THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
OTTAWA, Monday, February 7, 2022
The Standing Senate Committee on Official Languages met this day by videoconference at 5:03 p.m. [ET] to study the application of the Official Languages Act and of the regulations and directives made under it, within those institutions subject to the Act; and, in camera, to consider a draft agenda (future business).
Senator René Cormier (Chair) in the chair.
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We will now begin with the official portion of our meeting as per our order of reference received from the Senate of Canada.
I am René Cormier, senator from New Brunswick, and Chair of the Senate Committee on Official Languages.
I would like to introduce the members of the committee who are participating in this meeting: Senator Rose-May Poirier, from New Brunswick, deputy chair of the committee; Senator Raymonde Gagné, from Manitoba, member of the steering committee; Senator Jean-Guy Dagenais, from Quebec, member of the steering committee; Senator Lucie Moncion, from Ontario; Senator Marie-Françoise Mégie, from Quebec; Senator Pierre Dalphond, from Quebec; Senator Percy Mockler, from New Brunswick; and Senator Bernadette Clement, from Ontario.
I wish to welcome all of you and viewers across the country who may be watching. I would like to point out that I am taking part in this meeting from within the unceded traditional territory of the Algonquin Anishinaabe Nation.
Today, in the first hour of our meeting, pursuant to the order of reference received from the Senate on December 14 last, joining us by video conference, we welcome the Commissioner of Official Languages, Raymond Théberge.
He is accompanied by four of his officials: Pierre Leduc, Assistant Commissioner; Isabelle Gervais, Assistant Commissioner; Éric Trépanier, Assistant Commissioner; and Pascale Giguère, General Counsel.
Thank you, Mr. Théberge, for being with us and welcome to the committee. We will hear your opening remarks. They will be followed by questions from the senators.
Colleagues, I would ask you to locate the “raise hand” feature on your computer; it is the feature that you will use to identify yourselves when we proceed to questions from the senators.
Welcome. Mr. Théberge. The floor is yours.
Raymond Théberge, Commissioner of Official Languages, Office of the Commissioner of Official Languages: Mr. Chair, honourable members of the committee, good morning.
Thank you for inviting me to talk to you about the current language situation in the country.
Although today’s meeting is taking place virtually, I would like to acknowledge that I am speaking to you from Treaty 1 territory, the traditional territory of Anishinaabe, Cree, Oji-Cree, Dakota and Dene peoples, and the homeland of the Métis Nation.
In my 2020–21 annual report, I highlighted a significant and ongoing lack of bilingual capacity within the federal public service. This had led to the many shortcomings in terms of official languages that we have seen for too long.
The numerous complaints I receive year after year are proof of this, and the trend is on the rise. We received well over 1,000 complaints again in 2020–21, and this year we have already received more than 5,500.
Unfortunately, problems related to communications with the public continue to be an issue and are the subject of most of the complaints we received in 2020–21. This is due in part to the difficulty that federal institutions have in establishing the language requirements of positions. In addition, federal public servants are not always comfortable using the non-predominant official language at work, regardless of whether it is their first or second official language.
This prevents federal institutions from being able to provide services effectively in both English and French and to create a work environment conducive to the use of both official languages.
I made several recommendations to the federal government in my last annual report, not only with regard to its obligations in emergency situations, but also with regard to the language requirements of positions in the public service.
I have also provided public service managers with a tool to help them better establish the linguistic identification of positions.
Federal institutions’ non-compliance with their official languages obligations is a significant and recurring issue for which targeted measures must be put into place. A modernized Official Languages Act that gives me stronger powers will help me to better ensure that federal institutions comply with the legislation and thus further better ensure that the language rights of Canadians are respected.
I am pleased that tabling a bill to modernize the act is one of the objectives established by the Prime Minister for Minister Petitpas Taylor. Her mandate letter clearly identifies the need to implement the measures as set out in the official languages reform document and to ensure that Canadians receive services from federal institutions in both official languages.
I would also like to highlight the support role that Minister Fortier has been given to fulfill this mandate. Several other ministers have received specific directives related to official languages in their mandate letters, which seem to indicate that official languages continue to be a priority for the government.
The measures presented by the government in its official language reform document are promising and seem to offer concrete solutions to many of the issues with the current version of the act. I shared my thoughts on this subject with you last May.
I am very much looking forward to the tabling of the new bill, and I hope to see the same commitment to truly protect the language rights of Canadians. I will be happy to share my perspective of the proposed bill with you in due course.
The time to take action on modernizing the act is long past due. The unprecedented attention generated by the language situation in the country over the past year clearly shows how important linguistic duality and official languages are to Canadians.
By filing more than 2,500 complaints with my office about Air Canada CEO Michael Rousseau’s unilingual speech, and more than 1,300 complaints about Mary Simon’s appointment as Governor General of Canada, Canadians have sent a clear message to the government.
Being able to speak both official languages is a crucial skill for any leader, and especially leaders of institutions subject to the Official Languages Act, whether they are leaders of federal departments and agencies, or of federally regulated private businesses that are subject to the act, such as airport authorities and Air Canada.
The most powerful tool I currently have is making recommendations, so I need new powers to ensure compliance more effectively. This could have an impact on the institutions against which my office receives a considerable number of complaints every year, such as Air Canada.
In my recommendations to the government for modernizing the act, I asked to be given additional compliance mechanisms, such as the power to enter into enforceable agreement, coupled with administrative monetary penalties. These mechanisms are essential to help federal institutions improve their compliance with the act. I sincerely hope that they will be part of the measures proposed in a new bill.
I would like to conclude by saying that official languages are in the spotlight now more than ever, which shows how much Canadians value our two official languages. However, there is still a lot of work to be done so that they can both thrive in today’s Canada, and in our country’s future. Thank you for your attention. I will be happy to answer your questions in the official language of your choice.
The Chair: Thank you very much, Mr. Théberge. We definitely have a great deal to discuss here.
We will now move on to questions. Colleagues, I would ask that you use the “raise hand” feature in Zoom to ask for the floor.
Being aware of the time at our disposal, colleagues, I suggest that each of you will have five minutes for this first round, including question and answer. We will obviously have a second round, time permitting. We will start with the deputy chair of the committee.
Senator Poirier: Commissioner, thank you for being with us this evening. It’s a pleasure to see you again.
My question concerns the agreements the federal government has reached with the various provinces respecting $10-a-day child care centres. The budget envelope doesn’t seem to provide for language clauses requiring the provinces to consider proportional funding for francophone communities.
Consequently, we could easily find ourselves in a situation where a province decides to use the funding for unilingual anglophone spaces rather than francophone spaces. Child care costs could thus rise for francophones. Correct me if I’m wrong, but if I’m right, would you please comment on the situation and tell us whether the government has dropped the ball here by failing to include language clauses in the agreements?
Mr. Théberge: I think your observation is entirely accurate. The federal government has entered into agreements with all the provinces except Ontario, and, to my knowledge, those federal-provincial-territorial agreements do not provide for a proportional number of child care spaces for francophone minority communities.
However, those agreements are supposed to include an action plan to accommodate the needs of the official language communities. That being said, in future, the federal-provincial-territorial agreements should include language clauses that take the linguistic minority communities into account.
Their needs are being recognized in every province and territory, and they’re being consulted on the matter. In future, for example, this could be part of the modernization of the act and, for the sake of accountability and empowerment, the agreements could include language clauses that are actually implemented and monitored.
In my opinion, the child care centres example is one where, once again, the needs of the francophone minority communities have not been considered in a manner consistent with Part VII of the act.
Senator Poirier: That’s precisely the focus of my next question. Doesn’t Part VII establish an obligation to enhance the vitality of the official language minority communities in a tangible manner and to support and assist their development on an ongoing basis?
Mr. Théberge: Yes, the spirit of Part VII of the act is to ensure the development and vitality of the communities. The question that must be asked is whether the needs of the communities are being taken into consideration when the agreements are negotiated. I believe that’s the issue.
Senator Poirier: My second question is as follows. Today is February 7, 2022, and three years have elapsed since our report was tabled. There were delays on the government’s end in introducing Bill C-32 during the last Parliament. Based on your analysis, what are the weak points of that bill that the government must correct before reintroducing it?
Mr. Théberge: I think several elements could be improved and reinforced in the next version of the act. For example, we could expand the concept of governance and specify certain targets, as is done in immigration. We could also consider regulations for the implementation of Part VII.
We could review Part IV with a view to improving treatment of the travelling public, which is an area where we receive a huge number of complaints every year. We should review the consistency between Part IV at Part V, which concern language of work and language of service. We must also consider a new definition of communication in this new technological era, not just for today but for the future as well. These are a few elements that could definitely be added to the bill and that I think would improve it.
Senator Poirier: Thank you. With regard to Air Canada, would the new provisions of Bill C-32 promote compliance with the Official Languages Act? If not, what amendments should the government introduce?
Mr. Théberge: The binding agreements and orders that Bill C-32 would grant authority to establish are tools that aren’t currently available but that would ensure better compliance with the act. I don’t think that the approach involving constant investigations of complaint after complaint necessarily results in changes being made by the federal institutions.
In my opinion, the authority to enter into binding agreements, to make orders and potentially to provide for monetary administrative penalties could be an addition to the existing range of powers since the only real power I have is the power to make recommendations.
The Chair: Thank you very much, Mr. Théberge.
Senator Gagné: Commissioner, welcome to the Standing Senate Committee on Official Languages. It’s nice to be sharing the same blue sky here in Winnipeg.
In your 2021 report, you definitely showed that it’s the institutions in direct contact with the public that are subject to the most complaints. You singled out Employment and Social Development Canada, Health Canada and Public Services and Procurement Canada.
However, you note in your annual report that there are recurring problems with the restrictive interpretation and application of language obligations. In your opinion, a modernized act must provide a clearer framework in this regard. Since you tabled your report, the Federal Court of Appeal rendered a decision in late January of this year. It was Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development).
Considering your report and that decision, how does that recent judgment affect your activities respecting Part IV, particularly as regards the handling of complaints and amendments to the legislative or regulatory framework?
Would they be necessary in reinforcing Part IV, given the way it’s interpreted in the case law and reiterated in the Federal Court of Appeal’s last judgment?
Mr. Théberge: Thank you. That’s an excellent question.
Yes, on January 28 of this year, the Federal Court of Appeal ruled on the interpretation of parts IV and V as they pertain to Employment and Social Development Canada.
With respect to Part VII, the judgment clearly reversed the trial judge’s decision and construed Part VII in a broad and liberal manner. What would be interesting to do as part of the modernization of the act would be to include in it some of the major principles that the appellate court established in its decision. That clearly showed that federal institutions have an obligation to consider the needs of the minority communities and to assess the harmful impact of their decisions, policies and programs. That implies that the communities must be consulted in order to determine what their actual needs are.
As for the Office of the Commissioner of Official Languages, regarding complaints filed under Part VII, now we may not only receive complaints, we can even hope to receive well-founded complaints as a result of the obligation now established in that judgment. As a result of the Gascon decision, Part VII had virtually no force or effect.
As for Part VII, the Federal Court of Appeal did not accept the arguments respecting Part IV. I believe it is extremely important, with respect to Part IV, to determine how to define terms such as “active offer” and how to determine the obligations of all federal institutions that deal with the travelling public, as I mentioned earlier.
I also think it’s important to specify the connection between federal agencies and third parties. As you know, the government has extensively changed the way it operates in the past 20 or 30 years. An enormous number of organizations have been created, and they’re subject to the act. However, they also contract out to third parties. The best example of this is a Tim Horton’s in an airport. The airport is private, there is an agreement, the airport is subject to the Official Languages Act, and, by extension, so is that business.
We have to find a more effective way to put all that together in the act. “Language of work” — and we didn’t mention this — is also a problem. We have to find ways to make regulations for Part IV that currently don’t exist. Bill C-32 actually adds almost nothing to Part IV. It’s virtually overlooked. There should definitely be a review of Parts IV and V, which is “language of work,” because earlier I talked about consistency between those two parts, and Part IV can’t be clarified without bilingual personnel who have the necessary tools to do the work in both official languages.
Senator Dagenais: Thank you for being with us, Commissioner, particularly and obviously following the incendiary and disrespectful statements previously made by the president of Air Canada, Michael Rousseau.
One of your predecessors, Graham Fraser, called for amendments to the act about six years ago, I think, so he could fine Air Canada for failing to respect French in its operations. I see none of that attitude in the Trudeau government’s current intentions.
Do you sincerely believe — even with recommendations made by a committee such as ours — that the present government would grant you that right, or should we, as francophones, simply resign ourselves to the fact that this society disrespects the French language with impunity, as it has been doing for 40 years?
Mr. Théberge: Since Bill C-32 was introduced, many people have spoken out on the issue of expanding the Commissioner’s powers, and the subject of monetary administrative penalties has often been discussed.
My predecessor, Mr. Fraser, mentioned this in his special report in 2016. Under the new mandate — which may be set forth in the bill — concerning federally regulated private businesses, the application of monetary administrative penalties may be expanded. I think that’s an idea that’s gaining ground, and I hope the Commissioner is granted the necessary powers to ensure stricter compliance under the next version of the act.
As I said earlier, the Commissioner may make recommendations, but we notice that behaviour doesn’t change even in federal institutions where those recommendations are accepted. In its history, the Office of the Commissioner has received approximately 60,000 complaints. You’d think that, in 2022, after receiving 60,000 complaints, we would have changed the behaviour of federal institutions. However, I have to say that an enormous amount of work remains to be done and that the time may have come to review the compliance mechanisms available to the Commissioner.
Senator Dagenais: Here’s another topic.
Last October, you made three recommendations concerning the Ottawa airport because it had failed to provide service in French to a customer who, I think, had spoken to security agents.
Do you know whether things have changed, and can you tell us whether the country’s major airports, which have bilingualism-related obligations, are able to shirk their obligations by outsourcing certain clientele services to subcontractors?
Mr. Théberge: To answer your first question, I’ll have to check and see whether we’ve followed up with the Ottawa airport.
However, the point you raise is that no one can evade the Official Languages Act by outsourcing. In security, for example, contracts are often awarded to private companies, and we know the major companies in the field: Garda and so on. Those companies are also subject to the Official Languages Act, and they are disqualified if there are any breaches of the act. There are no exceptions. Which brings me to the travelling public and the importance of including in Part IV obligations for institutions dealing with the travelling public that are more clearly established than at present.
Senator Dagenais: Thank you, Commissioner.
Senator Moncion: Thank you very much and good evening, Commissioner.
Professor Anne Levesque recently claimed that there appears to be some confusion between the concepts of linguistic insecurity and anglonormativity in your report entitled Linguistic Insecurity in the Public Service of Canada. According to Professor Levesque, what you call linguistic insecurity are in fact examples of anglonormativity and francophobia, and I quote:
Instead of blaming individuals for their lack of personal confidence, we should instead recognize and denounce the power structures that cause linguistic marginalization. . . .
To combat the assimilation of francophones in Canada, we must name and attack anglonormativity.
In the case she refers to, Professor Levesque suggests that the problem lies in proposing individual solutions to systemic problems. I’d like to hear what you have to say about the definitions of these concepts in relation to the findings of your study.
Mr. Théberge: First of all, linguistic insecurity is a phenomenon that we see virtually everywhere in society. It’s apparent not only in the federal public service but also in our daily lives, in which people very often feel uncomfortable using their mother tongue or second language. What we don’t necessarily have in the workplace, and we can cite examples of this in the public service — and I think this goes to the concept of anglonormativity — the expectation in the federal public service is that you work, first and foremost, in English and that French is relegated to a secondary position. In my opinion, the fact that we don’t have the necessary structures in place to create an inclusive workplace contributes to that process of relegating French to a secondary position, whether as a mother tongue or a second language. And let’s be honest: it’s mainly French.
Our study mainly focused on showing that a very large number of public servants want to work in the language of their choice, whether it be their first or second language. In that sense, we agree with Ms. Levesque’s findings: the structures in place don’t foster linguistic inclusion or create an inclusive linguistic environment. What’s important — I’m not convinced the individual was being blamed — but what we see is that the conditions in place aren’t conducive to the use of the mother tongue or second language. That’s what we found.
Of course, it’s a question of power. Which language is more normal than the other in the workplace? The two concepts are consistent in that sense. This clearly shows that we’ve created conditions in which people are unable to use the official language of their choice, as a result of which one language is marginalized relative to the other.
Senator Moncion: Thank you for your answer. I’d like, if I might, make a comment. I worked in a setting where the use of French was the norm simply because French was the language of work and I asked my employees to use it. People, even our anglophone colleagues, were expected to speak French. I often find that leadership comes from people at the top. When these people have the ability to express themselves and write well in French, the English-language norm can lose its power and an environment can be created in which it is more normal to speak French. I believe this is an important issue for the managers appointed by the federal government. I’d like to hear what you think about this.
Mr. Théberge: The question of leadership is crucial within the federal government. Let’s look at the fact that it’s not necessary for deputy ministers or high-level officials to be bilingual. But people at other levels are expected to be bilingual. It’s very hard, within the federal system, to establish the language requirements of positions. If it is difficult at lower levels to specify the requirements of the position, how can we expect this capacity to be created within the government? As for leadership, people often say that it starts from the top. For official languages, though, it’s clear that if a deputy minister champions the idea, the culture will be much more receptive to official languages within federal institutions than it would be with a unilingual person at the top. Leadership is the key. When we look at some of our institutions, it’s difficult to seriously believe it when people who are unilingual say they believe in bilingualism and official languages.
The Chair: Thank you very much, Mr. Théberge.
Senator Mégie: Thank you for coming, Mr. Théberge. I just heard you say that it was not a requirement for a deputy minister to be bilingual. Do you think that there ought to be something in all federal ministerial mandate letters stating the requirement to respect official languages? If so, how would you monitor this? Would it be too burdensome for an Official Languages Commissioner? How would you see your role if there were a clause like that?
Mr. Théberge: I think that it would be an excellent idea for something about official languages to be included in the mandate letters to the ministers. As you and I know, mandate letters often have a few generic paragraphs about the government’s intentions. I think it would be important in these mandate letters to include similar statements about the importance of official languages. It is often said that our official languages are a part of who we are — a part of our Canadian identity.
If monitoring is something we wanted to have, then it would clearly be a matter of having a discussion with the Privy Council Office to determine how far we wanted to go. I believe that some ministers have already received a letter of this kind. I don’t see why the mandate letters could not include a statement about the importance of official languages. Once again, it’s one thing to say it, but another thing to take action.
I’d like to return to the 60,000 complaints that the Office of the Commissioner received over a period of more than 50 years. At some point, unless behaviour changes, serious questions will have to be asked about what is being done and what is not being done.
Senator Mégie: Okay. Thanks.
The Chair: I’d like, Commissioner Théberge, to return to the matter of the deputy ministers. You tabled a report about section 91 of the Official Languages Act.
I have in front of me a chart that shows the increase in the number of complaints about language requirements for senior levels in the public service. There were 192 complaints received in 2016, and this increased to 968 complaints in 2021. There is clearly a real problem in the public service resulting from the fact that deputy ministers are not required to be bilingual. What can you tell us about section 91? Should it be modernized in the act? In fact, you yourself said that if the most senior levels can’t set an example, how can we make sure that the Official Languages Act is observed within the government system?
Mr. Théberge: Section 91 is the basis for bilingualism in public service positions. Of course, it does not necessarily apply to deputy minister positions. I think that it’s important to remember that in our study, the vast majority of managers misunderstood their obligation under section 91 to conduct an objective assessment of the language requirements of positions. All sorts of other reasons are often given for a position to be classified at a very low level: a BBB, for example, rather than a CBC. We also found that part of the problem is a lack of manager awareness and training with respect to section 91. The School of Public Service, I believe, offers only one course on section 91.
For a department that wants to acquire bilingual capacity, section 91 is the key. All positions within the department have to be identified. The number of complaints received is very high and there have been instances in the past when there were waves, depending on events. I can assure you, however, that if analyses were carried out, they would show many more situations that do not comply with section 91; hence the importance of introducing an accountability system and a governance system for the stewardship of official languages within the federal system.
The Chair: Thank you, Mr. Théberge. As the Commissioner, can you make sure that for things like assessments of language proficiency — I would imagine these would be confidential — so, how should we go about ensuring accountability with respect to the assessment of language proficiency for senior officials?
Mr. Théberge: I will try to understand the question because section 91 is not about assessing the language proficiency of senior officials, but rather about the language requirements of positions. What we do is regularly send the results of all investigations with respect to section 91 to the president, the minister for the Treasury Board Secretariat. The Treasury Board Secretariat is responsible for demonstrating that there is a systemic problem, and systemic problems cannot be resolved simply by conducting lots of investigations. It takes a very clear directive from the Treasury Board of Canada Secretariat with respect to section 91.
The Chair: Thank you, Mr. Théberge. I had understood that it wasn’t covered by section 91.
Senator Dagenais: I have two other questions, Commissioner. I’d like to return to Michael Rousseau, the president of Air Canada. Apart from complaints against Mr. Rousseau, I would imagine that there are other complaints against Air Canada. How much time do you have to spend processing these numerous complaints? You mentioned 2,500 earlier, but are there even more than that?
Mr. Théberge: Well, every year we receive a number of complaints, apart from those received in connection with Mr. Rousseau’s speech. To be very honest with you, I’m going to be careful about what I say concerning Air Canada, given that there is an investigation underway, because I want to make sure that we are correctly perceived to be impartial in this matter.
If we were to draw up a historical table, it would show that Air Canada is frequently near the top for complaints. I’d like to give you more details, but I’m very much aware of the fact that there’s an investigation in progress and I wouldn’t want to create any situation that people could point to afterwards and say that the outcome of the investigation was a foregone conclusion.
Senator Dagenais: I have one final short question. I’d like to hear about Outlook. How do you deal with those complaints?
Mr. Théberge: I’m not aware of complaints against Outlook. Perhaps I could ask the people who handle complaints to see whether we received any about Outlook. We receive complaints about URLs and so on, and in future, we need to find a way for the Official Languages Act to take new technologies into account and how to deal with them.
Senator Dagenais: If you happen to receive any information, we would be grateful if you could send it to us in writing.
Mr. Théberge: Certainly.
Senator Dagenais: Thank you, Commissioner.
Senator Gagné: I was wondering if you could explain why successive governments have been unable to achieve their francophone immigration targets outside Quebec and how to do a better job of applying Part VII of the act.
Mr. Théberge: I would say that a number of things contribute to the failure to meet targets. I don’t think there has ever been a long-term strategy, at least that’s my opinion, and although various means, approaches and interventions were used, they did not amount to a true strategy with respect to immigration in francophone minority communities.
It’s important to understand that immigration has many different players, proponents and parties — not only the federal government, but also the provinces and communities. The immigration targets for francophones in minority communities need to be increased for the simple reason that demographic weight is getting lopsided. We recommended to the government and to Immigration, Refugees and Citizenship Canada (IRCC) that they consider all the factors surrounding immigration programs, from the selection of applicants to their settlement, to see whether it might be possible to not only carry out a better analysis of these applicants, but also ensure that they become better integrated once they are here.
I’d also like to point out that I’ve spoken to many immigrants, who have told me that they don’t necessarily come to Canada to defend the Francophonie, but rather because of personal plans for their future. It’s important to find a way to make them feel welcome and for them to integrate smoothly into our communities. I believe that Part VII of the act already identified a number of institutions, including IRCC. For these institutions, Part VII should, primarily by means of regulations, specify their obligations with respect to the development of francophone minority communities. In the bill that has been put forward, this is mentioned, but there is no obligation. It’s still very vague.
As we all know, the 4.4% target was not met and will not be met in 2023, and even if the target had been reached it would still not maintain a demographic balance between the two communities. This is a serious matter. The impact of demographics is always very slow to come, but 20 years on, there is now a backlog of 75,000 potential immigrants who are not here. That’s like Sudbury or bigger than Brandon; whatever. Nevertheless Part VII has to identify IRCC and specify some obligations.
Senator Gagné: Thank you.
Senator Mockler: To begin with, it would be remiss of me not to add a few comments about the leadership of Mr. Théberge and his team. Congratulations, Commissioner, for the work you’ve done and for your efforts in gaining recognition for the equality of Canada’s two official languages.
I have a few short questions. In connection with the changes that the federal government wants to make to a very important instrument, what interpretation of Part VII did you defend before the Federal Court of Appeal in the case between the Fédération des francophones de la Colombie-Britannique and Employment and Social Development Canada? What do you think of the judgment handed down on January 28?
Mr. Théberge: We were very pleased with the ruling because it gave a very broad and liberal interpretation of Part VII. Gascon assigned a very restrictive interpretation to Part VII, which meant that it was not necessary to link a positive measure to any specific program, or to any specific policy. For example, if minister X, Y or Z had established a few programs at the departmental level to promote francophone minorities, that would be considered sufficient; but it didn’t have to be linked to a particular program or policy. The definition now, according to the Federal Court, requires that communities’ needs be taken into consideration. The communities must be consulted; there is an obligation to factor in their needs when formulating policies and programs.
Harmful impacts on these communities must also be avoided.
Before the Federal Court of Appeal ruling, harmful effects on the community were not taken into account because we sometimes only saw them 10 or 15 years afterwards, by which time, it was much too late. The Federal Court of Appeal ruling moves us to an era that now allows us to give a broad and liberal interpretation of Part VII. It’s the part of the act that is there to support communities.
Senator Mockler: Do you think that this case will go to the Supreme Court of Canada, and if so, why?
Mr. Théberge: That’s a good question. The federal government has 60 days from January 28. There is one point in the decision that may be challenged: the Federal Court of Appeal issued an order to the department according to which a new program must be developed within two years, and until this program is implemented, the order remains in force. So it’s a possibility. One good way of avoiding all that, of course, would be to make sure that when a new bill is introduced, a framework is in place to avoid this kind of appeal to the Supreme Court.
Senator Mockler: I have two more short questions. The first is about who is responsible for coordinating the Official Languages Act with a view to establishing a central agency. Why is the federal government once again hesitating to assign full responsibility for the coordination of the act to the Treasury Board of Canada Secretariat?
Mr. Théberge: I can’t speak to the government’s motives, but it’s clear that governance is central to the implementation and application of the act. The current challenge stems from the fact that the Treasury Board Secretariat of Canada and Canadian Heritage have shared responsibility. Bill C-32 does not clearly identify their respective obligations. Many are currently wondering about this issue of how to ensure better coordination within the machinery of government. Some principles are important to us. A community consultation mechanism, a government-wide official languages plan, and an accountability and reporting framework are all essential, and in my view this should be the responsibility of a central agency.
Senator Mockler: With experience —
The Chair: I’m sorry, Senator Mockler. Thank you, Mr. Théberge.
Senator Clement: Greetings to all my colleagues. I’m very pleased to be on this committee.
The pandemic has caused suffering in just about every facet of our lives. It’s now up to us to show that we have learned from this suffering by ensuring that our methods improve so that any future responses will be appropriate. Can you provide more details about the fact that people are working remotely and obtain all their services online? We have heard expressions like “a technologically neutral act.” Can you provide more details about your vision of this? What are we to do in response to all the changes we’ve experienced?
Mr. Théberge: That’s an excellent question, given as you mentioned that we are going through an extraordinary situation that has led to significant structural changes in how we work. The federal system is now largely operating via telework, meaning remotely. In the future, we will end up with a hybrid model, in which some people will work at the office and others will be elsewhere. As a result of this new hybrid mode, it will be important to include bilingual regions in the work plan: Where are these regions and how will the regions identified as bilingual and non-bilingual operate in terms of language of work?
Secondly, will the technological tools be provided to employees in both official languages? Thirdly, how to provide more consistency between Part IV, which is about the language of service, and as I mentioned at the outset, the importance of thinking about the concept of communications in this new era? What does all this mean? New technologies have helped bilingualism advance in a certain sense.
Today, everyone has online services, whether through the web or a 1-800 phone number; no problem. We often encounter problems in face-to-face dealings. It’s important to have the technological tools to do the work. We need policies to ensure that when we talk about supervising an employee, language of work provisions are followed. It will be important to strengthen Part V, which is about language of work, and to see how changes can be made to factor in not only what is happening today, but what is going to happen in the future.
It’s hard to predict. In 1969, there were no fax machines. Some of us were around when fax machines were first introduced and we will no doubt be here when they disappear and are replaced by new technologies. An act that is technologically neutral means that technology is no excuse for failing to comply with the Official Languages Act.
Senator Clement: Thank you very much for your presentation Mr. Théberge.
The Chair: I’m going to take a moment to ask one final question before ending our meeting. Let’s go back to the modernization of the act. We will of course no doubt have an opportunity to discuss the new act with you. I’d be curious to hear what you have to say, in connection with this modernization, about how to reconcile the visions of francophone minority communities in Canada and anglophone minority communities in Quebec with respect to linguistic duality, while respecting the principles of diversity and inclusion. How can we reconcile the principle of equal status for the use of French and English with the principle of real equality?
Mr. Théberge: That’s a big question, Mr. Chair. I’m not sure that I can answer all of it in two minutes. There are two concepts here. I will certainly be able to say something at much greater length once we have seen the next version of the bill, but there are two principles at issue here. There is the principle of real equality, which underpins the fact that there are two official language communities, and two languages with equal status. However, in the implementation of the act, there may be a different way for one community or another to ensure that an equal footing is eventually achieved. Legislative asymmetry means when rights are granted in the act to one community and not to the other.
The simple answer is that I am leaving it to the government to develop an approach in which the needs of both official language communities in Canada are taken into consideration, while ensuring the promotion of French, because French needs to be strengthened in Canada.
The Chair: Thank you. I didn’t want to put you in an embarrassing position with that last question, but as I know that there are many Canadians listening to us at the moment, I think that these are important questions that lawmakers will be able to draw upon. Thank you very much.
That, dear colleagues and Commissioner, completes this discussion. On behalf of the committee, I would like to thank you and the members of your team for having taken the time to meet with us today. I’m sure that we will have other opportunities to see one another over the coming months so that we can continue our discussions on other matters.
(The committee continued in camera.)