Proceedings of the Standing Senate Committee on
Official Languages
Issue No. 35 - Evidence - Meeting of December 10, 2018
OTTAWA, Monday, December 10, 2018
The Standing Senate Committee on Official Languages met in camera this day at 4:06 p.m. to continue its examination of Canadians’ views about modernizing the Official Languages Act; and, in public, to continue its study on the application of the Official Languages Act and of the regulations and directives made under it, within those institutions subject to the Act, and its examination of Canadians’ views about modernizing the Official Languages Act.
Senator René Cormier (Chair) in the chair.
[Translation]
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Honourable senators, we now resume the public session. My name is Senator René Cormier from New Brunswick. It is my pleasure to chair the meeting today.
The Standing Senate Committee on Official Languages is continuing its study on the modernization of the Official Languages Act. Today, we continue with the fifth theme of the study, dealing with federal institutions. In addition, the committee is continuing its study on the application of the Official Languages Act and of the regulations and directives made under it, within those institutions subject to the Act.
We are pleased to welcome Raymond Théberge, Canada’s Commissioner of Official Languages. He is accompanied by Ghislaine Saikaley, Assistant Commissioner, Compliance Assurance Branch; Pierre Leduc, Assistant Commissioner, Policy and Communications Branch; and Pascale Giguère, General Counsel.
Before I open the floor to our witness, I invite committee members to introduce themselves, starting on my left.
Senator Poirier: Good afternoon and welcome. Senator Rose-May Poirier from New Brunswick.
Senator Smith: Larry Smith from Quebec.
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator Maltais: Ghislain Maltais from Quebec.
Senator Gagné: Raymonde Gagné from Manitoba.
Senator Moncion: Lucie Moncion from Ontario.
Senator McIntyre: Paul McIntyre from New Brunswick.
The Chair: Mr. Commissioner, thank you for joining us. You are our final witness before the holiday period. We see you as a kind of Christmas present for us. Thank you for your recent appearance before the House of Commons Standing Committee on Official Languages. We noted your testimony with great interest.
Mr. Commissioner, the floor is yours. Afterwards, we will move to a period of questions and discussions with the senators.
Raymond Théberge, Commissioner of Official Languages, Office of the Commissioner of Official Languages: Mr. Chair, honourable members of the committee, good evening.
As you know, I appeared before the House of Commons Standing Committee on Official Languages last October 18 to talk about my 2017-18 annual report. You have before you a copy of a document called Modernizing the Official Languages Act: Vision of the Commissioner of Official Languages, which I encourage you to read very carefully.
First, I would like to recognize the hard work your committee has put in and all of the consultations it has conducted thus far with regards to modernizing the act. I am very pleased to see that this issue is important to us all, and I am following the work you are doing with great interest.
[English]
I would also like to take advantage of my appearance before you this evening to talk about something that is surely on the minds of everyone present: the Government of Ontario’s decision to eliminate the Office of the French Language Services Commissioner and to abandon plans for a French language university in Toronto.
Understandably, Franco-Ontarians disagree with the proposed compromise to move the commissioner’s office to the ombudsman’s office, a move that would reduce the commissioner’s role significantly by eliminating his ability to promote and recommend ways to improve French language services in Ontario. I have thus come to the sad conclusion that the trend to undermine language rights knows no borders.
As Commissioner of Official Languages, I have a duty to represent official language minority communities throughout the country. These communities are currently at the centre of a major identity debate. The Government of Ontario’s recent announcement is a serious setback for language rights. In fact we are starting to see examples of this well beyond Ontario’s borders, like the uncertainty around the future of linguistic duality in New Brunswick following the most recent provincial election and the disappearance of the French education branch in Alberta’s Ministry of Education where French language services are now integrated with those of the majority.
After all the work that has been done over the past half-century, I believe we need to re-examine our social contract. Official languages are everyone’s business.
Setbacks in terms of language rights have a negative impact on all Canadians. Leaders have a duty to protect the gains we have made. This is my goal as Commissioner of Official Languages of Canada. I am calling on all of our elected officials to do the same regardless of politics or political affiliation.
Moving on, I would like to explain what modernizing the act means for my office. The fiftieth anniversary of the act should be the springboard that makes modernization a top priority.
The 1969 and 1988 acts address the special social contexts and realities of their time. The years that followed each resulted in significant advancements in terms of official languages and Canadian identity. This legislative process has consolidated and codified the legal foundation on which Canada’s linguistic duality rests. The challenge now is to ensure complete implementation of the act to give it full effect.
Considering the experience and the current context of the Office of the Commissioner of Official Languages, it is clear that this cannot be accomplished without making major amendments and structural changes to the act.
My vision for modernizing the act is based on three pillars: having an act that is relevant, dynamic and strong.
[Translation]
The modernized act should, in every aspect, reflect both the current needs of Canadian society in the future aspirations of that society to be a country that fully embraces linguistic duality. It must therefore be relevant to our current context and be able to adapt to changes in Canadian society while resting on a solid jurisprudential foundation. It must also clearly define the responsibilities of the various key stakeholders involved in its implementation and the means they have to ensure compliance.
To achieve this, the government must ensure better access to the federal justice system in English and in French; it must clarify the obligations regarding communications with and services to the public and make sure they meet the needs of Canadians; it must update and clarify the rights and obligations regarding language of work within the Canadian public service; and it must develop a regulatory framework to deliver on its commitment to enhance the vitality of official language minority communities and to foster the full recognition and use of both official languages.
The legal principles that have changed the way language rights are interpreted and applied today, such as substantive equality, should also be entrenched in the modernized act to ensure a solid foundation.
Drafting a technology-neutral act to ensure its relevance as new technologies emerge, and requiring that the act undergo a regular review are two solutions that would help to keep the act dynamic.
The current modernization of the act is the first opportunity since 1988 for the government to think seriously about the changes that could be made to the act in terms of governance. If roles and responsibilities are clearly defined, I dare say that federal institutions will be better able to comply with the act.
Federal institutions that value the equality of English and French are more likely to provide services to and communicate with the public in both official languages, to support official language minority communities with real action, and to advance linguistic duality in Canadian society.
Similarly, federal public servants whose work environment is conducive to using both official languages will be more likely to deliver quality services in both official languages to Canadians. To achieve this, federal public servants’ language-of-work rights must be consistent with federal offices’ obligations to serve the public in both official languages.
[English]
That’s why the two recommendations in my 2017-18 annual report concern the review of the two currently used to evaluate federal institutions official languages performance, as well as the implementation of the recommendations made in the 2017 report of the Clerk of the Privy Council on language of work.
My office is currently developing a new tool: the very first official languages maturity model that will be launched in time for the fiftieth anniversary of the act in 2019. The tool will help federal institutions perform an organizational assessment and help them ensure continuous improvement in terms of official languages.
However, beyond tools and mechanisms, leadership is what really matters and what really has to be shown both by the government and throughout the public service at every level.
The goal we are trying to achieve may seem daunting, but if we are aiming for consistent and effective service delivery, federal institutions must also improve and advance to get to the point where complying with the act is an integral part of the process in an organizational culture that takes both official languages into full account.
I am counting on the federal government to provide ongoing leadership so that the act can truly be modernized. Official languages must continue to be a federal priority to foster the development of linguistic duality in Canada. Simply updating the provisions of the act without examining the responsibilities of various key stakeholders and the means they have to ensure compliance would be a missed opportunity to create a truly strong act that inspires exemplary implementation.
An act that is clearer and leaves less room for interpretation is an act that will be more effective and easier to implement.
[Translation]
Thank you for your attention. I am now ready to answer your questions, which I invite you to ask in the official language of your choice.
The Chair: Thank you very much, Mr. Commissioner. So we will now start our discussion. I remind my colleagues that we have five minutes for questions and answers for each of you in the first round. If we have time, we will have a second round of questions.
Senator Poirier: One of the major issues in modernizing the Official Languages Act is its implementation. A number of witnesses have told us, as you did, that the direction and the leadership must be clear. However, this summer, the government decided to make the choices a little less clear by removing the official languages portfolio from the Minister of Canadian Heritage.
In your opinion, how can we amend the act in order to avoid a similar situation and to provide clearly defined direction and leadership?
Mr. Théberge: With the governance of the Official Languages Act, it is important to establish principles that could be reflected in the text of the act. When you talk about the direction and the leadership, you have to talk about who is responsible. In other words, who is in charge of implementing the act? Starting in 2003, a minister was responsible for official languages and there was a committee of ministers with responsibility for official languages. Previously, we also had a committee of deputy ministers responsible for official languages. Now, we have a committee of assistant deputy ministers of official languages, divided between Canadian Heritage for Part VII and the Treasury Board for Parts IV, V and VI.
It is important to establish governance that is much more horizontal and that has an entry point. Which point? I do not know. The studies and the consultations we have conducted suggest a central organization, perhaps the Privy Council. I do not know, but it must be very clear who is responsible for official languages. It is also important to make sure that official languages are key priorities when departments plan their work.
First and foremost, our challenge today is knowing who is responsible for official languages. Saying that everyone is responsible implies that no one is responsible.
Senator Poirier: My second question deals with your analysis of the amendments proposed to the regulations. We all agree that this is a step in the right direction and that the existence of a school is an indicator of the need to provide bilingual services. You point out the difficulty that the general public continues to have in knowing where and how to obtain services in the official language of their choice. Why would it be difficult for Canadians to know where and how they can obtain services in the official language of their choice? Can you be specific about the complexity of the regulations and what makes them so complex?
Mr. Théberge: First, the proposed amendments to the regulations contain some positive features. The definition is much more inclusive. However, there are shortcomings in three areas, in our opinion. First, schools are used as the indicators of a community’s vitality.
Currently, schools are often found in more developed areas, and we know very well that it is difficult to set up new schools in new areas where none exists. A community’s vitality is not simply determined by the presence of a school. There might be a cultural centre, an economic development organization, or francophone media. We should broaden the concept of vitality to include qualitative factors as well as quantitative ones. We should never define access to services by the ratio of francophones to the majority.
In the long term, given the demographic changes — accepting that, in the regulations you are proposing, there is a provision on vested rights in rural areas — this does not account for what is happening in major centres. We know that there is a movement towards major centres, so the target of 5 per cent of the population will not be reached. In our opinion, an absolute number would be much better.
Finally, the complexity is in the mathematical calculations. The formula is very complicated. For example, the travelling public may be eligible for bilingual services on one flight, but on another flight, even on the same route, that is no longer the case. We must define where the services are available. When we talk about the language of work and the regulations, the regions designated bilingual reflect the reality of 1977. There is no correlation between the offices designated bilingual and the places where public servants have to work.
Senator Gagné: Welcome to you all. I am always happy to see you at our committee. Mr. Théberge, in terms of modernizing the Official Languages Act, you are championing an act that is relevant and that reflects today’s society, an act that is strong and dynamic. To make the act dynamic, you suggest the following, and I quote:
. . . by entrenching in the Act the key principles that have changed the way language rights are interpreted and applied today, such as substantive equality, the remedial nature of language rights and the Act’s quasi-constitutional status.
In your opinion, what would be the effect of recognizing those principles in the act? At the moment, the government is supposed to observe those interpretive principles. However, would enshrining them in the act mean that regulations or guidelines could be adopted to explain to departments the way to determine the remedial role of the act or the resulting services?
Mr. Théberge: When we talk about enshrining those three great principles into the act, it is important to recognize that doing so will allow the courts to interpret it much more broadly. If we use substantive equality as an example, which is one of society’s great challenges at the moment, we see that the two languages do not have the same status everywhere in the country. If we enshrine it in the preamble, it does not give it the force of law, but an interpretive force, which will make the act much stronger and allow the courts to use it in their judgments. The 2009 DesRochers v. Canada (Industry) case was about substantive equality, and there have been others. We can often see in our daily activities that substantive equality is actually the inequality of status of the two languages.
The remedial nature of language rights is the other major point. It is not just about determining whether or not there has been a violation, but to establish a position on what we do to help communities achieve equality.
As for the tools, it will be extremely important to be able to demonstrate that this is quasi-constitutional legislation that exists to support equality of status, the use of French and English and its remedial nature. If we can ensure that communities develop, the remedial nature will require us to take positive measures to get there.
Senator Gagné: Which means the regulations to Part VII.
Mr. Théberge: It does indeed.
Senator Gagné: You brought up Justice Gascon’s appeal decision when you mentioned positive measures. That is the case that involves the FFCB and deals with the interpretation of Part VII of the Official Languages Act. Minister Joly has said that she encouraged you to interpret Part VII broadly. What is the government’s position before the Court of Appeal? Did the government lawyers not argue in favour of a restrictive interpretation at first instance?
Mr. Théberge: Yes, they did. It is one thing to say that we favour a very broad interpretation of the judgment, but it is still enforceable. We can go as far as the judgment allows. As you mentioned, the federal government is one of the interlocutors on this issue. The Gascon decision is more evidence that we absolutely must modernize the act, particularly Part VII. Part VII is the key to the communities’ development and vitality, but it is a part of the act that lacks precision. That is more or less what the judge used as his basis. In fact, in his judgment, Justice Gascon invites us to appeal, because there are far too many ambiguities. The term “positive measure” is not defined. What does the word “vitality” mean as a commitment on the part of governments? We need definitions. It is important to have a preamble that focuses on equality. Then, it is important to have definitions for the terms “positive measure” and “vitality.” There will then have to be guidelines to say what a positive measure is. The judgment indicates that almost anything can be a positive measure. For example, if a department decides to set up a committee to study the issue, it is a positive measure. So the definitions need to be clarified.
It is also important to have a list of institutions that must be included in Part VII, institutions with a mandate, a specific mission. For example, Statistics Canada data are heavily relied upon to implement section 23 of the Canadian Charter of Rights and Freedoms with respect to schools, for example. The data determine where the regulations require services to be provided in English or French. Some federal institutions are crucial. They should be included.
There should also be a government-wide plan to ensure that the federal government’s commitments to official language communities are sustainable. Part VII is still the place where a regulatory framework must be developed to provide much better guidance to federal institutions.
The Chair: Before I go to Senator Mégie, I have a subquestion. In your special report to Parliament on modernization, you talk about the issue of compatibility between Part IV and Part VII. I quote from your report:
In concrete terms, in order to implement this principle, modernized Regulations should seek to:
encourage a holistic rather than a compartmentalized implementation of the Act that includes a consistent and effective application of the various parts of the Act and, in particular, Parts IV, V and VII.
Should this principle apply to all parts of the act? What is your point of view?
Mr. Théberge: Yes, with our proposals, we are aiming for complete and consistent implementation of the act. We cannot have inconsistencies between Part IV and Part V and expect to have communications and service delivery in both official languages. The same applies to Parts IV, VII and III. Over the years, amendments have been made and items have been added without taking into account other parts of the act. Parliamentarians need to study all parts of the act to see how they can blend with each other and provide a coherent approach. That is clear. It is a basic principle.
The Chair: Would we need mechanisms for that? How do you think it would be done?
Mr. Théberge: We are developing a set of recommendations that will take into account the impacts of the proposed changes on Parts V, VI and VII. There is also the impact on Part IX, which deals with the powers of the commissioner. We have to look at all of it together.
The Chair: Thank you, Commissioner.
Senator Mégie: Earlier, you talked about how strong the act must be because of its three pillars: relevant, dynamic and strong. From the evidence we have heard, the act probably does not have enough teeth, would require sanctions, and so on. Everyone was looking at it from their own point of view. I thought that, in terms of robustness, one leader could manage it all. However, I see that you have proposed two bodies: one dealing with Parts IV, V and VI, and Canadian Heritage, dealing with Part VII. Did I misunderstand?
Mr. Théberge: Yes. That is the current situation. It is not what we want. We want governance to be centralized.
Senator Mégie: Perfect. It was not clear to me. Thank you.
Mr. Théberge: You’re welcome.
Senator Maltais: Mr. Théberge, governance is a real mess. We have three ministers, three groups of public servants, three groups of deputy ministers, three groups of assistant deputy ministers, three branches, three assistant branches. When do you think your letter will reach the minister? Never. Is the only real way to make things happen for official languages to put them under the Privy Council, as you said earlier in your introduction? If we do that, the directives from the Privy Council will go to all departments.
The person responsible to the public will be the President of the Privy Council, or the Prime Minister. That is the only way we will get an Official Languages Act implemented. Otherwise, we are dreaming in Technicolor. We cannot rely on punitive rules, because the resistance is coming from the federal government. The Queen is not going to fine herself. The only way to get there is to rely on the strength of the Privy Council, which has to send very clear instructions to the various departments.
I repeat, if we want this legislation to be implemented, we have to forget the Minister responsible for Official Languages, forget the Minister of Canadian Heritage, forget the President of the Treasury Board. None of that works. They just talk; they don’t do anything specific. You can go ahead now.
Mr. Théberge: In all our consultations with some 50 groups across the country, the issue of governance was fundamental. Among the various suggestions, the subject of a central body came up a number of times. We even mandated Donald Savoie, a well-known expert, to share with us his vision of governance in the next act. Everyone agreed on a central body. Which one? There, opinion was divided. We are thinking about it right now and we are going to come up with a recommendation. Clearly, the Privy Council has some power; however, if we go back to 2003, Minister Dion was in place. Is that the right solution? It is certainly part of the solution. I believe that parliamentarians will have to take a serious look at the matter.
Senator Maltais: As long as departments are not accountable, they will consider it a burden. For some major departments — whether the one responsible for Air Canada or for the various airports, in particular — it is not a concern, not a concern at all. Someone has to get them going. The minister responsible for those organizations will have to answer to the Privy Council. Ministers do not like incurring the Privy Council’s wrath. In many cases, that even leads to resignation. In this way, they will ensure that the organizations in their jurisdiction apply the Official Languages Act. If there’s no pressure, we won’t get anywhere.
In Quebec, the Office québécois de la langue française had to be created to enforce the law. Goodness knows, that’s not even perfect yet. However, the minister responsible for the Office québécois de la langue française reports to the premier. So when you intervene, you notify everyone, including the Prime Minister. If there is no follow-up to your recommendations, the Prime Minister will take up the torch. I don’t see any other way. We have heard some lovely wishful thinking here, but when we asked about accountability, no one had an answer. The President of the Treasury Board has twice told us that he is not able to give us any information, because it gets into overall equalization transfers, and so on.
In the end, are we going to go round in circles forever or are we going to stop messing around and say that the Privy Council is responsible? I don’t see any other way. If you know of any other miracle solutions, feel free to tell us about them. For 15 years —
The Chair: Senator, I’m going to have to interrupt you. Maybe you can take this up again in the second round. Thank you for your question and comment.
Senator Moncion: On December 3, you met with Minister Joly, I believe. Correct me if I’m wrong.
Mr. Théberge: It was in November.
Senator Moncion: Okay. Following that meeting, a letter seems to have been sent to all ministers reminding them of the importance of interpreting positive measures broadly — as you mentioned earlier — given that there are few definitions and guidelines for positive measures, and reminding them about the guide for federal institutions on Part VII. Have you received any news from any departments in response to that famous letter?
Mr. Théberge: No. We have received nothing from federal institutions as a result of that letter. Perhaps it would be good to clarify. The Gascon decision does not prevent federal institutions from taking positive measures. People of good will can move forward with no problem.
I met with a group of senior officials and asked them if they were aware of the Gascon decision. Very few of them were. In principle, it is not considered as an impediment to positive measures. On the other hand, if we work less upstream, so to speak, we can certainly bypass broad positive measures, and limit ourselves to positive measures that are very narrowly defined.
At the moment, this judgment is under appeal, and as long as that is the case, it has the force of law. That is why it is important to appeal. I can tell you right now how it will work. No matter who wins, the case will go to the Supreme Court. That will take a very long time, hence the importance, in my opinion, of focusing on modernizing the act, where the timeframe is much more reasonable. At least, I hope so.
Senator Gagné: Is there not a contradiction there? On the one hand, the government is in court opposing a broad and liberal interpretation of the Official Languages Act; on the other hand, the minister is asking federal institutions to interpret it broadly and liberally. Isn’t there a contradiction in the system?
Mr. Théberge: You are right. The government is in court and actually limiting the rights of francophones in British Columbia.
Senator Moncion: I thought you might have received information from the various departments.
Now, let us talk about the self-evaluations done by federal institutions. They had a questionnaire to complete, I believe, in order to give you feedback on the various departments’ records on official languages. It was a self-evaluation. Can you give us any information about that self-evaluation exercise?
Mr. Théberge: It was done through Treasury Board. We are receiving many of those reports, which are uneven in quality, if I may put it that way. For example, some are presented as a list of activities. In our annual report, we noted that the evaluation tools are not up to the task. We will need new tools if we are to truly understand what is happening in federal institutions. As I mentioned earlier, in 2019, we will be launching a new tool called the official languages maturity model. This is a diagnostic tool. In many federal institutions, they report because they have to. You get what you get.
Senator Moncion: That is the answer I expected.
The Chair: I would like to make a comment before giving the floor to Senator McIntyre.
I didn’t know this was called a self-evaluation. From reading several of these reports, I’ve noted that there is an account of the completed activities related to their obligations, but that there isn’t much evaluation of what has been done less well and what could have been done better. Am I mistaken?
Mr. Théberge: Basically, I would call it an activity report: Several activities have been done, so here is the report. The impact of interventions isn’t measured. This isn’t done on the basis of results. Ultimately, it becomes a part of the mechanics of the apparatus. This isn’t going to change the behaviour of federal institutions.
The Chair: Thank you.
Senator Moncion: These are still set questionnaires.
Senator McIntyre: Thank you, Mr. Théberge, for your presentation. In listening to you, it is more important than ever to modernize the current act and to have good regulations to support it in order to preserve our linguistic gains. Speaking of the regulations, do the changes made to them meet the five principles set out in your special report to Parliament?
Mr. Théberge: The short answer is no. As I mentioned earlier to Senator Poirier, there are three aspects with which we don’t agree. First, there is still the mathematic formula for calculating where the number is significant, when we should be aiming for an absolute number. This figure can easily change doe to demographic changes, immigration and so on.
Second, the concept of vitality is far too narrow. As I said earlier, there are many communities that don’t yet have a school and, as you know, it is very difficult to get schools in these communities. This penalizes emerging communities compared to established communities. Last, services shouldn’t be defined based on the size of the minority in relation to a majority.
Senator McIntyre: My next question is about your 2017-18 annual report. This report provides a snapshot of the number of complaints received. It is true that the number of complaints has decreased compared to last year, and we note a growing number of complaints related to Parts IV, V and VII and section 91 of the act. How do you explain the steady increase in complaints related to those parts?
Mr. Théberge: There are several reasons, but one of the main ones is that people are increasingly aware of their rights and the complaint mechanism. In addition, it is important to mention that, although there was a slight decrease in the number of complaints, the previous year was a record year. Fifty per cent of complaints are related to public services, whether it is Air Canada, airports, border services or others. Then there are many complaints related to section 91. The classification of positions in terms of linguistic profile is very important here. Very often, there is a tendency to underestimate the language skills required for a position.
There are far fewer complaints related to Part VII than for the other parts, but the increase in the number of complaints is clear. After about 10 months in office, I see that there are systemic complaints dealing with the same institutions. Yes, some respect our recommendations, but this doesn’t change behaviour. Here’s the problem: Behaviours don’t change because there are no consequences.
Senator McIntyre: I note that the Canada Border Services Agency, Air Canada and the Department of National Defence continue to be among the five institutions that receive the highest number of complaints. What obstacles do these institutions face? Will the amendments to the regulations help these institutions to improve their performance?
Mr. Théberge: For the past 27 years, Air Canada has always ranked first, second or third in terms of the number of complaints. We have had meetings with Air Canada. It’s trying hard. There are operational problems there. One thing is clear: We don’t have power beyond the power of recommendation.
In the special report on Air Canada, we discussed certain compliance mechanisms, such as monetary penalties, enforceable agreements, transactions or others. For some — not for the majority — you need to give yourself the necessary tools to be able to do a follow-up.
Senator Maltais: Since we’re talking about Air Canada, it is acting in bad faith. I’ll give you an example. You will check it out. I’ve checked it three or four times.
When you travel with Air Canada on a long-haul flight, you are offered a small catalogue. When you signal to the flight attendant and say in French that you would like to order a particular item, the flight attendant will look for someone who speaks French. It takes 10 seconds, because it’s a sale. It’s money in their pockets. But when they make announcements, they are entirely in English.
On a few occasions, on my way back from Europe, Air Canada ran out of space and transferred me to another airline like Lufthansa. Air Canada speaks only one language, while Lufthansa offers service in German, English and French. Its agents are able to do so, but not those of Air Canada. I don’t understand. It’s bad will. You may meet with its representatives and make complaints, but, as you say, you have no punitive power. If you had the power to impose a fine of $1 million a day until it complies, it would find bilingual flight attendants very quickly. In a week, there would be some from coast to coast to coast. At the moment, you can only deplore the situation.
The Chair: Did you have a question?
Senator Maltais: Not at all.
The Chair: Okay, thank you. I was waiting, because I wanted to be sure.
Senator Maltais: I know the answer.
Senator Moncion: I would like you to tell me about additional powers, such as the sanction powers that the Commissioner of Official Languages could have. Several have proposed it as one of the amendments to be made to the Official Languages Act. I would like to hear what you have to say about that.
Mr. Théberge: In our consultations, the issue of the commissioner’s powers came up repeatedly. It is clear that, since I took office about ten months ago, my thinking has changed a lot about compliance mechanisms. As I said earlier, we have a lot of investigative and subpoena powers, but ultimately, all we have is a power of recommendation.
In the Air Canada study, some mechanisms were identified. There are two that come up often. The first concerns enforceable agreements, that is, compliance agreements negotiated between the institution and the Office of the Commissioner. There is a timetable and a legal document that leads to consequences. The other approach concerns administrative monetary penalties, or AMPs. This has happened often, because there are other officers of Parliament who use administrative monetary penalties for different types of violations. What we are considering is creating a linguistic duality fund for communities following the sanctions that would be imposed. It is clear that, in many cases, having the opportunity to impose a sanction will change behaviour. As for the subpoena, Ms. Saikaley will correct me, but I think it has never been used in the last 50 years. We often said we wanted to do it, but just mentioning it allowed us to get the documents and information we needed.
The Chair: Mr. Commissioner, could you quickly explain what a subpoena is?
Mr. Théberge: It is a power that allows us to seek information legally. If someone doesn’t want to give it, they are sent the subpoena and they have no choice but to give it to us. It is a very valuable tool, even if it isn’t used. It’s clear that, when I meet with representatives of federal institutions, their approach is to manage risks. If a complaint is filed against an institution and the complaint is well-founded, what happens? Instead of working upstream to ensure that official languages are part of their organization and planning, they manage the risk. I think that if we don’t adopt compliance mechanisms, we will continue to experience this situation.
Senator Moncion: Do you want to have sanctioning authority? I know you have some, but they’re more of a persuasive power right now. Is that something you would like to see written into the act? Would you like to create an administrative tribunal to hear these cases?
Mr. Théberge: Indeed, we are talking about an administrative tribunal, and this suggestion was raised in most of our consultations. I am not against the idea of an administrative tribunal, but it depends on what type it is and how it works. The Canadian Human Rights Commission has an administrative tribunal, and this is a very relevant example, because it is the commission that refers cases to the tribunal. Not all complaints end up in court. There are specific facts about the type of complaints that are referred to the court. Often, these are clarifications of the point of law. As well, the commission examines the complexity of the cases and determines whether an investigation has been conducted. In this sense, it would be a remedy for complainants that would be much less costly and much faster than the Federal Court. That said, there are several models of administrative tribunals, and it will be up to parliamentarians to decide what type of administrative tribunal they want to establish. They also establish the additional powers granted to the commissioner. It’s a decision that’s not up to me.
Senator Moncion: Thank you.
Senator Poirier: You said you only had the power to make recommendations. Who do you direct your recommendations to when they concern an organization? Does it have an obligation to respond to your recommendations?
Mr. Théberge: Generally speaking, we address our recommendations to the institution’s general administration. In the majority of cases, the obligations are met. It’s only in some cases that our recommendations are questioned. The problem is that the recommendations are respected but the behaviours don’t seem to change. Ms. Saikaley has much more experience than I do with recommendations and their implementation, but I think she would agree that they are respected, but that very often —
Senator Poirier: They are forgotten.
Mr. Théberge: Yes.
Ghislaine Saikaley, Assistant Commissioner, Compliance Assurance Branch, Office of the Commissioner of Official Languages: We always follow up on our recommendations. We always allow some time for institutions to implement our recommendations. Usually, after some time, we follow up to see whether the recommendations have been implemented, and write a new report. If they have not been implemented, at that time, the commissioner sends a new report indicating that the recommendations have not been implemented.
Senator Poirier: If not, does the report remain on the shelf?
Ms. Saikaley: It can, indeed, happen that they aren’t implemented, but as Mr. Théberge mentioned, it is very rare. We see that most federal institutions have implemented the recommendations. Then, the commissioner can use another of his tools, he can do an audit and plan other interventions. He could even go to court if appropriate.
Senator Poirier: Okay. So you put pressure with regard to your recommendations, and that’s a good thing.
Ms. Saikaley: Yes.
Mr. Théberge: Yes.
The Chair: So I have two questions for you. I’d like to bring you back to the issue of the administrative tribunal, Mr. Commissioner. You mentioned the Canadian Human Rights Commission. Our witnesses tell us that the work of that commission is very long. Are there any other models? It seems to be a model where complaints that are filed take time to be heard.
Mr. Théberge: Are you talking about complaints that are filed with the commission or complaints that are redirected to the tribunal?
The Chair: Both, actually. In terms of the administrative tribunal, when the example of the human rights tribunal was given, people said that the process was slow. Is that the case? If so, are there any other models where the process for handling complaints wouldn’t be as slow?
Mr. Théberge: No examples come to mind right now, but perhaps Ms. Giguère can think of some.
Pascale Giguère, General Counsel, Office of the Commissioner of Official Languages: There are many administrative tribunals at the federal level. A number of administrative tribunals constitute a second tier for handling labour complaints. An administrative tribunal hears the complaints after the grievances have been through all the stages. The Human Rights Tribunal is the example that most closely resembles us. A commission investigates the complaints, then a second-tier tribunal has the remedial power to award damages and a range of other remedies. It’s certainly the example that most closely resembles us. However, in terms of the different types of administrative tribunals at the federal level, there are a number of models.
The Chair: Okay.
Mr. Théberge: When we talk about an administrative tribunal in the case of the Office of the Commissioner, the key point is that it’s not up to us to decide what type of administrative tribunal could be established. It’s up to the parliamentarians. We don’t have an issue with it. However, the tribunal needs to work properly, because we don’t necessarily want to create more and more delays. We must also ensure that not all complaints — we’re taking about 800,000 complaints — will be transferred to an administrative tribunal, because that wouldn’t result in many changes. A tribunal’s role would be to rule on the important issues.
The Chair: Okay, thank you.
My last question concerns your investigation reports. If my information is correct, in New Brunswick, the commissioner’s investigation reports are released to the public. What do you think about this? What do you think about the idea of making the Office of the Commissioner’s investigation reports public?
Mr. Théberge: We can now make the recommendations resulting from an investigation public, and we do this. We can now find summaries of investigations conducted by the Office of the Commissioner of Official Languages on its website. When the investigations are released to the public, the relationship with the federal institutions changes. We’re currently seeing a great deal of collaboration and cooperation on the part of federal institutions. If everything provided by the institutions is posted on the website, it could change this relationship. This doesn’t mean that we shouldn’t take this step, but we need to seriously consider it before we act. We’ve often discussed the matter internally to determine what type of information should be released. I don’t know whether it’s really an incentive for the federal institutions, but we need to seriously consider it.
The Chair: Wouldn’t it make federal institutions more accountable? Wouldn’t it give you more power? Wouldn’t the release of the investigation reports increase both your powers and the accountability of federal institutions?
Mr. Théberge: It could have a positive impact. It could also simply be part of a risk management calculation. For example, if the reports automatically appear on the website, the federal institutions could decide to handle the issue later, since there wouldn’t really be any consequences for them.
The issue is that no one is accountable. In 2003, there was a minister responsible, and then there were deputy ministers responsible. I believe that, as long as this responsibility is non-existent, this type of action won’t necessarily take us very far.
The Chair: Okay, thank you.
Senator Maltais: You mentioned websites. By any chance, do you intend to recommend a grade two student who could translate it into French? At the moment, the language used for the French version is neither French nor English. The number of errors make it incomprehensible to everyone. Have you looked at the government website and seen the calls for tenders? It’s a real disaster.
Mr. Théberge: It’s true that we’ve received a number of complaints regarding the calls for tenders. Google Translate is sometimes used to translate the calls for tenders. We’ve met with some departments to ensure that they address this issue and use the necessary resources to obtain real translations and that they stop translating using Google Translate. Sometimes people think that they’re doing a good job with Google Translate. However, they have no idea what they just translated since they don’t know French.
Senator Maltais: It could be translated into Latin and they wouldn’t know.
Mr. Théberge: Once again, the technology isn’t fully developed, is accessible to everyone and doesn’t produce the desired results.
The Chair: Mr. Théberge, on behalf of the committee members, I want to thank you and your colleagues from the Office of the Commissioner of Official Languages for your work. Our discussions and collaborative efforts as part of the modernization of the act are extremely important to all Canadians. The work will continue, and we want to thank you for joining us today.
On that note, colleagues, I wish you a good week.
(The committee adjourned.)