 12, 2008

The Standing Senate Committee on Official Languages

has the honour to table its

SIXTH REPORT


      Your Committee, which was authorized by the Senate on Tuesday, November 20, 2007, 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 report entitled “Progress Report: Study on the Implementation of Part VII of the Official Languages Act.

Respectfully submitted,

MARIA CHAPUT
Chair


PROGRESS REPORT
STUDY ON THE IMPLEMENTATION OF PART VII OF THE OFFICIAL LANGUAGES ACT 

Standing Senate Committee on Official Languages 

The Honourable Maria Chaput, Chair
The Honourable Andrée Champagne, P.C., Vice-Chair 

June 2008


MEMBERSHIP


the standing senate committee on official languages

39th Parliament, 2nd Session 

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

and 

The Honourable Senators: 

Gerald J. Comeau
Pierre De Bané, P.C.
Yoine Goldstein
*Céline Hervieux-Payette, P.C. (or Claudette Tardif)
*Marjory LeBreton, P.C. (or Gerald Comeau)
Rose-Marie Losier-Cool
Lowell Murray, P.C.
Marie-P. Poulin (Charette)
Claudette Tardif 

*Ex officio members 

Other Senators who have participated from time to time on this study:
The Honourable Senators Corbin, Dallaire, Keon, Kinsella, Munson and Ringuette 

Analyst from the Parliamentary Information and Research Service of the Library of Parliament:
Élise Hurbutise-Loranger 

Committee Clerk:
Eric Jacques 

Committee Assistant:
Louise Archambeault



ORDER OF REFERENCE


 Extract from the Journals of the Senate, Tuesday, November 20, 2007: 

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

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;

That papers and evidence received and taken during the First Session of the Thirty-ninth Parliament be referred to the Committee; and

That the Committee report from time to time to the Senate but no later than December 31, 2008, and that the Committee retain all powers necessary to publicize its findings until March 31, 2009.

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

Paul C. Bélisle
Clerk of the Senate


On November 20, 2007, your committee was given the mandate to study the application of the Official Languages Act (the Act), and of the regulations and directives made under it, within those institutions subject to the Act. Your committee hereby wishes to submit a progress report on the implementation of Part VII of the Official Languages Act, as amended in 2005.

This document is a progress report compiling the highlights of evidence heard to date. Your committee's business concerning this study will continue in the fall of 2008. 

 

BACKGROUND 

Your Senate Committee on Official Languages has begun a study to examine the status of the implementation of Part VII of the Act and, more particularly, the actions taken by the federal institutions in that regard since the amendments made to the Act in November 2005. That part of the Act provides that the Government of Canada is committed to enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development, and fostering the full recognition and use of both English and French in Canadian society. It further provides that every federal institution shall ensure that positive measures are taken for the implementation of those commitments.

To date, your committee has heard from the key players in the implementation of this part of the Act: the ministers of Canadian Heritage and Justice, as well as the Commissioner of Official Languages. Your committee has also received evidence from the Department of National Defence and the Fédération des juristes d’expression française de Common Law. Your committee has also heard evidence from many witnesses concerning the implementation of Part VII in the context of its study on Francophone culture. This evidence will be analysed in the report that will conclude that particular study.

 

2005 AMENDMENTS 

Since its enactment in 1988, there has been debate over what type of obligations Part VII of the OLA places on federal institutions.  The government had argued that the commitment under section 41 of the OLA was a political commitment only, that it did not place any binding obligation on federal institutions, nor create any right that could be enforced by the courts.[1]  For the communities and various official languages commissioners however, Part VII conferred a positive obligation on federal institutions to act and take steps to promote the communities’ development, as well as the recognition of French and English.  For those communities and commissioners, any failure to meet this obligation could have legal ramifications.[2] 

In order to put an end to this debate about the scope of federal government institutions’ commitments under Part VII of the OLA, Bill S-3 (An Act to amend the Official Languages Act (promotion of English and French) was introduced in the Senate by the Honourable Senator Jean-Robert Gauthier.  Having thrice died on the order paper,[3] the bill was passed by the two Houses of Parliament and received royal assent on 25 November 2005.   

The Act to amend the Official Languages Act amended Part VII of the OLA and strengthened it in three ways:  by including the notion of “positive measures,” by giving Part VII a regulatory framework, and the possibility of legal remedy in the case of non‑compliance with Part VII of the OLA.

 

More particularly: 

1.         Section 41 was amended by adding a subsection (2), which clarifies the federal institutions' obligation to act by providing that those institutions shall ensure that "positive measures" are taken for the implementation of their commitments under subsection (1) to enhancing the vitality of the official language minority communities and supporting and assisting their development. The addition of the concept of "positive measures" is particularly important since it expressly confirms that federal institutions must be proactive in implementing Part VII. 

2.         Section 41 was also amended by adding a subsection (3) providing that the Governor in Council may make regulations in respect of federal institutions prescribing the manner in which any duties of those institutions are to be carried out. 

3.         Section 77 was amended to include Part VII to permit applications to the Federal Court of Canada for breaches of that part of the Act.

 

 

COURT PROCEEDINGS CONCERNING PART VII 

In October 2006, after the cancellation of the Court Challenges Program was announced, the Fédération des communautés francophones et acadienne du Canada (FCFA) filed an application for judicial review in the Federal Court of Canada. During the course of 2007, that application for judicial review became an application under section 77 of the OLA. The Commissioner of Official Languages obtained intervener status in the case. The parties’ arguments were heard on February 25 and 26, 2008, in Fredericton. 

The issue in this case is as follows: in deciding to stop funding the Court Challenges Program, did the Government of Canada breach its obligations under Part VII of the OLA?[4] This is the first time the courts have had the opportunity to rule on the scope of Part VII of the Act as amended in 2005.

 

 

EVIDENCE 

Commissioner of Official Languages 

In Commissioner Graham Fraser's view, the obligations of Part VII open the door to a new collaborative approach between the federal institutions and the official language minority communities. The Commissioner stated that successes in the implementation of Part VII are often the result of the creativity of certain individuals.

With respect to "positive measures", the Commissioner cited the Business Development Bank of Canada as an example. He said he had been impressed by the number of practical positive measures put forward by that federal institution. He also noted Parks Canada and Via Rail, which have integrated positive measures that have had a real impact for the communities. The Commissioner observed, however, that the hierarchal structure of certain federal institutions sometimes lends itself poorly to this kind of innovation and collaboration. 

He suggested that your committee examine the implementation of Part VII at institutions that have a number of points of service across Canada, such as Canada Post, Public Works and Government Services and Service Canada. 

In his Annual Report 2006‑2007, the Commissioner of Official Languages conducted an initial evaluation of the implementation of Part VII and made the following observations: 

·         The federal institutions still have trouble understanding the scope of the obligations arising from the amendments made to the Act in November 2005, particularly the scope of the concept of "positive measures", and thus have been slow to act;[5]

·         Canadian Heritage and Justice Canada have undertaken substantial efforts in the past year to make federal institutions aware of this new situation;[6]

·         An examination of the content of the Canadian Heritage and Justice Canada presentations reveals certain inconsistencies between the messages conveyed to federal institutions and the spirit of the Act. In the Commissioner's view, Justice Canada in particular tends to interpret the amendments to the Act in a restrictive manner, advising caution above all to federal institutions.[7] 

In his appearance before the committee, the Commissioner clarified this last finding by adding that he had raised the matter of the restrictive interpretation of Part VII with the Minister of Justice. The Commissioner concedes that it is the duty of lawyers of that department to be cautious. He is also aware that the department's lawyers and his legal advisers play quite different roles and that they cannot always be in agreement. 

Beyond this fact, however, the Commissioner thinks that the object of Bill S‑3 and the intent of parliamentarians must be respected in the interpretation of the Act's provisions. That intent was to reinforce Part VII and to give it teeth, to ensure it has real impact. The legislative interpretation of those provisions must take that intent into account.

  

Josée Verner, Minister of Canadian Heritage 

The role of the Minister of Canadian Heritage with respect to Part VII of the Act is set out in sections 42 and 43. Section 42 provides that the Minister of Canadian Heritage coordinates the implementation of the commitments set out in section 41. Section 43 clarifies the nature of the measures available to the minister in the performance of her duties. In particular, those measures include the possibility of entering into agreements with the provinces and territories to improve access to services in both official languages. 

Minister Verner appeared before your committee on February 11. She stated at the outset that she did not want to express a view on the scope of the concept of "positive measures":

In light of the fact that the Federal Court will soon be called upon to issue a decision in connection with the legal proceedings brought by the FCFA concerning the Court Challenges Program, you will understand that I will not comment further at this time.[8]

The minister instead stated that a number of examples of positive measures were included in the next annual report (2006‑2007) of the Department of Canadian Heritage. That report was not published at the time of writing this report.

In addition, with respect to the federal institutions that are not required to report to Canadian Heritage on their activities under Part VII, the minister stated that the department was looking at various ways to improve its support of those institutions. Those would include, for example, less formal versions of the planning and accountability frameworks used by the 32 designated institutions. 

The minister also reminded your committee that her department and Justice Canada had jointly led a campaign to raise awareness in the federal institutions about the implementation of Part VII, to inform them about the amendments made to the Act. The minister also mentioned the 2007 publication of a guide for federal institutions to help them in carrying out their responsibilities in the implementation of the government's commitments under section 41 of the Act.

 

Rob Nicholson, Minister of Justice 

The Department of Justice has no specific responsibility under Part VII of the Act. However, as legal advisor to the government, the department is responsible for interpreting the provisions of the Act for the purposes of its application by the Government of Canada. The Department of Justice has considerable influence with the departments and therefore plays a key role in the implementation of Part VII. It is also a federal institution and must therefore take positive measures to implement the government's commitments under section 41. 

With respect to positive measures, your committee was satisfied to hear that the Department of Justice continued to fund a number of projects respecting access to justice in both official languages through the support fund it established in 2003. The department also developed mechanisms for consulting community groups, in addition to putting in place a working group involving the federal government and provincial and territorial governments to discuss access to justice issues.

However, your committee shared certain of its concerns with the minister regarding the department's actions in its role as legal advisor. More particularly, your committee is concerned about the department's interpretation of the concept of "positive measures" and, more generally, of Part VII of the Act.

However, like the Minister of Canadian Heritage, the department's representatives stated that they could not give an opinion on the scope of the concept of "positive measures": 

For the time being, the whole issue of what constitutes a positive measure is before the court. Out of respect for these revered courts, we cannot today discuss the ins and outs of the definition of the term "positive measure". We have no authority to do this today, given that the Federal Court, in Fredericton, is hearing arguments on this same issue.[9] 

They also added that the information they provide to the federal institutions concerning the interpretation of Part VII is protected by solicitor-client privilege and therefore cannot be shared with your committee.

 In response to the observation made by the Commissioner of Official Languages that the Department of Justice tends to interpret the amendments made to Part VII restrictively, the department defended itself by emphasizing the efforts it is making as a federal institution with respect to positive measures. According to the department's representatives, it should be concluded that the legal advice given to federal institutions on the scope of Part VII is not restrictive simply because the Department of Justice is performing well with respect to Part VII. Your committee is not convinced of the merits of that argument. 

Your committee examined the brief submitted by the department in the case brought by the FCFA in order to determine the department's arguments in that case. From the brief of the Attorney General of Canada (AGC), your committee noted that the AGC is of the view that Part VII imposes obligations that "are vague and give considerable discretion to the government to choose which of all the available measures it will use to implement the commitment set out in the text."[10] He adds that Part VII therefore "essentially provides for permanent, but general action on the part of the federal government, as opposed to the specific obligations to be performed at certain times that are set out in other parts of the Act."[11] As a result, the AGC believes that the courts must adopt an approach that is adapted to the logic of that part of the Act. 

The AGC therefore encourages the Court to conduct an overall assessment of the Canadian government's performance in its implementation of Part VII without "limiting itself to a circumscribed analysis of the factual circumstances of a particular decision."[12] In other words, the AGC urges the Court not to look at specific cases of breach of Part VII, but to examine the government's conduct as a whole: 

For the purposes of determining whether the government is meeting the commitment and obligations provided for in Part VII, the Court must therefore consider the government's overall actions with respect to official languages and examine all positive measures taken by the federal institutions. It is only by conducting this examination that the Court will be in a position to determine whether Part VII of the Act is in fact being complied with.[13] 

Furthermore, when the minister appeared, your committee sought to determine how the directives of the guide that was developed jointly with Canadian Heritage to assist the federal institutions in their implementation of Part VII of the Act was different from those offered to the federal institutions before the amendments made to the Act in 2005. The department's representatives answered as follows: 

Has the advice changed? No, because as the Department of Justice pointed out to the various committees when providing testimony, even when Part VII was not, to use our jargon, binding and judicable, it did not mean that there was no content, that it had no effect, that it was not necessary to take measures to reach these objectives. Hence our advice has not changed; it is not more cautious or restrictive than it used to be.[14]

These remarks of course do not allay the strong concerns of the members of your committee, who are of the view that such an interpretation restricts and downplays the scope of Part VII and does not reflect Parliament's intent in adopting the amendments to the Act. 

 

Fédération des associations de juristes d’expression française de Common Law 

The Fédération des associations de juristes d’expression française (FAJEFCL) is the federation of regional, provincial and territorial associations of French-language common law lawyers. The Federation is mainly engaged in promoting and defending the language rights of the Francophone and Acadian communities.

The President and the Director General of the FAJEFCL, Louise Aucoin and Renald Rémillard, appeared before your committee on February 25, 2008. First, they emphasized the importance of the official languages support fund established by the Department of Justice in 2003. The FAJEFCL and its network of associations receive basic funding from that fund, as well as funding for various projects. 

As regards the interpretation that should be given to the concept of "positive measures", the FAJEFCL representatives observed: 

Regarding positive measures? We hope that this will be a proactive measure. It would involve consultation, for the government should not take any measures without consulting the people. We hope that it will be innovative, and that we can really see our communities making progress. 

They also added that it was important to strike a balance between an approach based on the legal interpretation of Part VII and one based on the implementation of a government policy:

[…] there must be a balance between the legal approach and partly, the political approach. Much of the approach deals with building relationships with people in departments. That is part of the answer. When we talk about consultation processes, we are talking about building relationships between people. Largely, I think that is a first step. It is often the most constructive, and it builds a long-term relationship.

  

Department of National Defence 

On April 7, your committee heard from the Minister of National Defence, the Honourable Peter Mackay. The minister stated that each of the bases directly handles the requirements of Part VII of the Act. As an example of positive measures, the minister cited the military family resources programs serving the members of the Canadian Forces and their families across Canada. The minister noted that those programs and related family centres are adapted to meet the needs of members and their families living in an official language minority community.

 

CONCLUSION 

In conclusion, the committee would like to recall that, beyond those arguments on the legal scope of Part VII, the onus is on the Department of Canadian Heritage, in its capacity as coordinator, to play a leadership role in implementing the government's policy for this part of the Act. Your committee expresses the hope that the court debates over interpretation will not delay this implementation. 

Your committee also notes that it has the intention of pursuing this study in the fall of 2008 by hearing from various federal institutions for the purpose of conducting a review of the implementation of Part VII of the Act in the federal government. 

Respectfully submitted.


[1] See the Official Languages Accountability and Coordination Framework (Action Plan for
Official Languages), 2003, section 16.  Also see Forum des maires de la péninsule acadienne v. Canadian Food Inspection Agency, 2003 F.C.1048, sections 45 and 46.  Lastly, see
Commissioner of Official Languages v. Canada (Department of Justice), 2001 FCT 239, section 55.

[2] See, for example, the FCFA’s appearance before the Standing Committee on Official Languages of the House of Commons, 16 June 2005, 38th Parliament, 1st session, no. 39 (0910).

[3] See Bill S-32 (37-1), Bill S-11 (37-2) and Bill S-4 (37-3), http://www.parl.gc.ca/LEGISINFO/index.asp?Language=E&Chamber=N&StartList=A&EndList=Z&Session=13&Type=0&Scope=I&query=4207&List=aka.

[4] The issue also concerns the question whether the government's decision also violates section 16 of the Canadian Charter of Rights and Freedoms, the unwritten principle of the protection of minorities and an alleged fiduciary duty of the government to the official language minority communities.

[5] Annual Report 2006‑2007, pp. 5 and 25.

[6] Ibid., p. 5.

[7] Ibid., p. 5.

[8] Josée Verner, Evidence, February 11, 2008.

[9] Marc Tremblay, Evidence, February 25, 2008.

[10] Brief of the Attorney General of Canada in Fédération des communautés francophones et acadienne du Canada v. Her Majesty the Queen, Federal Court of Canada, T‑622‑07, paragraph 29.

[11] Ibid., paragraph 30.

[12] Ibid., paragraph 31.

[13] Ibid., paragraph 33.

[14] Ibid.


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