Proceedings of the Standing Senate Committee on
Official Languages
Issue No. 33 - Evidence - Meeting of November 19, 2018
OTTAWA, Monday, November 19, 2018
The Standing Senate Committee on Official Languages met this day at 5 p.m. to continue its study on Canadians’ views about modernizing the Official Languages Act; and, in camera, to proceed with its consideration of a draft agenda (future business).
Senator René Cormier (chair) in the chair.
[Translation]
The Chair: Good evening, honourable senators and members of the public. I’m Senator René Cormier from New Brunswick, and I’m pleased to be chairing today’s meeting.
The Standing Senate Committee on Official Languages is continuing its study on the modernization of the Official Languages Act. Today, we’re ending the fourth stage of our study on the justice sector.
We’re pleased to be joined by Justin Dubois, a lawyer specializing in labour and employment law, administrative law and constitutional law, in the Emond Harnden office.
We were supposed to be joined by Matthew Harrington, a professor at the Université de Montréal’s faculty of law. However, he had to withdraw at the last minute for personal reasons.
Before I leave the floor to our witness, I want to invite the committee members to introduce themselves, starting on my left.
Senator Mégie: Good evening. Senator Marie-Françoise Mégie from Quebec.
Senator Maltais: Welcome. Senator Ghislain Maltais from Quebec.
Senator Gagné: Raymonde Gagné from Manitoba.
Senator Moncion: Lucie Moncion from Ontario.
Senator McIntyre: Welcome. Paul McIntyre from New Brunswick.
The Chair: Mr. Dubois, welcome and thank you for joining us. The floor is yours.
Justin Dubois, Lawyer, Emond Harnden LLP, as an individual: Thank you, Mr. Chair and honourable senators, for inviting me to speak to you today. As previously stated, my name is Justin Dubois. I’m a lawyer in private practice at Emond Harnden. I’ve devoted most of my career to cases involving language rights, probably in part because of my own experience. I’m a francophone from Saskatchewan, and I spent the first 17 or 18 years of my life in Saskatchewan. Like you, I now live in Ottawa at least part of the time.
I want to share a practitioner’s perspective with you this evening. I’ll provide the very practical perspective of a person who works with the act and who has worked on cases concerning the act. One thing that I want to emphasize in my presentation is the search for legislative mechanisms to make the act more practical. I’m mentioning this matter because I’ve previously worked as a lawyer or legal advisor for certain francophone community groups and associations that have spoken to you during your study. I’ve represented and I’m still representing federal institutions that must provide services under the act and must fulfill these obligations. I’m obviously here as an individual. I’m not speaking for anyone else. However, clearly my perspective is informed by my experience in terms of both law and obligations. When I talk about a practical approach, I want to raise some points to consider in order to bring the two sides together.
The first point to consider concerns the addition of clarifications. I think that certain obligations could be clarified for both the public good and for federal institutions, particularly with regard to Part VII and positive measures. The most recent Federal Court ruling on Part VII, rendered in May 2018, concerned the Fédération des francophones de la Colombie-Britannique. The ruling shows how much institutions and the public could have benefited from the act if it had provided more clarifications.
The key question is as follows. What are positive measures? I’ll introduce two fundamental positive measures that may contribute to a more effective implementation of the act.
First, in terms of positive measures, it’s important to know what a positive measure entails. This would require communication with the communities through consultations or meetings — we can call them what we want — so that the federal institutions can understand and properly identify what these measures entail. This very important component could be included in the act.
A related component that I consider even more important is the obligation to take into account the impact of the federal institutions’ policies and programs on minority communities. As part of the development of policies and programs, the impact on the communities must be taken into account. The issue is whether the communities were consulted and whether the policy will affect them. In practice, this is already done. Sometimes it’s done well, and sometimes it’s not done well. Canadian Heritage has a guide for federal institutions on the implementation of Part VII. The guide suggests that, when developing policies and programs, the federal institutions should take into account the impact of their projects on official language minority communities.
I think that legislating this obligation would constitute a positive measure. In theory, this is already done. Why not include the obligation in the act so that it benefits everyone and so that everyone is more familiar with their obligations and rights?
You’ve already heard a great deal about the role of the Commissioner of Official Languages. You’ll probably hear more about the role if the Commissioner has the right to issue binding orders or binding directives. I don’t want to spend too much time on the subject, but when we think of the role of the Commissioner of Official Languages and the proposals related to the role, the goal is to facilitate access to justice. What can we do to make it easier, more efficient, faster and less costly for the public to assert their rights?
In the legal sector, one mechanism adopted in recent decades is mediation. In some jurisdictions, mediation is even mandatory. Before they appear in court, the parties must meet, not necessarily in the same room, but with the help of a professional mediator — perhaps a judge — to try to find a solution. I must admit that, in some cases, the disputes can’t be resolved. Some cases involve matters of principle. Different interpretations exist, and the court must decide. In a world where an administrative tribunal exists, or even in today’s world where remedies are brought directly before the Federal Court, there’s no mediation mechanism. However, mediation is done. There are settlements. The settlement outside the courts in the case of the court challenges program comes to mind. The settlement was reached despite the lack of a formal process in the act or in the Federal Courts Act. I’m not saying that the settlement just happened, because people worked hard to reach it. However, the issue warrants further consideration in terms of how mechanisms to ensure faster settlements and to satisfy all parties could be incorporated into the act, and not necessarily on a mandatory basis.
I also want to make a comment as a practitioner. There’s the idea of disclosure to encourage settlements and to speed up the administrative procedures, including in Federal Court. Currently, remedies involve complaints filed with the Office of the Commissioner of Official Languages. If members of the public want to initiate a remedy, they must apply to the Federal Court. There is an exchange of affidavits, and there can be a cross-examination and then, the hearing. When an administrative tribunal makes a decision and the decision is challenged, the administrative tribunal usually needs to provide the court file containing the documents on which the tribunal based its decision. The disclosure and the sharing of information ensure that everyone knows the steps taken by the federal institution or the documents on which the institution based its decisions. If we had access to this information at the start of the process, it could facilitate discussions and settlements. Again, this can’t be done in certain cases, but I wanted to share this food for thought with you this evening.
The Chair: Thank you for your presentation, Mr. Dubois. We’ll continue with a question period.
Senator Maltais: Thank you for your presentation, Mr. Dubois. I want to know whether you’ve practised labour law only with federal legislation, or whether you’ve also dealt with the legislation of the various provinces.
Mr. Dubois: I’ve practised labour law with the legislation of the various provinces.
Senator Maltais: You raised a very important point concerning the Commissioner of Official Languages. You aren’t the first person to tell us that the Commissioner of Official Languages’ powers are only lip service. Why? Because everyone would like the Commissioner of Official Languages to have enforcement powers. However, the government would never want to grant them to the Commissioner, since the Commissioner of Official Languages’ main client is the government. Have we ever seen a government punish itself over legislation? I don’t think so.
However, with regard to Part VII, your point is very important. Other colleagues will ask you about different topics, but is mediation in administrative tribunals common or exceptional?
Mr. Dubois: A number of administrative tribunals exist at the provincial and federal levels. In my experience, mediation is common. Although mediation isn’t necessarily set out in the act, the approach is often favoured by the decision-makers or the court itself to reach a faster and fairer settlement.
Senator Maltais: How does mediation work in provincial superior courts?
Mr. Dubois: Take the example of the Superior Court of Justice here in Ottawa. Under the provincial rules of procedure, in Ottawa, mediation in civil proceedings is mandatory. For instance, in terms of a wrongful dismissal or a lawsuit for a breach of contract or whatever the case may be, before the hearing process, the parties must proceed with mediation. I can’t provide the statistics. However, we could find them for you, since a number of cases are settled.
Senator Maltais: I have one more quick question. With regard to the disclosure of evidence, of course, you’re a litigator. I understand what this request means to you. However, I honestly don’t believe that it can be included in the act, since it would involve favouring one party over the other. The Crown prosecutors disclose their evidence during the trial, but I don’t believe that the public can access the disclosure of evidence. I’m not a lawyer, but I don’t see the need for the public to access this evidence. In the case of a class action suit, I don’t have anything against it. However, for private trials, I think that it’s unacceptable.
Mr. Dubois: In cases involving section 77 of the act, if a court appearance is made, the federal institutions prepare an evidentiary record and affidavits. It isn’t a requirement, but of course the federal institutions will want to submit evidence. This leads to two questions. Should this step be taken earlier? Also, should an obligation be imposed, perhaps in the case of documents that wouldn’t necessarily be disclosed in the affidavits if the documents were deemed unnecessary?
Senator Maltais: Thank you.
Senator Mégie: My question is related to Senator Maltais’ question. Does a language barrier impede the communication of disclosed information?
Mr. Dubois: No, not at all. Instead, it’s in the interest of ensuring timely access to justice. The Federal Court rules that govern remedies already set out a fairly quick time frame of 30 days for the applicants’ affidavits, 30 days for the defendants’ affidavits, and 15 or 20 days for the cross-examinations. The parties often extend the time frames because it takes a little longer to gather the documents for the affidavits, and so on.
I want to give you some food for thought. If the judicial or quasi-judicial process is changed and there’s a new process, should we think differently about this disclosure obligation or sharing of evidence? It would be a matter of thinking in practical terms so that it could be done early and quickly enough to ensure that everyone has access to the information that may be presented in court. If we could obtain the information at the start, we could discuss possible solutions instead of waiting a little longer.
Senator Mégie: Thank you. I was trying to see the connection with the linguistic portion.
Mr. Dubois: That is a very good question, but I am presenting my perspective as a practitioner.
Senator Gagné: Welcome, Mr. Dubois. I see that you defended the rights of the school board in the Yukon Francophone School Board, Education Area #23 v. Attorney General of the Yukon Territory (Attorney General) case. Have you ever accessed the Court Challenges Program?
Mr. Dubois: I don’t think I can answer that question because that is privileged information. However, I can tell you that some school boards have used it.
Senator Gagné: I am going to ask you another question on the same topic. I’d like to hear your opinion about the recent changes made to the Court Challenges Program.
Mr. Dubois: That is an excellent question, but I don’t think I have all of the information. To my knowledge, we are still waiting for some further details. However, if the Court Challenges Program were solid and well funded, that would be an advantage, rather than having funding simply for two, three, four or five years.
Senator Gagné: Do you think the program should be enshrined in law?
Mr. Dubois: I don’t think that would be a bad thing, because the funding may always depend on the government in power. I think that would be an asset for the communities.
Senator Gagné: In the beginning of your presentation, you mentioned that Canadian Heritage had prepared a guide; is it a consultation guide?
Mr. Dubois: It is a guide for the implementation of Part VII.
Senator Gagné: Very well. I would like you to tell us more about this guide. Is it comprehensive? Do federal institutions use it?
Mr. Dubois: I can tell you as much as I know. You heard the testimony of Canadian Heritage representatives; there are certainly some very good ideas in the guide, and I think that at a certain point some institutions implemented it very carefully, whereas in other cases, the development of positive measures was less “positive.” One of the difficulties is precisely that there is no common agreement on the value of these positives measures. That debate and that difficulty will continue to exist as long as that aspect has not been codified in law, or until we have access to more case law decisions.
Afterwards, if there are consultations, the communities and federal institutions will be in a position to determine what positive measures could encourage their implementation, both in institutions and in the wider community.
Senator Gagné: Practically speaking, if the guide is well written, it could be an answer to Justice Gascon’s decision, which stated that positive measures had not been well defined. Whether a measure is enough or not, at least there would be one. So, how do we reconcile these two things? We have an implementation guide, and a judicial decision that highlights the fact that we don’t know what a positive measure is.
Mr. Dubois: According to Justice Gascon’s interpretation of the law, I think that one of the difficulties would be to determine what must be changed in the act or in regulations made under the act to define these measures more precisely. That would probably be the best way of seeing to it that the institutions can apply the mechanisms proposed in the guide.
Senator Gagné: Very good, thank you.
Senator McIntyre: Thank you, Mr. Dubois, for your statement. As a lawyer, you raised two very important issues, which were mandatory mediation, and, naturally, disclosure.
I believe you have pleaded before the New Brunswick Court of Appeal and the New Brunswick Court of Queen’s Bench. I’d like to know about your experience before these two courts.
In addition, do you believe the Official Languages Act should recognize the constitutional specificity of New Brunswick, the only officially bilingual province in Canada?
Mr. Dubois: Thank you for your question. I adore New Brunswick and I really enjoy pleading before its courts.
One of the advantages that New Brunswick offers is that one can plead in French or in English, and that applies not only to the courts but to the entire administrative organization. I found that the judges, just like my experience there, were excellent. I remember a case that had a lot of different parts to it, and everything unfolded more smoothly than in Saskatchewan.
As for the idea of mentioning New Brunswick’s specificity in the Official Languages Act, I see no problem with that, nor any negative aspect. I think that the question is, rather, whether this would improve the law or not. It would certainly be an advantage for New Brunswick to have that enshrined in another federal act aside from the Charter.
Senator McIntyre: During our study, many of the witnesses that appeared before our committee made recommendations regarding the modernization of the Official Languages Act. Some of these recommendations were the mandatory bilingualism of Supreme Court judges, the codification of recognized jurisprudence principles, the creation of an administrative tribunal on official languages, the inclusion of the practice of co-drafting federal acts, and I’m forgetting some.
I’d like to hear your opinion on these recommendations.
Mr. Dubois: I would say that co-drafting is a principle or a practice that already exists. Is it necessary to include it in the act? I don’t think so.
I think that the obligation related to the bilingualism of Supreme Court justices is important, both from the legal standpoint and the symbolic one. I think that it would definitely be beneficial for the legal field.
As for the codification of principles, I think it is less advantageous. Last Friday, the Supreme Court handed down a decision in the Mazraani case in which it emphasized the principles of legal interpretation, such as the principles established in the Beaulac ruling. Those principles exist whether they are codified or not. I have some concerns regarding the codification of principles. Should a government decide to amend the law and remove the principles from the law, what would happen to the principles that existed, which were codified and then withdrawn? To my mind, it is less important to codify those interpretation principles, because they already exist. They have strength of law and they are applied by the courts at this time.
Senator McIntyre: Thank you.
Senator Moncion: I really like your practical approach. Can you tell me about the objectives for federal, provincial and territorial co-operation in the justice sector, and specify whether they should be included in the act? If so, based on your perspective as a practising lawyer, where should they be inserted?
Mr. Dubois: Could you explain what you have in mind when you talk about co-operation? Are you referring to programs?
Senator Moncion: It could be programs, or funding arrangements; in short, various things that are done between federal, provincial and territorial governments.
Mr. Dubois: One example, for instance, is the federal funding meant to support the administration of justice in the provinces. That is an area of provincial jurisdiction; and even if the federal government may ask the provinces to do certain things, it would be more difficult to impose conditions to require, for instance, that anyone who works in the courts be bilingual. Is that necessary? I think it is probably not realistic, but it should be encouraged.
I believe that it is not necessary to legislate on such matters. If you take the transfer provisions, for instance, I think it is more important that a government follow up in order to ensure that the province or third party respect the official language obligations that are set out in those provisions. That would probably be a very important example. Once again, this is based on the decision regarding the Fédération des francophones de la Colombie-Britannique.
Senator Moncion: From a practical point of view, you say that it is somewhat difficult to tell the provinces how to do their work in the areas of justice, education and so on. But to go back to your example on transfer provisions, how can we indeed ensure that follow-up is done and that those provisions be enshrined in law, to make sure that the funding destined for health care or French-language education is really given to those sectors? It’s the same thing in Quebec, where we must ensure that funding that is transferred to the Government of Quebec to support health care and English-language education is really allocated to those fields.
Mr. Dubois: That is an excellent question on accountability. If there were better accountability mechanisms, it would certainly be a good thing. We know that with the Protocol for Agreements for Minority-Language Education and Second-Language Instruction, it’s an issue to find out whether the money is always allocated to the right place, and if it always makes it to the francophone school boards. We need better accountability mechanisms. That is a little more difficult. You are asking for my opinion as a lawyer, but it’s a political question. I recommend that those obligations be included in the agreements and that the communities also have their word to say in those agreements.
Senator Moncion: Are those famous agreements contractual agreements? Do the provinces and the federal government sign official agreements?
Mr. Dubois: Certainly. Not all of them, but when they are contractual agreements, yes.
Senator Moncion: So, those provisions could be included in those agreements rather than in the act. Thank you very much.
The Chair: I would like to ask you a few questions of my own. I am interested in federal-provincial relationships. As a francophone lawyer, what do you see as the main obstacle to justice in French which you and your colleagues have encountered? We would like to understand what challenges a French-speaking lawyer meets in trying to do his or her work. Do the obstacles vary from one legal area to another, or from one court to another?
Mr. Dubois: First, you have heard of the Association des juristes d’expression française de l’Ontario, and of the Section des juristes d’expression française de common law. Those two organizations could tell you more about that.
I can tell you about my personal experiences. Things can vary, depending on whether you are before a tribunal or a court, and depending on your location. It can be more difficult. Generally, it takes longer to have access to French-language tribunals. For instance, in the case of a city in Ontario where you request a date for a motion, a simple motion to eliminate one of the defendants, you may obtain a date in a month, and another date three or four months later. That is a long wait for a simple motion. It could be because there are only one or two bilingual judges and they are busy with other trials. So they are less available. That is certainly one of the challenges.
The Chair: And what is the impact of those delays?
Mr. Dubois: As the saying goes in English, “justice delayed is justice denied.” The longer you wait, the less you feel you have access to justice. When we see that our colleagues in Ontario have easier access to justice in English or to justice in French in Quebec, we get the impression that less value is placed on our profession, as well as on French-language justice, and the rights of francophones. And so that symbolic aspect can also be important from the legal perspective. But, of course, that is not the case. Legally speaking, it is the wait that is the problem. I know that there are areas that must deal with a lot of issues, such as family law. Consequently, the legislation should be amended to improve access to justice in French.
The Chair: Thank you. If there are no other questions, Mr. Dubois, I want to thank you on behalf of the members of the committee for having appeared before us today. Your explanations and your experience will be most useful in our reflection and in the preparation of our report.
We will now continue our meeting in camera.
(The committee continued in camera.)