Proceedings of the Standing Senate Committee on
Official Languages
Issue No. 30 - Evidence - Meeting of October 26, 2018
OTTAWA, Friday, October 26, 2018
The Standing Senate Committee on Official Languages met this day at 9:48 a.m. to continue its study on Canadians’ views about modernizing the Official Languages Act.
Senator René Cormier (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I welcome you to this meeting of the Standing Senate Committee on Official Languages.
My name is René Cormier, and I’m a senator from New Brunswick. I have the honour of chairing today’s meeting.
Today, the Standing Senate Committee on Official Languages is continuing its study on the modernization of the Official Languages Act. We are pleased to welcome Michel Carrier, Acting Commissioner of Official Languages for New Brunswick. He is accompanied by Hugues Beaulieu, Executive Director.
Before I turn the floor over to our witness, Senator Gagné is proposing that the Senate communications staff be allowed to take photos during the meeting. All in favour?
Hon. Senators: Agreed.
The Chair: Okay. Thank you.
Before we get on with the meeting, I invite my colleagues to introduce themselves, starting on my right.
Senator Poirier: Hello and welcome. I’m Rose-May Poirier from New Brunswick.
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator McIntyre: Paul McIntyre from New Brunswick.
Senator Gagné: Raymonde Gagné from Manitoba.
Senator Moncion: Lucie Moncion from Ontario.
The Chair: Hello and welcome, gentlemen. We read the brief you submitted with great interest. Without further ado, Mr. Carrier, the floor is yours.
Michel Carrier, Acting Commissioner of Official Languages for New Brunswick, Office of the Commissioner of Official Languages for New Brunswick: Honourable senators, thank you for inviting me to appear before your committee as part of your study on the modernization of Canada’s Official Languages Act.
Joining me today is Mr. Beaulieu. Following my presentation, Mr. Beaulieu and I will be pleased to answer any questions you may have.
I would like to begin by thanking you for conducting this very important study. I am confident that it will go a long way toward enhancing the vitality of our two official languages here in Canada’s only officially bilingual province and in the rest of Canada, of course.
As you know, next year, Canada and New Brunswick will both be celebrating the fiftieth anniversary of the passage of the Official Languages Act. This study on the modernization of the act is an excellent prelude to that fiftieth anniversary.
[English]
On June 11 of this year my predecessor, Katherine d’Entremont, had the opportunity to address your committee. She provided you with an outline of our office’s position on the modernization of Canada’s Official Languages Act. At that time, she also told the committee that in a few months our office would submit to you a more detailed document. Today, I’m very pleased to table our brief.
My presentation today will touch briefly on some of the items to which Madam d’Entremont referred, but I will obviously not repeat it all.
[Translation]
Our brief explains in detail the reasons why we are proposing that two amendments be made to the federal act. First, the Official Languages Act should recognize New Brunswick’s constitutional uniqueness. Second, it should reflect the equality of status and the equal rights and privileges of New Brunswick’s two linguistic communities.
We believe that Canada’s Official Languages Act should require the federal government to offer its services and communicate in both official languages throughout New Brunswick.
[English]
Pursuant to the New Brunswick Official Languages Act, members of the public have the right to communicate with any institution and receive its services in the official language of their choice, all across the province. This is in contrast to the federal regime, where the right to communicate and receive services in the official languages of one’s choice exists where numbers warrant.
We therefore recommend that the federal Official Languages Act require the federal government to offer its services all across New Brunswick. This can be accomplished by mandating that the obligations contained in section 22 of the Official Languages Act apply to all federal institutions and offices throughout New Brunswick.
[Translation]
Moreover, the federal OLA should require the Government of Canada to consider and support the equality of status and the equal rights and privileges of the English and French linguistic communities in New Brunswick, including the distinct institutions to which they are entitled.
As you know, section 16.1 of the Canadian Charter of Rights and Freedoms entrenches the equal rights and privileges of the English and French communities in New Brunswick, including their right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
The reason for that constitutional guarantee is this:
[English]
To flourish, any linguistic community needs places where its members can live fully in their language. That’s the reason for having distinct cultural and educational institutions. By ensuring the development of each community, these institutions promote the equality of the two groups. And equality fosters unity.
However, distinct institutions will not prevent dialogue between the two linguistic groups, as some have suggested. Members of these communities come together regularly in many areas of activity; for example, at work and at play.
[Translation]
It is interesting to note that the principle of constitutional equality, as set out in section 16.1, is not reflected in Canada’s current Official Languages Act. Parliament should modernize the federal OLA, in light of the addition of section 16.1 to the Charter in 1993, to provide for and regulate the federal government’s obligation to consider the equal rights and privileges of New Brunswick’s Englishand French linguistic communities.
Such modernization could be achieved by providing in Part VII of the federal OLA an additional commitment — along with an obligation to take positive measures to implement it — by the federal government to recognize and promote the equality of status and the equal rights and privileges of New Brunswick’s English and French linguistic communities, including the right of these communities to the distinct educational and cultural institutions necessary fortheir protection and promotion. Such a regime would regulate the federal government’s spending power.
Furthermore, the constitutional equality of both official linguistic communities in New Brunswick must also inform the development and implementation of the federal government’s immigration policies.
In that regard, I would like to point out that a recent study on the vitality of our two official languages showed that, in 2016, about one in ten recent immigrants had French as their first official language spoken, while seven out of ten had English as their first official language spoken.
The federal OLA should require the federal government to take into account New Brunswick’s specific linguistic balance and the recognition of the equality of status and equal rights and privileges of the province’s English and French linguistic communities in its immigration policies so as to maintain the existing linguistic balance.
[English]
One of the two main roles of my office is to promote the advancement of both official languages in the province. A few months ago, in our last report, my predecessor presented the highlights of a study on the vitality of French and English in New Brunswick, prepared for the Office of the Commissioner by the Canadian Institute for Research on Linguistic Minorities here in Moncton.
Some worrying trends for the French language emerged from this study. For example, the percentage of New Brunswickers whose mother tongue is French reached a low of 31.9 per cent in 2016, compared to 33.8 per cent in 1971, while the percentage of people whose mother tongue is English has remained stable at approximately 65 per cent of the population since 1971.
Another example: immigration and the anglicization of immigrants and their children have disproportionately benefited the English community.
[Translation]
The highlights also include an encouraging sign for the vitality of the French language. Francophones in mixed couples, particularly mothers, are increasingly passing on French to their children. More than 50 per cent of children with francophone mothers in mixed couples now have French as their mother tongue, up from 43 per cent in 2001.
When the highlights of this study were published, the commissioner said, “The future vitality of the French language in New Brunswick is far from assured.” The study conducted by the Canadian Institute for Research on Linguistic Minorities shows that the future of the language depends on many interconnected factors. Effective and coordinated action must be taken on all of these vitality factors to ensure the future of the French language in New Brunswick.
We believe that a federal OLA that takes into account the unique character of our province of New Brunswick and that respects the principle of equality of both of New Brunswick’s official language communities in areas such as immigration is one of the factors that will support the vitality of our two official languages here in New Brunswick and elsewhere in Canada.
That is why we have high hopes for your work. We believe your study is very important for the future of our two languages, and we thank you for conducting it. Thank you for your attention.
The Chair: Thank you very much, Mr. Carrier.
We will begin with the questions from committee members.
Senator Poirier: Thank you again for being here. I have a few questions for you.
In your opinion, what mechanisms are needed to ensure that the Official Languages Act is fully enforced? Should responsibility for its implementation be given to a specific department, such as Treasury Board or the Department of Canadian Heritage?
Mr. Carrier: Many people seem to believe that having a central dedicated agency, rather than giving a number of different federal departments shared responsibility, would improve delivery and coordination and ensure that important things do not slip through the cracks in exchanges between the various organizations.
In general, from what I’ve read and heard and from what we think as well, there should be a central agency. In New Brunswick, the law gives that responsibility to the premier’s office.
In the most recent annual report, Ms. Entremont suggested creating a secretariat that would support the premier’s work. The premier has a lot of other things to worry about, which means that the official languages portfolio might not get the attention it requires. The creation of a secretariat, similar to other secretariats that exist in New Brunswick, could help with coordination efforts and influence the work of senior departmental officials.
Yesterday, I heard, again in a certain area, that the problem lies mainly with management. We can have official languages implementation plans in New Brunswick, but if the managers do not believe in them, do not get on board or are not engaged, those plans may not work.
The creation of a secretariat, possibly lead by someone from the deputy minister’s office, might have a greater influence.
I don’t know whether that answers your question, but applying New Brunswick’s example to the federal government might give better results.
Senator Poirier: As the Commissioner of Official Languages for New Brunswick, are you satisfied with the quality of the translation of court judgments? Do you think that is a problem?
Mr. Carrier: You mean is there a problem with translation?
Senator Poirier: Yes.
Mr. Carrier: Not that I know of.
Senator Poirier: No?
Mr. Carrier: Under the New Brunswick Official Languages Act, any decision of importance to the general public must be translated and published in both official languages.
The Court of Appeal determined that all of its decisions fall into that category and so all Court of Appeal decisions are translated. They are translated by the Université de Moncton’s Centre de traduction et de terminologie juridiques or the CTTJ, which does an extraordinary job.
I have talked with judges and other legal experts about this, and there do not seem to be any concerns about translation quality.
Senator Poirier: I’m asking that question because some witnesses from the Supreme Court, among others, told us that, at the federal level, there are sometimes significant delays and that they have to review the translated documents several times after getting them back.
Are you able to compare the quality of federal court and New Brunswick provincial court translations? Do you have any comments in that regard?
Mr. Carrier: Not really. We’ve never compared the two. As I mentioned, New Brunswick’s legal minds have never mentioned any problems with the accuracy of court decision translations.
Senator Poirier: Okay.
Mr. Carrier: In our opinion, that issue has been resolved since the translations are accurate and of good quality.
In the beginning some adjustments had to be made. Obviously, when the translation comes back, judges can make any necessary adjustments. In fact, that exercise can actually prove helpful.
We know that legal decisions need to be accurate and that the ideas need to be clearly conveyed. When decisions are translated, the translation can even help the judges to clarify certain points.
I used to be the executive director of the Law Society of New Brunswick. At one point, we got a document about a major project translated. It was about the reform of the New Brunswick Law Society Act. Getting that document translated helped us to make it more clear and accurate. We dealt with the CTTJ, which produced an outstanding translation.
Senator Poirier: Perfect. Thank you very much. I understand.
Senator McIntyre: Thank you for your presentation, Mr. Carrier. Thank you for giving us your perspective on the modernization of the Official Languages Act.
You were the commissioner from 2003 to 2013, and you have been in the position again, on an acting basis, since Ms. Entremont left. My question is this: How does the situation in 2003 to 2013 compare to that in 2013 to 2018?
Mr. Carrier: The official languages portfolio dates back to 1969. This is a long-term project that requires constant attention. When I arrived in 2003, institutional representatives were telling me that they wanted to meet the requirements of the act but that they faced staffing, funding and structural challenges, among others.
At a certain point, I began telling them that, yes, they were facing challenges, but not just from an official languages perspective. I asked them what they did when faced with challenges. I told them that they needed to plan, that they needed to be strategic.
I suggested that the individual institutions and the government as a whole come up with a strategic plan for official languages. Before I was replaced in 2013, the government had not only accepted to come up with a plan, but also to incorporate it into the provincial Official Languages Act.
Now, the act contains provisions regarding the implementation of an official languages plan, which were added in 2013.
Progress was made during the 10 years that I was commissioner. When I arrived in July and spoke with staff in the office, I realized that there was a plan but that there was not much follow-up. Has progress really been made? I would say that it has. Things have been moving forward in recent years and we can be pleased with what has been accomplished. It is good that we have a plan. However, we need to go further and make sure that the plan is implemented and that there is an agency that is taking care of things on a daily basis.
The commissioner’s office will continue to monitor the situation and make recommendations, but it is not up to us to implement the plan. That is the government’s responsibility.
Things are the same in some ways. There has been some progress. When Ms. Entremont was the commissioner, the commissioner’s office conducted an evaluation and the results were fairly good, so things are moving forward.
Progress continues to be made. I think that commissioner’s office itself has had an influence from 2003 until now, but we need to pay attention to official languages and take care of this portfolio. We need to be present and hold discussions. We need to enhance this initiative. Above all, we need to explain what we are doing, and that is not always easy.
As you may have noticed, the matter of official languages has been being raised in political debate in recent days, weeks and months. We see that people are asking the same questions that they should have been given answers to several years ago.
I tell myself not to get discouraged and to carry on. We need to continue to provide explanations. We are asking people to be empathetic, to understand the challenges the Acadian community faces with regard to the vitality of its language and culture, but often those who do not live that reality every day do not understand it, so we need to continue to explain it. I think that is the commissioner’s role, or at least that’s how I see it. The role the commissioner plays in promoting official languages is very important, even more important than his or her role as watchdog.
Senator McIntyre: Under the New Brunswick Official Languages Act, the premier is solely responsible for the act. The current premier delegated that responsibility to a minister, but fortunately, he has since remedied the situation.
You mentioned that there is a lot of work to do. I agree with you. The Office of the Commissioner of Official Languages must continue to play a key role in promoting official languages. In your opinion, should the premier continue to hold sole responsibility for the New Brunswick Official Languages Act as it now stands?
Mr. Carrier: Absolutely. We were talking earlier about a secretariat to support the premier’s efforts. I think that the fact that the premier is responsible for official languages is symbolic, and that is important. It sends the message that the Official Languages Act is important and of value to New Brunswick. New Brunswick is known throughout Canada for being the only officially bilingual province. That is value added and we should be using that to promote our economy, culture and trade.
It is very important that people recognize the value and symbolism in the fact that the person who has been designated to lead the province is the person responsible for official languages. I think that is absolutely necessary. Giving that responsibility to a minister could work, but I believe that, if that were the case, that very important symbolism would be lost.
I’ve covered the issue, and my answer is yes.
Senator McIntyre: That was a very good answer. Thank you, Mr. Carrier.
Senator Gagné: Thank you. Before I ask the questions I have on another subject, I want to piggyback on Senator McIntyre’s question.
I envy you. I’m from Manitoba, and I really envy New Brunswick because it has a legislative framework that supports the development and enhances the vitality of the Acadian and francophone community. New Brunswick has best practices that we should be following nationwide.
What are some of the things that work less well that we should avoid?
Mr. Carrier: What things work less well?
Senator Gagné: With your legislation.
Mr. Carrier: With the legislation?
Senator Gagné: Yes, that’s right.
Mr. Carrier: The things that work less well generally speaking—
Senator Gagné: Since we are talking about modernizing the Official Languages Act, I assumed that what I was saying was clear.
Mr. Carrier: Unfortunately, I’m the kind of person who focuses on the positive.
Senator Gagné: Unfortunately?
Mr. Carrier: No, no. Fortunately. I meant it is unfortunate for some. When I was appointed several years ago, people in some parts of the province criticized me for wanting to promote understanding. However, there was a plan behind all that. It was not about abandoning language rights, on the contrary.
Some parts of the Official Languages Act are confusing. The Supreme Court of Canada rendered a decision a few years ago on the definition of institution as it pertains to municipalities. The Supreme Court determined that New Brunswick’s municipalities are not institutions in the same way a department is an institution.
It was a five to four decision. Justice Bastarache dissented.
We then began to wonder whether some of the municipalities’ police forces, which are not covered by the act, are subject to it or not. The Supreme Court’s interpretation in Beaulac and others is broad and generous. However, we would like to have more details.
When it comes to the legislation, I think that the definition of institution should be clearer about how to handle municipalities and so forth.
We also noted some shortcomings with regard to complaints. We made amendments in that regard a few years ago. People were not filing complaints for fear of reprisal. We convinced the government to include measures in the provincial act that would protect people from reprisal. Criminal charges can now be brought against anyone who retaliates, so we solved that problem.
Does anything else come to mind in that regard?
Hugues Beaulieu, Executive Director, Office of the Commissioner of Official Languages for New Brunswick: As the commissioner mentioned earlier, we have made a lot of progress. According to a study conducted two years ago, there was a high compliance rate among government departments and agencies.
He also mentioned the importance of having a plan. Often, legislation will contain provisions that assert equality. People have the right to receive services in their language of choice. However, how do we put that into practice? The problem lies in implementing the plan, planning for requirements and setting standards.
The plan was meant to solve that problem in 2013. Provisions were added to the act so that the government would be much more proactive in complying with it.
The plan is a good one. Section 5.1 of the New Brunswick Official Languages Act contains a lot of worthwhile measures. This plan has the potential to help New Brunswick make great strides.
The trouble, as we learned from the studies we conducted this year, is that the body that is supposed to coordinate the implementation of this plan does not have sufficient resources. The government did not allocate enough resources to implement the plan.
Since the premier is responsible for enforcing the Official Languages Act and overseeing the implementation of the plan, we recommended that he be supported in that. We are hopeful that progress will be made in that regard. This is a very important tool that should be considered in the review of the federal act.
I believe you asked about the things that work less well.
Senator Gagné: Yes, because the New Brunswick act is often held up as a model or best practice. If we are going to amend the federal act, we would like to apply any best practices.
Experience is often a good way of identifying any shortcomings to avoid. That is why I asked that question.
Mr. Carrier: There is one thing that just came to mind. At my age, my memory is not as sharp as it used to be in 2003. Ideas come and go.
After reading the plan, I thought that the government was going to add to the act a clear responsibility for deputy ministers that would make them accountable to the premier and require them to report annually on progress and shortcomings. That did not happen.
We expect them to act in good faith and participate, but I think that the legislation should contain stricter measures. The deputy minister should be responsible for reporting annually on both progress and shortcomings.
That is something that maybe should be added to our act, stricter measures concerning senior management.
Senator Gagné: Thank you. I think it is important to have this kind of feedback. It helps us to know what changes to make based on an already exemplary model.
Senator Mégie: Thank you to our guests. My question is about immigration. How are immigrants selected in New Brunswick? Is language one of the secretariat’s criteria?
Mr. Carrier: Language is considered. An agreement was recently made with the federal government about language. It is taken into account for reasons of clarity and to maintain linguistic equality.
We need to ensure that the federal and provincial governments take language into account. That needs to be an important selection criterion. It would also help attract people to New Brunswick.
Immigration is very important for New Brunswick, particularly because of our birth rate and aging population, so this debate is nothing new.
Studies show that there have been some improvements, but a lot of work still needs to be done. As the CIRLM’s study showed, one or two out of ten is not enough to maintain the balance between our two communities.
The problem with immigration is not just a matter of language. Retention is also an issue. We do not just need to attract people to New Brunswick; we also need to convince them to stay. The retention rate could be better. How do we do that? Those are the questions that everyone is asking. We have been having discussions about this that go beyond language for a number of years.
I think that the provincial and federal governments need to work together to ensure that New Brunswick can attract and retain immigrants. We also need to seek out French speakers who could be part of our community. They need to feel proud to be here and and they need to feel welcome. That is some of what our discussions have been focusing on.
Senator Mégie: You are in competition with the other provinces, and they may also want the same thing.
Mr. Carrier: I agree. It is a concerted effort. We were talking about how most immigrants move to Montreal, Toronto or Vancouver, what we call MTV syndrome. The people who come here move after a few years for various reasons. It is not because they do not feel welcome but because they want to be close to other people like them. There are larger communities of their people elsewhere.
The Saint-Léonard region, a small community in northwestern New Brunswick, carried out a project in which it welcomed African immigrants. The community really made a big effort to welcome them, and they felt it. I talked to one of those immigrants and she said that she spends almost all of her weekends in Quebec City because there are more people from back home there. They get together, share familiar meals, and so on. She said that she likes it here in New Brunswick but that she spends a lot of time in Quebec City. Those are important factors.
That is why we need to look at all of the factors when trying to attract people, particularly to New Brunswick. We need people to support our efforts so that we can survive and maintain our identity.
Mr. Beaulieu: I’d like to draw your attention to one point. The 2017-18 annual report released by the office of the commissioner presented the highlights of a study on the vitality of the two linguistic communities in New Brunswick. This study was prepared by the Canadian Institute for Research on Linguistic Minorities and includes a whole section on immigration.
Immigration is crucial to the future of the linguistic communities in New Brunswick. As the commissioner said earlier, we’ve made some progress with the provincial government. For several years now, it has recognized that immigration needs to benefit both linguistic communities. We’ve come a long way. Before, they weren’t even willing to say that immigration practices needed to reflect a balance. Now we’ve got them talking about it. The provincial government has adopted a plan aimed at maintaining the linguistic balance.
Quite a lot of immigrants are coming in through the federal channels. For years, we’ve been giving presentations to the federal government to explain why its immigration practices with respect to New Brunswick must not harm the vitality of either community.
Imagine if the federal Official Languages Act had recognized the principle of equality for both linguistic communities in New Brunswick. That would have given us a very strong argument to tell the federal government to be careful, because its immigration policies need to benefit both linguistic communities equally.
We’ve made progress. Two years ago, an agreement was announced. It was recognized by the federal government. But if the federal act had already contained this provision, I think our progress would have been much quicker.
Senator Mégie: So you feel this is a major point we should consider in our study on the modernization of the act.
Mr. Beaulieu: Definitely.
Senator Mégie: All right, thanks.
Senator Moncion: Thank you. I have three somewhat different topics I want to address. The draft brief we got includes a Part IV, which is very interesting and which I didn’t find in the official version you submitted. You talk about trying to coordinate official languages commissioners across the country. There aren’t many of them. You mention cooperative federalism. I think that’s an intriguing concept. You talk about applying cooperative federalism “by structuring the power to spend” and coordinating the work done by the different commissioners. You deleted this from your final version, but I think the idea was good. Why did you take it out of the document?
Mr. Carrier: I felt the suggestion was outside the bounds of Canadian federalism. In my view, it could have been interpreted as saying the federal government should support my office financially. I don’t think that kind of recommendation would have been accepted.
Senator Moncion: I see.
Mr. Carrier: I’m not against cooperation. Cooperation does exist. Several years ago, my office signed cooperation agreements with Mr. Fraser’s office and with Mr. Boileau’s office in Ontario. So we do have cooperation agreements in place.
There is an international association of language commissioners that New Brunswick, Ontario, the federal government, Nunavut and the Northwest Territories belong to. We do cooperate that way. We regularly discuss best practices to try to understand and learn from one another.
When Mr. Boileau was appointed to the commissioner position in Ontario, there was a lot of back and forth. He wanted to know how we operate, since we’ve been around for years.
François had worked for the federal commissioner’s office. He had plenty of experience, but his office was different from Mr. Fraser’s office. So he consulted us, and that’s still going.
Cooperation is important, but I didn’t think a recommendation that the federal government support us financially would be accepted. When I was rereading the whole document, I decided to take that out.
Senator Moncion: I didn’t consider that recommendation from a funding perspective. I thought you were recommending the creation of an official languages commissioner for each province and territory, given that they are appointed by every government, kind of like a council of ministers that meets to identify best practices and make recommendations to the federal government. I thought that’s where you were going with that. I thought it was an excellent idea because it would have meant the rights of all minorities in every province would be analyzed at the provincial level and grouped together at the federal level for review and discussion.
That’s why I thought your idea was interesting. We haven’t really seen anything like that. There would be a lot of value there for the promotion work going on from coast to coast.
Mr. Carrier: Your idea sounds good. I don’t think that was our intention, but I can tell you that that’s exactly what we were thinking. You’re the only one who understood that.
Mr. Beaulieu: Ontario, New Brunswick, the federal commissioner’s office and Nunavut have a very strong working relationship on access to justice in French. A few years ago, they released a joint report. Two years ago, the three commissioners’ offices issued a joint statement during the Forum on Francophone Immigration held here in Moncton. I can assure you that our groups are collaborating on issues we have in common.
Senator Moncion: Perhaps we should make a note of that.
Mr. Carrier: Yes.
Senator Moncion: I have a third questions, but I’ll save it for later. I just want to share a story with you.
A few years ago, I was working toward my doctorate, and one of my professors was a historian from New Brunswick. He told us about the history of the Acadians, the francophone version and the anglophone version. His sense was that anglophone historians in New Brunswick don’t want to talk about the history of the Acadians. They don’t want to talk about it because they think that if nobody talks about it, it will cease to exist. Francophone historians, in contrast, wanted to keep talking about the importance of the history of the Acadians and what a proud people they are because they felt that’s the way to keep Acadian history alive.
I studied in Ontario and Sudbury. I found that parallel, the francophone and the anglophone perspectives on the history of the Acadians, fascinating. Stop talking about it, and people forget. Keep talking about it, and it lives on.
The Chair: We don’t have much time left. I have a few questions and I will try to be brief. I would encourage the witnesses to keep their answers brief because we have seen what happened with all the other answers.
In your brief, you recommended defining the role of the Translation Bureau. Can you clarify what you mean by that? How should that be addressed in the Act?
Mr. Carrier: The New Brunswick Translation Bureau has done a lot for the government. We know that the bulk of the work is done in the majority language. The Translation Bureau has provided and continues to provide considerable support, but people often question its value. Funding comes up a lot in our discussions with the Translation Bureau.
Certain provisions had to be enshrined in the Charter so that certain institutions wouldn’t be called into question, eroded or eliminated, and I think we need to recognize the importance of the Translation Bureau so that its value and its contribution to the country over the years are not called into question. That’s why the bureau gets hit with budget cuts so often, like all the others.
The Chair: When you talk about defining your translations, what do you mean?
Mr. Carrier: I’m talking about officially recognizing it in the act, stating that the Translation Bureau is a valuable entity we need and that it should be be backed with official recognition in the act and protected from being called into question. It’s really important for us to recognize its value and ensure it will always be there. There was a discussion about symbolism earlier, and I think we all understand what translators and interpreters contribute to our evolution and longevity.
The Chair: Okay. Thank you very much.
At pages 29 and 30 of your brief, you make recommendations about the role of the Commissioner of Official Languages, namely the obligation to protect complainants, make investigation reports public, and spell out the commissioner’s appointment process. If we want to learn from this experience, what can you say about the changes that have taken place since these measures were implemented?
Mr. Carrier: The office of the commissioner, like the office of the ombudsman and so on — here in New Brunswick, we call them officers of the Legislative Assembly — house independent positions. These positions do not have any powers per se. Their power comes from their ability to influence. The credibility of the offices and the people in those positions are a big part of what makes them effective.
In the past, those positions were often filled by people who were closely connected to the party in power. That is done elsewhere. I think that can tarnish the credibility of the person in the position. There has to be an objective, neutral, impartial process to find the right candidate to be the commissioner and fill all the other Legislative Assembly officer positions.
We managed to convince the government to implement a process that is currently under way to replace Ms. d’Entremont. A committee was set up. It includes a representative of the judiciary, an academic, the Clerk of the Legislative Assembly, and the Clerk of the Executive Council.
This independent committee will choose or recommend a person on the basis of important factors. The appointment is still done by the Legislative Assembly on the premier’s recommendation, but this process really minimizes political influence on the appointment.
I’m very happy. When I was there from 2003 to 2013 with my colleague, the ombudsman, Mr. Richard, and others, we proposed this process, and it was adopted. I think that enhances the credibility of the process.
The Chair: We asked other groups of witnesses two questions about strengthening the role of the federal Commissioner of Official Languages. First, we talked about creating an administrative tribunal or enabling the Commissioner of Official Languages to impose penalties for violations. What do you think of that?
Second, with respect to including New Brunswick’s unique status in the act, some witnesses felt that wouldn’t be necessary because it is in the Canadian Charter of Rights and Freedoms. Since it’s already in the Constitution, there’s no need to include it in the Official Languages Act.
I would like to hear your clear and specific thoughts about that because you think New Brunswick’s unique status should be included in the act.
Mr. Carrier: It’s true that our country’s highest law guarantees that for New Brunswick. Why shouldn’t it be recognized in the Official Languages Act as well? That would send another message. We think it would add something without taking anything away. It would raise the profile of linguistic rights within governmental entities. It would send a message to Canadians.
This is the bureau’s point of view. As we were preparing this brief, we said to ourselves, “Why not?” It’s there. It’s a way for the federal Official Languages Act to acknowledge New Brunswick and all the work that has been done over the years, as detailed in the brief, by former premiers such as Mr. Hatfield, Mr. McKenna, and others. This kind of recognition would enhance our community’s sense of pride and its vitality.
The Chair: But about the commissioner’s role —
Mr. Carrier: Look. The ombudsman has a special role. Creating a tribunal could work. I was kind of expecting that question, so I did some research. I wanted to know how many cases the provincial Human Rights Commission has handled. Only one in recent years. It was about discrimination at a university. It was alleged that the University of New Brunswick women’s hockey team had not received the same funding and the same support. That case went to the commission and took seven years to resolve.
The Charlebois judgment, which was a game-changer, took three years. Another case about language rights in New Brunswick, which ended up in the Supreme Court of Canada, took four years.
Time is an issue with the commission. Even Justice Bastarache commented on the issue of delays.
Our office can address complaints quickly, but we are still very thorough. We have a dual mandate. We are the watchdog and we have a promotion role as well.
I’m not sure a tribunal could do that. Our office is small. We can’t play that kind of role.
The Official Languages Act has been around for 50 years, but it wasn’t until 2002 that it was amended to include active offer with specifics about what has to be done.
Since the Office of the Commissioner was created in 2003, we have made progress, but there are still problems and shortcomings. This is long-term work. We succeeded. Even though we had no executive or enforcement power, we succeeded.
There is some danger in wanting to — In society, change happens at its own pace, and if you want to impose change, even if most people obey the law and so on, there is always that underlying conversation. Even in this day and age we’re having discussions about the validity of the legislation.
In some institutions, employees are still questioning the law even though they should have accepted it long ago. Have people taken enough time to reflect on it?
I have read that changing society is like climbing a flight of stairs. You get to the first step, and you catch your breath. You keep going, you keep climbing. That’s the ombudsman’s role. I’m afraid that if this is imposed on us, that will make the process more cumbersome. It keeps us from doing our work on the promotion side of things.
There’s also the legal aspect. All kinds of things are going to be challenged. There will be all kinds of requests, which will slow the process down. Some tribunals work well. Some people might say that, without a judgment from a tribunal or a court, things won’t change. I’m not convinced. I think there’s another way to approach this.
The Chair: Okay. Thank you very much.
Senator Gagné: The message I’m getting from you is that there is a need to clarify obligations under Part VII.
Can you comment on that need to clarify obligations under Part VII in light of the fact that the government has to provide service to two groups, anglophones and francophones, whose needs are not exactly the same? How should that be clarified with respect to these two distinct communities?
Mr. Carrier: Recognizing rights and needs is one thing. A community’s specific needs in terms of government services have to be considered. Anglophones in Quebec may not have the same needs as francophones in Manitoba. There is a difference. We need some flexibility. We can’t clarify and have — I think we can still clearly demonstrate not only the desire but the intent to do more to support communities by adopting positive measures to do that. We have to realize that that’s what it takes. Then we can recalibrate as needed based on what communities need.
Senator Gagné: Should the remedial nature of the act be a factor —
Mr. Carrier: Definitely.
Senator Gagné: Thank you.
The Chair: On that note, Mr. Carrier and Mr. Beaulieu, thank you very much for your presentation.
Mr. Carrier, thank you for your significant contribution to protecting language rights in New Brunswick. I think your many years of service in the commissioner’s office and your return to the position on an acting basis is meaningful and inspiring to all New Brunswickers and Canadians in general. Thank you for being here, and have a good afternoon.
Mr. Carrier: That’s so kind of you. Thank you very much.
The Chair: Moving on to the fourth theme of our study, the justice sector. We are happy to have Dominic Caron, a lawyer, with us today.
Mr. Caron, we are pleased to have you here today. You are the last witness we will be hearing from here in New Brunswick. No pressure, but we certainly do appreciate your being here with us. I’ll give you the floor, and then we will have some time for discussion and questions.
Dominic Caron, Lawyer, Pink Larkin, as an individual: Perfect. Thank you.
My name is Dominic Caron. I am in private practice. Most of my practice has to do with labour law, but I have a number of official languages cases, most of them provincial cases. One of the organizations I work with is the SANB.
For my presentation today, I didn’t know exactly how the process works, so I prepared a long presentation, but I was told to be brief, so I will just go over the main ideas.
The Chair: Yes, please give us a summary of your presentation, and then when it’s time for questions, you can get into more detail. There will be time for that.
Mr. Caron: Perfect. The main thing I want to talk about is equality. We all know that the Official Languages Act says both languages are equal, but what does equality mean here? It is substantive equality. What does that mean? One aspect has to do with enhancing the vitality of minority communities, and the big issues for me are the court challenges program, languages spoken by Supreme Court of Canada justices, and the language of federal court rulings. I also want to comment on the preamble, which I feel should refer to the Charter. The preamble to the Official Languages Act refers to the Constitution, but not to the Charter. In New Brunswick, the Charter ensures a kind of sanctification of our laws.
Lastly, I wanted to comment on standing. This is a special law, after all, and I think it should contain a provision that gives entities laying claim to language rights standing.
As I said, I prepared a long presentation, but since it is almost noon —
The Chair: Yes. Mr. Caron, you can give us the presentation you prepared because we also use written documents, so we can use what you prepared.
Mr. Caron: Okay.
The Chair: In the meantime, you raised several points we can discuss if my colleagues have questions.
I suggest we get right to questions and discussion with you so you can get into more detail about your ideas and share your perspective.
Mr. Caron: Okay, absolutely. As I said, I work on a lot of provincial cases. I was familiar with the federal Official Languages Act, of course, but I wanted to get to know the content better. The issue is that I’m not necessarily an expert on the federal Official Languages Act, so there are questions I just won’t be able to answer.
The Chair: Okay. We want to look at things in terms of your experience and your practice to understand the situation with official languages in the justice system.
Let’s get to questions, starting with the vice-chair of the committee, Senator Poirier.
Senator Poirier: Thank you for being here and for agreeing to send us your notes. We really appreciate that.
I have a few questions. My first question is about the appointment process for the Commissioner of Official Languages. During the last process, there were unnecessary delays in appointing the commissioner. How do you think the federal Official Languages Act could be amended to ensure that doesn’t happen again?
Mr. Caron: Is the situation you’re referring to the one involving Madeleine Meilleur?
Senator Poirier: I’m talking about the process, not necessarily an individual. I don’t necessarily want to name names. I’m talking about how the Commissioner of Official Languages appointment process works. Can you suggest some other way that process could work?
Mr. Caron: As far as I know, every commissioner before now was appointed unanimously by Parliament. I would suggest that Parliament be required to appoint the commissioner unanimously because that person is an officer of Parliament.
Senator Poirier: Okay. Do you think anything should be changed in the legislation? Should there be anything specific in the legislation or the process?
Mr. Caron: Yes, exactly, that the person be appointed unanimously. I think that would eliminate any partisanship from the appointment.
To answer your questions, what I’m asking for may be a wish list. I understand that there are challenges, but I’m offering answers in an ideal world. I think if that the more we legislate, the better because otherwise we are truly at the mercy of the different governments.
Senator Poirier: Do you believe that we should amend the commissioner’s powers to give them more teeth?
Mr. Caron: That is a good question because I know that his role is to make recommendations. At the same time, the courts play a role and have more power. As a lawyer, I like going before the courts. I think that the current system is good. The courts are able to order more binding measures. I was also going to talk about a source of funding for the various organizations to defend their rights in court.
The answer to your question is no because I believe that the status quo is just fine.
Senator Poirier: I have another question on access to justice. Our study is currently on modernizing the Official Languages Act. What would you say is missing to ensure equal access to justice? Is there a solution for amending the legislation?
Mr. Caron: Indeed, it is the Court Challenges Program, which became the Linguistic Rights Assistance Program, I believe. It is about positive measures that provide access to justice because, as we know, legal fees are exorbitant for an individual whose rights are being violated. Often, going before the courts without any sort of assistance is not really worth it.
This is a government program and in the questions that the clerk sent me, there was a question about the value of legislating this. It is absolutely worth it because the program has changed, as we saw recently. In 2015, the new government decided to reinstate it and today, at the end of 2018, the program is still not up and running. I know that they took every possible measure and that it is a matter of time, that it will be operational soon, but if there is a new government in 2019 this could end up on the backburner again.
It is a matter of codifying it in under Part VII of the act, which talks about enhancing the vitality of linguistic minority communities because claiming rights and obtaining a source of funding is a positive measure for enhancing linguistic minority communities.
Senator Poirier: Thank you.
What do you think of the quality of the translation of court judgments and what role should the federal government play in that regard?
Mr. Caron: I think that the quality of the translation is very, very good. We know that under subsection 20(2) of the legislation, if I’m not mistaken, not all rulings have to be translated. I believe that they all should be translated because we are working with the common law under what is called stare decisis, which means being guided by precedent.
This applies to francophone and anglophone lawyers alike. There could be a decision that happens to have the very case that the lawyer wants to use, but the decision is in the other language. It’s not necessarily fair in the sense that the decisions have an impact on everyone. I think translation of all decisions should be mandatory.
The New Brunswick Official Languages Act requires the New Brunswick Court of Appeal to have all its decisions translated.
Sometimes the judge will announce the decision from the bench. I have no problem with the judge announcing their decision in either official language, but written and reasoned decisions should be made in both languages.
Senator Poirier: Thank you.
Senator McIntyre: Thank you, Mr. Caron, for your presentation.
In your introduction and response to a question raised by Senator Poirier, you talked about equality and court challenges, so I will continue in the same vein. Do you believe that the Official Languages Act should allow application for remedy for all parties?
Mr. Caron: Absolutely. I believe that under section 77 not all parties can apply for a remedy. But what does it mean to have rights? Is a right without a remedy truly a right? I know that I am throwing the ball back in your court, but it’s just a thought. I think that we can’t have a right without a remedy.
Senator McIntyre: Yes. So you see a certain punitive aspect that should be created.
For example, if an organization does not comply with the Official Languages Act or fails to meet its obligations, then there must necessarily be an application for remedy.
Mr. Caron: I’m reluctant to use the word “punitive” because I know that our legal system is geared to compensation for losses, usually, but at the same time I can agree that in a case like this, with the Official Languages Act, there may need to be a deterrent otherwise this will keep happening.
Senator McIntyre: For example, Justice Canada has obligations. You would agree that Justice Canada’s obligations should be clearly stated in the Official Languages Act.
Mr. Caron: That is a good question because judges do have a degree of discretion and under the Official Languages Act it now states that judges can order such measures as they see fit. They have that discretion. I’m not sure that specific remedies for specific violations need to be included in the legislation.
Senator McIntyre: Last question: Are you in favour of the creation of an official languages administrative tribunal?
Mr. Caron: That is a good question. Yes, that could speed things up and make them more efficient.
I work with the federal Human Rights Tribunal and when it comes down to it, the tribunal works quite well. I would say that the Human Rights Tribunal is painfully slow in my experience. I had a file for five years before it got to the tribunal, which is unconscionable.
The whole point of contemplating having a tribunal would be to make it more efficient. If it is more efficient and resources are in place, then yes. If not, I think that the courts are equipped enough to deal with matters related to the Official Languages Act.
Senator McIntyre: Thank you, Mr. Caron.
The Chair: I have a supplementary question.
What obstacles have you encountered in your dealings with the Human Rights Tribunal? Can you outline the main difficulties you encountered and whether they are directly related to the Human Rights Tribunal? Or does this only happen at the commission?
Mr. Caron: It was strictly at the commission level. It’s what I would call overly administrative in the sense where we present our position. I was representing the complainant. I was presenting the complainant’s position. It was a discrimination case with an employer. An employer can make submissions and then we present ours. The submissions were endless because the employer kept saying it needed to have submissions. You understand that the federal Human Rights Commission is a gatekeeper. In other words, things have to reach a certain threshold before the case gets to the tribunal. If we adopted the same thing here, we would have to ensure that the threshold is low enough so as not to take too much time.
I’m having a hard time explaining myself, but it was very administrative. There were submissions upon submissions upon submissions and staff turnover. The person at the commission in charge of the case left. Then there was a new person, who had to start over, not necessarily from the beginning, but honestly it was falling through the cracks. In court, there is a registrar who processes cases and refers them to the courts.
The Chair: If I understand what you’re saying, if the Office of the Commissioner of Official Languages is associated to a tribunal, then measures would have to be in place to ensure that cases are brought before the tribunal quickly to avoid having too many administrative barriers. Is that what you’re saying?
Mr. Caron: Yes, exactly.
The Chair: Okay.
Senator Gagné: Thank you for accepting our invitation. I have two questions for you. I wonder whether you have read Judge Gascon’s ruling in the Fédération des francophones de la Colombie-Britannique case.
Mr. Caron: Remind me?
Senator Gagné: That’s okay. It has to do with Part VII and in the ruling he says it is a bit of an empty shell when it comes to positive measures. Essentially, since positive measures have not been defined, the judge decided that no negative measures were applied in the province’s case when the federal government transferred its program and he ruled in favour of the federation in this case.
Mr. Caron: That was the Caron case, wasn’t it?
Senator Gagné: It’s the Fédération des francophones and I think that the ruling was made in May. Let’s move on to something else.
Amendments have been made to the Official Languages Act from the start, which was 50 years ago. There have been several rulings as well in the past 50 years and several key principles that have emerged from these rulings. I wonder what principles from case law need to be codified in the Official Languages Act.
Mr. Caron: I think the most important principle established in the case law — and I believe it’s already been codified — is that equality must be substantive, not based on accommodations. A number of decisions have made that clear, including Paulin, rendered by Justice Bastarache in 2008, and Beaulac.
Equality isn’t about patching up the holes and making accommodations. There has to be substantive equality between the two languages. As you know, the Official Languages Act makes an exception, if you will, for federal court judges. All federal court judges, except those on the Supreme Court of Canada, are required to hear the proceedings in the language chosen by the parties. As I see it, that hinders the principle of substantive equality. Consider Justice Moldaver, a unilingual English speaker. He’s an expert in criminal law, so when the Supreme Court hears criminal cases, he is often the one who renders and prepares the judgment — when it’s in English, but not when it’s in French. That’s a problem because French-speaking counsel and accused in criminal cases will not necessarily have access to Justice Moldaver’s expertise.
That’s just one example of how substantive equality isn’t being respected.
Senator Gagné: I see. Thank you.
Senator Mégie: Yesterday, we asked about the translation of judgments rendered by New Brunswick courts. We were told that, ideally, everything is supposed to be translated but that it isn’t possible with the resources in place. You just gave us a perfect example of a decision rendered in one language, because that is the language spoken by the judge, and it shows that it might even be difficult to find the matching expertise to ensure equality.
As we work on modernizing the act, what do we need to add to it to encourage translation — not to impose it, but to require that decisions be translated?
Mr. Caron: I believe subsection 20(2) would be where you’d have to indicate that decisions had to be rendered simultaneously in French and in English.
I appreciate that there are budget constraints, but, at the same time, they are being used to undermine substantive equality. At a certain point, a determination has to be made as to whether substantive equality is being achieved or not. I haven’t looked at what the translation costs would be, but I would think they shouldn’t matter when it comes to adhering to a basic constitutional principle.
Senator Mégie: Let’s assume they do matter and that’s what we’ve been told. Are there any choices that could be made in relation to the various decisions? That’s a factor that has come up as well. It’s not that one decision is more important than the other, but some are such important precedents that they could be singled out for translation.
Mr. Caron: I understand, but that provision already exists in the act. It stipulates that important decisions — those of national interest, public interest and so forth — must be translated. What the act doesn’t include is the requirement to make the decisions available simultaneously. What you’re talking about, however, already exists.
Senator Mégie: In New Brunswick’s act or the federal statute?
Mr. Caron: In the federal statute. I don’t know whether you have it on hand, but I think it’s subsection 20(2).
Senator Mégie: Thank you. That’s fine.
Senator Moncion: My question ties in with Senator Poirier’s regarding the appointment of the Commissioner of Official Languages. You talked about the appointment process for the Commissioner of Official Languages. Could you elaborate on the process that’s currently in place?
Mr. Caron: To be frank, I don’t remember that much about the process. I know that the party leaders are consulted or, at least, the leader of the official opposition is. It’s supposed to be a process that includes all parties in Parliament, but honestly, I can’t recall that much about the process itself. It is provided for in the act, that is for sure. I worked on a case involving this very issue, but that was over a year and a half ago.
Senator Moncion: The reason I ask is that only one provision in the act, subsection 49(1), addresses the matter:
The Governor in Council shall, by commission under the Great Seal, appoint a Commissioner of Official Languages for Canada after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.
There is no requirement, then, that the appointment be approved by the party leaders. Only the Senate and House of Commons need to approve it.
Mr. Caron: Indeed and that is where my recommendation comes in: the appointment should be unanimous. If the party leaders were to approve the appointment, it would address the issue of unanimous approval.
Senator Moncion: Was that requirement left out of the act on purpose to avoid a situation where the party leaders never agree on the nominee? If the person isn’t from the Conservative Party, the Liberal Party or the NDP, for instance, it may be impossible to obtain the approval of all the leaders.
What are your thoughts on section 49, specifically? At some point, we could very well find ourselves in a situation where —
Mr. Caron: At an impasse, essentially.
Senator Moncion: Yes.
Mr. Caron: The reason I made the recommendation — and correct me if I’m wrong — is that, until recently, the appointment of every commissioner had been unanimous.
The next question that must be asked is what the commissioner’s role is. It is to be independent and to report to Parliament. Clearly, it’s not a role that’s meant to be political, but, yes, it is possible for there to be an impasse. When I answered the question, I said in an ideal world.
Senator Moncion: I see.
Mr. Caron: Perhaps I’m not the best person to answer that, politically speaking. You are much more qualified than I.
Senator Moncion: When a person is being selected, they can be right-leaning or left-leaning. We are all on one side or the other. Some of us have more socialist views, but most people are on the right or the left, with their 50 shades of grey.
Mr. Caron: Absolutely, but if you consider Graham Fraser, the previous commissioner, I would think it was the same for him. He must be more right- or left-leaning, but everyone recognized that he was the right person for the job.
Senator Moncion: We could discuss this at length.
Mr. Caron: Yes.
Senator Moncion: What I was trying to get at, in asking about section 49, was whether the section on the appointment of the commissioner needed to be amended or whether it provided enough flexibility as is.
Mr. Caron: That’s a good question, but, to be honest, I don’t have the answer to that this morning.
Senator Moncion: I have another question for you, because I was interested in the work you did on the bilingual school bus issue and the recognition of students’ rights.
The onus, if you will, under New Brunswick’s official languages legislation, often falls on francophones because they are the ones who have to stand up and say that their rights are being violated. In the school bus case, it could have been anglophones saying they didn’t want francophone students sharing their buses.
The request could have come from anglophone parents as well.
Mr. Caron: Possibly. I wrote that as an anecdote. I grew up in Moncton and I can assure you that, on the school bus, all the kids spoke English. It probably wouldn’t have bothered anglophones to have francophone students on the bus because it wouldn’t have made a difference to them. For francophones, however, it makes all the difference in the world because we have to use a language that isn’t our own.
Senator Moncion: I may not have been clear in my question. Under the Official Languages Act, could the challenge have come from anglophones, rather than francophones, in that situation?
Mr. Caron: It would be based on the Canadian Charter of Rights and Freedoms, which is ultimately the instrument that guarantees minority rights. Of course, this isn’t a legal opinion. I’d have to do all the research. The Canadian Charter of Rights and Freedoms gives minorities legal protections. In this situation, anglophones are not the minority, so francophones would be the ones protected in New Brunswick. If the reverse situation were to occur in Quebec, for example, anglophones could certainly assert the same rights.
Senator Moncion: The act, then, is designed to protect the minority community within a province. Here, it would protect francophones, but in Quebec, the Official Languages Act would protect anglophones because they are the minority group there.
Mr. Caron: Precisely. That is evidenced in Part VII, which deals with community vitality and the pursuit of substantive equality, because the majority will always assimilate the minority. That’s the reality, so efforts have to be made to curb assimilation.
Senator Moncion: In a case like this one, perhaps the reverse situation could apply, with anglophones being the complainants, rather than francophones. Under the Official Languages Act, francophones are always seen as the complainants, if you will.
Mr. Caron: Because they are the minority.
Senator Poirier: I’d like to pursue this idea because we are talking about New Brunswick. In Miscou, anglophones are the minority, not francophones.
Mr. Caron: Absolutely.
Senator Poirier: Anglophones there could ask for the same thing. That’s an example.
Mr. Caron: Yes, you’re absolutely right.
The Chair: Does substantive equality between the two communities in New Brunswick mean that an anglophone community living in a broader minority francophone environment can, in fact, be considered a minority? Yes or no?
Mr. Caron: In my view, yes. In the school bus case, the protection flows from the Canadian Charter of Rights and Freedoms, which provides significant flexibility. Just because a person is anglophone in New Brunswick doesn’t mean that they can’t belong to a minority community. It is clear that, in most cases, francophones are the minority. It would be up to the court to decide, of course. However, the court would have considerable latitude in its interpretation given that many laws continue to be interpreted very broadly. The rights set out in the Official Languages Act are interpreted broadly and liberally. In that sense, then, my answer would be yes.
Senator McIntyre: Yes, I agree. The point is to protect minority communities, whether they are francophone or anglophone. Here, in New Brunswick, or in Quebec.
Senator Poirier: I’d like to share some observations. This is a fascinating issue, and I want to thank you. I think there is a big age difference, so things may have changed in recent years. When I moved to Saint-Louis-de-Kent, the population was made up of both francophones and anglophones. It varied depending on the village. We didn’t have any French-language schools in the town I lived in, so I continued my studies in English. Francophones and anglophones rode together on the bus. When someone asked me which language I wanted to speak — it was slightly different in our case — I would answer in their language. If I was speaking to the francophone girl who lived next door, I would speak French. If I was talking to the boy who lived two streets down, we would speak English, so it was a mix of both languages. The bus driver was fully bilingual. He could talk to all the kids on the bus, no matter which language they spoke. Now I see that the situation varies across the province, depending on the region.
Mr. Caron: I agree with you. If the person next to me speaks French, I will probably talk to them in French, and I would do the same thing if I was taking the bus in Moncton today. No question. When I wrote the article about the school buses, I thought it was important to draw a line somewhere as far as the school system was concerned. The court never ruled on the school bus case. The question was referred to the Court of Appeal of New Brunswick but was eventually dropped by the province. That’s my opinion, but others surely have opposing views and they would be equally valid.
Senator McIntyre: We didn’t have that problem in my day. There were no school buses. We would hitchhike to school. If the driver was English-speaking, we spoke English, and vice versa. It wasn’t even an issue.
Senator Gagné: I was going to ask you what your horse’s name was, but you had at least made it into the automobile era. I want to follow up on what was just discussed. On the University of Ottawa’s website, I found the following statement on official languages and language equality. The Supreme Court’s decision in Beaulac is cited:
The Supreme Court, without declaring its opinion on the nature of official languages, held that linguistic equality meant real equality…and therefore based on the needs of the minority . . .
The court’s decision in Desrochers is also cited. I think it’s important not to overlook the fact that the court ruled that the degree of substantive equality must take into account the needs of the minority community. I just wanted to point that out.
The Chair: I’d like to talk about organizations and the tools available to help them interact with the judicial system. I want to get a better sense of how you see that. Should an advisory committee act as the liaison or — as we heard from Érik Labelle — should organizations have access to guaranteed funding and the autonomy to proceed as they see fit? Or should it be a combination of both? The creation of an advisory committee to facilitate communication between organizations and the system was another idea.
Mr. Caron: At the beginning, I mentioned the involvement of community organizations in court proceedings. In order to bring proceedings or seek a legal remedy, a party needs to have standing, which isn’t necessarily a problem for community organizations like the SANB.
The Chair: Sorry, but what do you mean by “standing?”
Mr. Caron: Let’s say Senator Moncion trips Senator Gagné and she is injured as a result. Senator Moncion does not have the right to appear in court and say that she tripped Senator Gagné. Senator Gagné is the one with the right to appear; she has standing.
The Chair: I see.
Mr. Caron: In situations where language rights are violated, people don’t want to initiate court proceedings. These issues have a much wider impact on the community as a whole, and so community organizations may be motivated to take such matters to court.
The Chair: On behalf of citizens?
Mr. Caron: On behalf of citizens.
The Chair: Very well.
Mr. Caron: Usually, standing isn’t an issue, but lawyers do try to involve the victim in the proceedings, asking for their name to make sure they have standing. At the same time, the community organization will have standing as well.
I don’t know of any cases where an organization, on its own initiative, took a matter to court without involving the victim.
The Chair: Very well.
Mr. Caron: I’m not sure whether you follow.
The Chair: I just want to make sure I’m clear on this. Essentially, an incident occurs where an individual has been wronged, like your example with Senator Gagné. The organization takes the matter to court because if the decision is president-setting, it will have a wider impact for the community overall. That’s what you’re saying.
Mr. Caron: Yes, precisely. I have a good example, the Paulin case heard by the Supreme Court. A woman, I believe, from Charlotte County, New Brunswick, was not served in French by a police officer. She paid the fine for the traffic violation, but later took the matter to court to make a statement. Throughout New Brunswick, she was entitled to receive services in the official language of her choice within a reasonable time frame. The SANB became involved in the case because it had more financial resources. Say Ms. Paulin had not wanted to get mixed up in a court case, the SANB could have brought proceedings on its own initiative.
The Chair: Without the complainant?
Mr. Caron: Yes, exactly. As you know, it was a landmark case. Now police officers all over New Brunswick have an obligation to provide service in French and English within a reasonable time frame, of course.
The Chair: I see. Thank you. If my fellow senators have no further questions, we can end the meeting.
Mr. Caron, thank you for meeting with us today. On behalf of my fellow senators, I want to wish you well in your career. Thank you for your contribution and your commitment to New Brunswick. Have a good day.
(The committee adjourned.)