Proceedings of the Standing Senate Committee on
Official Languages
Issue No. 25 - Evidence - Meeting of June 11, 2018
OTTAWA, Monday, June 11, 2018
The Standing Senate Committee on Official Languages met in camera this day at 4:30 p.m. for the consideration of a draft agenda (future business); and in public, to examine and report 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, we now resume the public session.
Good evening. My name is Senator René Cormier from New Brunswick, and I am pleased to be chairing today’s meeting.
May I ask a member of the committee to make the following motion:
That television cameras be authorized in the committee room to broadcast the proceedings with the least possible disruption.
Senator Gagné: I so move.
The Chair: Moved by Senator Gagné. Do you agree, honourable senators?
Some Hon. Senators: Agreed.
The Chair: Thank you very much.
So, the Standing Senate Committee on Official Languages is continuing the third part of its study into the views of those who have seen the act evolve. This evening, we are pleased to welcome Ms. Katherine d’Entremont, the Commissioner of Official Languages of New Brunswick, Mr. François Boileau, the French Language Services Commissioner of Ontario and Mr. Joseph Mann, Legal Counsel, Office of the French Language Services Commissioner of Ontario.
Before I give our witnesses the floor, I would like to ask the members of the committee to please introduce themselves.
Senator Poirier: Rose-May Poirier from Saint-Louis-de-Kent, New Brunswick. Good evening and welcome.
Senator Maltais: Good evening, Senator Ghislain Maltais from Quebec.
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator Gagné: Senator Raymonde Gagné from Manitoba.
Senator Moncion: Senator Lucie Moncion from Ontario.
Senator McIntyre: Paul McIntyre from New Brunswick.
The Chair: Mr. Boileau and Ms. d’Entremont, allow me first to welcome you and tell you how much we appreciate the work you are doing for your provinces. We are very happy that you have taken to time to come and meet with us this evening to share your thoughts and comments with us about the modernization of the Official Languages Act. Ms. d’Entremont, the floor is yours.
Katherine d’Entremont, Commissioner of Official Languages for New Brunswick, Office of the Commissioner of Official Languages for New Brunswick: Good evening, everyone. Mr. Chair, honourable senators, I would like to start by thanking you for inviting me to present an overview of the Office of the Commissioner’s position on the modernization of the Official Languages Act. In a few months, we will be presenting a more detailed document describing our position on the matter. It is really an honour and a privilege for me to testify as part of your important study.
The Office of the Commissioner of Official Languages for New Brunswick is an independent agency of the legislative assembly. My role is to investigate, to submit reports, and to make recommendations on compliance with the New Brunswick Official Languages Act and to promote the development of both official languages in the province.
By way of introduction, we are of the view that the Official Languages Act must be modernized generally in order to reflect changes in sociolinguistics, demographics, technology and jurisprudence that have occurred in Canada since it was last overhauled in 1988. It is worth remembering that, since that date, the New Brunswick Official Languages Act has been modernized twice, in 2002 and 2013.
The Official Languages Act must also be modernized for two reasons that are specific to New Brunswick. First, modernizing the OLA must correct Parliament’s historical lack of consideration of New Brunswick’s constitutional uniqueness. Starting with the overhaul in1988, the OLA should have reflected New Brunswick’s constitutional uniqueness, as entrenched in subsections 16(2),17(2), 18(2), 19(2) and 20(2) of the Canadian Charter of Rights and Freedoms. Second, the OLA must be modernized in order to reflect the equality of status, and the equal rights and privileges, of the French and English linguistic communities in New Brunswick, as enshrined by Parliament and the Legislative Assembly of New Brunswick through the 1993 constitutional amendment, which amended the Charter by the addition of section 16.1.
I will now provide you with some brief historical background and the shortcomings of the federal Official Languages Act as it affects New Brunswick. In terms of New Brunswick’s legal uniqueness, we have the Official Languages Act, and the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, which enshrine the equality of status and the equal rights and privileges of the French and English linguistic communities in New Brunswick, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
Modernizing the OLA must correct Parliament’s historical lack of consideration of New Brunswick’s constitutional uniqueness. Right from the 1988 overhaul, the OLA should have reflected this constitutional uniqueness. Our office therefore invites Parliament to recognize New Brunswick’s uniqueness in the modernized federal legislation and, wherever possible, to harmonize the federal and New Brunswick linguistic structures.
New Brunswick has a constitutional and legislative structure that is unique in the matter of linguistic rights and that currently is still not reflected in federal legislation. The study your committee is undertaking is the opportunity to remedy this discrepancy and to try to harmonize the federal and New Brunswick legislative structures in terms of official languages, in order to fulfill, or better fulfill, the constitutional rights of New Brunswickers.
We therefore recommend that the federal act be modernized in order to harmonize the obligations of the federal government and of New Brunswick to provide services and communication with the public in both official languages. The federal government must recognize and support the equality of status, and the equal rights and privileges, of the French and English linguistic communities in New Brunswick, including the distinct institutions to which they have a right.
Our office recommends that federal legislation establish the federal government’s obligation to provide services and communication in both official languages everywhere in New Brunswick. As you know, at federal level, the public has the right to use French or English in order to communicate with the offices of parliamentary institutions or of the Canadian government in order to receive services from them wherever French and English are used to a significant extent, or wherever it is justified by the nature of the offices. In New Brunswick, however, the public has the right to use French or English to communicate with every office of legislative institutions or of the provincial government in order to receive services from them unconditionally.
In New Brunswick, federal legislation allows a number of offices of federal institutions to operate unilingually. According to the federal government’s Burolis website, at least two federal offices currently provide services in French only, and at least 51 federal offices provide services in English only. Examples of these federal offices providing services in English only include 21 RCMP offices, 15 Canada Border Services Agency offices, the Correctional Service of Canada in Saint John, and the airport in Saint John.
Parliament should therefore adjust the wording of section 22 of the Official Languages Act in order to reflect the constitutional framework within which New Brunswick lives its life. The federal structure should comply with, not run counter to, that framework and should reflect New Brunswick’s full institutional bilingualism. Our office recommends that Parliament modernize Part IV of the federal act to specifically require the federal government to provide services and communication in both official languages everywhere in New Brunswick. All that is necessary to achieve that objective is an indication that the obligations set out in section 22 of the act apply to all offices of federal institutions in New Brunswick.
We also recommend that the federal legislation must recognize and support the equality of status, and the equal rights and privileges, of the French and English linguistic communities in New Brunswick, including the distinct institutions to which they have a right. In the light of the addition of section 16.1 to the Charter in 1993, Parliament should modernize the federal act in order for it to require and enshrine an obligation on the part of the federal government to recognize the equal rights and privileges of the French and English communities in New Brunswick. Modernization could be achieved by establishing, in Part VII of the federal act, an additional commitment on the part of the federal government — together with a requirement to implement positive measures to put that commitment into effect — to recognize and promote the equality of status, and the equal rights and privileges, of the French and English linguistic communities in New Brunswick, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
Such an approach would focus the federal government’s spending power. For example, the Department of Canadian Heritage has been reaching agreements with the provincial and territorial governments under its official languages in education program since 1970. They govern the ways in which federal funds are transferred to pay the costs incurred in the delivery of minority-language and second-language instruction. The change to the federal act that our office is recommending would require the Department of Canadian Heritage to adopt a New Brunswick perspective and to recognize the right of the French and English linguistic communities in New Brunswick to distinct educational and cultural institutions.
Parliament could even consider requiring that the negotiations for these agreements should include participation from users and school boards, for example. Parliamentary should draw on New Brunswick’s experience with official languages as it studies the modernization of the federal act.
New Brunswick has a long and rich experience in official language matters that could help the committee as it studies the modernization of the act. In fact, since the province adopted the first official languages legislation in the country, in April 1969, some months before the federal act was passed, we have experienced many developments in linguistic rights and we have been able to test different proposals to advance the rights of our francophone minority. New Brunswick is a kind of testing ground for the committee that could provide guidance in terms of the legislative changes that are necessary for or worthy of consideration.
Our office is therefore proposing some suggestions drawn from New Brunswick’s rich experience in official languages. The implementation of the New Brunswick Official Languages Act could be instructive as a model. While the country’s first official languages legislation, the New Brunswick Official Languages Act, 1969, did not establish any specific authority for its implementation, in 2002, section 2 of the amended act established that the Premier of New Brunswick is responsible for putting it into effect.
Since 2004, one year after the office was established, the commissioner of official languages has been insisting on the importance of developing a master plan for the implementation of the New Brunswick Official Languages Act, for implementation strategies for each institution that is subject to the New Brunswick Official Languages Act, and for the creation of an agency to coordinate that implementation in order that the objectives of the new linguistic structure could be achieved. The office of the commissioner repeated that recommendation on a number of occasions. Only in 2011 did the Government of New Brunswick adopt its first implementation plan for the provincial act.
In 2013, the special committee reviewing the New Brunswick act stressed the importance of the government being required to have an overall implementation plan for the act. In response to that recommendation, when the provincial legislation was overhauled in 2013, the legislature provided for a new section 5.1 that creates the legal obligation for the Government of New Brunswick to have an implementation plan and to develop the parameters for that plan. The section gives the premier the ultimate responsibility to coordinate and implement the overall plan, while making the various parts of the public service responsible for developing their own action plans, which must contribute to the overall plan.
Compared to the federal plan, the OLA doesn’t give any government body the authority or responsibility to ensure its implementation. Instead, two federal institutions are named in the OLA to assume responsibility for implementing parts of the act: the Treasury Board and the Department of Canadian Heritage.
The New Brunswick experience suggests that the OLA should confer ultimate responsibility for its implementation on a government body. In particular, our office recommends that the entity responsible for implementing the federal legislation should be a central agency with the horizontal powers necessary to carry out this role, including the authority to take the lead in regulatory matters, access to pan-governmental funds and clear statutory powers to frame its role in relation to the various elements of government. In the absence of a central agency to exercise an enhanced oversight role, implementation by the institutions may prove deficient. This is indeed what the evaluation of New Brunswick’s official languages plan commissioned by the province’s executive council office in 2014 reveals.
You could also draw on specific obligations in New Brunswick’s legislation.
The Chair: Madam Commissioner, I don’t want to interrupt you, but given the time available for testimony, I would ask you to conclude your presentation.
Ms. d’Entremont: New Brunswick’s legislation contains a provision requiring the periodic review of the act, which is helpful. The last time the act was revised, it was about eight years. The act needs to be revised, and a committee has been set up to do so. The last review was in 2013, and since 2013, the commissioner has been given the authority to issue investigation reports. That’s something I suggest you consider. The New Brunswick commissioner may issue investigation reports when she considers it to be in the public interest to do so. Since we have that authority, we have issued about 20 investigation reports.
I’ll stop there. Thank you for the opportunity to outline the commissioner’s position. I will be happy to answer your questions.
The Chair: Rest assured that you’ll have the opportunity to add details to your testimony during the question period.
Mr. Boileau, you have the floor.
François Boileau, French Language Services Commissioner, Office of the French Language Services Commissioner of Ontario: Good evening, senators. I would like to thank you for the opportunity to appear before you today to present a brief on the important issues that should be considered in modernizing the Official Languages Act. I am accompanied by Joseph Morin, Legal Counsel at the Office of the French Language Services Commissioner of Ontario.
We were all pleasantly surprised when the Prime Minister announced a few days ago that he was committed to modernizing the act. This statement honours the mandate you have given yourself. We must congratulate you on your insight, your upstream approach and your vision.
The Official Languages Act can and must be a beacon of cooperation between the federal government and the provinces and territories. However, to do so, it needs to be modernized in several ways. The players may not have changed in 50 years, but their roles and responsibilities with respect to official languages have evolved considerably.
[English]
Ontario is grappling with the same debate. Two years ago, I recommended to the government to modernize the French Language Services Act because, like the Official Languages Act, it no longer answers to the realities of our society.
[Translation]
First, I will argue that the Official Languages Act and its regulations do not include all potential users of services in the minority language. Second, I will recommend that you strengthen the provisions dealing with active offer of service. Third, I will discuss the importance of renewing cooperative federalism with respect to official languages. We also address the issue of harmonization in detail in the brief that we submitted to you in complementarity with the position of my colleague from New Brunswick.
Today’s Canada is not the Canada of the 1980s. The francophone population is rich in diversity thanks to immigration, and young people from exogamous and francophile families.
In my very first annual report, I recommended that the Ontario Minister of Francophone Affairs review the definition of the francophone population to ensure that it adequately reflects the new reality of this population. The method used at the time took into account only the mother tongue, which excluded more than 50,000 Franco-Ontarians. For example, an immigrant family with Arabic as their first language and whose members communicate at home in either Arabic or French was not considered by the government to be part of Ontario’s francophone population. I am therefore very satisfied and proud that, in 2009, the Ontario government adopted the inclusive definition of francophone, or IDF.
[English]
This new method now captures those whose mother tongue is neither French nor English but who have good knowledge of French and use it at home, like our family, who has Arabic as their mother tongue.
[Translation]
I also expressed the wish that an inclusive definition of the francophonie be adopted in other provinces and with the federal government. I sincerely believe that a more inclusive definition of the francophonie must be a component of renewed cooperative federalism based on the specific interests and needs of francophone communities.
The definition of the English or French linguistic minority used in the Official Languages Regulations, which is based on an estimate of the first language spoken, also ignores the new realities of French-language minority communities. Moreover, the federal government only uses numerical criteria to decide whether there is a significant demand for services. The government does not take into account the vitality of official language minority communities, which is confirmed by the existence of schools or community centres, a criterion set out in section 32 of the act.
In other words, since their method of calculation is too restrictive, and they do not take into account the vitality of communities, the act and its current regulations exclude many people requiring services in the minority language. It is important, therefore, to ensure that the number of potential users of services offered in the minority official language is calculated and, to encourage this determination, to abandon the only calculation model that is based on a notion that is outdated from the point of view of identity by moving closer to a notion of community vitality.
In light of the Ontario experience, I recommend that Parliament modify the parameters for calculating significant demand and enhance the number of people who can communicate in the language of the anglophone or francophone minority population, as well as the institutional vitality of the anglophone or francophone minority population of the region served, confirmed by the presence of institutions, such as a school or community centre.
Like the inclusive definition of the francophonie, active offer has been one of my priorities as commissioner. In 2016, I tabled a special report with the Ontario Legislative Assembly on active offer and its importance in achieving the objectives of the French Language Services Act. You will note with interest that there is no section in the French Language Services Act that deals with active offer. The Official Languages Act is already doing better.
[English]
Active offer is particularly essential when the public in question is vulnerable. I received several testimonials about the importance of the active offer, notably in the health sector.
[Translation]
I remember an example in a government office. Employees spoke French to each other, clients spoke French and signage was in both languages. However, the employee spoke only English to the client. It was all in Shakespeare’s language. This situation always repeats itself.
Active offer is essential in the delivery of services in the minority language. You will agree that a francophone probably won’t demand that his or her language rights be respected in the middle of a medical procedure, nor will a teenager, who is overwhelmed by addictions and who has just given birth, ask the local Children’s Aid Society, which knocks at her door, to obtain a psychosocial assessment in French.
[English]
Yet this obligation remains seemingly misunderstood among federal institutions. Parliament must therefore modernize the Official Languages Act in order to clarify those obligations and provide for a more robust regime pertaining to active offer in alignment with what we speak for our own renewed French Language Services Act.
[Translation]
I recommend that Parliament amend the Official Languages Act to include a requirement for an active offer regulation. Parliament could include in this regulation an explicit definition of active offer, as well as clear criteria to be respected that could include the following elements: 1) ensure that appropriate measures are taken to inform the public of the availability of services; 2) offer services in both languages on first contact; 3) assure citizens that they can choose either language of service; 4) ensure that the service provided is culturally appropriate; 5) ensure that citizens feel comfortable in the provision of services; and 6) ensure that the service provided is of equal or equivalent quality to the service provided in English.
Section 16(3) of the Charter codifies an important principle: constitutional provisions on language rights are only a threshold, and the federal government, like the provinces and territories, can pass new legislation to advance these rights.
For the federal government, the application of this principle is more explicitly reflected in Part VII of the Official Languages Act. It is obliged to take action to enhance the vitality of official language minority communities. Unfortunately, Part VII seems to have been reduced to almost nothing following the recent federal court decision in the case of Fédération des francophones de la Colombie-Britannique v. Canada. Canada, where the court concluded that Part VII does not impose specific and particular obligations on the federal government. That is one reason, if ever there was one, to modernize the Official Languages Act.
The federal government has the moral authority, the know-how, and the means to begin a new era of cooperative federalism in official languages in order to achieve the aspirations of section 16 of the Charter, while respecting the priorities of the provincial and territorial governments. To this end, I recommend that Parliament adopt new sections in Part VII, which would clarify and frame the federal government’s obligations in order to encourage a system of voluntary adoption of language rights and obligations based on provincial priorities, particularly in the areas of health, justice and immigration.
The federal government, for its part, would be required under this new section of the act to guarantee financial and logistical support to provinces that adopt such linguistic advances. Also, still in the spirit of renewed cooperative federalism, I recommend that Parliament add new sections, still in Part VII, to provide a framework for the federal government’s role in federal-provincial-territorial agreements.
[English]
More concretely, this new section would include the necessary items to explicitly frame the role of the federal government in matters pertaining to the adoption and implementation of federal-provincial-territorial agreements, including the mandatory addition of detailed language clauses in these agreements, the prior consultation of communities, and the obligation of reporting and accountability.
[Translation]
Finally, in the past, official language leadership was the preserve of the federal government. That is no longer the case. The provinces are moving forward, innovating and deserve to be seen as true partners in a new cooperative federalism. That said, the federal government must absolutely remain the catalyst for official languages and support and encourage progress across Canada. To achieve this new vision, Parliament must modernize the Official Languages Act so that it fits into this new cooperative federalism.
I have proposed three amendments, and I have submitted a more complete and detailed brief that you can consult as you wish.
Thank you again for listening. I am available to answer your questions in the official language of your choice.
The Chair: Thank you very much, Mr. Boileau and Ms. d’Entremont. We will start the question period.
Senator Poirier: Thank you for being with us. First of all, I would like to thank you, Ms. d’Entremont, for all your years of dedication to the province of New Brunswick and as the Commissioner of Official Languages for New Brunswick. I understand you’re retiring soon. I would therefore like to thank you and express my gratitude for your work.
Ms. d’Entremont, you mentioned in your remarks that the federal legislation doesn’t reflect the principles that make New Brunswick unique. Could you elaborate on that? If this deficiency were corrected, what would it mean for New Brunswick and the rest of Canada?
Ms. d’Entremont: Our recommendation is that you take into account the specific nature of New Brunswick. New Brunswick is the only province mentioned in the Charter. In New Brunswick, we have not only the Official Languages Act, but also legislation that recognizes the equality of the two linguistic communities. This duality also exists, as you know, in education, in public and post-secondary schools. New Brunswick represents a unique situation in the country.
When the federal government works with the provinces, for example, on immigration, our two communities in New Brunswick have equal status under the Charter. When we hear the federal authorities talk about a target of 4 per cent or 5 per cent for New Brunswick, it does not mean much, because we want to maintain the demographic weight of our two linguistic communities. It is important that the federal legislation take into account the fact that New Brunswick is mentioned in the Canadian Charter of Rights and Freedoms because of its specific nature. The legislation should reflect this situation.
As I said earlier, New Brunswickers are a little confused. As many of you know, in New Brunswick, we are entitled to services in the language of our choice throughout the province. However, we sometimes have difficulty knowing where to obtain federal services in the minority or majority language. Yet, it would be fairly easy to fix. Federal legislation should require federal government offices to offer their services throughout New Brunswick. This is the case with our provincial legislation. Whether in the northeastern region, where the majority is francophone, or in the southwest, where the majority is anglophone, we should be able to be served by federal government offices in the language of our choice.
The intent is to modernize the legislation to ensure that the “where numbers warrant” test does not apply in New Brunswick. That would be a logical first step. It is time to combine the two acts to ensure that people can be served anywhere in New Brunswick by federal government offices.
The Chair: I will let Mr. Boileau take the floor.
As I instructed my colleagues, I also invite you to be as succinct and specific as possible in your answers because our time is limited.
Mr. Boileau: I think that harmonization would be possible for New Brunswick, as things are very clear constitutionally. Should the provinces need to be even more inclusive or wanted to take things further, it would be useful to also provide for harmonization with the provinces. For instance, a few years ago in Ontario, it was recommended that, instead of moving to 27 designated regions on July 1, there be only one region. If the Ford government was to go in that direction, it would mean that all of Ontario would be covered. We would like to have harmonization at the federal level, with the government showing that flexibility.
Senator Gagné: Thank you so much for your presentations, which I found absolutely excellent.
Commissioner Boileau, I wanted to tell you that I thought your proposal to create a voluntary regime for adopting official languages programs was interesting.
One of the questions I asked myself was whether we are running the risk of the federal government investing more in areas the provinces are already involved in. Is there a risk of official language minority communities being disadvantaged and left out by the federal government?
Mr. Boileau: The federal government will always have a duty to be present across the country. Official languages concern everyone. We simply want government priorities to be recognized when Ontario, in our case, moves in that direction. If harmonization in health or access to justice is needed, provincial initiatives should be encouraged and monitored by the federal government. The government and the provinces must not continue to work in silos. Harmonization and integration should be encouraged so that they can communicate with each other freely. When the province decides to stall, with nature abhorring a vacuum, the federal government must fill that vacuum and continue to move in that direction.
Senator Gagné: I did not hear you comment on the issue of implementation. What institution should be entrusted with implementing the Official Languages Act?
Mr. Boileau: I fully support the comments by my New Brunswick colleague. We need a central agency. When we had what we called the “Dion plan,” it worked, as Mr. Dion was President of the Treasury Board. Everything that came into cabinet went through the Treasury Board, so any project or initiative had to have that lens. Otherwise, the project was returned before being added to the binder presented to cabinet.
That responsibility should be entrusted to a central agency. That is clearly important. That is why Ontario recommended what we refer to as the “francophone lens,” which is a tool developed by the Ontario’s Ministry of Francophone Affairs. We recommend that this lens now be imposed by cabinet to any initiative and any regulations or bill presented to cabinet. We are not quite there yet, but we are working toward it.
Senator McIntyre: Thank you for your presentations.
I will begin by thanking Ms. d’Entremont for her recent actions related to the Official Languages Act in New Brunswick. First, we learned in May, thanks to your investigation report, that the Nurses Association of New Brunswick violated the Official Languages Act by using an entrance exam that is highly unfavourable to francophone candidates. Second, I understand that you want to get involved in the paramedics’ cause. In other words, you are asking for intervener status in the court case where paramedics are going up against their employer with regard to language obligations in New Brunswick’s ambulances. Congratulations!
Recently, the acting president of the Société de l’Acadie du Nouveau-Brunswick and two of his colleagues testified before our committee. The SANB is proposing that New Brunswick’s unique character in terms of languages be laid out in black and white in the Official Languages Act. As you know, the regulatory framework currently encourages institutions to negotiate their linguistic obligations downward. There is the whole issue of significant demand. You actually touched on that earlier.
There is another important point: immigration and its impact on New Brunswick’s linguistic immigration. According to the SANB, and I quote:
New Brunswick’s francophone community has not benefited from immigration as much as the anglophone community.
How could the federal Official Languages Act help remedy the situation?
Ms. d’Entremont: I think that, in all the federal government’s programs and in all statutes, it is a matter of recognizing New Brunswick’s uniqueness that stems from the equality of the two language communities. When it comes to immigration, our office believes that it must benefit each language community equally. For decades, in New Brunswick, we have managed to attract francophone immigrants or immigrants that will integrate the francophone community at a proportion of about 12 per cent. You can imagine that, for a province whose population is not increasing owing to a low birth rate, the only way to increase the population is through immigration. To maintain our rate of 33 per cent, we probably need to attract more than 33 per cent of immigrants who will integrate the francophone community because we are losing some, both on the francophone side and the anglophone side.
The provincial government committed to respect the demographic weight of New Brunswick’s language communities. It’s not 4 per cent or 5 per cent. It’s really 33 per cent and, to maintain that 33 per cent, more immigrants need to be attracted. What is the number? I don’t know, as we are not experts on immigration. However, when you look at the issues through a New Brunswick lens, including official language statutes and policies at the federal level, this is the type of thing we wonder about when it comes to New Brunswick by asking the following question: will this practice, policy or piece of legislation help us maintain the uniqueness of New Brunswick, where the two language communities are equal? So immigration is a pretty concrete example.
It would be the same for all other programs for which the federal and provincial governments share responsibility, where federal policies have an impact on what is happening on the ground in New Brunswick.
Senator McIntyre: As the SANB said so well, the issue lies in the linguistic balance. For example, in 2016, only 17 per cent of immigrants in New Brunswick were francophone, while the francophone minority accounted for 33 per cent of the population. That is where the problem is.
Ms. d’Entremont: We will publish our annual report next week, and we report on those figures every year. That is more or less it. We have still not reached the 33 per cent, but that is what the current government has set as its objective.
Senator Jaffer: Thank you for joining us.
[English]
Mr. Boileau, what you were saying on the definition of francophonie was music to my ears. It may sound a little extreme to you, but that’s how I feel sometimes.
I come from a colonial past, where children from English parents went to English schools, children from Indian parents went to Indian schools and African children went to African schools. When I came here, I wanted to send my son to French school. I was told no, because I’m not French. It annoyed me because I wasn’t an anglophone or francophone. So why couldn’t I choose to send my son to any school I wanted? Why was I classified anglophone? Anglophone isn’t my language either?
My colleagues have heard my stories so they’re tired.
When you say “widen the definition,” I know you’re saying there is a definition in Ontario. I’d like to hear from you again, what do you mean? I agree with you that it shouldn’t be your mother tongue, your first language. If your first language is not English or French, you’re classified English in my province at least. If it’s not mother tongue, what do you mean? How do you want to see the new definition?
Mr. Boileau: Thank you for the question.
I just want to make sure we understand each other. I do not want to challenge the section 23 application of the provinces.
Senator Jaffer: Everyone talks about that. You said “expand the definition.” Give me what you mean by “expand the definition.”
Mr. Boileau: Absolutely.
There are three questions being asked right now in the national census. One question is your knowledge of French or English. The second question is the language of your mother tongue. And the third question is the language you speak or speak more often at home.
Right now the actual regulation is using the methodology one from Statistics Canada, which says your first official language is your mother tongue, your knowledge of the language, and that’s that. They don’t use the language that you use at home as well.
If you are using French at home but your mother tongue is Arabic, as I said before, even though you have comprehension or knowledge of French, it doesn’t make you a francophone. Our definition in Ontario is if you use this language at home more often, then you are considered a francophone in Ontario and not an anglophone.
Senator Jaffer: My son didn’t use any. We’re Indian. We spoke Gujarati. He didn’t speak English or French. I don’t want to get into that argument, but you’re not defining the definition for me. Tell me what you mean by “expanding the definition.” You said that if you’re more familiar with French or English, that’s where you go, but what is the definition that you want?
Mr. Boileau: There are different ways to look at it. In Manitoba, for instance, they’ve chosen to widen their definition of who is a francophone. It’s anyone who has an affinity with the French language, which is really wide. But can we offer real services? Where do we know that we’ll have the obligation to offer those services?
It’s a good policy, but does it really measure into concrete actions from the government that actually wants to know where our obligations lie? Therefore, in Ontario we’ve widened the actual definition by including those who speak French at home as well. We gathered about 50,000 francophones who were already in the province of Ontario that are now included within the definition of francophone in Ontario.
The definition is quite simple. It’s a methodology. The methodology of using the census question, we just used another method and the same census question.
What we’re proposing as well is that we use not only a definition based on numbers but also on vitality. If you have a home-care facility and there are francophones in that village, then maybe that would be a vitality indicator. If we have a school or a community centre, a health centre, that’s another indication that there’s a vitality of this minority in that specific region.
If there is no indicator of vitality, then there wouldn’t be any obligation to serve the public in that region.
[Translation]
Senator Moncion: Thank you for your testimony. Could you talk to us about your powers in terms of complaints, and the province’s judicial power compared to the power set out in the Official Languages Act?
Mr. Boileau: My comment will be brief. I have tremendous power. Both my colleague and I have a moral power. We have a power to recommend. That said, it’s similar to the power of the current Commissioner of Official Languages, with the only real difference being that, in Ontario, we don’t have the power to institute legal proceedings. That is not provided for in the legislation. We mustn’t forget that our French Language Services Act has only 14 sections. We are doing what we can. The Official Languages Act has over 100 sections. We don’t have the power to institute legal proceedings in Ontario.
Joseph Morin, Legal Counsel, Office of the French Language Services Commissioner of Ontario: Over the past 10 years, the Office of the French Language Services Commissioner has made a lot of progress, even without the power to institute legal proceedings. The power of the pen, the power of speaking to people, to communities and to the media can bring us far, without needing to sue the government.
Ms. d’Entremont: The power to publish investigation reports is beneficial. We use it judiciously in New Brunswick. For example, the day we submitted the investigation report on the Nurses Association of New Brunswick, the report was made public. You can consult that report on our website. That power was conferred to the commissioner when the act was last revised. It allows us to talk about our investigations and to raise public awareness. We use it where appropriate.
There is another worthwhile element in our legislation. Since the premier is responsible for enforcing the legislation, all of the commissioner’s investigation reports — not only those that are published — are sent to him, and he must acknowledge their receipt. That is not the case at the federal level. That way to proceed shows the legislator’s seriousness in adding section 2 to the provincial legislation in 2002. The premier was given the responsibility to enforce the act. So the premier is my interlocutor. As the commissioner, I must address myself to the premier. He receives all the investigation reports produced by the office of the commissioner.
Mr. Boileau: The power to produce investigation reports is also included, and we have used it often.
Senator Moncion: Thank you.
Senator Mégie: Thank you for your presentations. I thought I understood that institutional bilingualism is comprehensive. However, two federal offices provide services in French, and 51 federal offices provide services in English. Did I miss a piece of information?
Ms. d’Entremont: That is the information I have, and it comes from the Burolis website, so it is only in each of those languages.
Senator Mégie: Those offices provide services only in one language for the time being, and all the other offices provide services in both languages. Right?
Ms. d’Entremont: The list I gave you pertained to federal offices. All of New Brunswick’s provincial offices must provide services in French. I established a parallel with the provincial legislation. The provincial legislation does not contain the concept of significant demand. So people can be served in the language of their choice across the province at the provincial level, but not at the federal level.
Senator Mégie: It was not clear. Thank you very much for enlightening me.
Senator Maltais: According to all the testimony we have heard, the act is not giving you punitive power. As an example, federal commissioners have been closely monitoring Air Canada for 30 years. However, nothing has changed. Only the size of the glass of water is getting smaller. As long as people like you, who are close to situations, have no punitive power, we can forget about it. Ms. d’Entremont, you said that New Brunswick’s example in official languages should be followed. Yes, that should be done from a legal perspective, but not from an enforcement perspective. I want to bring up your comment, Mr. Boileau, to the effect that you lacked punch. Graham Fraser, who would appear before our committee every three months, often told us that the problem still exists. The situation has not changed or evolved. When a piece of legislation does not provide punitive power, how can it be enforced?
Mr. Boileau: When it comes to punitive power, the important thing is to know who would apply it. If a central agency is responsible for ensuring that everything works in a piece of legislation, that everything is well oiled, there would already be a punitive power on an internal basis. That power would not really be public, but it would at least have that vision in the first place. The importance of that factor should not be minimalized.
When it comes to the punitive power of official languages commissioners, we should be careful what we wish for. We cannot be both judge and jury. I cannot say to an institution that certain procedural fairness rules are important. I cannot simply penalize someone without having a “confrontational” approach, as is it referred to in legal parlance. By hearing out the two parties, I become a court and I lose the role of mediator I currently have as ombudsman. That role is very important. I have a tremendous amount of flexibility right now. Don’t immediately give me the power to punish, in Ontario, as I would then become a court, and that is a completely different thing.
If you want to create a new court on official languages, that is one thing, but that should not be mixed with commissioners’ powers. We should be careful what we wish for.
Ms. d’Entremont: Offices of commissioners were created to give Canadians an option, a free option. If we did not exist, where would people go to complain? The court would be the only option. We are meant to carry out investigations and issue recommendations. As for the recommendations we provide, as far as I am concerned, I have always privileged a systemic approach. Recommendations aim to ensure compliance with the legislation. If the government does not implement commissioners’ recommendations, be they from Mr. Boileau or me — That is our role. As Mr. Boileau said, I am not sure a punitive power should be created, but better application of the legislation should be ensured and elected officials should have a better understanding of the commissioner’s role. For five years, I have been trying to educate our elected officials about the commissioner’s role. If the system worked as designed, the recommendations we issue would be implemented. At that point, we may not need other methods. If our recommendations were not implemented, people would have no choice. They would have to turn to the courts.
Senator Maltais: That is exactly what Senator Joyal concluded by saying that the courts are the stewards of official languages. Canadians have no other choice.
The Chair: On that note, Ms. d’Entremont and Mr. Boileau, I thank you very much for your presentations. We could have spent several hours with you. We will read and reread your briefs very attentively. Ms. d’Entremont, we look forward to your brief. Thank you so much once again for your excellent work. You are a source of inspiration for me and for others.
(The committee adjourned.)