Proceedings of the Standing Senate Committee on
Official Languages
Issue 9 - Evidence, November 27, 2006
OTTAWA, Monday, November 27, 2006.
The Standing Senate Committee on Official Languages met this day at 4 p.m. to study and to report from time to time on the application on the Official Languages Act and the regulations and directives made under it, within those institutions subject to the act.
Senator Maria Chaput (Chairman) in the chair.
[Translation]
The Chairman: Good afternoon, and welcome to the 17th meeting of the Standing Senate Committee on Official Languages. My name is Maria Chaput, I am the Chair of the committee and I am from Manitoba. Before turning the floor over to our witness, I would like to introduce the members of the committee present today: Senator Andrée Champagne, Deputy Chair of the committee, who comes from Quebec; Senator Lowell Murray, from Ontario; Senator Gerald Comeau, from Nova Scotia; Senator Mobina Jaffer, from British Columbia; and Senator Fernand Robichaud, from New Brunswick.
Today, we are continuing our study on the application of the Official Languages Act. First, we have a representative from the Fédération des communautés francophones et acadienne du Canada, namely Diane Côté, the Director of Community and Government Relations.
We have asked the FCFA to provide us with their perspective on the proposed amendment to the Official Languages Regulations — Communications with and Services to the Public, recently published by Treasury Board.
Welcome to our committee, Ms. Côté, the floor is yours.
Diane Côté, Director, Community and Government Relations, Fédération des communautés francophones et acadienne du Canada: Madam Chair, I would first like to apologize on behalf of our Vice-President, Ms. Lise Routhier- Boudreau, who was supposed to be here today to present this brief. She had to leave the city due to a family emergency. We would like to thank you for giving us the opportunity to speak today.
We would like to share with you our concerns regarding the proposed amendment to the Regulations published in the Canada Gazette on October 7 last. We would also like to emphasize how extremely disappointed we are that the government did not take this opportunity to more thoroughly review its approach on official languages, particularly with respect to the Official Languages Regulations.
The draft regulations you are currently reviewing are a response to the Federal Court's decision in Doucet v. Canada, on the Royal Canadian Mounted Police linguistic obligations in relation to the stretch of the Trans-Canada Highway serviced by the Amherst detachment in Nova Scotia. Unfortunately, the government has adopted a minimalist approach in response to the decision by limiting the service-in-French obligations to a single stretch of the Trans-Canada Highway where an entry point to another province which is officially bilingual, is located. In other words, the amendment only affects the Amherst detachment.
Furthermore, the government is imposing an additional evidential burden by making it a requirement that there will be a demand of 5 per cent or more in the minority language in any given year. The proposed amendment to the Regulations, as currently worded is, in our opinion, entirely unacceptable for several reasons. First, we do not believe a requirement in relation to a demand is necessary given that the Federal Court has already accepted evidence to the effect that demand already far exceeded 5 per cent of total annual demand. Second, we would have hoped that the government would have, at the very least, acknowledged the travelling public's need for services in both official languages along the entire Trans-Canada Highway, and not just along Highway 104 between New Brunswick and Nova Scotia.
Indeed, Canadians, as well as tourists visiting our country, do not use trains, planes and ferries only as a means of transportation, but also cars. It would seem quite appropriate for the RCMP, which is a federal institution providing police services in several provinces, to be responsible for providing services in both official languages along the entire Trans-Canada Highway as well as other major roads very heavily used by tourists.
It needs to be understood that the travelling public includes people from far and wide and not only people from the town, city or region serviced by a specific RCMP detachment.
We are also disappointed that the government did not take into account the recommendations set out by the Commissioner of Official Languages in her 2005 annual report nor the Federation's many requests to have the Official Languages (Communications with and Services to the Public) Regulations reviewed.
It seemed an appropriate time, in view of the adoption of the new Part VII of the Act, for the government to engage communities in a deeper analysis of the overall application of the linguistic system.
In fact, the obligation to take positive measures to enhance the vitality of the official language linguistic minority communities and to support and assist their development and, in particular, the obligation to take positive measures to foster the full recognition and use of both English and French in Canadian society should, in our opinion, change the way we look at the linguistic system. Communications with and services to the public are the public face the government shows to the Canadian public. They represent the point of contact between Canadians and their government.
The official languages (Communications with and Services to the Public) Regulations, outline the way these services are to be provided, and to whom. The Regulations were developed in the late 1980s and implemented in the early 1990s. A lot has changed, however, over the past 15 years, whether it be at a provincial or federal government level or from the standpoint of francophone and Acadian communities. The arrival of Service Canada and new service delivery methods such as the one stop shop, Government On-line and 1-800 in Canada have transformed the way government deals with Canadians.
Canadian immigration policies are such that an increasing number of Canadian residents' mother tongue is neither French nor English. The Supreme Court of Canada decisions, such as in R. v. Beaulac help give us a better understanding of the federal government's obligations with respect to official language minority communities.
The adoption, last fall, of the new Part VII compels federal institutions to take positive measures to enhance the vitality of linguistic minority communities and support and assist their development, and foster the full recognition and use of both English and French in society.
Some provincial governments have enacted legislation or adopted policies with respect to services in French which sometimes provide for a more generous provision of services than what is stipulated under the current regulations.
At a community level, the approval of school management has led to francophone schools shooting up in several new locations. Furthermore, the increasing number of mixed marriages, along with the effects of immigration, have made many of our communities more diverse. In these communities, French is no longer necessarily the mother tongue of most residents, but rather the language of choice and the language used in public.
The way Canadians perceive linguistic duality has also changed quite substantially. A study commissioned by the Office of the Commissioner of Official Languages and conducted by Decima Research, in February 2006, indicates that 72 per cent of Canadians are in favour of nationwide bilingualism, and 70 per cent of Canadians support their province being bilingual. This is an increase of 16 per cent when compared to the results of a similar survey carried out in 2003. Among 18 to 34 year olds, this support is as high as 80 per cent.
Moreover, the 2003 Léger Marketing study following the tabling of the Official Languages Action Plan indicates that 81 per cent of Canadians agree that members of the public should be able to get service from the federal public service in the language of their choice, be it French or English. As many as 94 per cent of 18 to 24 year olds across Canada support this assertion.
Consultations led by the Office of the Commissioner on Official Languages last year highlighted the importance of a number of fundamental principles, including real equality between the official languages, the remedial nature of language rights, the consistent and effective implementation of the Official Languages Act and improved access to services of equal quality.
A number of major gaps in the current regulations have also been identified. For example, Statistics Canada's method 1 definition of the minority population does not reflect the current sociological reality, especially when it comes to the bilingual identity of children from exogamous couples, immigrants whose mother tongue and language spoken at home is neither French nor English, but who use French in public, and families where French is spoken regularly at home, but is not the language spoken most often.
The current trend of using strictly numerical or demographic criteria does not adequately reflect the distinct nature of communities, and the degree to which they are concentrated. Insufficient consideration is given to the needs of the travelling public and, currently, there are no rules or standards with respect to the quality and methods of service delivery. Moreover, the current regulations' complexity is such that only experts can really understand them.
It is often, therefore, very difficult for francophones to know where they can access the services they are entitled to in their own language, especially when travelling outside their area. In fact, to become fully familiar with these rights, Canadians need to be experts at using the federal government's search engine Burolis. This is not what you would expect when it comes to a constitutional right. It is for all these reasons that we believe the regulations need to be entirely reviewed.
The proposed amendment to the regulations, which you are currently considering, was developed in order to respond in the most limited way possible to the decision handed down in the Doucet case. The Human Resources Management Agency has admitted it did not follow up on recommendations made by the groups it consulted because ``the present amendment is not intended to be a response to the court order.''
Even if a complete overall is not possible right at this time, the Agency could have at least factored in the recommendations concerning the travelling public and broaden the amendment so that the RCMP's obligations would extend across the entire Trans-Canada Highway.
Thank you for your attention. I would be pleased to answer your questions.
[English]
Senator Jaffer: I appreciated your presentation. Do all members of your federation speak French as their first language?
Ms. Côté: Our members are the nine organizations that represent francophones living in Canada outside of Quebec. We also have nine national associations which have a sectoral mandate. Their members in their communities are francophones from all spheres, immigrants and traditional francophones.
The Chairman: Could you provide the name of the organization in British Columbia?
Ms. Côté: In British Columbia it is la Fondation des francophones de la Colombie-Britannique. Their office is on 7th Avenue West.
Senator Jaffer: You mentioned a number of times today people whose first language was neither English nor French. Do you have members whose second or third language is French?
Ms. Côté: We do not have an organization representing immigrants. They are normally integrated within the associations within our communities. Some provincial communities have francophone immigrant associations or multicultural associations that are members of the organization for that province. That is also beginning in British Columbia.
Senator Jaffer: Thank you very much.
[Translation]
Senator Robichaud: Not everybody seems to be happy about this regulation, would you not say?
Ms. Côté: You are absolutely right.
Senator Robichaud: As you pointed out, the response has not been appropriate. The regulation applies to travellers passing through New Brunswick and continuing on to Nova Scotia; the Trans-Canada Highway is serviced by the Amherst detachment. What about those people going to Prince Edward Island? The Confederation bridge should constitute a stretch of the Trans-Canada Highway.
Senator Comeau: Summerside is a detachment.
Senator Robichaud: Summerside does provide service there, but with the same constraint the regulations imposed elsewhere. You would have liked more than this, would you not?
Ms. Côté: Absolutely.
Senator Robichaud: Could you elaborate on this?
Ms. Côté: The entire Trans-Canada Highway, in all directions, should be serviced by RCMP detachments capable of functioning in both official languages. This highway is not just for the people in those areas. You need to consider the entire travelling public and that includes people passing through and tourists going from one province to another; in Canada, we recognize people's mobility rights.
The RCMP, which has service contracts for policing duties in various provinces, should also be required to serve Canadians in both official languages on the main roads of Canada; of course we are talking about the Trans-Canada Highway, but we see that as the minimum. We feel that it is equally as important to identify roads used by high volumes of tourists who may need access to bilingual police services.
Think about the 2010 Winter Olympic Games in Vancouver. The road between Vancouver and Whistler will be very busy and should be served. Under current regulations, that is not necessarily the case.
Senator Robichaud: Some recommendations should perhaps be put to the organizing committee to ensure service on that segment. People will arrive in Vancouver, rent a car, and then travel to Whistler. If they do not have the services, that could cause problems, and at any rate, it would not be right.
Senator Comeau: Ms. Côté, you said that you were consulted by the Human Resources Management Agency. Were they mandated to consult you about the government's proposed reply?
Ms. Côté: Under the Action Plan for Official Languages, the accountability framework required departments to consult. It was in this context, I believe, that the agency consulted a number of people, including, of course, the people from Nova Scotia and the federation.
Senator Comeau: I am somewhat surprised that you were consulted by the Human Resources Management Agency and not Treasury Board. Even if the agency is a Treasury Board department, I would have thought that you would have been consulted by another group; even the RCMP could have consulted you. Were you consulted in any way by the RCMP?
Ms. Côté: No.
Senator Comeau: Among Treasury Board officials, it was strictly the Human Resources Management Agency, was it not?
Ms. Côté: When the agency was created, it inherited the official languages directorate that was at Treasury Board. The directorate was transferred to the Human Resources Management Agency.
Senator Comeau: It is not even a government department, it is an agency. We should make note of that. We will come back to it.
It is published in the Canada Gazette. I do not know much about what happens after that. What we published in the Canada Gazette is a reply. Have you noticed if steps are taken from time to time by the government to withdraw notification in the Canada Gazette? Because in the end, it is a government reply through the Agency.
Ms. Côté: That is correct. It was, after all, their responsibility to introduce the new regulations. We have no power over what is announced in the Canada Gazette.
Senator Comeau: Parliamentarians?
Ms. Côté: Yes, it is now up to parliamentarians to act.
Senator Comeau: Should we put up the sign in Amherst saying that it is the only segment of the Trans-Canada Highway where linguistic duality is respected?
Ms. Côté: It is not necessarily the only stretch of the Trans-Canada Highway where linguistic duality is respected. Bear in mind that where numbers warrant and in certain regions, the RCMP is required to provide service, under the previous regulations that recognized numbers and specific geography.
Senator Comeau: I will have to revisit that idea.
I have a question that is completely unrelated to that; I noted, when you replied to a question from Senator Jaffer, that you said you represented all communities in Canada, except in Quebec, if I understood correctly. You represent francophones and Acadians throughout Canada, except in Quebec, is that correct? Have you ever been approached by Acadians in Quebec to be their spokesperson? That is just a question I had in passing.
Ms. Côté: No, not yet. We have a very good relationship with Quebec francophones.
Senator Comeau: So Acadians are part of the Québécois nation!
Senator Champagne: If we wanted blue skies in the best of all possible worlds, every member of the RCMP, from Newfoundland to Victoria, from Yellowknife to everywhere else in Canada, would be bilingual. That would be ideal.
Ms. Côté: Indeed. At least all those who must deal with the public.
Senator Champagne: If you and I managed to learn two languages, they could do the same.
Ms. Côté: Absolutely.
Senator Champagne: If we were to put a few clouds in our blue skies, we would realize that the money the government would have to spend to promote bilingualism would, unfortunately, be much higher than what any government could spend today.
Ms. Côté: Yes, it is possible to see it from that prospective. But we also take the perspective that for 30 years now the government has invested huge sums of money to help young people become bilingual in immersion schools. Why don't we have a government policy whereby fluently bilingual people would be hired in areas where services should be available in both official languages?
Senator Champagne: It comes back to what I have often repeated on this committee, which I have the honour and the pleasure to sit on: it will not be a problem anymore when, in our country with its two official languages, every young high school graduate is bilingual. These young people then automatically will want jobs and positions in areas which require bilingual staff, and the cycle will continue.
But it is a problem for the federal government to become involved in education, which is mostly an area of provincial jurisdiction. What does it take to make Canadians realize that, the more languages they speak, the fuller their lives will be and the more opportunities there will be for them to learn about the cultures associated with other languages. People who speak three languages, or even four or more, benefit from something which you and I, with our two languages — although perhaps you speak a third one — do not.
What can we do to convince Canadians from coast to coast of the importance of speaking Canada's two official languages? If that ever were to happen, we would not have any problems anymore because members of the RCMP, and people who work for the government, will be bilingual. How can we convince parents and the children of Canadians of the importance of speaking our two official languages?
Ms. Côté: I believe it is important. That is why I have placed particular emphasis on the second part of the new Part VII. I believe that government institutions have until now, neglected the issue of promoting both official languages in Canada. Some things were well done. People have the right to express themselves in English or in French, but I believe that we still have not reconciled the concept of linguistic duality and its promotion, which would translate into people being fluently bilingual.
However, if you look at British Columbia, a province I know well because I lived there for 17 years, there are 63,000 people whose mother tongue is French, but 275,000 people are able to carry on a conversation in French. That is significant. British Columbia has gone to great lengths to invest in and promote immersion programs.
Senator Champagne: At least the Premier of Alberta went to the trouble to learn French.
The Chairman: In your opinion, Ms. Côté, did the Federal Court order apply only to the Doucet case or was its scope wider?
Ms. Côté: I am not a legal expert, so I cannot give you a specific answer. As far as I understood, in the lower court ruling, the scope of the order was much wider, but the scope was narrowed on appeal. That is all I can really say about it.
The Chairman: Does the FCFA intend to send a letter to the President of Treasury Board stating its dissatisfaction with the proposed draft regulations? Have you prepared an alternative?
Ms. Côté: After the Doucet ruling, we sent a letter to the President of Treasury Board, asking him to take this opportunity to conduct a more in-depth review of the regulations. That was done. We still have not written to the current president, but that is certainly something we can do.
As for proposing alternative regulations, that is not necessarily our area of expertise. Legal experts could help with that. But we would first like the problem concerning the Trans-Canada Highway to be addressed. Even in Manitoba, there were problems with the RCMP and certain parts of the Trans-Canada Highway because the regulations were less restrictive in the province compared to the current regulations.
Another problem we have with the regulations is that even though we have been told that it represents the minimum, and that government agencies or departments may choose to do more, it turns out in fact that people are just doing the minimum and nothing more. People are afraid to create precedents, to stir the pot or receive objections.
Senator Murray: Madam Chair, after our last meeting, one of our witnesses was a representative from the Maritime francophone legal community, who also said she was not happy with the regulations. We asked her to provide us with an alternative. I was wondering whether we had received anything from her organization.
The Chairman: As far as I know, Senator Murray, we have not received anything yet, but she did promise to send us something. We could find out when we will get it.
Senator Murray: Ms. Côté, you probably have experts within your organization. Do you think you could send us your proposed wording for the regulations?
Ms. Côté: Unfortunately, the federation does not have any legal experts. We could turn to university experts, but we do not have that kind of expertise in-house.
Senator Murray: Madam Chair, we should call the Royal Canadian Mounted Police, other officials, the Solicitor General of Canada or representatives from the Department of Justice to appear before the committee as soon as possible, because, in my opinion, this issue is extremely complex and even complicated.
People seem to take for granted the fact that the authority of the government of Canada applies everywhere. But we must begin by recognizing that the Trans-Canada Highway goes through Quebec and Ontario, which are not patrolled by the Royal Canadian Mounted Police, and which have their own police forces.
As for the other eight provinces, I recognize from the outset that the RCMP is a federal police body, therefore subject to the Official Languages Act. But when RCMP officers operate in a province, I believe that they report to the attorney general of the province or to provincial authorities.
I do not know how the two levels of government work it out in cases where the Royal Canadian Mounted Police, the federal police, operates as a provincial police force, as is the case in eight provinces.
Ms. Côté: In fact, the case will be heard by the Supreme Court next spring.
Senator Murray: On official languages?
Ms. Côté: On the issue of the RCMP's jurisdiction when it operates as a provincial police force, to find out which authority applies.
Senator Murray: But that has not yet been settled.
Ms. Côté: No.
Senator Murray: If you take the Trans-Canada Highway, you will notice that all signs are bilingual. I suppose that this is because of an agreement, or 10 agreements, between the federal government, the provinces and the territories. I do not know if such agreements exist, for instance, between Ottawa and Quebec City, and Ottawa and Toronto, on any bilingual services offered by provincial police bodies.
Ms. Côté: For now, we are not necessarily dealing with police services provided by Quebec and Ontario which are not Royal Canadian Mounted Police services. In our brief, we speak to the fact that, today, the RCMP is probably the most recognized international Canadian symbol and a federal institution which provides policing services to the provinces. That is the context we took into account. We are not concerned about Ontario and Quebec because they have their own provincial police forces, which are managed at the provincial level.
Senator Murray: As far as the Trans-Canada Highway is concerned, it might be best to have agreements with provincial authorities whereby the RCMP would provide adequate service in both official languages, not only in the eight provinces policed by the RCMP, but also in Ontario and Quebec.
Ms. Côté: Absolutely. I am in complete agreement with that.
Senator Murray: But as for the eight provinces at issue here, there needs to be discussion about complex issues, including how far the authority of the federal government extends and what are the rights of provincial attorneys general.
The Chairman: We will begin a study on that issue and then deal with the matter more directly.
Senator Robichaud: Perhaps I should ask my question of someone else, but I will put it to you because you have many contacts with francophones. If these regulations applied to the eight provinces in question, do you believe that the RCMP could provide bilingual services?
Ms. Côté: To a certain extent, the problem lies with more rural areas, where the RCMP has service points. In most major urban areas, like Vancouver or elsewhere, the RCMP already provides bilingual services.
This could happen gradually, but I do not have all the statistics on which parts of the Trans-Canada Highway are currently devoid of bilingual service. For us, it is more a matter of principle. The Trans-Canada Highway is used by all Canadians and also by international tourists. So services in both official languages should be provided as a matter of course along its entire length.
Senator Robichaud: If the regulations applied to more segments of the highway, would that force the RCMP to hire more bilingual officers?
Ms. Côté: That is possible.
Senator Robichaud: We would have to ask the RCMP about the percentage of bilingual staff they currently have.
Senator Comeau: Have you met with the RCMP to discuss this matter?
Ms. Côté: We have not met with the RCMP yet to talk about this. We are still dealing with the regulations and we are currently talking with the people who worked on them.
Senator Comeau: You probably know about the letter Mr. Graham Fraser, the Official Languages Commissioner, sent. I would like to share with you part of what you said. In his opinion, only the very minimum was being done. He finds this unacceptable and does not support it.
In the second paragraph of his letter, he points to the significant number of vehicles which cross the border at Fort Lawrence each year. In whose honour was Fort Lawrence named? Surely it was the famous Lawrence who signed the deportation order. It is interesting to note that Fort Lawrence still exists and it speaks volumes about the Acadians.
Perhaps we should raise this issue with the Official Languages Commissioner. He might have suggestions as to how to tackle the issue.
The Chairman: Ms. Côté, I would like to express my sincere thanks to you for having come here today on your own. You provided senators with good answers to their questions. If there is anything else you would like us to have, please send it to us through our clerk.
We will now hear from Professor André Braën from the University of Ottawa. We asked for his opinion on two issues in particular, namely the effects of the centralization of the headquarters of large federal institutions on the application of Parts IV, V and VII of the act and whether the federal government should develop regulations to frame the application of Parts V and VII of the act.
Mr. André Braën, Professor, Faculty of Law, University of Ottawa, as an individual: I would like to thank committee members as well as the Chair for this invitation. It is an honour for me to appear before the committee.
In fact, I received this honour in the past and I seem to understand that on this type of committee, the role of a witness such as myself, a legal expert, is to launch a discussion with committee members rather than give a university lecture while reading from a text or notes. So please do not be surprised if I do not have any papers with me. However, if I may, I will just take a few moments of your time to highlight certain principles.
I do not pretend to have answers to the two questions you have sent me; in your capacity as legislators and in your wisdom, you will surely find the right answers. That being said, I believe that all I can do is insist on the principle which must direct any review of the two issues which were brought to my attention, and that is what I will do in a brief amount of time.
First, as far as constitutional issues are concerned — because even though we are dealing with the Official Languages Act, we are also dealing with provisions of the Constitution, in particular sections 16 and 20 of the Canadian Charter of Rights and Freedoms — it is important to remind ourselves of the objectives of any legislative or constitutional language provision. You know what these objectives are: equality of status and of privilege of both official languages, the promotional of these languages and the cultures they represent in light of section 20, and therefore the right of the public to communicate in the language of its choice and to receive services in both languages. This right is based on the principle of equality.
We must keep in mind the issue of equality when services are provided, as well as the positive approach which the application of this section implies. We must also keep in mind the obligation — reflected in the Supreme Court of Canada's Beaulac ruling, which you are certainly familiar with — whereby each linguistic right corresponds to an obligation by a government and its administration to create an environment, at the institutional level, conducive to letting people express themselves in the language of their choice.
In short, under the Canadian Constitution, as far as we are concerned, there is an obligation on the federal authorities to do everything in their power to ensure that the specific objectives of section 20, but also those of section 16, be upheld.
That being said, the obvious purpose of the Official Languages Act of 1998 is to set out in a detailed manner the federal authorities constitutional obligations under the Canadian Constitution. As you know, its purpose is to ensure the respect of English and French as official languages, to support the development of anglophone and francophone minorities everywhere in Canada, and to determine the federal government's obligations in this area.
The purpose of Part IV, which you are more familiar with than I am, is to implement Section 20 of the Charter, which deals with the delivery of services and the right of Canadians to communicate in the language of their choice with federal institutions.
In addition, Part V specifies — because this has never clearly been spelled out at the constitutional level — the rights and obligations which apply to the language of work within the federal government. What I mean to say is that Part IV of the Official Languages Act and Part V, which concerns the delivery of services and the language at work, are in reality two sides of the same coin, simply because the government, under the Constitution and the Official Languages Act, is obliged to ensure that Canadians can communicate in the official language of their choice with government institutions and to receive services in both languages.
To achieve this goal, federal authorities must hire bilingual personnel in order for these rights to exist.
I would like to point out that Section 31 of the Official Languages Act, in cases where there is an incompatibility between a legislative provision dealing with the language of work within federal institutions and a provision dealing with the rights of Canadians to communicate in the language of their choice and to receive services in both languages, stipulates that it is the right of the public which prevails over the rights of employees to work in the language of their choice. We just need to refer to collective agreements and other agreements.
Further, Part VII of the Official Languages Act concerns the federal government's commitment to promote the development of official language communities and their vitality. Because of you, Section 41 was amended and spells out the government's commitment. For a very long time, people were not sure about the true meaning and the true scope of this provision. Lawmakers have clarified the issue. However, the amendment which was made has still not been implemented, although it will be eventually. We should therefore keep in mind the government's commitment to promote the equality of the status of both communities.
The regulations adopted under the Official Languages Act specifically dealing with the delivery of services and communication was first dealt with by way of regulations. I quickly reviewed the regulations, but please don't ask me about any details, because they are very numerous and very technical, perhaps too technical. These regulations were deemed incompatible with Section 20 of the Canadian Charter of Rights and Freedoms, which defines ``significant demand,'' that is where the federal government's obligation under the Constitution or the nature of the office must apply.
The courts do not like regulatory frameworks which are too specific and contain too many numbers. The Supreme Court in particular does not like to base a constitutional right on a number or a figure. This is something the courts do not like at all. Given the importance of language rights as set in the Constitution, the Supreme Court of Canada in particular seems extremely unwilling to tie these rights to quantities or numbers contained in the act or even in the regulations. In the Doucet case in Nova Scotia, the courts struck down regulations which referred to certain numbers to define significant demand in rural as opposed to urban areas.
If the committee wants to insist on the necessity of having a regulatory framework, it should remember that the courts respect the discretionary powers of that level of government, as they are exercised by the executive branch, and trust that it will live up to its constitutional obligations. Further, the courts are extremely hesitant to base the constitutional rights of individuals on any number or quantities or numbers.
Lastly, you might remember the case involving moving a federal agency, the Canadian Food Inspection Agency, in the Forum des maires de la péninsule acadienne case from northern New Brunswick to Shediac. Section 20 of the Canadian Charter and the Official Languages Act do not require the federal government to be managed and controlled by a minority. That is not the case at all. It means that, given the environment of the federal government, it must do everything in its power to safeguard these rights and these linguistic obligations. So before re-organizing an agency, or a federal institution, or before even moving an organization or agency, the federal government is clearly obliged to communicate with and consult the official language minority in the region which will be affected by the change. That is my interpretation of the Forum des maires de la péninsule case.
So these are some of the principles which must guide us in our reflection on the questions you have raised, Madam Chair.
The Chairman: What are the most effective measures to protect the language rights of employees when their offices move? Should there be guidelines, policies or regulations?
Mr. Braën: Regulations frame a law, and this is true in particular for Parts V or IV of the Official Languages Act. A regulatory framework creates a legal order which applies to third parties and to the government. The scope of a directive is much more limited and only applies to the government. Policies and directives may have a wider discretionary scope of application. So I do not quite know how to answer your question: what is the preferred way to make sure that public servants can work in the language of their choice? This right is certainly contained in the law, namely the Official Languages Act. Is this right based on a constitutional principle? We do not know. Many people claim that section 16 confers this right, but no legal ruling has been made to that effect, so that there is still remains a legal vacuum. Further, as far as constitutional rights are concerned, including the right to communicate and receive services in the language of one's choice, it is clear that the latter should have priority over the former, irrespective of the framework adopted to allow public servants to work in the language of their choice.
Senator Robichaud: You concluded by saying that in a case involving the move of a federal agency, the government should have held consultations with the official language minority. Can you elaborate on that?
Mr. Braën: In that case, the Official Languages Commissioner received a complaint and felt that moving the Canadian Food Inspection Agency to Shediac would negate or negatively affect the rights conferred by in particular section 20 of the Canadian Charter of Rights and Freedoms.
I do not remember all the details, but I believe that it was deemed that the federal government should have consulted with local communities before moving the agency. Apparently, federal authorities admitted in federal court that they had an obligation to consult before proceeding with the move.
So when the move of a federal agency affects the standard of service, and when the move could reduce or change these rights in any way, there is an obligation to consult at the local level.
From a legal point of view, the Supreme Court of Canada, in its reference on secession — which has been invoked many times since — set forth the principle of minority protection as a rule of interpretation of the Constitution. Given this principle, we could conclude that the federal government has the obligation to consult a minority community before it moves a federal agency, and this obligation applied to the case you mentioned, but also to the Montfort Hospital case in Ontario. I am not referring to the appeal court ruling, but that of the superior court. The minority protection principle was invoked back when the Conservative government of Ontario wanted to re-organize its administrative structures, but the court ruled that it had not lived up to its basic obligation to consult with the minority.
So I say it is possible legally — if the actions of federal authorities were to be challenged in a court of law — to argue there is a requirement to consult.
Senator Robichaud: The Canadian Tourism Commission, which used to be located in the national capital, moved to Vancouver. Are you saying the government should have consulted — and that is where I am having a hard time following — with the minority in British Columbia?
Mr. Braën: No. I should point out that there are no limitations on the right to communicate and be served by the federal government in the official language of one choice when dealing with the head office of an institution of Parliament or of the Government of Canada, with the head or central office. In all other cases, it depends on the nature of the office or whether there is significant demand.
In the case of the Canadian Tourism Commission, which is a federal agency, if you move its head office to Vancouver, there is no requirement to consult. There is a requirement to ensure compliance with the right set out in section 20.
I was talking about consultations in cases where rights that can be claimed by the public under section 20 of the Charter are not absolute, but are limited by the tests of significant demand and the nature of the office.
Do you see the distinction between the two? In the case of Vancouver, in my view, they have to meet the requirements of not only the official languages act but also section 20 of the Charter.
Senator Champagne: Mr. Fraser, our new commissioner of official languages, was with us recently and told us that in his opinion, the implementation principle established by the government in June 2005 is far too limited in scope. He would like to see us take permanent steps to protect the rights of employees in terms of language of work and hiring when there is a move.
He said if you came up with well established regulations, there would be no need for intervention whenever an agency moved; things would be settled and there would be no need for doubt or concern about compliance with the Official Languages Act and the Charter.
What do you think are the most important things to include in those regulations, so as to avoid making a big mistake or having problems with our people, those moving, those staying behind and those being hired once we get to our new location?
Mr. Braën: The issue of language of work in federal institutions is relatively complex. It is a challenge the authorities of this country has been grappling with for many years. It is not without problems. To this day, there are challenges, for all sorts of reasons, to various measures put in place to facilitate and employee's choice of language of work.
It is not easy, and I understand the difficulties federal authorities are having in this area. They do not want to tread upon the established rights or sensitivities of individuals. But there comes a time when you have to move things along.
I think there was a Treasury Board Secretariat policy or guideline on staffing in the Ottawa area. I am not sure if that policy still applies today.
What I can tell you is that the public has the right to communicate with and be served by the federal government in the official language of their choice. In some cases, there are some limits on that right, and in others, there are none. It is based on a constitutional right.
What concerns me more is not necessarily upsetting employees; it is what can be done to make language of work mesh with respect for this constitutional right. Because once again, given that the framework put forward to carry out Part V of the Official Languages Act is rooted in an act rather than in the Constitution, my reflex is to immediately give precedence to the right of the public.
Besides, it is hard to figure out how the rules applicable to the federal government in terms of language of work should be reworked.
Senator Champagne: I was kink of hoping you would come up with something that would put us on the right track.
Mr. Braën: That would take some thought and analysis.
Senator Champagne: I am all ears.
Senator Comeau: Because they are protected by the Charter, the rights of Canadians to be served take precedence over the rights of employees working for a department or agency? Have I got that right?
Mr. Braën: According to section 31 of the Official Languages Act, in the event of any inconsistency between the provisions of Part V (language of work) and Part IV (rights of the public), Part IV prevails, but that is also clear from a constitutional perspective.
Senator Comeau: When the Canadian Tourism Commission moved to Vancouver, protection was offered to employees who did not want to move or who wanted to retain their right in a bilingual region. They were offered that right and they largely availed themselves of it. About 90 per cent of employees chose to stay behind, which caused a lot of problems, of course, but those rights were protected. Those who chose to go along with the move had less protection than they had in Ottawa. That may be one way for moves to occur, while still respecting the rights of the public.
From what I have been able to understand, the Canadian Tourism Commission is very respectful of that requirement. Is that because it is a constitutional requirement?
Mr. Braën: Yes. Absolutely.
Senator Comeau: That answers my question.
Mr. Braën: Once again, as a central agency of the federal government, it is required to be able to provide bilingual services under the Constitution. In order to be able to provide bilingual services, you need staff that can work in both official languages. Who has to make up that staff? There are, if I understand correctly, several options.
The Chairman: You mentioned earlier the principle of protecting minorities, which creates a requirement for the federal government to consult. How do you think that requirement to consult should be defined? What does that requirement really mean?
Mr. Braën: First, I would not go so far as to say it is a requirement that applies generally; once again, the right to communicate in the official language of one's choice is not absolute when dealing with an office other than the head or central office of a federal institution, where the concept of the nature of the office or significant demand comes into play. If the services provided meet the requirements of section 20 — i.e., operate bilingually — in a minority community, then if an agency's move — as was shown in the Forum des maires de la péninsule acadienne case — results in a diminished capacity to work bilingually, there is a requirement to consult.
You have to understand that when the federal government sets up an office or agency in a given location, the agency or office occupies a space, is influenced by that space, but also influences that space. If the establishment of a federal agency advances and promotes official languages so that more services are provided to the French speaking or English speaking minority, what ever the case may be, that impact has to be taken into account. If the government intends to change the structure in question by sending it elsewhere, then I believe there is a requirement to consult. In my opinion, federal authorities have a long tradition along these lines. They know who to turn to. Usually, it is political organizations or spokespeople for the minority and the environment in which the federal office operates. It is not a formal process with public hearings, meetings, etc.
What is important is the objective. That is to say, ensuring that both official languages are respected, that their status is equal and that the public can actually rely on its constitutional right. The procedural detail is secondary, and it would probably be appropriate for that procedure to be flexible so that the authorities can adapt it to the circumstances of each situation.
Senator Robichaud: You are aware of the draft regulations before us that were put forward by Treasury Board in relation to the RCMP in the Doucet case. Services were limited to a section of the Trans-Canada Highway which is limited by the region served by the Amherst detachment. Section 23(1) says:
Every federal institution that provides services or makes them available to the travelling public has the duty to ensure that any member of the travelling public can communicate with and obtain services in either official language from any office or facility of the institution in Canada or abroad when there is a significant demand for those services in that language.
Apparently, that had to be at least 5 per cent of the public demand for those services, but it is limited to the travelling public. Bilingual service has to be provided in the province of New Brunswick and may be on 50 kilometres of highway, but elsewhere, section 23 does not apply. Can you comment on that?
Mr. Braën: I am not surprised by that decision. First of all, we all agree that the RCMP is an institution of Parliament and of the Government of Canada, under section 32 of the Charter. We also agree that in Nova Scotia, in this case, institutions are required to see to it that services are provided in both languages. In this case, measures were adopted in federal regulations. They just took census data and calculated the number of individuals in the official language minority community in that area to determine the RCMP's language requirements.
The Federal Court said it does not work that way, first of all, because it is a highway that is used by a lot of Acadians living in the neighbouring province, New Brunswick. In the adjacent county, in New Brunswick, 28 or 30 per cent of the population was of Acadian origin. The regulations were held to be inconsistent with the right guaranteed in section 20.
That is what I was saying before. When the courts intervene, they first have to find that there is a constitutional right. Is there a right to education in the language of the minority? Is there a right to service in the official language of one's choice? They first have to determine whether there is a right and then whether there has been a violation of that right, and section 1 could ultimately apply.
The problem occurs when a constitutional right is asserted — we talking about services here, within the meaning of section 1 — and that right is subjected to arbitrary standards.
Why 500? Four hundred and ninety-eight is not enough? Courts hate that type of thing. Take for instance educational rights, under section 23. Doesn't section 23 set out three different rights, the minority language educational right, the right to minority language educational facilities, and the right for minorities to manage their own facilities? The court stated that: ``That is not how we see it.'' We are going to refer to one right with a specific purpose and variable content.
In the Solski case, the French-language Charter refers to parents having received a majority of their education in the language of the minority. The Supreme Court was quite clear; it used the term ``majority'' that is fine. But if legislators use a percentage and Manitoba is doing that when it refers to 50 per cent, it does not work at all.
We often forget that several of the language rights are enshrined in the Constitution. In this country we sometimes get the impression that constitutional language rights are less important than other constitutional rights. I personally make no such distinction. Language rights under section 20 are just as important as fundamental freedoms under section 2. They are enshrined in the Constitution.
The court does not understand why the exercise of rights of such importance depend on a zero or a comma, when what really matters is the purpose sought out by the constituent. Why do we want the public to have the right to communicate? That is what is important. When we focus unduly on the regulatory framework what ends up becoming important, if you read the regulations, is the difference between an urban and a rural zone, the percentage, the 5,000, and all the rest.
Senator Robichaud: If I look at section 23 it states ``Every federal institution that provides services or makes them available to the travelling public'' and ends by stating ``in Canada or elsewhere where there is significant demand for those services in that language.''
Here in Canada on some stretches of the Trans-Canada Highway we cannot require these services, but if I were abroad, I could, could I not?
Mr. Braën: Section 23 is mainly for abroad, in diplomatic missions, embassies, Canadian consulates. We want to make sure that Canadians abroad can communicate with the Canadian mission in the official language of their choice.
I heard you referring to the Trans-Canada Highway earlier on; the problem is that highways are under provincial jurisdiction. So, in theory, it is up to the provinces to address the issue of road signage for instance. That does not mean that federal authorities may not intervene. Absolutely not. It is always possible to sign agreements, to spend money while requiring some conditions to be met. It is possible in that way.
But there is a difference between requiring bilingual road signs on the Trans-Canada Highway — and that is where the problem lies with respect to the division of powers — and ensuring that federal institutions like the RCMP which provides provincial policing services to other provinces than Quebec and Ontario offers services in both official languages.
The Paulin case deals with this matter. Does the RCMP, when it is under a contract to deliver provincial policing services have to respect constitutional requirements? I think so.
Fundamentally, the Constitution sets out obligations imposed on federal institutions, and federal institutions cannot disregard these obligations under the pretext that there was a contract. Moreover, the Official Languages Act includes specific provisions on services provided by third parties. If we expect federal services provided by third parties to uphold bilingualism, it should be even more of a requirement for a federal institution like the RCMP, which provides services in every province.
Senator Robichaud: I understand, that these are draft regulations. The amendments proposed by the federal government only affect subsection 6.1 of the Official Languages Regulations and would be added in a subsequent paragraph stipulating that certain services must be provided. If the government says that it will create regulations requiring that the RCMP, working on a contract for the province of Nova Scotia, provide services in French on a segment of the highway, do you understand what I am getting at?
Mr. Braën: Yes. Unfortunately, I do not have a copy of these draft regulations, so on that point, I do not know, but this would be my reaction.
Even if through regulations you state that on a given section of the highway the RCMP must offer bilingual services, what happens to me if I live right next to that segment? I think regulating things in this way is asking for trouble if ever there were to be challenges before the courts.
Senator Murray: I would like to take this opportunity to ask you a question on section 23.2 of the Official Languages Act. Mention was made earlier of the fact that the Royal Canadian Mounted Police, which is a federal institution, provides provincial policing services under a contract signed by federal and provincial governments. I just read section 23.2 of the act and I would like to ask you if this section applies to the RCMP as a provincial police force.
Every federal institution has the duty to ensure — the mounted police, in other words — that such services to the travelling public as may be prescribed by regulation of the Governor-in-Council that are provided or made available by another person or organization pursuant to a contract with the federal institution for the provision of those services at an office or facility referred to in subsection 1 are provided or made available, in both official languages, in the manner prescribed by regulation of the Governor-in-Council.
Does this provision apply to the Royal Canadian Mounted Police as a provincial police force?
Mr. Braën: Section 23, which you have just mentioned, applies over Canadian territory; airport authorities, for instance, the RCMP, because these institutions offer services to travellers — the words travelling public are not defined. I suppose this section should be interpreted as facilitating mobility rights, which are constitutional rights provided under section 6 of the Canadian Charter of Rights and Freedoms, and that also applies abroad.
To be honest, I do not know. I would have to prepare a legal opinion on the matter, it would require some analysis. If you adopt a liberal approach, one that is in accordance with the Charter and with the Official Languages Act, I would be inclined to say that yes, the RCMP should be included.
We could certainly make a determination on that, while remaining very cautious with regulatory provisions, so as not to run counter to the law. I think that the point could be argued, despite the fact that some may say it goes too far.
Since the Supreme Court in the Ville de Saint-Jean case, we have been somewhat in the dark and there has been some confusion as to the interpretation of statutes on linguistic rights.
I cannot give you a more specific answer than that, I am afraid.
Senator Murray: Thank you very much. It is still quite interesting.
The Chairman: On behalf of members of the committee, I would like to thank Mr. Braën for his willingness to answer our questions.
The committee adjourned.