Proceedings of the Standing Senate Committee on
Official Languages
Issue No. 27 - Evidence - Meeting of October 1, 2018
OTTAWA, Monday, October 1, 2018
The Standing Senate Committee on Official Languages met in camera this day at 5:02 p.m. to consider a draft report; and, in public, to continue its study on Canadians’ views about modernizing the Official Languages Act.
Senator René Cormier (Chair) in the chair.
[Translation]
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Honourable senators, the committee resumes in public.
Good evening. I’m Senator René Cormier from New Brunswick. I’m pleased to be chairing today’s meeting.
The Standing Senate Committee on Official Languages is continuing its study on Canadians’ views about modernizing the Official Languages Act. This evening, we’ll be continuing with the third phase of the study, which concerns the views of people who experienced the evolution of the act.
We’re pleased to be joined by Françoise Enguehard, an author and journalist and former President of the Société nationale de l’Acadie, and Marie-France Kenny, Chief Executive Officer of Dualicom Inc. and former President of the Fédération des communautés francophones et acadienne du Canada.
Before I give the floor to our witnesses, I would like to invite the committee members to introduce themselves, starting on my left.
Senator Poirier: Good evening and welcome. Rose-May Poirier from New Brunswick.
Senator Smith: Larry Smith from Quebec.
Senator Maltais: Good evening. Ghislain Maltais from Quebec.
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator Gagné: Raymonde Gagné from Manitoba.
Senator Moncion: Lucie Moncion from Ontario. Good evening.
Senator McIntyre: Paul McIntyre from New Brunswick.
The Chair: We’re now ready to hear your presentations. They will be followed by a question period.
Françoise Enguehard, Author and Journalist, as an individual: Hello, Mr. Chair and members of the Standing Senate Committee on Official Languages. Thank you for giving me the opportunity to share my experience as a staunch Franco-Newfoundlander throughout the half century of the Official Languages Act’s existence. I must emphasize that my view isn’t the view of a legal expert, let alone a constitutional law expert. However, it’s the view of a citizen living in a minority community whose daily life has been centred around this act and the Charter for a long time.
I arrived in Canada four years after the Official Languages Act came into force. I became a permanent resident in 1977, eight years after the act was implemented. The act was one of my reasons for choosing Canada. I wanted the chance to grow in both languages, even in Newfoundland and Labrador, where we were just a handful of francophones at the time.
The act resulted in the unprecedented expansion of the association movement. It gave great hope to Franco-Newfoundlanders, who had been frequently and repeatedly told that they needed to assimilate sooner or later. For the first time, they had their place in an officially bilingual country. Shortly after, the act and the Charter enabled us to get ourselves organized and start asking our federal institutions to provide services in French. For example, we requested the right to French first-language education and access to courts.
Fifty years later, the progress made is remarkable. In my province, where barely 0.5 per cent of the population is francophone, we have our school management, our schools and a provincial policy for services in French.
That said, clearly no legislation in the country — including in Newfoundland and Labrador — is as flouted on a daily basis as the Official Languages Act. All you need to do is travel, require legal or police services, submit a tax return or send mail to see this each day.
When the act was adopted, we naively believed that we would be served in the language of our choice in all federal offices. This was followed by epic struggles to be able to speak French to the Canada Post Corporation, the Royal Canadian Mounted Police, or RCMP, the Canada Revenue Agency, and so on. We were quickly disappointed. Since it was impossible to fight for everything, we picked our battles. For example, we fought for access to French first-language education, control of our schools, and funding for our organizations.
Today, with the Internet, all federal agencies serve us in French — as long as the service is virtual. Over the telephone, or worse, in person, it’s another matter. When a sign stating “English or French, it’s your choice” posted at a customs or security checkpoint means that the francophone employee will serve you over the telephone from an office in Ottawa, or you need to wait in line for twice as long as the others, you’re more likely to speak English.
When an international airport or an airline makes announcements only in English, it’s the same thing. Sometimes, the announcements are made in both languages using recordings. However, if there’s an emergency at the airport, which has happened to me, only English is spoken. Yet, in the event of an emergency, it would be important to understand what’s happening.
An important notion underpins Part IV of the act, which addresses communications with the public. It’s the notion of significant demand, or, as stated by the Charter, “where the number so warrants.”
To do these calculations, I think that it’s essential — as stated by Commissioner Fraser in 2016 — to include people who speak French at home by choice and who speak it at work, or who study in the minority language, because our society has changed a great deal in the past 50 years.
In all the irritating and even insulting cases — that I mentioned earlier — of encounters with supposedly bilingual services, we turn to the Commissioner of Official Languages to file a complaint. I don’t have enough fingers to count the number of times my husband and I have filed complaints. What good did complaining do, other than add to the office’s statistics? Not much.
Former Commissioner Graham Fraser was compelled to ask Parliament to intervene to force Air Canada to comply with the act. It didn’t do any good. The commissioner doesn’t have any real powers, other than the power to politely rap on the knuckles of offenders and encourage them to do better. I could provide dozens of additional examples in all the sectors.
When the act was reviewed to strengthen Part VII, we once again allowed ourselves to hope that the notion of “positive measures” added to the legislation would galvanize efforts and help us move forward. However, apart from a few regular summit meetings between senior public servants and our organizations to discuss our needs, I’ve never seen any concrete results. Why would it be any other way, since Part VII “encourages” but never forces, in the same manner that the Commissioner of Official Languages points out gaps and politely asks that they be addressed? Why would it be any other way, since the application of Part VII depends on the discretion of each department?
A major change in Canada’s bilingual landscape over the past 50 years has been the active participation of the provinces in the delivery of bilingual services. The idea of my province having a policy and an office for French-language services was only a dream in 1973. Now, it’s a reality. However, francophones have a hard time navigating through each jurisdiction. There’s also a lack of clarity when it comes to the content of federal-provincial agreements on bilingual services. This is particularly detrimental to us, especially in the area of education.
In short, as it stands today, the Official Languages Act isn’t supported by anyone and doesn’t require much. Too many aspects of the act are left to the discretion of individuals. This sometimes leads to wonderful surprises, such as when the security services at the airport in St. John’s, Newfoundland, provide services in French, or to a blatant lack of willingness, such as when the Halifax Stanfield airport doesn’t provide the same services.
Many other people have already told you that the review of the act must clearly give federal institutions the responsibility to enforce it. It’s not my place to suggest who should take responsibility for enforcing the act, but this must be done and the entity must be accountable to Canadians. Lastly, I want to point out that the act must be given teeth. It’s no longer enough to suggest, urge and encourage. We must require, force, and ultimately, punish.
Marie-France Kenny, Chief Executive Officer, Dualicom Inc., as an individual: Thank you for inviting me to appear today as part of your study.
I’ve devoted my professional and volunteer career to linguistic duality. I was the manager of a national official languages program for a Crown corporation, at the same time that I was president of the organization representing francophones at home in Saskatchewan. Farm Credit Canada, where I was working and where I managed the official languages program, was recognized by Commissioner Adam, in Saskatchewan, for its official languages program.
I’m not a lawyer either, but I’m very familiar with the act and its management.
This feels like a déjà vu. In 2009, when I had just been elected president of the Fédération des communautés francophones et acadienne du Canada, or FCFA, I gave the same speech that I’ll be delivering today. It has been almost 10 years now. Back then, the act was turning 40.
I have many things to say in a short amount of time. A number of anglophone and francophone organizations have appeared before the committee. I strongly support their comments indicating that the act must be more modern, coherent and flexible to ensure that it truly fulfills the intentions of legislators and meets the needs of Canada’s anglophone and francophone communities. I’ll focus on certain points that warrant attention and that do not seem to have been raised until now.
The Official Languages Act adopted in 1969 and amended in 2005 seeks to ensure services in the minority language based on the principle of significant demand. A number of organizations were heard, and I largely agree with the principles set out in Senator Chaput’s Bill S-209 at the time.
Each office designation exercise costs taxpayers millions of dollars. I think that the money would be better spent on language training, implementing bilingual services and consulting communities. Today, given the demographic and technological changes, there’s no reason to not provide a minimum number of services in both official languages in all federal offices. Therefore, I believe that all federal offices should be designated bilingual and should provide a minimum number of services, such as a telephone line and a specialized computer equipped with Skype and other things.
I also think that Part IV and its regulations must take into account the vitality of the language minority community and the first official language spoken. They must align the services with the services provided by the provinces and territories when those services are more generous, as is the case in New Brunswick.
I think that the representative organizations and OLMCs, together with the departments, should be able to agree on the level of service provided based on the vitality of the community. For example, when there’s an official language community, a wide range of services should be provided in person. I work with many departments, I’m a consultant, and I have a business and a centre of excellence in bilingualism. When the recent designation started, a number of departments and Crown corporations called me and told me the following, “I don’t understand. The Treasury Board is forcing me to reduce the number of bilingual offices. I don’t want to, but I’m being forced to do so.” Lastly, there was the moratorium. I know that public servants — or at least most of them — are committed to providing services in the citizens’ language of choice, but that, somehow, there are minimum guarantees under the act.
The spirit of the act has never been to limit the scope of services and the rights of minority communities. Instead, the act seeks to ensure a minimum threshold. Nothing in the act or regulations limits the scope of services that can be provided by the institutions subject to the act. A number of institutions, such as Canada Post or Service Canada, go above and beyond their duties under the act by providing services in both official languages, even though some of their offices don’t meet the threshold. Therefore, there are precedents and best practices.
In Norton v. VIA Rail, the court stated the following:
. . . neither the Regulations nor Burolis can supersede or restrain the OLA or the Charter, but must always be interpreted and applied in a manner consistent with the general objectives of the preamble of the OLA and a recognition of the fundamental values of the Charter and Canadian policy in the matter of bilingualism.
At this time, nothing indicates that the act and its regulations constitute the minimum imposed on the government. As a result, there’s no incentive for the government to do more and to go above and beyond its duties. I think that the fact that there’s a minimum threshold must be clearly stated in writing and that the government must be encouraged to do more.
Something else that seems important to me is to evaluate the interdependence of various parts of the act, and determine what part of the act has priority. I will explain. When I was at Farm Credit Canada, I heard that my Prince Albert office was not reaching the 5 per cent threshold and that it would no longer be designated bilingual. My CEO at the time, who had received Ms. Adam’s prize, said that, as we had francophone clients in that office, we would continue to provide services in French. So we decided not to change the designation. We were told by the Office of the Commissioner of Official Languages and the Treasury Board that, by doing so, we were opening the door to a complaint being submitted to the office of the commissioner, and a lawsuit being filed. What we were being told was that, under Part VI of the act, which concerns equitable access to employment, if a bilingual employee left that office, there would be no more bilingual employees. If a bilingual position was being advertised, an employee — or a potential employee — who is a unilingual anglophone could have submitted a complaint by saying that they did not have equitable access to that position because the office, in principle, should no longer be designated bilingual. The office of the commissioner told me that the complaint would be well-founded. My CEO at the time, an official languages champion, said that she did not care, that we would go ahead with the plan. She said that the most important thing for her was to provide services to Canadians in their language.
It is also not clear which part has priority. In my opinion, Part IV and Part VII should have priority in terms of the right of employees and of “potential employees,” if you will.
For the commissioner, when it comes to the central authority — and I agree with Ms. Enguehard — the minister in charge of official languages can currently coordinate Part VII of the act, but she has no authority over anyone other than herself. Similarly, the Treasury Board can impose certain things, but it prefers to suggest or encourage. But that does not work. We need a central office and, in my opinion, the only office with the power and authority over the entire public service and all the departments is the Privy Council Office.
Otherwise, the responsibility should be conferred upon the individual in charge of official languages, who in this case is Ms. Joly. She should be given authority over the other departments for anything related to official languages. Year after year, in the annual report produced by the Commissioner of Official Languages, successive commissioners have been arriving at the same conclusion and the same recommendations: it does not work. One may even wonder why a commissioner is given the responsibility of conducting investigations if, at the end of the day, no one listens to them and the reports are shelved.
Year after year, the reports remind us that, the more things change, the more they stay the same. The Commissioner of Official Languages must be given the power to issue orders and impose penalties. My perhaps subjective opinion is that public servants can, for Part IV and for the regulations, come to an agreement with communities. I also think that, if a measure is absolutely necessary, it should be based on the number of francophone immigrants who arrive in each province.
Currently, there is a 5 per cent threshold, but, for years, only 2 per cent of francophone immigrants have been arriving per province compared with 10 per cent or 20 per cent of anglophones. It is certain that, within a year — and that is already the case in certain offices — the demographic weight is no longer being met. So with 2 per cent of francophone immigrants, we should set the target at 2 per cent.
I will stop here, as I could keep going for weeks. I am ready to answer your questions.
The Chair: Ladies, thank you very much for your presentations. The question and answer period will give us a chance to expand on your opinions.
I want to remind senators that they have five minutes to ask their questions and hear the answers to them. We will go ahead with a first round of questions and, if we have any time left, we will have a second round.
Senator Poirier: When it comes to consultations, everyone agrees with strengthening the notion of “by and for” in official language minority communities. What kind of incentives do you think could force the government or a minister to follow and respect the wishes expressed by communities during consultations?
Ms. Kenny: For me, it is not enough to consult; what is needed is accountability for what has been heard. So if you consult me, but you change course and do something else, I want to know why. There is surely a reason, but I want your report to also indicate what you heard from me and, in this case, from all communities.
It is not enough to come listen to us; you must really provide accountability. For me, those two things are inseparable. As soon as a new federal program is created, communities must be consulted on the criteria to be implemented. I will give you a concrete example. A fund for infrastructure was created, and the federal government was responsible for a third of it, the provincial government for another third, and the public for the last third. I live in Saskatchewan. When I approached the department, I was told to get $750,000 from the province, and I would be given $750,000. I was able to collect $750,000 and to obtain the federal government’s portion, but I was unable to obtain the provincial government’s portion in Saskatchewan. I worked with elected officials so that an infrastructure fund would be created and that criteria for francophone communities would be changed. Why had that not been done before? So it took quite a while longer for us, francophones, to really have access to that fund.
What may work for the majority — for example, when training is to be provided for 150 individuals — does not work everywhere, because, chances are that, if you do it in Regina, you won’t have 150 francophones. So the criteria must be changed in order to be equitably accessible to our communities. I am not sure whether I’m answering your question.
Ms. Enguehard: I’m not sure I have understood your question correctly. Could you rephrase it?
Senator Poirier: Of course. When we talk about consultations, everyone seems to be supporting the notion of “by and for” official language minority communities. What type of incentive do you think could force the government and the minister to follow and respect the communities’ wishes? I think that Ms. Kenny answered.
Ms. Enguehard: In a broader sense, I will come back to what I said earlier. I think that the Official Languages Act itself must be restricting because it is at the mercy of the minister and the people around him. That is what I find worrisome about the act.
We have made major advancements where, after consultations with the community, an individual was able to take the case to court. However, that’s not always possible. There have been a number of ministers, different governments and different people in charge, so this should not be left to a single individual.
In a broader sense, I don’t think that only one review of the act will be enough to take into account what we have been coming to tell you for months, which will support what must be done in a coherent and consistent manner.
Senator McIntyre: Thank you for your presentations, ladies.
Ms. Kenny, you talked about immigration in your presentation. My question is about immigration and linguistic equality in New Brunswick. That said, last spring, the acting president of the Société de l’Acadie du Nouveau-Brunswick, the SANB, and two of his colleagues appeared before our committee. His brief indicated that one of the main areas of engagement for the SANB are immigration and its impact on the linguistic balance in New Brunswick.
As you know, the percentage of francophone immigrants is currently lower than the percentage of francophones in the province, according to the SANB, and that is upsetting the linguistic balance. In addition, the SANB is arguing that the New Brunswick francophone community has not benefited from immigration as much as the anglophone community has. So the SANB would like the Official Languages Act to recognize that New Brunswick is different from other provinces, and it is proposing that a provision concerning this issue be added to the act. In other words, the organization wants to force the federal government to take into account the province’s specific linguistic balance in the development and application of its immigration policies. I would like to hear your thoughts on that.
Ms. Kenny: In my opinion, that does not only apply to New Brunswick. Yes, it is an urgent problem in New Brunswick. We received 2 per cent of francophone immigrants compared with 8 per cent, 10 per cent or 15 per cent. I believe that it’s 10 per cent in the Moncton region. During an appearance on the issue a while ago, the figure was 10 per cent. The city was ecstatic, but in reality, 30 per cent of its population is francophone. So the target in terms of the number of francophone immigrants should be comparable to the current number of francophones.
I will send you the speech I made during that appearance to the effect that we were being slowly killed off. That’s exactly what was happening. Newcomers from Senegal speak Wolof, and they’re not always accounted for in our census. In one out of two cases, they are counted as people who speak English and French at home. However, their first Canadian official language is French. Perhaps it should be clarified what people’s first spoken official language is if we want to count immigrants and talk about immigration in the act. Newcomers should first really be asked the following, “There are two official languages in Canada: English and French. Which language do you speak and understand better?” That would be a bit more logical.
Ms. Enguehard: The immigration issue is extremely important everywhere. In New Brunswick, in terms of quantity, it may be more important than elsewhere, but I can tell you that the few francophone immigrants who arrive in Newfoundland and Labrador make a tremendous difference. It can even be said that, the smaller the community, the more essential the influx of francophone immigrants is. So there is no doubt for us and for all communities that this is a very important issue.
In the Atlantic provinces, the efforts of the Société nationale de l’Acadie began when I contributed to the immigration file as part of the round table. The work continues for the Atlantic provinces. The results are never in line with the amount of work being done.
Your question was about the SANB’s suggestion to include this in the act. That is beyond my field of expertise. It is certain that, just as immigration is a determining aspect for the future of Canadian society as a whole, it is a determining element of the survival and development of francophone communities across Canada. In that sense, perhaps it should be taken into consideration during the review of the act. That is how things are done in the case of determinants in health; there are some in the case of official languages, as well.
Senator Mégie: Ms. Enguehard, you talked about the notion of positive measures, and about the fact that encouragement alone is not working. The Commissioner of Official Languages is encouraging us to apply concepts, but he is not cracking down. I know that a number of our witnesses have expressed the desire for the act to have more teeth, but everyone has their own suggestions. Do you have a suggestion to help the act have more teeth?
Ms. Enguehard: I gave the example of Air Canada, which is a major irritant that concerns all francophone Canadian travellers and airports. After all, it is very notable that in Air Canada’s case, the commissioner is unable to get tough and force the corporation to take responsibility. As we know, Air Canada has a responsibility and linguistic obligations other companies don’t have because it was founded with taxpayers’ money. It seems to me that a piece of legislation with teeth would help warn Air Canada and then the commissioner could crack down. I don’t know how other laws are structured, but when someone fails to comply with a statute once, twice or three times, there must eventually be punitive measures.
So what applies to Air Canada in this case could apply to the Halifax airport, where you’re always told yes, but without measures ever being taken. Once again, I think it’s about communicating with legislators when the statute is being drafted. What I mean is that we can no longer continue doing the same thing. That seems counterproductive to me.
Ms. Kenny: That has been happening at my designated airport in Regina for eight years, I think. It took five years for me to be able to receive services in French, despite repeated complaints. I think I am single-handedly responsible for all the complaints made in Saskatchewan. I made complaints and was told that I was right and that they had spoken to the company, which promised to improve. I called the organization before making my complaint to explain to it that it was obligated to provide services. After the first complaint, you give the company a chance to get organized and provide services. After the second complaint, there should be a penalty and, after the third one, a harsher penalty. I think the authorities should be able to impose penalties on those institutions and create a fund for all communities. That money could be used for culture in minority communities. If nothing happens the third time, the issue could be taken to the courts. For me, there is no law. When the decision was made that people had to wear a seat belt in a car, we didn’t have 50 years to adapt and get used to it. If I get pulled over because I am not wearing my seat belt, I will be fined.
Senator Maltais: Ms. Enguehard, I think you are very brave to immigrate from France to Newfoundland. You were a bit special; you liked the battle and you have benefited from it.
I would like to come back to what you said about the Commissioner of Official Languages. He has no power; he spent 12 years on the Air Canada case and nothing changed.
You talked about punitive measures that could be added to the act. We could ask the government, even the Privy Council, to be a watchdog for the Official Languages Act. What kind of complaints would end up at the executive council office? They would concern Air Canada, Canada Post, Revenue Canada and all Canadian departments. How can the government take itself to court, fine itself? That is the question that has been put to many ministers here. It is a dilemma.
My colleague Senator Joyal, who worked on the first iteration of the Official Languages Act told us that we were in a situation where the complainant, be they anglophone or francophone, is asking the executive council, which is Canada’s supreme authority, to penalize the Minister of National Revenue at its side. We must find another solution other than putting everything in the same basket. If punitive orders were in one basket and were given to the executive council, when do you think the issue would be resolved?
Ms. Enguehard: I am asking myself the following question: How are things done for other statutes? When other government laws are applied and the authorities realize that a department is not doing its job, they must be able to enforce the legislation. However, it seems to me that we are wondering about this only with the Official Languages Act. The rest of the legislative apparatus concerns the government and laws are enforced. This is the only piece of legislation that is not being applied because the person in charge does not have the power to apply it or because too many departments are responsible for it and its application is left, as I often say, to the good will of people and those in charge.
I don’t like the idea of creating supplementary structures, as I think that Canada has enough of those. However, we will surely have to get there. As I said, I don’t have a solution. It may not be the Privy Council because it represents the highest authority of the government itself.
The only thing I can say is that we can no longer continue to give the responsibility for the act to several departments, and that we need a single accountable entity.
Ms. Kenny: A distinction has to be made between the commissioner and the authority managing the Official Languages Act. What I mean is centralizing the official languages function within the Privy Council, which should be the body responsible for the application of the Official Languages Act. The power to impose sanctions should be given to the commissioner, who is an independent officer of the government. Clearly, the government can’t be given the job of punishing itself.
When I joined Farm Credit Canada, which had just moved to Saskatchewan, no one knew anything about the act, so we were receiving numerous complaints. What we did was centralize the official languages function. From that point forward, nothing was done without my office knowing about it. If a new online platform was being launched, it went through my office, and I made sure that it was bilingual. I was in charge of implementation. The commissioner and Treasury Board were nevertheless there to investigate matters. I believe it should be the role of the Commissioner of Official Languages.
Senator Maltais: I would, however, point out that any progress made on the official languages front was thanks to the courts. The best stewards of the act are the courts. They are the only ones that have remedied problems. The others are passed off from one department to another, and, when all is said and done, they don’t inflict punishment on one another.
Senator Moncion: I have a few short questions.
You came from Europe. How many languages did you speak before coming to Newfoundland?
Ms. Enguehard: Just to clarify, I didn’t come from Europe. I came to Newfoundland from eight nautical miles away, Saint-Pierre and Miquelon. I’m not European; I’m very North American.
I spoke three languages. French was my first language, Spanish was my second, and English was my third. That’s what was available in the French school system.
Senator Moncion: The point I was trying to make was the added value of speaking more than one language. That’s one of the things we don’t promote in Canada.
Ms. Enguehard: In my view, the Commissioner of Official Languages could have a much broader role. Since the commissioner doesn’t have any punitive power or remedial authority, as Senator Maltais mentioned, the commissioner could play a much larger role in promoting linguistic duality, bilingualism, trilingualism and multilingualism.
I did a lot of thinking before coming here today, and it makes me very sad that, in two generations, Canada hasn’t been able to resolve the issue of bilingualism once and for all. How is it that, two generations later, we are still discussing this? I think it’s a result of the two or three solitudes being left to make their own way, so a tremendous amount of outreach is needed to promote the value-added. That effort should focus not only on the added value, but also on the basic value for the entire country. It’s not a discussion the Europeans have.
Senator Moncion: I agree with you.
We met with Graham Fraser last week, and he talked about protecting and promoting the language. When we asked him about the power to impose sanctions, however, he said that wasn’t the role of the Commissioner of Official Languages. He felt that being judge and jury would complicate the commissioner’s job.
Ms. Enguehard: He served as Commissioner of Official Languages longer than any of his predecessors and, no doubt, longer than those who will succeed him, so it’s fair to say he knows what he’s talking about. When he complained about Air Canada and asked the government to do something, he probably would have preferred to take action himself rather than beg the government to do it. I don’t see how that power would make the commissioner judge and jury. How does it work with the other commissioners?
Senator Moncion: I don’t think they have any more power.
Ms. Enguehard: Well, if that’s the case, it’s beyond my expertise. The issue has to be resolved. If they don’t have the power, it’s necessary to find someone who perhaps —
Senator Moncion: Unless I’m mistaken.
Ms. Kenny: The act is half a century old. That’s half a century of having our rights trampled on. What’s the point of having a commissioner if they can’t do anything, if their hands are tied and if their reports just end up on the shelf. The government would be better off getting rid of the position and using the salary for something else. Truly, I can’t understand why it’s not the commissioner’s job to make sure —
When I was the program manager, the commissioner conducted investigations into all the institutions, and so did the Treasury Board. A report for each institution would be produced and made public. All that has stopped in favour of making suggestions and recommendations and devising incentives. Unfortunately, it’s not working. Fifty years later, the act is still not being applied. Besides the Indian Act, what other Canadian statute has been flouted like this for decades? As far as I know, none.
If not the commissioner, then who? Am I supposed to take the matter to court every time my rights are denied?
The Chair: I have a follow-up question. We’ve heard from witnesses that an administrative tribunal should be set up to handle this. What are your thoughts on that?
Ms. Kenny: When the burden of proof falls on the organization — even though we have the Court Challenges Program, which we are still waiting for, by the way, the fact is it comes down to resources.
When the FCFA decided to take the government to court for eliminating the long-form census, I can’t tell you how many hours my team and I spent working on our case with the lawyers. I’m talking about thousands of hours.
Organizations don’t have the resources or legal expertise it takes to do that. Even when applicants receive funding under the Court Challenges Program, they still have to put in their own money. As I see it, the role of the commissioner isn’t working. An institution gets one, two or three warnings, when it should be fined, taken to court and subjected to drastic measures. That’s the Commissioner of Official Languages’ job.
Ms. Enguehard: Individuals, themselves, need to have the right to complain. Should an individual be expected to appear before an administrative tribunal? It’s akin to making a person wait to be served in French until the worker able to speak French is done their break. They’ll do it once, twice and, then, they’ll move on. Tying the application of an act to an administrative tribunal seems ridiculous to me.
The Chair: Thank you very much.
Senator Gagné: Thank you. You’ve given me something to think about. We get to hear different perspectives that will no doubt inform our discussion.
I’m not going to talk about the commissioner’s role. I’d like to focus on the preamble to the act. I’m wondering whether the preamble to the Official Languages Act should explicitly state that French is the minority language in Canada. If so, why? If not, why?
Ms. Enguehard: No, because it’s a bit like using a minimum standard or a lack of something to define ourselves. It has a negative connotation in my eyes. It wouldn’t apply to Quebec. In that case, would the preamble state that French is the minority language in 10 provinces and three territories? Would it state that French is the majority language in Quebec? I don’t think so. I’m not in favour of it.
Already, as francophones, we are commonly defined as a group of people “outside Quebec.” I’ve never been fond of being defined by something I’m not. I wouldn’t want a number to define me.
Senator Gagné: I’m going to come back to you, Ms. Kenny. I’d like to take the discussion a bit further. All the talk in Canada right now about the federal government’s action plans indicates for example that they are intended almost exclusively for linguistic minorities in the provinces and territories. Francophones in Quebec have more or less been shut out of the official languages discussion.
Ms. Enguehard: I think francophones in Quebec shut themselves out of the discussion. I’m speaking from my experience as a francophone. I don’t think francophones in Quebec have ever been comfortable as part of the French-Canadian movement — let’s put it that way. It goes back a very long time. Perhaps that’s why the act is written the way it is. As people who are very active in Canada’s francophone community, we have felt it. Let’s be clear: Quebec has been absent from the table for a very long time. It was absent from the forums and discussions. There you have it. It’s been outside the group for a very long time. We’ve seen youth forums all over the country, but we’ve never had any group of Quebec youth. I remember the first time they met. You had to be there; it was worth seeing.
Ms. Kenny: I wouldn’t agree either. When I speak French to someone, I’ve often been told this:
[English]
“We speak English in Saskatchewan; French is a second language.” French is not a second language.
[Translation]
French is an equal language. It is on equal footing with English. Stating that French is a minority language sends the message that francophones are lesser. We may be less from a numbers standpoint, but we don’t matter any less. I think I matter just as much as my English-speaking neighbour who doesn’t speak French. At the same time, I agree with Ms. Enguehard that Quebec shut itself out of the discussion. The act doesn’t mention Quebec; rather, it mentions francophones. After the estates general, Quebec pulled out. It’s come back since.
Ms. Enguehard: It was epic.
Ms. Kenny: Yes. We were both there.
The Chair: I’m going to take an opportunity to ask a quick question, and I’d like a quick answer.
It’s about the federal-provincial agreements. The FCFA recommended that the Official Languages Act set out the framework for the agreements as well as clear obligations for the federal government when negotiating and drafting the agreements. Including language provisions was one suggestion. What are your thoughts on that, and which obligations do you think should be incorporated into the agreements?
Ms. Kenny: The Official Languages Act clearly states that, when the government unloads certain responsibilities —like education, which it loves referring to as a provincial responsibility — it has to include a language provision with some teeth. Commissioner Fraser talked to education ministers, and they told him that, when they receive the money earmarked for French-language education, they decide where the money goes based on the needs as they see them. I think that’s unacceptable.
What’s more, in terms of accountability, when the federal government hands over the money, we want to know how it is spent. We also want to be sure that the money goes where it’s supposed to.
Ms. Enguehard: I would say it’s essential. The reason I talked about it in my presentation is that, when the last budget came out in Newfoundland and Labrador, I sat down with the francophone community, and we went over the budget with a fine-tooth comb. It was incredible. We have a school board in need of funding. I didn’t do an audit. I certainly wouldn’t be able to, but I could understand the documents well enough to know that a large chunk of the money went elsewhere.
The Chair: Ladies, thank you for your tremendous contribution, this evening, to Canada’s francophone community and the development and vitality of official language minority communities. You are both role models and women who have done a lot for the movement. Thank you very much.
We are now pleased to have joining us the Honourable Michel Bastarache, former Justice of the Supreme Court of Canada. Mr. Bastarache, thank you for being here and welcome to the committee. I’m going to turn the floor over to you without further ado, and then, we’ll get into the question and answer portion.
Hon. Michel Bastarache, former Justice of the Supreme Court of Canada, as an individual: Thank you for the invitation. Like many of you probably, I think that the official languages situation is progressing at a snail’s pace and that we continue to see numerous complaints, which are usually brought to our attention by the Commissioner of Official Languages.
I’m not so sure that modernizing the act will make much of a difference on that front, simply because the rate of personal bilingualism is still far too low to bring about a significant change in the use of the minority language. We are still at the institutional bilingualism stage, and that limits our ability to create a society that is really and truly bilingual.
If, as I suspect, the fundamental problem lies in the implementation of the act, we need the tools and resources to do a better job in that regard. Positive speeches aside, the political will isn’t always there. I would point to the Federal Court challenge initiated by the Société franco-manitobaine concerning the application of section 20 of the act, which deals with public services. At issue is how the government calculates the number of people used to determine whether the delivery of services in the minority language is warranted.
In another case, the government argued that it could hold English-only public hearings in Montreal, with English-only documentation, as part of consultations on the Energy East pipeline project, because the National Energy Board exercises judicial powers governed by section 3 of the act. The Government of Canada maintained that holding a public consultation is not a public service subject to section 20.
Other notable examples include the case involving Radio-Canada’s services in Windsor. The Federal Court was forced to consider the commissioner’s authority in the matter, which was called into question.
All these examples do is show that most of the problems stem from a flawed application of the act, as opposed to its scope. The idea behind the introduction of Part VII was to impose a political commitment, but there again, the Department of Justice gave a very narrow interpretation of the legislation before this very committee. Justice officials told the committee that the reduction in services did not violate Part VII, as long as the government’s measures, as a whole, were positive.
Another important question that needs asking concerns the role of the Commissioner of Official Languages, and you just talked about that. Does the commissioner have all the necessary powers? Should the government be required to respond to the commissioner’s reports? Is the court intervention role adequate? As you know, the commissioner can become involved in court challenges. On a more fundamental level, however, is the issue of whether the complaint-based system should be changed in favour of creating an administrative tribunal. I know you talked about that earlier, but I’d like to explain how it might work.
Nevertheless, the act — and, indeed, more often than not, the regulations — do have room for improvement. Given that I have a limited amount of time, I’ll summarize my thoughts for you.
When it comes to section 20, it’s important to keep in mind the vitality of communities, not just their size, in establishing the threshold at which French-language services are warranted in a region. It’s also important to make good on the obligation to provide services of equal quality in both languages, something we could discuss at length. It makes no sense to me to hire personnel who need to be trained, instead of individuals who are functionally bilingual, if providing services of equal quality is a matter of principle.
Let’s talk about legal services. Should the right to a trial in one’s language be limited to the Superior Court? Should that right cover appeals, motions and other related procedures? Should we have access to decisions in one’s language on the Internet? There is also a fundamental problem concerning judges’ skills, judges who have learned French, when it comes to presiding over a hearing in that language. There is no real quality control, which is also a problem with regard to the rules of practice. Assigning judges to the provinces and territories is another issue. The Official Languages Commissioner in fact produced a very detailed report on that matter three or four years ago, a report which if I understood correctly went unheeded.
As for education, well that is, of course, an area of provincial jurisdiction, but Canadian Heritage partly funds the teaching of the minority language in the provinces and territories, as well as linguistic immersion. The provinces and territories do not do any serious tracking. Minority groups have for years been denouncing illegal funds transfers by the provinces; that is to say that when they receive money that is supposed to go to French-language teaching, they use it for immersion or even to fund other public services.
In conclusion, you have already heard the Fédération des communautés francophones et acadienne tell you that progress depends largely on setting up better monitoring mechanisms within the government. The federation recommends a redefinition of the role of Treasury Board. We must indeed question the internal controls around the enforcement of the act within government. That is the role of Treasury Board, but we must also preserve and maintain the duties and functions of Canadian Heritage, which promotes official languages as well as relationships with the provinces, territories and minority communities themselves.
Finally, you should look at how the powers of the Official Languages Commissioner could be strengthened.
I know that there has been considerable progress since the 1988 act, but the way things have been over the past years does not make me very optimistic. For instance, several legal actions on bilingualism were launched against the Government of New Brunswick, the only bilingual province, over the past five years.
In addition, look at the result of last week’s election. A party which was created to oppose bilingualism, French-language schools and French-language hospitals obtained 13 per cent of the popular vote. If we assume that Acadians did not vote for that party, that means that close to one third of New Brunswick anglophones voted to abolish bilingualism. However, we are told that there has been extraordinary progress.
I think we have to react, but not by closing our eyes and assuming that there has been extraordinary progress that is not reversible. Thank you.
The Chair: Thank you very much, Mr. Bastarache. We’ll have our question period now. Each senator will have five minutes to speak to the witness during each round.
Senator Poirier: Thank you, Mr. Bastarache for being here. In the second part of its study, the committee heard several witnesses talk about New Brunswick’s specificity. The Société de l’Acadie du Nouveau-Brunswic, SANB, among others, presented an excellent brief asking that this specificity be recognized in the Official Languages Act. Do you believe that the specificity of New Brunswick should be recognized in the act, and in the affirmative, what would be the result of that for our communities?
Mr. Bastarache: My answer is no. I think that the federal law should be brought to bear on what is important at the national level. When we say that Canada is a bilingual country, that is not quite true. Bilingualism in Canada applies to the federal government.
Now, there is as we know a province that has declared itself bilingual, New Brunswick, but its status is confirmed in the Canadian Charter of Rights and Freedoms and in New Brunswick provincial laws. I think that that is the locus of its specificity, in that it is different from the other provinces in having declared itself bilingual, and in adopting various laws on its internal bilingualism.
Senator Poirier: The committee also heard several witnesses on Part Vll of the Official Languages Act. However, that part of the act is not always clear and seems to give rise to various interpretations as to how it should be applied. In short, it seems necessary to clarify the situation. Do you believe that Part Vll is adequate at this time? Should we amend it, and if so, how do you think we should do that?
Mr. Bastarache: There are a limited number of things you can do in one act. When it comes to implementing the act, regulations come into play. This is what happened with Part Vll; and the reason why it has little impact is that it is interpreted restrictively by the federal government, which enacted it.
I appeared previously to discuss Part Vll and proposed an interpretation of it. I sent it to the Department of Justice, which did not agree with me, and I said this to them, “Explain why.” We never got an answer. It claims that the concept is more political than legal, and that that part basically says that the government must simply make efforts to promote the French fact when it adopts projects. That also means that it does not examine the dossiers, project by project.
For instance, some Department of Justice representatives have told me that the abolition of the Court Challenges Program did not necessarily run counter to Part Vll, on condition that the government do other things to offset the elimination of the program. If you accept that reasoning, it means basically that there is a constant to-and-fro, where things are being removed and others are being added. What does that mean in a case like that one?
I believe that Part Vll means that when the government establishes a new program, it should take into account the fact that there are two clienteles to serve: an anglophone clientele and a francophone one. They are not identical. We can’t develop English programs, translate them into French and say that we’ve met the requirements. You have to develop a program and adapt it to the particular needs of the population to be served. Thus it is upstream, when you create the program, that you should think about its impact on minority communities. Not once the program has been designed according to the needs of another group; you should not then try to correct it or provide something to the minority groups through translations.
Senator Mégie: The important question that everyone always asks is this one: Must all judges being considered for an appointment to the Supreme Court know both official languages?
Mr. Bastarache: I think so, yes. I think that after 50 years of bilingualism at the Supreme Court, people who aspire to that position have had time to prepare.
Despite all the funds invested in teaching the second language to anglophones, they are still handicapped, either because they could not profit from it, or because the courses weren’t good enough to allow them to feel comfortable in that language. Of course, afterwards, they challenge the fact that functional bilingualism is required in certain jobs. The federal government should abandon the idea of hiring unilingual people, providing courses and telling them that they have three years to become bilingual, or to meet the requirements. Why? Because we provide poor quality services during those three years. When they have reached a good level of bilingualism, they change jobs, and we start over because in the public service, there is internal mobility.
Senator Gagné: Welcome, and thank you also for all of the work you did on Bill S-209, the bill brought forward by former Senator Maria Chaput. You are very well versed in that area.
You began your presentation by saying that one of the reasons why progress on language rights is not moving at a sufficient clip is the fact that the rate of personal bilingualism is too low.
Mr. Bastarache: Yes.
Senator Gagné: We know, however, that the low or weak level of bilingualism is mostly due to the fact that not enough anglophones speak French, and not the reverse. I’ll go back to the question I put earlier to the witnesses, Ms. Kenny and Ms. Enguehard; should we mention in the preamble that French is the minority language in Canada? Would that be important?
Mr. Bastarache: You have to ask yourself what a preamble is for. Its only purpose is to define the act’s objective, with a view to interpretation, when you then move to the other sections, which concern the implementation of rights.
If you insert a paragraph in the preamble mentioning that French is a minority language, what effect will that have on the act’s interpretation? I think that that is similar to the problem that arises when Quebec claims that we should state that Quebec is a distinct society in the Constitution. Once you have said that, how will that be used? What will people do with that?
I don’t see how that could be useful. In New Brunswick, the reason why people resist that a great deal is that they finally managed to obtain, after 75 years, not only an Official Languages Act, but also the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick. This means that the government recognizes, not that there is a majority community and a minority community, but two communities that are equal under the law.
I think that people would resist any other declaration, especially at the national level, that would undo all of that, and indicate that in New Brunswick and everywhere else, a part of society is the majority. The term “majority,” in people’s minds, means that their status is superior to that of others.
That is the case in New Brunswick. A third of the population of New Brunswick is francophone, the Official Languages Act has been in existence for over 50 years, and I believe only 18 per cent of anglophones have some knowledge of French. It is lamentable that there has not been any more progress than that, especially since immersion schools have existed just as long. Why is that so? It is because anglophones feel no need to learn French. If they do, it’s simply for cultural reasons, or for social peace as they say in some cases. And in practice, they don’t really need to learn it, because almost all Acadians are bilingual. When Acadians are with anglophones in any kind of social gathering, they communicate in English because it is easier.
Senator Gagné: How can we contribute to the advancement of bilingualism?
Mr. Bastarache: I think we have to convince anglophone young people that there is a personal advantage to being bilingual. We have to call on other concepts than simply employment. I think we have put too much stock in employment. We can say that it is an advantage intellectually for someone to know several languages, and that it is also advantageous for a country to stand out through bilingualism.
It’s much more difficult for us than for European countries. If you are Italian in Switzerland, you only represent 13 per cent of the population, but Italy is next door. So there is no risk that your society will disappear. Here, we French-speakers are alone on the continent, and there aren’t that many of us.
I think that one of the main problems is immigration to Canada. Immigration is mostly anglophone, which means that the proportion of francophones is continually on the decline, and we have not found a way to convince people who arrive that it’s important for them to be bilingual or to embrace French as their priority language.
I believe that, for all intents and purposes, the problem is getting worse at this time.
Senator Moncion: Welcome, Mr. Bastarache. Last week, we heard a witness who talked about the Bilingual Ottawa movement. That person said that since Ottawa is the national capital, its status and all related rights and obligations should be enshrined in the Official Languages Act. What do you think of that?
Mr. Bastarache: That would be desirable, if it were possible politically speaking. In this area, symbolism is very important. The fact of declaring the capital to be a bilingual city represents a great deal, symbolically. It is a true recognition of the fact that we give great importance to the second language spoken in Canada, and spoken in the capital.
The capital should be able to welcome people who speak either language and provide services of equal quality. That is not the case at this time. There certainly are a lot of French-language services in the city of Ottawa, but symbolically, I think that would be very important. The Government of Canada can do it, but I assume that it does not have the courage to do it because language issues have all become issues that are approached emotionally rather than rationally. It’s difficult to convince someone who resists arguments based on reason, because of the feeling they have on this matter.
Senator Moncion: Thank you for your reply, which I liked very much.
My second question is about the understanding public servants have in the department of the needs of linguistic minorities in Canada. To what extent do the people entrusted with these files understand those needs?
Mr. Bastarache: I often spoken to these people in the past. I asked them why they were promoting French, and what the real objective was. Was it because they were having problems and needed help? Was it because we were generous and wanted to help them? Or was it because we really believe that this is the way of transforming Canadian society to make it a bilingual society in the facts rather than normatively? We can say that we are bilingual because we have the Official Languages Act, but basically that is false. We are bilingual if people are really bilingual and can function in French elsewhere than in Quebec, and in areas where there are francophone populations that are numerous enough to justify service.
When you see that the federal government provides an absolutely restrictive interpretation of section 20, you wonder why it adopted the act. Was it really to change things? Was it really so that francophones could see themselves in federal services and be treated in the same way as an anglophone who asks to be served in English? My impression is that the behaviour of governments are often managed or influenced by administrative requirements.
There’s one thing I noticed because I’ve often worked before the courts, as you know. When you advocate for language rights, it isn’t the same as when you advocate for human rights or women’s equality. Why? Because the government always perceives that as a political claim. It’s political when you are making a language rights-related claim, even if it is based in law. Why? Because it bothers people. In section 20, there is a decision of the court that specifies that when you are developing a program, for instance in the economic area, you must amend the planning of the program. You have to take both of the communities you serve into account, and adapt the service for francophones. This disturbs them. That is not how they like to prepare programs. It seems political. You want us to change the way we govern. You want indirect powers within government by requiring that it change its way of doing things; that is how they see it. Obviously, managers always resist all this because it complicates their lives and in many cases, they don’t see why it’s necessary.
Senator Moncion: Thank you.
Senator McIntyre: Thank you for your statement.
As a former Justice of the Supreme Court of Canada, I think you are in a good position to answer my question, which is about the legislator’s intent in the Official Languages Act. In your opinion, what was the intention of the legislator when it adopted the Official Languages Act in 1969, when it reviewed that act in 1988, and when it amended it again in 2005?
Mr. Bastarache: When it adopted the Official Languages Act, it was essentially thinking about Quebec. We were in a crisis after the Laurendeau-Dunton commission, and it was felt that something absolutely needed to be done to have Canada recognize the French fact in a more functional way. Otherwise, the separatist movement would grow in scope and lead to the dismantlement of Canada. I think that that was the intention. I don’t think there were other agendas.
Now, once a law is passed and you must implement it, you obviously have to find objectives that are less political. At that point, I think that people recognized the fact that we could not develop Canada by saying that Quebec was French and that the rest of Canada was English. They had to maintain the reality of the French fact outside of Quebec. I think that is why the federal government at that time, aside from the law, developed all kinds of programs to help minorities, especially a program to help provinces teach the minority language.
In 1988, the act was changed so that it would not be in conflict with the Canadian Charter of Rights and Freedoms, which was beginning to be interpreted in a very positive way by the courts. They wanted to correct a certain number of things. For instance, the idea was that a person who spoke French and was going to court could appear before a judge who spoke their language, and not have to go through an interpreter, quite simply because interpretation does not offer service of equal quality. We did that for a number of years. I represented people myself before the federal court. When the judge was not a francophone, I spoke English, because I was sure that presenting arguments through the services of an interpreter would be to the detriment of my clients. That was corrected in 1988, as were a certain number of other related points.
The last amendment was made solely to Part VII. The content of Part VII was there for the most part already, but the government itself had said that these were political provisions, not legal ones. And so, they created a political promotion policy, but not an obligation to promote.
We also determined that Canadian Heritage was to be a kind of watchdog in administering this in by forcing the various departments to develop bilingualism development plans. Those departments were to play a coordination role in this regard. I think that is why many associations say it is internal, that Treasury Board should really be responsible for this, and not the Department of Canadian Heritage. An internal control mechanism is certainly needed. Perhaps Treasury Board is the right body, theoretically speaking, but it has not always done a great job in this regard. I am not sure we should really give it more responsibilities unless of course its mandate for this is much clearer.
Le sénateur McIntyre: Very well, thank you.
The Chair: Thank you. We will now go to the second round, but I have a few questions for you myself, Mr. Bastarache.
One of the great challenges is how to give the act more teeth. How can we do that? What do we put in the regulations and what do we put in the act? We hear different opinions on this.
You said earlier that you have ideas about an administrative tribunal. I would like to hear your thoughts on that. Can you also talk about the distinction between what should be in the act and what should be in the regulations? Because we have heard that it is easier to amend the regulations, that they are weaker.
Mr. Bastarache: Section 20, for instance, essentially requires the federal government to offer services in both languages — and in some cases abroad or for a unique service —, but in general only where there is significant demand. That is all the act says.
So what do the regulations say? They set out rules for determining what constitutes significant demand. Is there a number? It was decided, for instance, that there had to be 3,000 people in a municipality who speak the language, or 20 per cent of the population if there were 5,000 people. It was purely mechanical. Community vitality did not enter into it. Suppose then that there have to be 2,000 people. The federal government offers services, but a new census says there are 1,950 people, so the services are cut. That happened in Manitoba and that is why there are lawsuits. It makes no sense. What does this say about the purpose of the act? Does it mean providing services where they are needed or where there are enough people who will use them?
As to Air Canada, it says it offers bilingual services at its counters, but on board, it only does so if the flight is from one bilingual airport to another. If I fly to Vancouver non-stop, I will receive services in French. If there is a stop in Regina on the way there, no services in French. What is the rationale behind this? This is the kind of regulations we have.
We also see this with the RCMP. In New Brunswick, the RCMP offers bilingual services. If you cross the border and go two more kilometres to Amherst, Nova Scotia, you will no longer receive services in French. As for people travelling the Trans-Canada Highway, they will receive services in one place but not another. These regulations do not make sense. What is the reasoning? The objective is simply a function of what is easier administratively or less expensive.
The Chair: What you are saying essentially is that the official languages regulations need to be strengthened. The underlying question is whether there should be separate regulations for each part of the act.
Mr. Bastarache: Not necessarily every part, but many of them, especially for those aspects pertaining to services to the public.
I have already discussed this with the officials responsible for the regulations. They were unable to answer some of my questions. I asked them what the regulations were on a certain issue. They said they would have to look it up in their books. If that is the case, that means that members of the public do not know when they are entitled to services either.
The worst part of all this is the way demand is calculated. They wonder whether they should offer services in French in Saint-Boniface, and how to count the number of people that would represent significant demand. They wonder whether they should conduct a survey or use Statistics Canada data. If they use Statistics Canada data, they have to choose their criteria: either people who speak the language or people whose first language it is.
So that is what they did: They decided to count only those people who speak French most often at home. In our communities, the vast majority of young households are now exogamous. If the mother is anglophone, they will speak English at home more often, even if they are perfectly bilingual. Why? Because children speak to their mother more often than to their father. It is human nature and we are not going to change it. Why did the government choose this route?
To my mind, looking at the act objectively, demand is significant when anyone requests a service in French. In my opinion, anyone who speaks French could potentially request a service in French, but the Government of Canada says that is not the case.
The Chair: I do not want to monopolize our time, but I would like to hear your thoughts on the administrative tribunal. We have heard this recommendation often.
Mr. Bastarache: It would be similar to the Human Rights Commission. People submit complaints to that commission, and it conducts investigations and makes recommendations. If a person is not satisfied, they can appeal to the human rights tribunal. People can represent themselves before this administrative tribunal, but they can also be represented by lawyers. Like any tribunal, it can impose sanctions.
The big problem with sanctions against government organizations, and we were talking about Air Canada earlier, is determining the amount of the fine that would have an impact. If you fine Air Canada $2,000 for some shortcoming, that is absolutely nothing to them. It does not even encourage them to comply with the act. It creates an administrative problem for them, but a fine of that amount is very inconsequential; it is like an operating tax. That is all it is to them.
What we need is for people to be able to appeal to a tribunal because it can issue an order and say, “You are required to do this,” such as hire bilingual staff or offer services in French.
The Chair: Thank you, Mr. Bastarache.
Senator Mégie: Mr. Bastarache, if I understand correctly, you said that, from the outset, you were not confident that the modernization of the Official Languages Act would improve its implementation.
Many people, including some of our witnesses, suggested the act should be reviewed every 10 years. If the modernization process itself does not have enough of an impact, should we focus more on reviewing the act every 10 years? What are your thoughts?
Mr. Bastarache: Reading the act today, I wonder what changes I could make to obtain much more bilingual services and for the recognition of francophones’ rights. I do not really see a lot of things to change. There are things to be changed that were identified through the courts and so forth, but they are not major changes.
Much more important is having an internal control mechanism, within government, in order to implement the act with commitment. Much greater commitment is needed for the implementation of federal-provincial agreements, for the monitoring of spending, and so forth, to truly have a grater impact on the community.
Further, it has been suggested that steps should be taken to address the impact of immigration in Canada. I do not know whether that can be done. These things would however have a much greater impact than a change to the wording of the act.
Right now, I think we really need changes to the regulations and to the implementation of the act more than changes to the act itself. If we say that section 20 is not properly implemented because services of equal quality are not provided or not provided everywhere they are needed, how could we change the act? The act states “where there is significant demand.” Do we really want to change that? If so, what should it say? Ultimately, political will is much more important that the wording used.
Senator Gagné: That is almost disheartening.
I see that you may have tempered your remarks because you are still saying that the way the regulations are implemented does not make sense, as to Part IV. In 2015, however, when you appeared before the committee, you said that using an official mathematical threshold was patently unconstitutional.
Mr. Bastarache: Yes. I think it is contrary to section 20, not of the act, but of the Charter. The Charter does not refer to significant demand from the francophone minority. If the system is based on that concept, I consider the current system unconstitutional.
Senator Gagné: The regulations, yes, as long as we do not limit the scope of the act. As to Part IV, calculating significant demand is limiting.
Mr. Bastarache: It is like the example I gave regarding the public hearings on pipelines. The National Energy Board does not make any decisions; it makes recommendations to cabinet. The Department of Justice states, however, that the NEB has a judicial function. Do you know of a tribunal that makes recommendations? I do not. Tribunals make decisions. The department then claims that yes, there is a judicial function, and when the NEB consults the public, that is part of its judicial function.
I think there is a judicial function when a measure affects someone’s rights. The rights in question, however, in the matter of a judicial body, those are the rights of applicants and respondents, not the rights of spectators in the room. Asking the public what they think is a public service, in my opinion. I do not understand how that falls under Part III.
Unless I am mistaken, we are amending the act because it runs counter to the spirit of the act. Do you think that is really someone who will implement the act honestly and properly? The same person might say, “We will hold public hearings in English only in Montreal, and that is fine because it is a judicial function, we have the right to choose the language, there is no obligation.”
There was in fact a translation, but it was not provided by the government. It was the company itself that provided it voluntarily after meeting with us. I met with those people and negotiated with them to get the translation done and to provide interpretation at their own expense, not at the government’s expense. They had no obligation to do that.
Senator Moncion: I would like to add something to your earlier question about the administrative tribunal. What powers does the commissioner have in an administrative tribunal such as the human rights tribunal?
Mr. Bastarache: It would not really change the commissioner’s powers. We would almost have to remove the commissioner’s right to appear before the courts. The commissioner conducts investigations and makes recommendations. If the recommendations are not accepted by the complainant, however, that party can appeal to the administrative tribunal. So there would have to be a chairperson of the administrative tribunal who would have those powers, and who is not the commissioner.
Senator Moncion: Who is not the commissioner. Regarding something I said earlier, that commissioners do not have the power to impose sanctions, that applies to all appointments, whether the ethics commissioner or any other commissioner.
Mr. Bastarache: No. In general, they make recommendations and findings, and the government is usually expected to follow their recommendations or accept their conclusions.
Senator Moncion: Last summer, when we met Senator Joyal, he said that a number of years ago there was a fund to finance cases. That fund was eliminated, but people still have the right to take legal action. The difference is that cases are now funded by people who have to come up with the money.
Mr. Bastarache: The government announced that it would create a new program. That was more than a year ago, and the program has still not been established. This new program will be sorely lacking because the government has the same budget as it had before, but it has broadened the themes under which cases can be based.
Something else the government has done for minorities, which is the most important, is the implementation of section 23 on education rights. Under the new program, education cases would be funded only if they involve new issues. If people want to open a new school and the government refuses to do so, that is not really a new issue, legally speaking. But if that kind of case is not funded, what kind of cases will be funded in this area? I think there are too many ambiguities, which can be problematic.
The funding set aside for cases actually falls far short of what is needed. The lawyers will have to work for very little or do a lot without being paid. I think the maximum is $150,000. The case we brought in New Brunswick regarding health cost $500,000, I think. That is far from the $150,000 allocated.
Senator Moncion: There is a huge shortfall.
The Chair: When the Quebec Community Groups Network appeared before the committee, it suggested that the obligations under the act be extended to all federally regulated industries, such as aviation and banking. That could include obligations under Part IV and Part V or a range of broader obligations. Do you think that would be possible?
Mr. Bastarache: That is what Quebec did to try to control labour law and the composition of boards of directors, within the scope of its jurisdiction.
You may recall — I am over 70 and I remember — that there was a big debate about whether banks would be required to issue bilingual cheques. It is that kind of thing.
In New Brunswick, as you know, I led a commission to reform the law and was asked what could be done in the private sector. I said we had to start with the first step, which was to create obligations in all sectors affecting consumer rights and safety. Next was the requirement for home and auto insurance contracts to be bilingual. There was also the issue of posting workplace safety standards. These are all things that affected companies, but we did not go any further because we thought it would create even more opposition to the Official Languages Act.
Last year, we finally got the obligation for professional bodies such as the bar association and the medical association to offer bilingual services. In New Brunswick, the matter is still before the courts because the nurses association did not accept the obligation to offer completely bilingual services as a condition for entry into the profession.
The Chair: Thank you for your testimony, Mr. Bastarache. Thank you as well for all you have done to advance linguistic rights in Canada. Your name is well-known to those interested in the official languages. Thank you for your contribution.
(The committee adjourned.)