THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, October 16, 2017
The Standing Senate Committee on Official Languages met this day at 5:04 p.m., in public and in camera, to continue its examination of Canadians’ views about modernizing the Official Languages Act.
Senator Claudette Tardif (Chair) in the chair.
[Translation]
The Chair: Good evening. I am Senator Claudette Tardif from Alberta, and I am pleased to chair tonight’s meeting. Before giving the floor to our witness, I invite the members of the committee to introduce themselves, starting on my left.
Senator Maltais: Ghislain Maltais from Quebec.
Senator Poirier: Rose-May Poirier from New Brunswick.
Senator Mégie: Marie-Françoise Mégie from Quebec.
[English]
Senator Oh: Victor Oh from Ontario.
[Translation]
Senator Gagné: Raymonde Gagné from Manitoba.
The Chair: The Standing Senate Committee on Official Languages is continuing its examination of Canadians’ views about modernizing the Official Languages Act. We have with us this evening Mr. Pierre Foucher, who is a professor of law at the University of Ottawa. Mr. Foucher is an expert in constitutional and linguistic law. He has written many publications in these two areas, including a work entitled 50 ans de bilinguisme officiel: Défis, analyses et témoignages, which he co-edited in 2014.
Our goal today is to hold a technical information session about the various parts of the act, in order to guide the members of the committee during the rest of their work.
Thank you very much for being with us, Mr. Foucher; the senators will have questions for you when you have concluded your statement. You have the floor.
Pierre Foucher, Professor, Faculty of Law, University of OttawaFirst of all, thank you for your invitation. I am very honoured to be here before the Standing Senate Committee on Official Languages.
I was told that this was a technical information session during which we would review the various parts of the law to identify the sections that need reform and modernization, and that is what I have done. I am going to distribute a small bilingual two-page document that lists the various parts of the act in short form, and the various points I would like to discuss with you tonight. I hope we will at least have time to discuss the most important points. Rather than making a formal presentation followed by a question period, I propose that we proceed one part at a time; after each part, if you have questions, you can put them to me before we move on to the next one. In that way, we will be able to review all the parts of the act; some of them seem more important than others to me.
The Chair: I’d like to remind senators that they have a copy of the Official Languages Act. I must remind you, Mr. Foucher, that our time is limited and that we would also like to have some time for questions.
Mr. Foucher: Yes, my presentation will be very brief.
The Chair: Thank you.
Mr. Foucher: We can begin with Part II, which is on page 5 of the copy of the Official Languages Act we have before us. Section 7 discusses the regulations and mentions that the regulations and implementation texts must be bilingual. There was a problem a few years ago regarding incorporations by reference, that is to say texts the regulations referred to that were incorporated within federal government standards but were established outside federal legislation.
I remember appearing before the justice committee to discuss this issue, and there were a lot of questions as to whether or not the texts incorporated by reference had to be translated. Sometimes there is a reference to international standards, for instance, and there is no French version. That question may need to be examined regarding the Official Languages Act, and perhaps a provision could be added to section 7 specifying that the obligation to translate includes documents incorporated by reference, unless there are legitimate exceptions such as those mentioned by the Supreme Court in its 1992 ruling. There can be, for instance, legislative texts from a country where French is not one of the official languages, nor one of the languages legislation is drafted in, or private international standards for which there is no French version.
That is the first point, and the only point I wish to present regarding Part 1 of the act, because the rest of it seems perfectly fine.
Do you have any questions?
The Chair: No. Please go ahead, continue.
Mr. Foucher: I will continue with section 10, in Part II, on page 6.
“Federal-Provincial Agreements,” subsection 10(2), reads as follows:
(2) The Government of Canada has the duty to ensure that the following classes of agreements between Canada and one or more provinces are made in both official languages and that both versions are equally authoritative.
(a) agreements that require the authorization of Parliament or the Governor in Council to be effective;
(b) agreements entered into with one or more provinces where English and French are declared to be official languages of any of those provinces or where any of those provinces requests that the agreement be made in English and French;
(c) agreements entered into with two or more provinces where the governments of those provinces do not use the same official language.
In my opinion, in order to modernize the act, you need to eliminate paragraphs (b) and (c) and require a version of federal-provincial agreements in both official languages, without exception. I don’t see the relevance of limiting bilingual versions to provinces that have two official languages or to provinces that do not use the same official languages. A person might want to consult the French version of a federal-provincial agreement with Saskatchewan that was only published in English.
Senator Maltais: Mr. Foucher, you are a constitutionalist. You undoubtedly know that in Quebec’s case, it was the Supreme Court that invalidated part of Bill 178. You also no doubt know that we had to invoke the notwithstanding clause from the two charters. So if there are no signs in English in Quebec, you have to turn to the Supreme Court and not to Bill 178.
Mr. Foucher: I’m not talking about signage, but about the agreements between the federal government and the Government of Quebec.
Senator Maltais: But in Quebec agreements must be in French.
Mr. Foucher: Yes, there must be a French version.
Senator Maltais: As confirmed by the Supreme Court, Quebec’s official language is French. I don’t understand why in a bilingual country provinces other than Quebec have documents only in English.
Mr. Foucher: That is exactly what I said.
Senator Maltais: What do the courts do about it?
Mr. Foucher: They don’t have a choice, because the law states clearly that this only concerns certain agreements.
Senator Maltais: What is their decision?
Mr. Foucher: They have not rendered any.
Senator Maltais: I see. Thank you.
Mr. Foucher: I think Parliament should deal with this and require a French version of all federal-provincial agreements.
Senator Maltais: Nevertheless, the courts should be the ones to decide.
Mr. Foucher: No, it could be Parliament. If section 10 of the act states in which languages national agreements need to be drafted, Parliament has all the authority it needs to act.
Senator Maltais: Yes, Parliament always has the final authority, but as you know, the courts have precedence when it comes to interpreting the law.
Mr. Foucher: That is why, if the law no longer limits the translation to certain specific cases, and if all treaties or federal-provincial agreements have to be translated, that would solve the problem.
Senator Maltais: You know that the vast majority of treaties passed before 1867 were neither in French nor English?
Mr. Foucher: The section could state that the requirement applies as of a certain date.
My next point concerns section 11, which deals with notices and advertisements published by the federal government. There is a recurrent problem due to the fact that the government does not always publish its notices and advertisements in the media of official language minority communities. The law could include this as a requirement.
In Part III, “Administration of Justice,” there are two major problems. The first is in section 16, which begins as follows:
16(1) Every federal court, other than the Supreme Court of Canada…
I am not the only person to ask that Supreme Court justices be bilingual, and I do so before this committee. It seems to me that the Supreme Court justices should be bilingual, and that the law should say so. That would be the least we could do.
Senator Maltais: Could that requirement be extended to all of the officers of Parliament?
Mr. Foucher: That is already the case.
Senator Maltais: Oh, is it?
Mr. Foucher: The amendment regarding the officers of Parliament was made recently. It is in subsection 24(3) in Part IV, on page 12.
Senator Maltais: We don’t have the same definition of bilingualism when it comes to the Governor General of Canada.
Mr. Foucher: And yet it is the law.
Senator Maltais: He doesn’t know the difference between “bonjour” and “bonsoir.”
Mr. Foucher: My first point was that the law should require that Supreme Court justices be bilingual.
Next, section 19, on page 10 of your document, makes a distinction between pre-printed legal forms used in proceedings and the text prepared by public servants in the context of the procedure.
Subsection 1 says that the pre-printed forms shall be bilingual, and subsection 2 states that:
(2) The particular details that are added to a form referred to in subsection (1) may be set out in either official language but, where the details are set out in only one official language, it shall be clearly indicated on the form that a translation of the details into the other official language may be obtained, and, if a request for a translation is made, a translation shall be made available forthwith by the party that served the form.
I propose that the form be drafted in the language requested by the person concerned, or in both languages if the person’s language is not known, rather than requiring that the party request a translation.
There are several problems with section 20. First of all, it is not being complied with, even in its current form. The wording should also be changed to include the principle. Currently, federal court decisions must only be made available to the public simultaneously in both languages in two circumstances, and I quote:
(a) the decision, order or judgment determines a question of law of general public interest or importance; or
(b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.
In other cases, it is not necessary to publish decisions simultaneously in English and French. That is not acceptable regarding the equality of both official languages. The general principle should be the simultaneous publication in French and English, period. There could then be exceptions in subsection 2. That is what the Supreme Court does. It publishes its rulings simultaneously in French and English. The rulings are only made public once they exist in both languages. The same thing should apply to all federal courts.
Senator Maltais: I think that all the committees of the House of Commons and the Senate publish their reports in both languages simultaneously.
The Chair: Yes, quite so, Senator Maltais.
Mr. Foucher: If that is the case for parliamentary and Senate committees, it seems to me that federal courts should do that as well.
Certain points need to be specified. For instance, in paragraph 20(1)(a), what does “of general public interest or importance” mean? And in paragraph 20(1)(b), what is meant by “the proceedings […] were conducted in whole or in part in both official languages”? What is meant by “in whole or in part”? Can the expression “in part” refer to a single word? That problem will be settled if we apply the principle of simultaneous publication of decisions in both languages.
In subsection 20(2), which discusses exceptions, you should specify what is meant by “a delay prejudicial to the public interest” and “resulting in injustice or hardship to any party to the proceedings.” Why only one of the parties to the proceedings? Why not third parties? The decision is published first in one language and then as quickly as possible in the other. What does the expression “as quickly as possible” refer to? Should you not be more specific? These are details that need to be nailed down, either in law or regulations.
I am going to move on to Part IV, because as you know, it raises a lot of problems. First of all, let’s talk about the services do the travelling public in section 23. Last week at the House of Commons Committee on Official Languages, I was convened in the context of a study to determine whether Air Canada complies with the Official Languages Act. I was asked if the obligation should be extended to all airlines. I answered yes. And I say the same thing to you today. All airlines, and not just Air Canada domestic flights, should apply Part IV of the Official Languages Act.
Senator Maltais: You know very well that it has never complied with the act.
Mr. Foucher: Yes, but that is an implementation problem and not an obligation problem.
Senator Maltais: When all of the Air Canada representatives appear before House of Commons or Senate committees, they state that they are going to make efforts, but they never do.
Mr. Foucher: I would have some comments to make on that topic later. There are ways to tighten the screws.
Then in section 25, on page 13, one reads this, and I quote:
25 Every federal institution has the duty to ensure that where services are provided or made available by another person or organization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those services from that person or organization in either official language in any case where those services, if provided by the institution, would be required under this part to be provided in either official language.
That is the case when the federal government transfers responsibilities in contracts, or when it delegates federal responsibilities to the provinces. It asks the provinces to execute those responsibilities, and signs agreements. The issue is that third parties who are not parties to the agreement have no recourse. It is very difficult to enforce the linguistic clauses in the agreements. You should look at the possibility of allowing the members of minority language communities who would like to see linguistic agreements respected to turn to the commissioner or the courts.
Section 26 deals with federal institutions that regulate third party activities.
26 Every federal institution that regulates persons or organizations with respect to any of their activities that relate to the health, safety or security of members of the public has the duty to ensure… wherever it is reasonable to do so in the circumstances…
Why? That statement needs to be removed and should say “to ensure at all times that services be provided in both languages.”
Senator Maltais: Yes, because it’s a matter of public safety.
Mr. Foucher: Yes, it’s a matter of public safety and not a matter of circumstances, and so it should be automatic.
29 Where a federal institution identifies any of its offices or facilities with signs, each sign shall include both official languages or be placed together with a similar sign of equal prominence in the other official language.
We know that the government practice is to put French first in Quebec and English second, while outside of Quebec it is the opposite. This offends people in the Acadian peninsula, those who live in a majority francophone area in particular. How is it that French is not first as it is in Quebec? The same goes for eastern Ontario. Perhaps the precedence requirement could be broadened to areas where francophones are in the majority.
Senator Maltais: I think the provinces have a duty there.
Mr. Foucher: In fact it is the federal government that has a duty in that regard, since these are federal government signs.
Senator Maltais: Regarding the federal government, Quebec obtained that, but not thanks to the federal government. Quebec had to suspend the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. When the federal government took down its unilingual signs, it wasn’t happy about it; it was because an act passed by the National Assembly forced it to do so, and it was given a time limit. It was given 90 days, and if the federal government had not done it, the Government of Quebec would have, and assigned the costs to the federal government.
I think that by law the federal government should have that obligation, but the provinces should have the obligation of enforcing that provision.
Mr. Foucher: I would go even further. Since these are federal signs and since the federal government is responsible for them, it should not even have to ask the provinces; it should simply do it.
Senator Maltais: The provision already exists and the provinces don’t do anything.
Mr. Foucher: It needs to be imposed.
Senator Maltais: We can see the results. Perhaps we should try something else.
Mr. Foucher: It needs to be imposed because if we ask the provinces to do it, it is certain that several of them are going to drag their feet. The federal government needs to do it.
Senator Maltais: Good luck with imposing that on the federal government.
Mr. Foucher: It’s the role of the committee to make suggestions to the government.
Senator Maltais: I agree with you entirely. We have to hope to get results.
Mr. Foucher: In order to get there, there are two potential recourses. We will see that when I talk about Part X.
Senator Maltais: I understand what you are saying. I also go to New Brunswick, and I find this shocking.
Mr. Foucher: It is.
Senator Maltais: The federal government can offer services in French and English in all of the Canadian embassies throughout the world, but it is incapable of doing so in New Brunswick.
Mr. Foucher: At least in the majority francophone areas.
Senator Gagné: In New Brunswick, Manitoba, Saskatchewan Alberta and British Columbia. It’s the same for all Canadian provinces and territories. That’s the challenge that has to be met.
Senator Maltais: It is incomprehensible, because the government offers this service throughout the world, everywhere except here.
Mr. Foucher: With regard to section 32 and extending the application of the act, I made another suggestion to the House of Commons committee, and I will repeat it here. The issue is extending the scope of the law to enterprises under federal jurisdiction, such as banks, airlines, interprovincial transport companies, and telecommunications companies. Part IV, which deals with service to the public, should apply not only to the federal government but also to undertakings under federal jurisdiction.
Quebec has for a long time tried to get Bill 101 to apply to federal undertakings in Quebec, and its rationale is that the French language is threatened. My argument is that if the French language is threatened in Quebec, it is even more in jeopardy outside of Quebec. So we should take more measures to strengthen the presence of French outside of Quebec. What would it cost the banks to install bilingual signs in the branches where they have francophone clients? What would it cost to employ bilingual people who can answer in French when the request is made? For the moment, they have no obligation whatsoever, and they do whatever they like. It seems to me that that requirement should be broadened and should apply to businesses under federal jurisdiction that do business in areas where there is an important demand from the francophone minority.
It’s the same thing for Part IV, where requirements depend on the percentage of the population that has the minority language as a first language. The notion of “sufficient demand” is based on the percentage of the population that is served by the offices.
Another irritant is that in the provincial and territorial capitals, if the percentage of the population that speaks the minority language does not reach the threshold, the federal government is under no obligation to provide services in both languages, which seems like an aberration. There should be an obligation placed on all federal offices in all provincial and territorial capitals.
Senator Maltais: They have always hidden behind the sufficient numbers concept.
Mr. Foucher: That’s right.
Senator Maltais: However, even the Supreme Court was unable to define “sufficient numbers.” A sufficient number is at least two; one plus one equals two. That is a number. Is it sufficient, or not? The Supreme Court has never wanted to speak out on that. This is an obstacle for small municipalities or neighborhoods and cities in the Canadian west where francophones live. Their number is not sufficient. What is a sufficient number? Two, more than two, more than one? No one can define it and no one wants to either. That is the problem.
Mr. Foucher: In fact, the regulations define it; it’s 5 per cent, or 500 residents in villages, and 5,000 in cities.
Senator Maltais: That concerns the enforcement of the act, but it’s not the same for schools. The number is not sufficient.
Mr. Foucher: My mandate here has to do with the law.
Another possible recommendation to settle this problem is to get away from percentage criteria and adopt criteria that are closer to the reality in communities. I think the committee has some ideas in that regard. For instance, is there a French-language school or institution in remote villages? The situation would have to no longer depend on percentages, or at least not necessarily or automatically. In short the idea is to broaden the application of the law to areas that are currently excluded because of numerical factors.
Senator Maltais: That has perverse effects. We are talking about 5 per cent. There are perverse effects on the subsidies given to schools. We saw this very clearly on Prince Edward Island and in the west also, to the detriment of anglophone schools. If we manage to eliminate the percentage criterion, what criteria will the Department of Canadian Heritage use to grant school subsidies? If numbers are no longer the parameter, what standard will they use?
Mr. Foucher: They can assess the needs.
Senator Maltais: That is not strong enough in law.
Mr. Foucher: They can go by what is needed to attain the objective.
The Chair: I think Senator Maltais is referring mostly to section 23 of the Canadian Charter of Rights and Freedoms and not to the Official Languages Act as such. Senator, I understand your point of view. It’s related, but the whole issue of right-holders is mostly in section 23 of the Charter. We need to focus on the act.
Mr. Foucher: With regard to the act, there is a need to get away from percentages, from the 5 per cent or 500 or 5,000 people, that is quite a rigid approach, in order to adopt criteria instead that will allow people to obtain federal government services in French or in English. Through technology, that is feasible. We can get away from figures and find modern ways of delivering services. And the same thing applies to the next part.
Before leaving Part IV, I would like to point out that when the federal government delegates responsibilities to the provinces, there are often implementation issues. For instance, the federal government may agree with the provinces to implement labour training programs by saying, “We will give you money; use it for labour training programs for our unemployed.” We saw how British Columbia did not respect linguistic requirements.
There should be a provision in the Official Languages Act regarding acquired rights that would allow people not to lose rights when the federal government delegates responsibilities to the provinces or private sector. Where there are rights, they should continue to apply. It would be important that the new law grandfather acquired rights.
Part V is about the language of work. I am on page 15 of the document. One of the big faults in Part V is that regions have been designated where public servants have the right to work in their language. This was done in the 70s, before Internet, Skype, email or virtual meetings. It is completely out of touch with today’s world. There should be provisions that include electronic means of communication. It would be a good way of modernizing the act. You should ensure, for instance, that a public servant in Vancouver, which is not a designated area for language of work, has the right to speak French in a meeting held via Skype with people in Ottawa. Those are things that can be done today. You need to adapt the act to include a provision that would allow that meetings can be held through electronic means in regions that are not designated regions. That would allow you to get away somewhat from the concept of designated regions for language of work, and to take modern means of communication into account.
Another aspect of Part V, which pertains to language of work, would be to include a provision making deputy ministers accountable for the implementation of the Official Languages Act in their respective departments in order to make them directly responsible for the act. In Ontario, the French Language Services Act includes a provision that requires deputy ministers to report to the Minister of Francophone Affairs on their implementation of that act. The federal government should do the same thing: deputy ministers should be responsible for the implementation of the Official Languages Act in their respective departments, and that should be part of their performance contract.
I do not have any comments on Part VI, on page 19, which pertains to the participation of English-speaking and French-speaking Canadians.
Part VII was amended recently to make it compulsory, which is good. This part should require the government to make regulations, not simply allow it to do so. Various aspects of the act could be addressed through regulations, but the government does not make any regulations. There is just one set of regulations, which pertains to services. There should be regulations for several other parts of the act.
Part VIII, on page 22, pertains to Treasury Board’s duties and responsibilities as regards the official languages. Part VII pertains to the duties of the Department of Canadian Heritage for the official languages. A Part VIII.1 or other clauses could be added to stipulate duties of the Department of Justice for official languages.
As to the role of the Privy Council Office, you will recall that when Stéphane Dion was its president, he had repatriated the duties for the official languages. Suddenly things started to change. Why? Because the Privy Council Office is the boss of all public servants. Making the Privy Council Office rather than the Department of Canadian Heritage responsible for the implementation of the Official Languages Act would enhance its strength and authority. That is another possibility.
Part IX pertains to the Office of the Commissioner. I have a number of comments in this regard, but my main comment is that Commissioner should have more power. Right now, it seems that the Office of the Commissioner simply produces reports and makes recommendations. The Commissioner was required to present a special report with respect to Air Canada. I read it and it is quite damning. The complaints about Air Canada date back as far as 1977. There have been successive reports, Air Canada makes promises, but nothing comes of it in the end. I am among those who believe that the Commissioner should have greater powers. The Commissioner himself made recommendations regarding Air Canada in his special report to Parliament. His recommendations about the company could apply to all federal institutions. He recommended four ways of implementing the act.
It is as Senator Maltais said: the act is not applied. What action is planned? Signing binding agreements between the Commissioner and the department at fault and, if after a certain time — regardless of the timeframe — the agreement is brought before the court, it becomes contempt of court. You might say that is dramatic, but there comes a time when we have to find ways of getting tough.
Another possibility would be to impose damages and interest. Another option would be administrative fines or automatic administrative monetary penalties — (AMPs) — similar to a ticket for disobeying the rules of the road. It would be a ticket for violating the Official Languages Act.
That might seem like a big deal, and I know that commissioners do not like that. Every time I raise it with them, they say they do not want to become the language police; they want to retain their role of ombudsman, and so forth. At some point, however, you have to face the fact that reports and recommendations are not enough. We have to find a way of imposing penalties. To modernize the act, as I said, the Commissioner’s powers must be strengthened so he can take stronger action when needed.
Part X pertains to court remedy. If we jump to page 32, it is the Federal Court that is responsible for the implementation of the act. I do not think that should change. We could, however, include more specific orders than what we see on page 33, subclause 77(4), and I quote:
(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate in the circumstance.
We could add: “including a) damages and interest; b) orders; c) orders to report.” In short, we could give the court some ideas for it to go beyond mere statements and order departments that have violated the act to comply. That might make the courts more comfortable in imposing penalties for non-compliance with the act.
Finally, I would suggest adding a sunset clause, as we see in other acts, in order to require regular review of the act after a certain period of time. That could be five years, seven years, or perhaps the duration of the Commissioner’s mandate. Regardless of the time period, a measure could be included to require the government to review the act as needed.
Those are the suggestions I wanted to share with you for modernizing the act.
The Chair: Thank you so much, Mr. Foucher. As senators, we very much appreciate your explaining everything so clearly. It was logical and easy to follow.
We will now begin the question period.
Senator Poirier: Thank you for your presentation; it was very interesting. I had three questions, but you have already answered two of them. The first was about greater powers for the Commissioner of Official Languages, and the second was about the usefulness of fines. So I will go straight to my third question.
For the past year, someone has occupied the position of Commissioner of Official Languages on an acting basis. That acting mandate will end tomorrow. The last I heard, the government has not yet appointed anyone. In your opinion, should the act be amended to prevent this from happening again?
Mr. Foucher: Yes. I did not have time to say it, but that was in the documents I distributed. It could be established that the position of Commissioner of Official Languages could not be vacant for more than one year.
Senator Mégie: Thank you for your presentation, Mr. Foucher. For my part, I would like to make a comment. You said that translations should not be provided where possible only. You stressed that our report should emphasize that. Before I was appointed to the Senate, I participated in various committees right across Canada, and I can no longer count how many times we were told, for instance, that the documents did not have to be translated because they would not be used by Quebecers. If a decision or a bill is in one language only, Francophones cannot read it, whether they are in Quebec or in another province.
We should really focus on this. It should not be a possibility, but rather a requirement. We could always find a subtle way of including this in the act.
Mr. Foucher: Thank you, senator. You understand what I was getting at; that is what I wanted to say.
Senator Gagné: Thank you for your excellent presentation; the overview of each section was very helpful. This will no doubt be useful in the committee’s discussions.
I have a question regarding federal and provincial agreements. Under Part VII, the federal government is committed to enhancing the vitality of the English and French linguistic minority communities in Canada, supporting and assisting their development, and fostering the full recognition and use of both English and French in Canadian society. Bilateral agreements are then signed.
Let us consider for example the national early learning and child care program. We know very well that early childhood is definitely a key sector for the development and vitality of families and communities. In these agreements, however, the needs of Francophone communities are mentioned in the declaration of principles only or even under “invitations to consider.” Could the act not be more forceful, stipulating a much more explicit commitment in federal-provincial agreements so that programs would have to foster community vitality and support their development?
Mr. Foucher: Certainly. If it is a federal program and the provinces are made responsible for its application, there must definitely be previsions that are as clear as possible to uphold the act.
The same should apply to spending power. If it is a provincial program, the federal government could decide that its funding will be conditional on certain conditions. The agreements should have binding provisions. Moreover, third parties to contracts should be in a position to make those provisions binding.
Senator Moncion: Your presentation was very interesting.
You talked about Air Canada. There have been reports about Air Canada not fully complying with the Official Languages Act. The other air carriers in Canada are not required to comply with these requirements. Air Canada might have some problems since it is not always easy to apply bilingualism on all its aircraft that fly all over the world. The reports describe the difficulties in meeting these obligations.
I understand that the complaints are valid. Do you think though that penalties will lead Air Canada follow the rules in the act more closely?
Mr. Foucher: I always draw an analogy to speeding tickets. Once you have had two or three tickets, you lighten up on the gas.
If Air Canada is fined two or three times, it will consider its portfolio and be more careful.
Senator Moncion: Since there are no penalties at this time, the company does not feel compelled to act.
Mr. Foucher: That is the problem. The act has no force.
Senator Moncion: How effective do you think it would be to give the act greater force?
Mr. Foucher: I think it would be very effective. I cannot understand why the Official Languages Act is the only act in Canada that is so difficult to enforce. The act needs more force; it must be much stricter and stronger. It must give judges the power to issue orders and allow the Commissioner to impose fines in the event of repeat offences. I am not saying that fines should be imposed for the first offence. When the complaints keep coming after five years though and the problem has not been addressed, stronger action is needed. Otherwise, the act will not be worth the paper it is written on.
The Chair: I have three quick questions about Part VII. You said that regulations should be added.
Mr. Foucher: Yes.
The Chair: Could you elaborate on that? When we were in Charlottetown for the Sommet de l’Acadie, some witnesses stated that regulations should be added to Part VII.
Do you think that positive measures should also be more clearly defined? The changed proposed by Senator Gauthier before 2005 ultimately led to an amendment to the act, requiring the government to take positive measures. Yet there is no definition of what constitutes positive measures. Should this be clarified? Should we also clarify what community consultation mechanisms are?
Mr. Foucher: Absolutely. I would say yes to both questions. Time is running out. We need to define what constitutes positive measures and to clarify what formal consultation mechanisms are. That would help everyone apply Part VII.
The Chair: Regulations are also needed for the application of Part VII.
Mr. Foucher: Absolutely.
Senator Gagné: I was going to ask you the very same question, but I would add the following. The regulations pertaining to services are essentially the only ones under the Official Languages Act. Ultimately, though, they also limit the scope of the act. According to the method used to calculate significant demand, the threshold is set at 5 per cent. As a result, many communities do not fall into that category. In many cases, however, the communities live in French. Yet they are deprived of services in their language.
Regulations also pose a risk when they limit the scope of the act.
Mr. Foucher: To answer your question, I would refer you to a case in which I was involved, Doucet v. Canada. This person was stopped on the TransCanada between New Brunswick and Nova Scotia, in a region that is not considered to have significant demand under the regulations. We attacked the regulations. We could not understand why it was deemed that there were not enough francophones along the Trans-Canada Highway between New Brunswick and Nova Scotia. We demonstrated that 800,000 people, probably French-speaking, entered or left those provinces. This figure pointed to significant demand. The judge accepted our argument and the regulations were amended.
If the regulations are found to be limiting, the solution is to attack them and demonstrate that the government did not do its job properly, because the result is that the regulations unduly restrict the scope of the act.
I apologize for answering as a legal expert, but I was trained as a lawyer.
The Chair: Everything seems so clear the way you explain it. In politics, unfortunately, things are often less clear.
Senator Maltais: We are all about politics.
With regard to Part IX, you referred to giving greater powers to the commissioner. Your suggestion is very good. Should we not require that commissioners be given quasi-judicial powers when they are appointed?
Mr. Foucher: They are close to quasi-judicial powers. They are powers to allow for much stronger action to implement the act.
Senator Maltais: As to the companies that are repeat offenders year after year, to use your analogy of the rules of the road, after losing a certain number of points, a driver loses their license. Could we go that far?
Mr. Foucher: Good idea! Why not? We could add a restriction of activities to the range of possible penalties.
Senator Maltais: I am glad you said that. I agree with you that the Commissioner of Official Languages does not have a lot of power. He has the power to issue reports, make criticisms, and shelve those reports. As you indicated with regard to section 9, quasi-judicial powers would completely change the landscape.
Mr. Foucher: Yes.
The Chair: I have one final question, Mr. Foucher, regarding new technologies. How can the whole matter of new technologies be addressed in legislation? Things are evolving so quickly. Which language should be used?
Mr. Foucher: More detailed studies on that are needed. Specialists at the Department of Justice could work on that. From what I have seen, the idea of designating a territory for the purposes of language of work does not make sense any more. The Treasury Board Secretariat, for example, had to deal with the same problem. Public servants were calling and asking what language to use in e-mails when they are not in their designated region. They wanted to know how it works. The Treasury Board Secretariat had to develop a series of policies on the use of electronic media. They are all available on its website. They could be included in the regulations and could be made actual legal rules. That would be a good approach to start with.
The Chair: One more quick question. Do you think there is a problem with consistency among the various parts of the act?
Mr. Foucher: The act should not be interpreted in silos; all the parts should interact with each other. There could be an interpretation clause stipulating that each part of the act must be interpreted in conjunction with the others.
The Chair: Thank you, Mr. Foucher. I wanted to get your opinion on that because we often find that the regulations in Part IV are not a positive measure.
Since there are no further questions, I would like to thank you very sincerely, Mr. Foucher, for taking the time to give us a detailed, succinct, and very accurate overview of the act. You have helped us identify the challenges we will have to address in drafting our report. You have also helped us see the direction we might take in our recommendations.
Once again, thank you for sharing your time and expertise with us. On behalf of the Senate committee, thank you.
(The committee continued in camera.)