Proceedings of the Standing Senate Committee on
Official Languages
Issue 8 - Evidence
OTTAWA, Monday June 1, 2009
The Standing Senate Committee on Official Languages met this day at 5:02 p.m. for a study on the application of the Official Languages Act and of the regulations and directives made under it, within those institutions subject to the act. Topic: Implementation of the Official Languages Act: Position of the Department of Justice and the Commissioner of Official Languages.
Senator Maria Chaput (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I call this meeting to order. Welcome to the Standing Senate Committee on Official Languages. I am Senator Maria Chaput from Manitoba, chair of the committee.
I would like to start by introducing the committee members present today: to my far left, Senator Gerald Comeau from Nova Scotia, Senator Suzanne Fortin-Duplessis from Quebec and Senator Dennis Dawson also from Quebec. To my right, we have Senator Rose-Marie Losier-Cool from New Brunswick.
Today's meeting will be divided into two one-hour parts. The Minister of Justice will be with us for the first hour and the Commissioner of Official Languages for the second.
[English]
The committee would first like to welcome the Honourable Robert Douglas Nicholson, Minister of Justice and Attorney General of Canada, who accepted our invitation to appear before the committee this evening to provide, among other subjects, an update on the Roadmap for Canada's Linguistic Duality, an overview of the decision of the Supreme Court in the CALDECH or Desrochers case, and an overview of the program to support linguistic rights. Furthermore, the committee is currently studying the implementation of Part VII of the Official Languages Act and will ask questions of the minister on its achievements and initiatives in this regard.
On behalf of the committee, I thank and welcome Minister Nicholson and the representatives of the department who accompany him: Andrée Duchesne, Senior Counsel and manager, Francophonie, Justice in Official Languages and Legal Dualism directorate, and Mr. Marc Tremblay, General Counsel and Director, Official Languages Law Group. I would remind all honourable senators that we have one hour with the minister.
[Translation]
I will be timing the questions in order to give all senators equal time.
[English]
I will now invite the minister to take the floor, and the senators will follow with questions.
[Translation]
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General for Canada: Madam Chair and distinguished members of the committee, I thank you for giving me this opportunity to share with you the achievements of the Department of Justice in the area of justice in both official languages.
[English]
The government announced in the spring of 2008 its action plan for Canada's linguistic duality, better known as the Roadmap for Canada's Linguistic Duality 2008 -2013: Acting for the Future. The roadmap reiterates the commitment of the Government of Canada to linguistic duality and our two official languages. Our government acknowledges that justice must reflect the country's linguistic reality. This is why my department continues to support access to justice in both official languages through the access to justice in both official languages support fund, also known as the support fund. The support fund aims to sensitize the legal community and official languages minority communities on ways to help them exercise their rights in both official languages. In addition to the support fund, my department will implement a training initiative to encourage young bilingual Canadians to pursue careers in the justice system.
About a year ago, I appeared before the committee to explain to you what we were doing to improve access to justice in both official languages. At that time, the roadmap had just been announced and we were looking forward to starting work on the new training initiative and to pursue our efforts under the support fund. In the last year, among other things, we have been busy conducting a pan-Canadian analysis of the training needs in both official languages in the area of justice. As is the case for the support fund, the training initiative will give priority to the implementation of the linguistic provisions of the Criminal Code, especially after the coming into force of Bill C-13. The analysis reflects this priority. It shows that a fair percentage of judges and lawyers are capable of holding a conversation in both official languages. We need, however, to address the needs of the other stakeholders within the justice system. In other words, we need to provide training to those officers of the system with whom Canadians deal when they interact with the system, not only the judges and the lawyers.
The analysis on the training needs will be the foundation of my department's actions for the next four years. The study involved all of our provincial and territorial partners, as well as judges and non-governmental organizations. In all, 60 people were interviewed, and 37 of them were officials from provincial governments. The report will be publicly released shortly.
With respect to section 41 the Official Languages Act, let me turn to our commitment in that regard. As you know, the Department of Justice has a dual role. This mandate derives from the dual role of the Minister of Justice who is also the Attorney General of Canada. The department is a federal institution and, as such, is committed to the implementation of section 41 of the Official Languages Act. The Department of Justice has demonstrated over the years that even in areas of shared jurisdiction such as family law, it can work with its governmental and non- governmental partners to effectively improve access to justice. It is with this objective in mind that my department contributed to the organization of the first family law conference to be held in French outside of Quebec. This conference, held in Moncton in November of 2008, attracted over 100 participants.
In the belief that we have something to contribute by sharing with other federal institutions our experience and our networks, we took over from Heritage Canada the lead to chair the Justice Security Network. The network regroups Justice, Public Safety, National Defence, Public Prosecution Service of Canada, the Canadian Border Services Agency, the RCMP and Heritage Canada. The federal institutions that form this network share best practices, information and community networks.
You are well aware of the fact that this year marks the 40th anniversary of the Official Languages Act. It came into effect in Canada 1969. My department intends to mark this anniversary with a one-day conference where participants will reflect on these 40 years and how the Official Languages Act will evolve in the future.
In conclusion, I would underline the fact that my department's approach in the area of justice in both official languages is directed towards responding to the very real needs identified by our partners, hence the pan-Canadian analysis. Needs vary from one region to another, and we work towards solutions adapted to each jurisdiction. It has been the foundation of our success in the last five years, and we will strife to continue in the same direction.
[Translation]
Thank you, senators. I would now be pleased to answer your questions.
The Chair: I thank you, Mr. Minister. The first question is for Senator Fortin-Duplessis.
Senator Fortin-Duplessis: Thank you, Madam Chair. Mr. Minister, Ms. Duchesne, Mr. Tremblay, welcome.
My first question, Mr. Minister, has to do with the new Language Rights Support Program which is to replace the Court Challenges Program abolished in September 2006. This new program will only cover language cases and only following a mandatory mediation process.
The recent Lalonde and Desrochers decisions reaffirm the concept of equality for language rights in a real sense, in other words real equality as opposed to formal equality.
What do you think of the fact that equality rights are excluded from the new program?
[English]
Mr. Nicholson: The program that replaces the Court Challenges Program is one that is funded and operated through the Department of Canadian Heritage, and it runs independently of any direction that comes from me. Nonetheless, I think it was a step in the right direction for any future language rights support program. It is a worthwhile exercise, and certainly one that has had my support, Senator Fortin-Duplessis, but I am not the one who administers that. Nonetheless, it is one of the programs that have been initiated by the government that I support.
[Translation]
Senator Fortin-Duplessis: There is a focus on mediation in the Program to Support Linguistic Rights. As you know negotiations and mediation involve some give and take. Would francophone communities outside Quebec not inevitably be compelled to give up certain things if they intend to make gains in other areas at the same time? Mr. Minister, do you believe such seminal decisions as those in Mahé, Beaulac and Montfort could have been won through mediation?
[English]
Mr. Nicholson: Again, I never comment on specific cases, Senator Fortin-Duplessis, but mediation is very helpful in all aspects. This is something that has been extended throughout our justice system. Again, this is not directly related to that, but it has been found to be very helpful in a number of areas — family law is just one of them — where there has been a renewed emphasis in recent years to try to break down the adversarial system that we have built in to so many different areas of our government and, indeed, our societal institutions.
I do not have direct responsibility for that, but it seems to me it is a helpful way to go.
Mr. Tremblay wanted comment on that as well, if you do not mind.
[Translation]
Marc Tremblay, General Counsel and Director, Official Languages Law Group, Justice Canada: Madam Chair, I would like to briefly get back to your first question. It should be said that the new program to support linguistic rights is indeed the result of litigation between the Fédération des communautés francophones et acadienne and the Government of Canada. The FCFA led the way in this area and is in a position to settle or not. In fact, there was a settlement reached, it would seem, to the FCFA's satisfaction, when the federation decided to proceed in this way. In a way, this bears witness to the fact that cases do not always have to come before the courts for individuals to prevail in their discussions with government institutions. It is also because of the fact that this was an official languages case that the settlement agreement was limited to this part of the former Court Challenges Program. So, the only contentious part of court challenges is now covered under the new program.
When it comes to mediation, the Commissioner of Official Languages is the language ombudsman responsible for settling cases before they go to the courts. What we have done under the new program to support linguistic rights is exactly what we have been doing since 1988, and even since 1969 through the Commissioner of Official Languages, responsible for settling disputes, administrative difficulties, et cetera. In both cases, with the commissioner and through the Program to Support Linguistic Rights the legal option remains, but as a last resort, because it is always preferable to settle such matters without involving the courts.
Senator Tardif: Mr. Minister, I apologize for my tardiness. My question has to do with the new program. Is it true that you no longer provide financial assistance to community stakeholders in cases that are already underway under the former Court Challenges Program?
Perhaps I can help you, Mr. Minister. I am from Alberta, and in Alberta, in the Caron case, the official representative for francophones in Alberta would be the Association canadienne-française de l'Alberta, which was denied intervener status when the Alberta government appeals the decision in the Caron case.
Is it true that funding was cut for community representatives?
[English]
Mr. Nicholson: Again, we intervene in cases, Senator Tardif, where we are dealing with minority language rights. We put forward on a case-by-case basis the arguments we believe are consistent with the principles we all espouse that are contained within the Official Languages Act and we proceed on that basis. We look at each of these on an individual basis.
Again, with respect to that program, we provide legal advice and we intervene when it is appropriate, but the responsibility for the program is not with me at this particular ministry. Nonetheless, I support the aims and goals of it, and I think it is a reasonable response and it is consistent with our promotion of official languages in this country.
[Translation]
Mr. Tremblay: There is indeed a dispute between the Association canadienne-française de l'Alberta and the Department of Canadian Heritage as to the specific terms of the out-of-court agreement between the Government of Canada and the FCFA. But these details are to be addressed by the Minister for Canadian Heritage who is responsible for this program, and who discussed and negotiated the out-of-court settlement in the FCFA case with them, and must therefore determine the basis for this new program.
I would invite you to discuss this matter with the minister responsible for official languages, the Minister of Canadian Heritage.
Senator Tardif: According to the Fédération des communautés francophones et acadienne du Canada, it would seem that the government did not comply with the terms of the June 2008 settlement. You indicated that you had taken responsibility for negotiating an out-of-court settlement between the Government of Canada and the Fédération des communautés francophones et acadienne du Canada following the striking of the Court Challenges Program.
The federation indicates that according to their understanding, when they signed, it was agreed that all court cases currently within the Court Challenges Program would be funded to completion. Of course, that included interveners. Well, now there seems to be a refusal to do so and there is some backtracking on an agreement signed with the Fédération des communautés francophones et acadienne du Canada.
Mr. Tremblay: With respect, as I indicated, I believe there is a disagreement as to the terms of this settlement. I cannot expand on this disagreement. If the association you are referring to has a different interpretation of the matter, they have other means to argue their position.
Senator Tardif: Would you be responsible for providing legal advice to Canadian Heritage in this case?
Mr. Tremblay: Yes, it would be one of my responsibilities.
Senator Tardif: Can you share with us what advice you have provided the department?
[English]
Mr. Nicholson: It is always good advice. We are consistent in that. We provide responsible advice. In that particular case, an out-of-court settlement or accommodation was reached. We always strive to ensure that the advice we give is consistent with the principles of the Official Languages Act and the linguistic duality of this country. I do not provide the specific legal advice on any particular case, as you would understand solicitor-client privilege on these, but I can tell you it is certainly consistent with our responsibilities as a federal department that gives legal advice.
[Translation]
Senator Nolin: It may seem somewhat unusual for a senator to ask a question of another, but for the benefit of committee members and viewers, in Caron, if I am not mistaken, the individual is calling into question respect for linguistic duality at the time of Alberta's joining Confederation. That is indeed what we are discussing here, is it not?
Senator Tardif: It had to do with a speeding ticket. However, this person is challenging the fact that he was unable to obtain services in French because, according to what is indicated, there was no obligation to provide services in French.
In the Caron case we have found information to the effect that the province of Alberta had a francophone past well before the province came into being.
[English]
Mr. Nicholson: As Minister of Justice and Attorney General, I had no absolutely no say in either who receives assistance or who does not under the former Court Challenges Program. That is as it should be, without political interference.
Senator Nolin: My question was more to give me, and others who are not as familiar with the history of Alberta and the Caron case, more background.
[Translation]
Mr. Tremblay, am I to understand that this case has gone to the court of appeal?
Mr. Tremblay: It is before the Superior Court of Alberta, if I am not mistaken, in other words the trial initially took place before a provincial court.
Senator Nolin: Is it an offence under the Highway Traffic Act?
Mr. Tremblay: It would be what is considered an ordinary offence under the Highway Traffic Act. Further to that, there were other procedures but the main case continues to be heard before the Superior Court, the Court of Queen's Bench.
Senator Nolin: It would seem almost identical to the Forest case in Manitoba.
Mr. Tremblay: It is similar to a number of cases: Forest, Mercure, Bilodeau. There was also the MacDonald case, in 1986. It is similar to a number of cases, including the Doucet case, most recently, in Nova Scotia.
Senator Nolin: Thank you for this clarification.
Senator Dawson: I have a topical question, Mr. Minister. You do not seem to support the bill tabled in the House of Commons on the appointment of bilingual judges to the Supreme Court. Some of your Quebec colleagues have even said they do not support this bill, which comes as a surprise to me. What is your position on this, Mr. Minister?
[English]
Mr. Nicholson: With respect to the appointment of judges to the Supreme Court of Canada, we have indicated that legal excellence is our top priority. Nonetheless, as you would gather — that is, if you understand my role in appointing judges in this country — those who are bilingual have a tremendous advantage with respect to judges at the superior court level. We work closely with chief justices across this country.
With respect to the private member's bill to which you were referring, our position was that, ultimately, the Supreme Court has worked well. The Supreme Court has worked in a fashion that has respected the linguistic duality of this country. They have ensured that linguistic minorities have been able to have their cases heard. I think the Supreme Court has worked very well. I commend those individuals who, both in the present and in the past, have been members of that court. The process that has been in place to choose Supreme Court justices has worked well and will continue to work well in the future.
Senator Dawson: I totally agree with you, but do you think we must lower our standards to find eight bilingual ones instead of finding one who is unilingual?
Mr. Nicholson: I think to be bilingual is an asset; it enhances the ability of any individual. Again, I look at the 250 or so judges that have been appointed since the government in which I am minister has come to office. Bilingualism enhances an individual's ability to do his or her job. In that regard, I pay close attention to chief justices right across this country. Those who work as my judicial advisers — any one of them — would tell you the same thing. I am clear with them that if this is of assistance to justices across this country, then I am very much interested in it. I consider this to be a tremendous asset for someone.
[Translation]
Senator Dawson: Do you think there is the slightest chance that, in the coming years, a unilingual French judge would be appointed to the Supreme Court of Canada?
[English]
Mr. Nicholson: Again, I take them one at a time. I think you will agree with me, senator, that the two individuals who have been appointed under this government are outstanding individuals. They have demonstrated their commitment to the legal process and to everything that is involved with that. They are excellent appointments.
Senator Dawson: Would you be able to tell us how many bilingual judges have been appointed to the federal court over the last three and a half years?
Mr. Nicholson: I could get that for you.
Senator Dawson: I would appreciate that. We would probably see that there is a tendency to have some unilingual anglophones but no unilingual francophones. You will be able to tell us, though.
Mr. Nicholson: Again, whether it is appointments to the federal court or to any of the superior courts across the country, I pay close attention to the needs of the individual courts. We have tried to respond to those individual needs. I am very proud of our record in providing superior court judges to this country.
Senator Tardif: The Commissioner of Official Languages has indicated that there is a shortage of bilingual judges, particularly in some provinces, such as Ontario, at a certain level. Will you be following the Commissioner of Official Languages' advice and moving more in that direction of appointing more bilingual judges at that level?
Mr. Nicholson: We certainly do encourage lawyers who have the ability to speak both official languages to apply. On public occasions when this matter is raised — and even if it is not — I certainly encourage them to do that. There are great advantages to have an individual who has facility in both languages. You have the Official Languages Commissioner coming before you in the next 30 minutes or so.
The Department of Justice has done well in this regard. We have received good marks. In terms of the judges whom I have appointed, that my government has appointed, I think you will find that my recommendations are well received. I encourage lawyers right across this country to apply.
In some areas, I am not getting enough people. In British Columbia, I am not getting enough people applying to be judges. I encourage them to apply to be a judge. If you have a facility in the two official languages, that is a tremendous asset to have. Please go forward and put your name before the judicial advisory committees. I would be pleased to receive those nominations.
[Translation]
The Chair: I have a supplementary question to Senator Tardif's question. It has to do with the language training program tailored specifically for judges. Do you know what the rate of participation in this program is for unilingual judges who sit at the superior, provincial and territorial court levels? This program still exists. Do unilingual judges make use of it? Is there a high rate of participation?
[English]
Mr. Nicholson: The participation rate is good. There are approximately 332 judges at the superior court level who are participating. There are over 1,000 superior court judges in Canada. We are looking at about one out of three. The feedback that I have received on this is that it is well received. It is helpful and, as you can see, there is a considerable amount of interest in it. Thank you for raising that with me.
Senator Comeau: Welcome, Mr. Minister. It is good to have you before us.
Quite a number of questions were thrown your way regarding the Language Rights Support Program. You explained earlier that you have no role in that and, actually, this program belongs to the Minister of Heritage, if I understand correctly.
I will now go to another area. Could you explain to us what your role is?
Mr. Nicholson: We provide legal advice. There is no question about that.
Senator Comeau: No, not on that issue. That field has been ploughed.
Mr. Nicholson: Fair enough.
Senator Comeau: What is your role with the roadmap? What are the responsibilities that have been thrown your way?
Mr. Nicholson: As the minister of a department that is subject to the Official Languages Act, I have the responsibility to see that the letter and the spirit of that law are implemented in the department for which I have responsibility. I can tell you that I am pleased with my department's performance, its sensitivities to these issues and its recognition of the importance of them. Look at the drafting of Bill C-13, which helps clarify some of the provisions with respect to bilingual trials and trials in one language and rights of co-accused. Those are considerable steps forward. That bill was passed by the House of Commons and the Senate. I can tell you that it was not easy to do something like that, and I commend the department of which I am the minister for helping put that together and to keep that on the rails. I was told that that was the fourth attempt in ten years to get that bill through, and I said, ``This is important for linguistic rights in this country and the administration of justice in Canada. I am determined that this bill will get passed.''
Again, I am the minister, and you would be aware of the fact that the drafting and putting together is done by the department of which I happen to be the minister at the present time. I thank them for that. I thank them publicly. It does not get a lot of publicity. When people talk about my Justice Agenda, people talk to me about drugs and gangs and guns. Most people raise those issues. People usually are not talking to me about efficiencies within the justice system. When that bill came forward, it had my complete support, and I said, ``Despite any problems in the past with getting that through, this has my complete support, and I am determined this will get passed.''
When you have the opportunity, I hope you will ask the Commissioner of Official Languages how the Department of Justice is doing. I do not want to put words in his mouth, but I think he will say, ``They get it over there at the Department of Justice, and they have done very well.''
Senator Comeau: As minister responsible for an extremely important department that has implications for the linguistic minority, both the anglophones in Quebec and the francophones outside Quebec, do you meet with colleague ministers on a regular basis to dialogue on issues that might impact minority-language communities?
Mr. Nicholson: It is an important component of what all of us have a responsibility for when we are given responsibilities as ministers of the Crown. There is no question about that.
Beyond my responsibilities as a federal cabinet minister, I take very seriously the responsibility that I have with respect to the appointment of superior court judges in this country. I believe I can say without contradiction that when chief justices have brought to our attention the need or the desire to get people who have a facility in either one language or the other or both languages, all of them will tell you that Rob Nicholson's office and this government have been very responsive. I have had three judicial affairs advisers, the individuals who work on a full-time basis on judicial appointments, and they would reiterate that I have said to them, ``You are to be very sensitive to this. We have a responsibility under the Official Languages Act, and we have a responsibility to Canadians with respect to the linguistic duality of this country, and you are to take that very seriously.'' I do not think I would be able to say that to you with that conviction if I could be contradicted on that.
There will always be those who say, ``You should do more,'' and I agree. As with everything in this world, we should do more. We want to continue to work, to build and to have further successes. I am proud and pleased with our record up to this point.
Senator Comeau: Subsection 41 of section VII of the Official Languages Act requires the government to come up with positive measures. I am quite sure that this is taken very seriously. I imagine there is a worry that if the government were to start designing regulations, it might not work quite as well as if there were a court challenge program. Should the regulations be designed by government, in consultation, of course, with the minority communities, or should the ultimate decision be made under some kind of a court challenge? I myself am not quite sure what the answer is.
Mr. Nicholson: There are different parts to every equation. I told you about our Roadmap for Canada's Linguistic Duality and our five-year plan, our willingness to fund this and to put resources and funds where they can help, to train individuals and to make greater opportunities for people in both official languages. This is part of it. The program that was mentioned earlier under the auspices of the Minister of Heritage is part of it as well. It is all moving in the same direction, which is to reinforce this vision of Canada.
A Quebec premier once said that this country will either be bilingual or we will not have a country. We recognize that this is an absolutely essential part of what we are as a country and who we are as Canadians. We all have a part in this, and there are different aspects to it, but they all have to be moving in the same direction.
[Translation]
Senator Losier-Cool: My question has to do with the roadmap. I would like further detail on certain programs. For instance, under the roadmap, almost $50 million went to enforcement of the Contraventions Act. What progress has been made in this area?
In your presentation you referred to training in the area of justice. What is the true aim of this program? Could you provide us with further details?
[English]
Mr. Nicholson: Among other things, the Department of Justice will invest $20 million in specific measures targeted at training and recruiting bilingual personnel within the criminal justice system. We will be spending $21 million to continue enabling official language minority communities to access the justice system in the official language of their choice and $49 million to help provinces and territories to bridge gaps in bilingual services when they undertake Contravention Act proceedings on behalf of the federal government. We are putting our money where our mouth is. I outlined the consultation process with our pan-Canadian study, and we will move forward on that. We are committed to that.
[Translation]
Mr. Tremblay: You will recall that the Contraventions Act and its implementation stem from a 2001 Federal Court decision.
Indeed, under the plan, from 2003 to 2008, funds were earmarked for agreements between the federal government and Ontario in an effort to implement the court ruling. Even though the court decision is strictly limited to Ontario, and this does not apply outside of any relationship between the federal government and Ontario, the administration still decided to extend the application of the act to other jurisdictions through federal-provincial negotiations.
I am not directly responsible for this program. Among the 2003 to 2008 reports there was a progress report on agreements that had been reached. Discussions with the other jurisdictions are currently underway. If you would like more specific answers, we can provide them to you at a later date.
Senator Losier-Cool: Is there to be a committee comprised of ministers from the various provinces on the implementation of the roadmap?
Mr. Tremblay: Horizontally speaking, this is not a question that can be asked of the Minister of Justice. It would first have to go to the Minister responsible for Official Languages, who is responsible for the horizontal nature of this file, and I do not want to speak for the Minister for Official Languages, who certainly does meet with his provincial counterparts.
Perhaps Ms. Duchesne could tell you what is underway within the administration of justice and at the federal- provincial level.
Andrée Duchesne, Senior Counsel and Manager, Francophonie, Justice in Official Languages and Legal Dualism, Justice Canada: As the minister mentioned, when it comes to access to justice, if we set aside legislation concerning the implementation of agreements with the provinces pursuant to the Contraventions Act, there remain two programs, the access to justice in both official languages support fund and a new justice training component for justice in both official languages.
These two programs are also relevant to the consultation process and to the work process; there is a process for consultations with our non-governmental partners, in other words community partners like learning institutions. But there is also a federal-provincial-territorial working group addressing the issue of access to justice in both official languages.
This working group has allowed us to make interesting strides at the provincial level. Most recently the justice training component for official languages is the result of broad consultations leading to a significant consensus, both on the part of our community partners and on the part of our provincial and territorial partners. So, when it comes to justice and access to justice in both official languages, we already have a federal-provincial-territorial work structure in place.
Senator Losier-Cool: I can say that that is one of the objectives under the Roadmap when it comes to training.
Ms. Duchesne: There is indeed a structure. Not at the ministerial level, however; it is for officials who work directly within the justice system. So, among these people, there are crown attorneys, because our focus is mainly criminal law, but there are also representatives of the administration and of the courts.
[English]
Senator Nolin: Mr. Minister, thank you for being with us tonight. When we amended section 41 of the Official Languages Act in 2004 or 2005, the Senate introduced these positive measures that our colleague Senator Comeau mentioned.
As the main lawyer of the government, what is your definition of that? I said ``the main lawyer'' of the government.
[Translation]
Mr. Tremblay: There is indeed no definition. I am certainly not the lead counsel.
Senator Nolin: That is why I was asking the question of the minister.
Mr. Tremblay: There is no definition of positive measures in the amendments to the act passed in November 2005. So we can define the concept is a subject which arises from time to time.
To get back to Senator Comeau's question, it is conceivable that the matter could one day be defined either by the courts or through regulations, regulatory powers provided under this amended Part VII.
That said, in order to give a detailed account of the position of the Department of Justice on what constitutes ``positive measures'' or not, you again have to consider the legal advice that we give, the interpretations that we must provide to our clients.
Senator Nolin: Allow me to rephrase the question. What has your department done since November 2005 to bring about ``positive measures''?
[English]
Mr. Nicholson: Again, the studies that we are undertaking, the money we are spending in terms of training and promotion are all proactive. Mr. Tremblay said, among other things, you can get court-ordered provisions, but my preference is to be proactive in all cases.
I am pleased with the fact that there have been no official complaints with the Official Languages Commissioner against the Department of Justice. This is about the second or third year in the row that we have had that. That is a good record. That means we are on the right track. I am pleased with that. Again, I have indicated the money, the funds and the roadmap that we are doing have been proactive, moving forward in the future. It is a five-year program. We are doing a good job within the department that I represent. We can continue to do a good job. We can continue to improve. I am all for that.
Our job, in my opinion, and every minister can tell you the same thing, is to be proactive. To the extent we give advice, as I mentioned to one senator, we give good advice and it is consistent with the laws and the directions that have been given to the government.
Senator Nolin: Mr. Minister, we would have liked to hear the court on that, but you settled out of court before the judges of the federal court could decide.
Mr. Nicholson: That sometimes happens in lawsuits. They get settled.
Senator Nolin: It is public money well spent.
Senator Mockler: Mr. Minister, there is one area to which I am sensitive: This year is the 40th anniversary of the Official Languages Act.
[Translation]
Needless to say, New Brunswick, like all the other Canadian provinces, is very proud of the 40th anniversary of the act. But as you have said, more must be done.
[English]
I have one question for you and your officials. What measures are established within the Department of Justice to ensure respect in regard to the language of work?
[Translation]
To ensure the respect of the language of work within the department.
[English]
Mr. Nicholson: Starting at the top, senator, it is a priority. My deputy minister would telling you the same thing, that we want people to be comfortable in the language of their choice. They make it a point at all different levels within the Department of Justice to see that. We provide funds for language training; we encourage interaction. I think they have a pretty good record, frankly. Again, it starts at the top and is all the way through the system. We are sensitive to the issues, whether it is on the drafting end or the day-to-day working with and interaction between people. The department has done very well.
Mr. Tremblay: Just to complete that, the department did get an intra-departmental committee, the long title of which is the Coordination and Integration of Official Languages Committee, or something of the sort. This title reflects the fact that official languages within our department are a little bit more complex than in other departments. We are the legal advisers of the department. We are also the legal representatives of federal institutions when we appear in court. We are the Attorney General of Canada and we have our own duties under Part III of the Official Languages Act in that regard. We are the legal drafters, and in that regard we support parliamentarians with the duties that are incumbent upon Parliament to enact bilingual statutes.
We also have our Part VII arm, represented today by my colleague Andrée Duchesne. We have our duties, as all federal institutions do, to communicate and offer services in both official languages to members of the public as well as create a work environment conducive to the use of both.
It is complex, with a number of players, so we wanted to get a coordinated approach to this, to get everyone around the table and to get the work going in the same direction. There has been a lot of work done in looking at how we are doing. Generally speaking, we believe we are doing fairly well. However, there are always ways to improve. One of the concrete measures that has been adopted of late, and this flows from recent decisions throughout the public service, is to adopt, as a first step, a new language training policy. This was recently implemented and seeks to bring some uniformity of access to language training throughout our department.
The minister mentioned during his opening remarks that on June 4 we are having a departmental conference to mark the fortieth anniversary of the Official Languages Act. We are quite proud of what we have done in that regard. We will connect with all of our regional offices at once, for the first time in my 15 years or so, with the Department of Justice — and I am talking at any level, any organization. People in the regions will participate through video conferencing on a national basis to mark this fortieth anniversary. The Honourable Michel Bastarache, a former Supreme Court justice, will be providing the keynote speech. Employees throughout Canada will hear his views on the role of the courts and how well we are doing. I am sure they will get some interesting advice.
There is a sense that there is quite a bit of momentum within the department. Our co-champions for official languages are quite active. They have brought this topic forward to the senior management board on a few occasions and I am sure will do so again in the future.
[Translation]
Senator Tardif: In October 2007, you completed an evaluation report on the coordination of the Official Languages Action Plan. According to the report, you indicated that the various activities contributed to a greater awareness of official language issues within the federal government. They also helped standardize the advice given by the Department of Justice, and more particularly its legal services.
What kind of standardization message did you provide to your departments?
[English]
Mr. Nicholson: It is a good message. Mr. Tremblay is responsible for that, so I might ask him to make comments on that.
[Translation]
Mr. Tremblay: Indeed, under the coordination accountability framework, the Department of Justice was given a mandate that is consistent with its normal responsibilities, i.e., as a legal advisor, to profer advice, et cetera. However, in the specific context of official languages, what we wanted to do was to be more proactive, to offer legal advice before it is requested.
In order to improve cohesion, you need to have a centralized legal department that provides departments with legal advice. You know the old saying that if you have 12 lawyers in a room, you will get 12 different opinions on an issue. Rather than have 12 lawyers in 12 different legal departments, there is a centralized department that can offer horizontal advice. We do not tell one department something one day, and then something else to another department the next. This ensures consistency and standardization. There is a concerted approach to resolving issues. We are a team of seven lawyers, and we do have to get out a little in order to inform departments as well as regional offices of who we are and what we do. That is why we have to organize information sessions. We have given about 100 presentations to various groups, sectors and portfolios both within and outside the Department of Justice as well as in all government official language networks in order to raise their awareness of their obligations, indicate what they are required to do under the Official Languages Act and inform them of who we are so that they can benefit from our services. I am very proud to say that the evaluation was extremely positive and found that the activities we have undertaken in the past five years have had a very positive impact.
Senator Tardif: I am happy to hear about how proactive the Department of Justice has been. However, I find it peculiar that you are still hesitating to define the term ``positive measures.'' As proactive as you appear to be, you are still reluctant to define what you mean by ``positive measures.'' You have yet to share that with us.
I had asked you the question when you appeared before us in February 2008, and you indicated at the time that you could not answer that because the matter was before the courts. There now is an out-of-court settlement. We again ask you to give us the definition of ``positive measures,'' and still there is no response. We would like to hear from the Department of Justice, which is being proactive and playing a leadership role, on how it defines ``positive measures.''
Mr. Tremblay: I think that where we differ is that we have given advice on what ``positive measures'' are. As a lawyer, my professional duty is to keep secret the advice that I have given to federal institutions. However, in those hundreds of presentations that I have given across the country, almost without exception, the question has often been raised as to what Part VII of the Official Languages Act requires each federal institution to do. Unfortunately for you, the Department of Justice is not able to offer you legal advice.
Senator Tardif: If the results were not satisfactory, then we could surmise that the departments did not find the advice to be convincing. Without any definition, we have no choice but to form an opinion based on the results.
Mr. Tremblay: Indeed, I think that this has to be judged on the results.
[English]
Mr. Nicholson: The results speak for themselves. For example in the excellent progress that we have made in the appointment of judges with facilities in both languages and what we have done in terms of fostering seminars and training. I indicated to you that there are no complaints with the Official Languages Commissioner about the Department of Justice. I think this is at least the second year in a row that this has occurred.
The results speak for themselves. We are moving forward. Again, we are being proactive in trying to address the issues within the department, and we are giving good advice to all the other legal departments as well.
Senator Tardif: The result to which I was referring was in other ministries, departments and institutions, not necessarily just the Department of Justice.
Mr. Nicholson: The government has made progress with its roadmap to move forward and I think it is to be celebrated.
Senator Comeau: On the same comment as my colleague across, I drew from the response that Mr. Tremblay has been meeting with other departments of government and giving them advice, which he says is confidential because it is from the Department of Justice. That is to say, the Attorney General is giving advice. This cannot be divulged.
What we may be getting at is that Mr. Tremblay is gutting the whole subsection 41 of section VII advice right across all departments. We do not know what that advice is. I pass that on for reflection.
Mr. Nicholson: The results speak for themselves. The government has made progress across the departments. I mentioned Heritage and its responsibilities. Again, I am speaking for myself as the Attorney General and the Minister of Justice for the Department of Justice. I think the results are good. You are entitled to call any other department that you want before you, but I think the government's overall record has been very good and commendable.
Senator Comeau: I was not questioning that at all, minister.
Mr. Nicholson: That is good.
[Translation]
Senator Losier-Cool: Would you be able to tell us how many francophones work at the Department of Justice? You mentioned that there were 3,500 lawyers, but how many francophones are there?
[English]
Mr. Nicholson: Are you asking about people who speak both official languages?
Senator Losier-Cool: It could be both. It could be bilingual or it could be francophones.
Mr. Nicholson: We would be glad to provide that to you.
Senator Nolin: Nine years ago, what is now your department started to introduce into Parliament important bills to respect the bijuridical nature and bilingual character in Canada, which is unique worldwide. It has stopped. Why? We have not heard of these bills for four or five years.
Mr. Nicholson: Which bills do you mean?
Senator Nolin: There was a plan for seven bills, and they stopped at two. We want to hear about the other five.
Mr. Nicholson: We respect both systems of law. We do what we can.
Senator Nolin: The problem is that the laws of Canada do not respect the bijuridical nature of the law in Canada, and therefore there was an intention to introduce into Parliament a series of seven important bills to rectify that. We were renowned around the world for having introduced them, but we have stopped. Where are we?
Mr. Nicholson: Senator, we are making progress.
Senator Nolin: It was a simple question, and I expect an answer.
[Translation]
The Chair: Could the information be sent as soon as possible to the clerk of the committee?
[English]
Mr. Minister, I thank you for being with us today, and good luck.
[Translation]
We will suspend the meeting for a few moments and continue with our next group of witnesses.
(The committee suspended.)
(The committee resumed.)
The Chair: We now resume the meeting. The committee wishes to welcome Graham Fraser, Commissioner of Official Languages, who is appearing before the committee to present the key findings of his recently published annual report and answer our questions in that regard.
I would also like to welcome all the officials from the Office of the Commissioner who are here with Mr. Fraser this evening. They are: Ghislaine Charlebois, Assistant Commissioner, Compliance Assurance Branch; Lise Cloutier, Assistant Commissioner, Corporate Services Branch; Pascale Giguère, Acting Director and General Counsel, Legal Affairs Branch; and Johane Tremblay, Acting Assistant Commissioner, Policy and Communications Branch.
Mr. Commissioner, the floor is yours.
Graham Fraser, Commissioner of Official Languages, Office of the Commissioner of Official Languages: Madam Chair and members of the Senate Committee on Official Languages, good evening. As you know, the Official Languages Act is celebrating its 40th anniversary this year. Clearly, the parliamentarians who worked on its development, culminating in its royal assent in 1969, were visionaries. This legislative framework was absolutely necessary for the future of the country.
[English]
Fortunately for those interested in the spirit of the act and the first years of its implementation, the first two commissioners have written on their experiences. In his 2004 memoir, Life Sentences: Memoirs of an Incorrigible Canadian, Keith Spicer, the first Commissioner of Official Languages, described the excitement of the challenge of creating this job. This year, as we mark the 40th anniversary, Maxwell Yalden is publishing Transforming Rights: Reflections from the Front Lines. With the judicious mixture of precision and passion that characterised his tenure as the second Commissioner of Official Languages, Mr. Yalden examines the origins of Canada's language rights. He expresses the concern that, ``a comfortable neglect has now replaced the vigorous efforts of earlier days.''
I share that concern, and part of my challenge as the sixth commissioner is to live up to the standards of vigorous promotion and rigorous protection set by my predecessors.
[Translation]
The language guarantees contained in the Canadian Charter of Rights and Freedoms provided a valuable basis that supported a review of the Official Languages Act. Many benefits arose from the charter in terms of human rights, culture, workforce mobility and the economy. They benefit all Canadians, regardless of their mother tongue. Nonetheless, the time has come to eliminate the roadblocks and contradictions related to the implementation of Canada's language policy.
We must attain a certain level of coherence between the various government policies, programs and initiatives. This year, my report aims to measure the distance between the road that has been travelled and how far we have left to go with regard to three components: the learning of the official languages, the quality of services provided by federal institutions and the organization of the Vancouver 2010 Olympic and Paralympic Winter Games.
[English]
Despite the significant investment that it represents for our country's future, access to official language learning opportunities remains limited. By enabling young Canadians to acquire skills that will benefit them professionally, personally and culturally, we are contributing to their professional mobility.
In the current economic climate, I find it unfortunate that governments and post-secondary institutions are not focusing enough on second language learning programs.
Although students are encouraged to take the bilingual path throughout their academic career, post-secondary institutions seldom provide them with opportunities to continue studying in their second language. After 40 years of language policy, it is high time that we removed the last roadblocks on this path. The federal government should bring together the various players in order to create a true second-language learning continuum.
[Translation]
According to our observations of federal institutions, government services are offered in the minority language when there is significant demand, 75 per cent of the time. Very often, federal institutions do not actively offer their services in the language of the minority, and citizens hesitate to ask for these services in their language.
Moreover, we are too quick to settle on providing the linguistic minority with a translated version of the services provided to the majority. However, in an important judgment rendered on February 5, 2009, in the Desrochers case, the Supreme Court declared that federal institutions must consider both the nature of services and the specific needs of official language communities.
In other words, the obligation to provide services ``of equal quality'' in both official languages does not necessarily mean ``identical'' services.
[English]
Finally, the organization of the Vancouver 2010 Olympic and Paralympic Winter Games clearly illustrates some obstacles to incorporating linguistic duality into our Canadian reality. I continue to be concerned that our country finds it difficult to meet the challenges related to official languages at the games in an exemplary fashion, especially considering its 26 million anglophone and 9 million francophone inhabitants.
As indicated by the study I released in December and by the results of the awareness campaign subsequently conducted among federal institutions, the organizing committee and federal institutions must do more to ensure that the Canadian public and visitors have access to services in both of our country's official languages.
As I mentioned to your colleagues in the other place, to ensure that official languages are fully incorporated and present during the games, the organizing committee and the federal government will need to go beyond implementing the 18 recommendations contained in my report. Going beyond means fully integrating official languages into all areas of activity and at all stages. Respect for linguistic duality must be an early reflex during the planning and execution stages, not an afterthought.
It is still possible to ensure that the games reflect linguistic duality before, during and after the athletes' arrival. However, there is little time left to solve the most pressing problems, namely, those pertaining to translation, interpretation and signage. Federal institutions that have a specific role to play must realize that the arrival of thousands of additional visitors will lead to an increased demand for bilingual services. This is especially important in terms of services provided at the games' venues and services provided to the travelling public, mainly in the Vancouver and Toronto airports.
The Olympic Games are proof of the need to better integrate official languages into federal institutions, not only in terms of services but also in terms of support for official language communities and the promotion of linguistic duality.
[Translation]
In 2010, it will be five years since Parliament strengthened Part VII of the Official Languages Act. I know that your committee continues to have an interest in the implementation of this part of the act. As mentioned previously, federal institutions must consider, on the one hand, the extent to which their programs and interventions contribute to the development of communities. On the other hand, they must invest in Canada-wide promotion for linguistic duality. Without this twofold commitment by federal institutions, Part VII of the act will remain little more than an empty gesture. The vitality of official language communities will only be reinforced if implementation by federal institutions is in keeping with the letter and spirit of Part VII of the act.
I must say that I am not very impressed with how the government has managed the implementation of this part of the act. The response has been slow and minimal. My staff and I will therefore be paying special attention to this issue in 2009-10.
To foster linguistic duality in Canadian society, I call upon new stakeholders to get involved. I encourage post- secondary institutions to forge close ties between the second language programs offered and the need for bilingual staff for employers such as the federal public service.
I also encourage young people to continue improving their second language by taking advantage of opportunities offered by the other language community. Finally, I encourage public sector leaders and managers of public services to show leadership and commitment in order to make linguistic duality a value in federal institutions.
[English]
Public service renewal should facilitate the training of future leaders who are committed to promoting linguistic duality as a value both through their day-to-day actions and through the implementation and management of language programs and policies.
Naturally, all of this must be supported by sustained leadership on the part of the federal administration, based on a dynamic vision of linguistic duality that is characterized by respect, dialogue and partnership. For this to happen, the federal government's ongoing commitment is necessary. Willingness on the front lines will not translate into coherent action unless it is supported by strong leadership within the federal government.
In June 2008, the government released its Roadmap for Canada's Linguistic Duality. I am still concerned about the delay in the implementation of this initiative, the lack of information on certain projects, and the uncertainty that stems from the elimination of programs in some areas targeted by the roadmap, 2008-2013. The lack of specific objectives pertaining to the government roadmap does little to assure us that it will be implemented effectively.
Community organizations, the education community and provincial governments are concerned because they do not have a clear vision of the federal government's actions. While the investments allocated to various programs are certainly welcome, government would do well to outline an overall vision and specific objectives that it intends to achieve.
[Translation]
The parliamentarians' vision in 1969 was bold, ambitious and above all crucial to the future of this country. Forty years later, other challenges lie ahead. At the same time, this vision was a way to bring Canadians together and to ensure that the state could serve them in the official language of their choice; now, it is a way to help them reach their full potential.
Thank you for your attention. I would now like to take the remaining time to answer any questions you may have.
The Chair: Thank you, Commissioner. Senator Fortin-Duplessis will ask the first question.
Senator Fortin-Duplessis: Commissioner, your report has just been published and I congratulate you on it. I read your 130-page report with a great deal of attention and interest. I was somewhat surprised to see that there were only two references to the word ``Internet'', on pages 43 and 60.
At the same time, there was only one reference to the word ``media'' on page VIII of your foreword. However, on page IX of the foreword, you acknowledge that the links and connections in Canada's language policy are often missing. The foreword also describes the purpose of the report as the quest for coherence.
In the 15-page summary of the report available on the Office of the Commissioner of Official Languages website, the words ``media'' and ``Internet'' are conspicuous by their absence. Here is my question. Given the current media crisis and the vital role the media play in ensuring coherence, why does your report not make greater reference to the Internet and the media?
Mr. Fraser: That is an excellent question. It is always difficult to give a clear answer about something that is not in a report. But I would like to talk to you about the challenge of new communications technologies, including the Internet. By looking at studies and other reports on the Internet and new electronic communications technologies, I realized that in the time it takes to draft a report, make recommendations, have them translated and then published, the environment has changed.
This environment changes so quickly that it is extremely difficult to keep up to date, understand the reality and ensure that today's recommendations will still be valid when the report is published. That said, within the organization, we are looking closely at the entire issue of interactive communications, what we call ``Canada 2.0'', and electronic governance — the e-government, as we sometimes say in English — and what this means for official languages. How can the government meet the expectations of Internet users who want immediate answers, while ensuring accountability, compliance with the Official Languages Act, and the oversight needed with regard to the contents of answers by public servants to individuals?
Johane, I do not know whether we can talk a little bit more about the work that we are doing in this regard, but we are looking at this issue.
Johane Tremblay, Acting Assistant Commissioner, Policy and Communications, Office of the Commissioner of Official Languages: In fact, we are looking at new issues raised by the use of new media. But we are just starting this work.
However, perhaps we are not talking about the Internet and media, but we would like to draw your attention to the fact that CBC/Radio-Canada was subject to our performance evaluation. CBC/Radio-Canada is dealt with in the annual report in this respect. It is the only reference that we make in this regard.
Obviously, with regard to community development, we have identified a number of sectors that the communities are asked to develop; among others, we mention education, arts and culture. I believe that we identified six sectors of activity and we made reference to the Roadmap, to the way the government has granted funding to these sectors, and to the objectives set out in the Roadmap with regard to the six sectors of activity.
Senator Fortin-Duplessis: Madam Chair, I want to give others an opportunity to ask questions, but if there is any time remaining at the end, I would like to ask a question on another subject.
Senator Dawson: Senator Fortin-Duplessis, that was an excellent question. I can say that the Standing Senate Committee on Transport and Communications is currently considering the idea of Canada 2.0. Canada 1.0; it was clear, there were restrictions, Canadian content had to include a percentage for francophone content. There were guidelines, and percentages. There was some success. The 1940s deserve celebrating because there were visionaries who had issued challenges, but they then quantified them and set constraints. If you wanted to get a licence, you needed to have content.
But Canada 2.0 no longer exists. With regard to new technologies, be it BlackBerries or the Internet, protection for Canadian content, by broad definition, is even more important to us, meaning those who are concerned about the French language. With regard to francophone content on new media, we have our heads stuck in the sand to some extent. What your seven predecessors had to verify will be extremely difficult for you and your seven successors, because new technologies evolve so quickly.
My introduction is long but my question will come. If we take blogs for example, everyone has a blog or is on Twitter. We do not even know whether some words are French or English. But the reality is that we cannot be bilingual bloggers, technically speaking. The exchange between the state and taxpayers is happening increasingly quickly. And it is becoming extremely difficult for institutions. In the government's defence, it is becoming extremely difficult to remain on the cutting edge. But we see some overall trends.
My main question concerns the Olympics. The reason that the French government had appointed Mr. Raffarin as the Grand témoin of the Beijing Olympic Games was because they realized during the games in Albertville, Salt Lake City, that there had been a deterioration. The last bilingual games were not even in Albertville. The Montreal Games in 1976 were more bilingual than the Winter Games in Albertville, in terms of services to the public. Things got worse. We agree that Calgary — the senator from Alberta will agree with me on this — was certainly not the best example of how bilingual Canada can be.
Now, the Vancouver Games are around the corner. They are almost here! You lit the lamps a year or two ago. They are right around the corner, in terms of the events that precede the Olympic Games, and we are still debating the issue of bilingualism at the Vancouver airport.
I was in Vancouver two weeks ago, and we can say that the Vancouver airport respects the official definition of bilingualism, but all of the signage at the games are in English only. I am not talking about what it was like two years ago, I am talking about what it was like three weeks ago!
This has been tolerated; someone somewhere has tolerated it. It is clearly not the Grand témoin Raffarin, but the Association des parlementaires de langue française had proposed, during hearings in Quebec, that Canada also appoint a Grand témoin, not because we do not respect the work of the high commissioner, but to appoint somebody whose only mandate would be to ensure that French service delivery is more successful than it was in Calgary and definitely more successful than in China. We have not made much progress.
We are starting to realize that it is right around the corner. You know full well that broadcasting the Olympic Games, without Radio-Canada, will mean that there will be fewer francophone products on the Canadian market, because Radio-Canada will not be there.
We can ask TQS, a station already experiencing difficulties, to broadcast the games in French-speaking Canada, outside Quebec. But that scares me. I know that you talked briefly about it, but what steps could be taken between now and the opening of the games to ensure that we can have, not perfect games, but at least the most bilingual games possible?
Mr. Fraser: Thank you very much for that question. To clarify, Mr. Raffarin, who was the Grand témoin, was not appointed by the Government of France, but rather by the Organisation internationale de la Francophonie. And that same organization is preparing to appoint by the end of June a Grand témoin for the Vancouver Games. I have been told that by the end of the month, there will be a Grand témoin. Mr. Raffarin, however, agreed to be a member of the Vancouver Games advisory committee. He has already been to Vancouver once and has already taken part in a meeting. The meeting was held in camera, and so I do not know what was discussed. But I am extremely pleased that he has agreed to bring his expertise to bear, based on his experience in Beijing.
One thing I can say is that the Organisation internationale de la Francophonie has higher expectations for Canada than they did for Beijing. Beijing was nevertheless seen as a success, linguistically speaking. But if Canada, a member state of the francophonie, is unable to ensure respect for linguistic duality during the games, who can?
After speaking with a representative of the Organisation internationale de la Francophonie, I know that the OIF has concerns. So I expect that a Grand témoin will be appointed shortly.
Here is what will be done by the end of the year. We published our report in December, and this was followed by an awareness campaign at some 20 federal institutions. I made the Olympic Games one of the major themes in my presentation of the report.
It is part of the report. I took advantage of my departmental meetings, my public statement and my conversation with Mr. Furlong to talk about it as much as possible.
We intend to ensure a more targeted follow-up in our December report. I told the people at VANOC that we would not wait until September, when the report is published, to tell them that there continue to be problems. As soon as we see a problem, we will tell the organizers with the hope of being able to say, when I come out with my September report: ``Congratulations, it is already not relevant, you have already made the necessary improvements so it is done.'' If producing the report puts additional pressure on them, all the better, even if the recommendations are implemented at the time the report is published. Furthermore, the presence of the Grand témoin, Mr. Raffarin, will also have an impact.
After meeting with the ministers in order to explain various elements of my annual report to them, I can tell you that your concerns are shared by government. I am a little concerned because some institutions told us during our awareness campaign, ``Yes, but we are continuing to do things the way we always have. It is business as usual.'' I am sorry, but it is not ``business as usual.'' We now realize that this is an important event and that there is much work left to be done.
Senator Tardif: Welcome, Mr. Commissioner, it is always a pleasure to see you. Has VANOC officially requested translation and interpretation resources from the government? I think that is one of your recommendations, namely that the government be asked to support VANOC's work with respect to translation and interpretation challenges. Do you know if this has been done?
Mr. Fraser: Unless it has been done in the last 10 days, and I have not been informed that it has — I do not think such a request has been made. There may have been some discussions, but the last time I spoke with the Translation Bureau official, she told me that they had not yet received an official request from VANOC. When I spoke to the members of VANOC to confirm that, I got some rather vague answers. In any case, we have not received any further information since our conversation last week.
Senator Tardif: My question is about the complaints you received this year. Many of them have to do with Part IV of the act — language of service. You said that many Canadians cannot always get service in the official language of their choice. There are also some complaints regarding Part V, language of work, and others on Part VI, on the language requirements for positions in the public service.
Can you tell us, Commissioner, what your assessment is of the Treasury Board Secretariat, which is responsible for implementing Parts IV, V and VI of the Official Languages Act?
Mr. Fraser: One of my recommendations is that the Treasury Board Secretariat fully meet its responsibilities. One of the factors that led me to make the recommendation last year was the transfer of the agency within Treasury Board. In my report, I outline the pros and cons of this transfer of responsibilities. The negative factor is that any change of this type causes some destabilization, a period during which people do not know exactly what to expect. One indication of this uncertainty is that when they published documents explaining the new structure and the transition of responsibilities from the agency — responsibilities that now come under Treasury Board — there was no longer any reference to the official languages in the visual material. I emphasize that point and others as well. We were told that the error happened as a result of visual simplification, and that the full responsibility for official languages that was held by the agency would be transferred to Treasury Board. That gives you some idea of the type of uncertainty caused by this change.
However, the positive point is that I remain convinced that when a central agency retains responsibility for something that affects all aspects of the public service, such as the official languages, this gives the issue more importance. Someone jokingly told me that following the transfer, telephone calls were now coming from Treasury Board, rather than the agency, and that these calls were being returned much more quickly. I think it was important to stress how important it is that the president assume his responsibilities in this area.
Senator Tardif: You also talked about a weakened governance structure for the official languages. In your opinion, where could there be better coordination of the official languages within the government?
Mr. Fraser: For the same reasons I just outlined, I continue to be of the view that it is unfortunate that this responsibility was transferred from the Privy Council to Heritage Canada, and that there is the situation whereby Heritage Canada is responsible for managing programs and providing horizontal coordination. In this context, we hired Professor Donald Savoie to study the issue of horizontality. In a chapter of last year's annual report, Professor Savoie provided quite a balanced view of the advantages and disadvantages of horizontality in this area. I defer to his expertise, but I continue to prefer the option of keeping these responsibilities within a central agency, such as the Privy Council.
The Chair: I have a question that follows up on the questions asked by Senator Tardif. In the case of Treasury Board, Commissioner, what might be an example of a ``positive measure''? What concrete action on the part of Treasury Board would become a ``positive measure'' for the official language communities?
Mr. Fraser: One of the important aspects and one of the challenges of the new Part VII is the fact that there is no definition contained in the act. As you found out, the Department of Justice is quite discreet regarding its definition.
I think the most important aspect of the definition is to ensure that it is possible to measure the impact of the ``positive measure'' on the minority community, and that the action be a ``positive measure.'' The action must show that the needs of the community were taken into account and that the community was consulted.
The Supreme Court has already taken a stand regarding part IV of the act in the Desrochers decision. Justice Charron stated clearly that, with respect to Part IV and services, it is clear that if a service is designed to meet the needs of a community, the service in question must also be designed based on the needs of the minority community. Merely translating the same service that was designed for the majority community is not good enough.
The report mentions a few examples of positive measures. On page 37, we read that to ensure that Part VII is respected, Farm Credit Canada followed up on the review of its policies and programs by creating a new investment fund, the Expression Fund. Launched in the fall of 2008, this $20,000 fund aims to help official language communities set up community centres, day cares and art galleries, and to organize events such as plays or concerts. This program was so successful that Farm Credit Canada plans to inject more money into it next year.
This is an example of a program that, quite clearly, was developed in cooperation with the minority communities. According to the Department of Justice, there are two approaches. Either we leave it up to the courts to decide, or we proceed by way of regulation.
I think there is a third way, and it is the one I advocate. It involves developing and demonstrating concrete examples of cooperation and positive measures between a department, an agency, a federal institution and a particular community. With this pragmatic approach, we can make considerable progress.
Ms. Tremblay: I would like to make a suggestion regarding Treasury Board. Under Part VIII, it is Treasury Board's responsibility to develop guidelines and policy to guide federal institutions in the implementation of Part IV, for example. In light of the recent Supreme Court decision in Desrochers, Treasury Board should review the guidelines and establish new ones to guide federal institutions with respect to service delivery. It should also ensure that the needs of the communities are being met in certain cases. This could be done not only in the context of part VIII, but could also contribute to the development of the communities as well.
The Chair: I find it disturbing that although we have been discussing positive measures for quite some time now, we seem unable to come up with a definition of what a ``positive measure'' is. Despite the best intentions and goodwill of the departmental representatives who appear before us, they cannot manage to define the term ``positive measure.''
Today we heard the Minister of Justice say that he provided advice, but that it was confidential. So, we cannot determine what type of opinion he provides to federal departments, and what might constitute a ``positive measure'' in his opinion.
I am starting to think that this is rather nonsensical.
Mr. Fraser: I share your frustration. We have found ourselves in a situation in which the departmental representatives asked our representatives to leave the room because they were going to give their confidential advice to the people they call ``their clients.''
Senator Comeau: It is consistent.
The Chair: Yes, we see the consistency.
Mr. Fraser: This is what made us think that this was probably a minimalist concept or interpretation. Like you, I am convinced that the departments, with the best intentions in the world, are trying to get a better understanding of their responsibilities. I do not question their sincerity in this regard. When I look at the reports submitted by the departments, as required by the act, particularly the ones from the Department of Canadian Heritage on the way in which they have met this requirement, I often see a list of meetings; they say that they held meetings and better informed employees of their obligations. But the concrete examples are limited. Sometimes, interestingly, we realize that some institutions, such as the Canada Mortgage and Housing Corporation or the National Film Board or Parks Canada, have done some very positive things and introduced positive measures, but often these measures were very basic in nature. A regional officer or someone may have approached a community to discuss things that could be done such as sharing offices, for example. Clearly, these initiatives stem from a spirit of cooperation and consultation in the regions.
Senator Fortin-Duplessis: When he appeared before the Official Languages Committee, the new National Defence Ombudsman, Pierre Daigle, mentioned the injustice experienced by French-speaking members of the forces at Base Borden in Ontario. This is the main training base. There are 15,000 people there, including 1,500 francophones. Since the 2006 survey at Base Borden, we have not noticed any improvement in services in French. The Canadian Forces informed the ombudsman in early 2007 that some progress had been made. That turned out to be completely false. Most of the main recommendations made by the office had not even been raised.
I would like to hear your comments on the lack of services in French at Base Borden for French-speaking members of the forces. I hope this is not true everywhere — in war theatres and here in Canada.
Mr. Fraser: I share your concerns. Following the first report of the former ombudsman, Yves Côté, Mr. Daigle's predecessor, we decided to do an audit of the entire training system throughout the country. This was an in-depth audit. We conducted 600 interviews on 24 bases. I will ask Ms. Charlebois to give you some more details about this audit.
Ghislaine Charlebois, Assistant Commissioner, Compliance Assurance Branch, Office of the Commissioner of Official Languages: We finalized the data collection.
We visited all the bases where military training is provided. We expect to release our report by December, most likely.
The commissioner met the new ombudsman and they discussed these issues. We had excellent cooperation from National Defence during this audit. So it will be a very in-depth audit that will cover several angles.
Mr. Fraser: The training experience within the Canadian Forces led me to make a recommendation to the Prime Minister so as to ensure that the importance of linguistic duality is kept in mind within the context of the economic crisis. Fifteen years after the 1995 cuts, we are still in the process of rebuilding what was lost. The situation at Borden is one of the results.
In addition, the Collège militaire royal de Saint-Jean was closed down. The government has now decided — and I applaud their decision — to begin the process of rebuilding this college. It now has the status of a CEGEP. Military authorities have told me that they have a long-term vision of making it a university once again. Despite all this, we are still not at the level of 1995. The situation in Borden goes back to the same period of time when the training centres in Quebec were done away with and everything was centralized because of the cuts. So, 15 years later, we see the results of these decisions.
In the context of an economic crisis, I thought it was important to stress that the decisions of today can have long- term effects, and we must keep this unfortunate example in mind, remembering that the measures taken today do not just affect the 2009-10 fiscal year, but can also have very long-term repercussions.
Senator Tardif: Mr. Fraser, I know that you have been keeping a very close eye on the FCFA's case against the Government of Canada concerning the abolition of the Court Challenges Program.
Now we have a new program. An agreement was reached. I asked the Minister of Justice about the refusal to fund interveners in cases that had been started under the old Court Challenges Program.
In your opinion, is the government respecting the agreement that it signed in June 2008 with the FCFA?
Mr. Fraser: I am very aware of the case you mentioned. It is the Caron case. It went to appeal, and the government refused to fund the FCFA's intervention as well as that of the Association canadienne-française de l'Alberta.
It is somewhat difficult for me to answer your question, because indeed, a complaint has been filed regarding this issue. We are looking at the issue in detail. We find ourselves facing a paradox. It is easier for me to comment on a situation before a complaint is filed. Once a complaint has been filed, I must remain at arm's length while we investigate the situation.
Senator Tardif: I totally respect that. I did not want to put you in a difficult position. Could you tell me if the responsibility for deciding who is eligible or not lies with Canadian Heritage? Does the department have that authority?
Mr. Fraser: Yes, it is Canadian Heritage that makes the decision, and we look into that decision. Unfortunately, I cannot go any farther than that in my comments. The decision is made with full awareness of the various issues at stake and the situation.
Senator Tardif: I am trying to raise my point once again about positive measures, and the fact that these decisions are made without any consultation or without notifying the communities in question. These are not good examples of ``positive measures.''
Mr. Fraser: We take all of these components into consideration as concerns this complaint and others that we might receive regarding Part VII of the act and the ``positive measures.''
The Chair: Has a decision been taken regarding the person responsible for managing this program, as far as the new program is concerned?
Mr. Fraser: According to our information, there was an original tender period that is now over. The government is now reflecting on the institutions that made a request. That is all I know about the trends.
Senator Losier-Cool: Mr. Commissioner, I greatly appreciated your report. I look forward to seeing what the next goal will be after the Olympic Games.
Having said that, I do not want to go too far back in the past, but 40 years ago I was there and I fought. I received threats, lost friends over it and that sort of thing in order to achieve the full potential.
The parliamentarians of 1969 had a crucial vision, this is true. Do the parliamentarians of 2009 still have this crucial vision or this passion?
Mr. Fraser: I am an officer of Parliament. I am at the service of all parliamentarians. There was a time when parliamentarians rejected the very principles of the act in their entirety.
Throughout this period, the meetings of the Standing Committee on Official Languages in the other place were quite difficult because of this fundamental and philosophical difference. This division no longer exists, in my opinion. There is consensus on the importance of official languages. There are different interpretations, this is clear — this is democracy — which sometimes involve animated debates on who is doing the best job or what would be the better approach. Currently, the spirit of the act has allies within all the political parties in Parliament. As an agent of government, I enormously appreciate the devotion to the principles of linguistic duality that I see within each of the political parties.
Senator Losier-Cool: Are these allies within the Canadian population over the age of 40? People under 40 wonder why certain things were done in order to save linguistic duality. They did not have to experience what we did. Today, we say that Canadians agree with the Official Languages Act, but of those who are in agreement, are they younger or older? Does the research give us that kind of information?
Mr. Fraser: I have always been very impressed by the commitment to linguistic duality in Canada by many young people. I recently participated in a public speaking award ceremony for immersion students at a high school here in Ottawa. This competition had been jointly organized by the University of Ottawa and Carleton University. One of the things that struck me was the diversity of these students, who came from all over the world and won these prizes, as well as the pride of their parents.
Sometimes, I have the impression that Canadian immigrants more easily embrace the principles of linguistic duality than do those who have been here for generations. For them, linguistic duality is one of the Canadian values that attracted them to Canada.
I recently discovered that 75 per cent of the students taking courses at the Vancouver Alliance française are of Asian origin. Fifty per cent of the Toronto Alliance française students are also of Asian origin. Therefore, the idea that there is some kind of inherent contradiction between duality and diversity is quite false. There is a fundamental complementarity between duality and diversity. This is an on-going challenge.
We must remember that at the moment, Canada is taking in 240,000 immigrants. Year after year, this adds up to millions of people who are taking up our values. In spite of that, we have seen an increase, albeit gradual, in the percentage of bilingual people in Canada.
In 1961, almost 50 years ago, 9 per cent of Canadians were bilingual. Fifty years later, following the arrival of millions of people from all over the world, the figure is 17 per cent. It is not huge, but when we look at the situation in the context of these significant immigration numbers, this is an encouraging point.
Senator Mockler: It is true, Commissioner, that we have never seen that before, and it is thanks to the efforts of people like Senator Losier-Cool in the past, and continuing into the present. For the first time, we saw in 2007-08 and in part of 2009, anglophones in New Brunswick getting together to save their immersion program. That would have been a dream for the fathers of the official languages — to see anglophones in New Brunswick organizing protests 37 or 40 years later to fight the decision made by the current government.
Mr. Fraser: We mentioned this in our report.
Senator Mockler: Yes, on page 47. If there is not enough time, I would like an answer in writing to my question about immersion. I have also read the comments you sent to the New Brunswick government on this issue. My first question is this: are recent events enough to protect immersion programs in New Brunswick, the only bilingual province? I come now to my second question, and it does concern me. In the fifth paragraph on page 4 of your presentation, you say with respect to the 2008-13 Roadmap that the lack of specific objectives pertaining to the government roadmap does little to assure us that it will be implemented effectively.
Can you give us some concrete examples? Since the roadmap for 2008-13 is in place, is there enough time to implement it, and to reassure minority language communities?
Mr. Fraser: I have a number of concerns about the roadmap for duality. I will give you an example of an objective that was not set out in the 2003-08 Action Plan, which is the predecessor to the roadmap. There was a very clear objective to double the number of bilingual high school graduates — from 25 to 50 per cent. Unfortunately, there has actually been a decline in this area. So we cannot say that the action plan was a success in this regard.
No mention of this fact is made in the roadmap. And no objectives are set either. The same is true of other areas as well. Since I assume this position, I have found that one of the most impressive things about the public service is that it sets objectives and evaluates performance based on them. When there are no clear objectives, it is more difficult to say whether or not the objectives have been met. Something else that concerns me as well is that so far, there has been very little feasibility or strategic presentation given to the roadmap.
Some announcements were made, money is being spent here and there, and when we ask direct questions, we are told that the funds go to the department.
It is very difficult to track these expenditures in cases where the government does not directly link the announcements to the action plan. For example, if the government announces additional funding for the Immigration Centre in Saint-Léonard, I would like it to mention at the same time that this funding is part of the $10 million over five years that was announced in the roadmap.
In a minority government situation, there is a reality that we must face. According to the author John Duffy, every minority government is in an election campaign even before dropping the writ. It is a ``pre-writ campaign'' according to him. Every time that the government announces some kind of expenditure, this state of affairs arouses some cynicism among the public.
I believe that it would help the cause of minority communities if, when an announcement is made, it were linked to an already announced strategy, which was a renewal of a strategy of the previous government. I think that it is quite possible to find a way of having less partisan politics when making the needed investments for official language minority communities.
I have no additional information regarding what was announced at the time. I would have preferred keeping the old system. However, I think that the minister has responded and that he has made a compromise arrangement of his plan. We will continue to watch the results of this approach closely.
But I am hesitant to speak out at this time regarding the impact of his decision.
Senator Mockler: Given the statement that you just made, will you follow the proceedings in New Brunswick very closely?
Mr Fraser: Yes, I have a representative in New Brunswick who is following this file closely.
The Chair: Mr. Commissioner, we are always glad to have you with us. On behalf of the Committee on Official Languages, I want to thank you, along with your team, for the excellent report that you brought to us and that will be very useful to the committee in its work. Thank you very much, and we wish you success in your work.
(The committee adjourned.)