Proceedings of the Standing Senate Committee on
Official Languages
Issue 11 - Evidence - Meeting of October 26, 2009
OTTAWA, Monday, October 26, 2009
The Standing Senate Committee on Official Languages meets this day at 4:30 p.m. to study the application of the Official Languages Act and of the regulations and directives made under it, within those institutions subject to the Act. Topic: Study on Part VII of the Official Languages Act and other issues.
Senator Andrée Champagne (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Honourable senators, I see that we have quorum. I thus call the meeting to order.
Welcome to the Senate Standing Committee on Official Languages. I am Andrée Champagne, senator from Quebec, deputy chair of this committee.
Before beginning, I would like to introduce the members of the committee who are here today and who, I am sure, will want to join me in offering our best wishes for a prompt recovery to our chair, Senator Maria Chaput from Manitoba. Senator Chaput is going through a difficult time, but we await her return with a great deal of hope and joy.
First, to my right, Senator Pépin from Quebec. To her right, Senator Tardif from Alberta, Senator Jaffer from British Columbia, and Senator Losier-Cool from New Brunswick. To my left are Senator Fortin-Duplessis from Quebec, Senator Seidman from Quebec and Senator Mockler from New Brunswick.
The committee is currently studying the status of the implementation of Part VII of the Official Languages Act, especially the measures taken by federal organizations in this regard. The committee wishes to learn more about the legal perspective and the scope of the act.
We welcome today the Honourable Michel Bastarache, counsel at the law firm Heenan Blaikie in Ottawa and former judge at the Supreme Court of Canada. The honourable Justice Bastarache has ruled on numerous cases linked to the application of the Canadian Charter of Rights and Freedoms. He has also written a book on language rights in Canada.
Mr. Bastarache, the members of the committee thank you for having accepted their invitation to appear today. The floor is now yours.
Hon. Michel Bastarache, Counsel at the law firm Heenan Blaikie and former judge at the Supreme Court of Canada, as an individual: I am very pleased to be here today.
Attempting to interpret Part VII is a very difficult task, because it has just been recognized that this part creates genuine rights and that it is triable before the courts. It also creates a new right that is closer to a social right than to a civil and political one, as can generally be found in charters of rights.
I submitted a document, with a view to my appearance here, in which I indicated that language rights always have a historical origin. Their status always reflects a historical compromise and depends on the legal culture of each people.
In Canada, language rights are part of minority rights, which are protected as a fundamental value of the constitutional order, as the Supreme Court stated in the Secession Reference. There are thus two categories of language rights in Canada: constitutional rights and quasi-constitutional rights. These principals are important from the standpoints of the applicable rules of interpretation. Constitutional rights and quasi-constitutional rights are not interpreted according to the same standards as regular acts and statutes. There are specific standards, because it is said that all of this legislation must take precedence when the various laws are in conflict and are considered as remedies. Even when a right is of an individual nature, such as the right to be tried in French, it is at the same time a collective right, because the very purpose of the law is to give all members of a linguistic committee equal access to an individual service.
When we say that children are entitled to receive education in their own language, under section 23, that cannot be an individual right, because individual rights function only insofar as a community of people demand the same right.
Part VII must be addressed keeping in mind that this is a new area, but one that is protected by the Constitution, which uses so-called progressive interpretation standards.
Let us turn to Part VII of the Official Languages Act. The best starting point would perhaps be to consider the interpretation given thereto by the Department of Justice of Canada.
I read the transcript of the testimony before the parliamentary committee and that of the legal counsel. However, the clearest statement of the Canadian government's position is set out in its brief to the British Columbia Superior Court in the case of the Fédération des communautés francophones et acadiennes versus Canada, October 30, 2007. This case dealt with the elimination of the Court Challenges Program. Essentially, what the Attorney General of Canada says in his brief, is that there is a significant difference between Part IV of the act, that is, the right to receive services, and Part VII, which is the obligation to promote official languages. The brief states that Part IV includes clearly identifiable individual rights, which are of the same nature as civil and political rights.
Furthermore, the Attorney General considers that Part VII is basically a statement of principle that commits the government to taking measures in order to achieve the objective of Part VII, but that all these measures are discretionary. In other words, it is up to the government to decide on the scope of its own obligations, choose the means of implementing them and the delivery method, that is, the institutional structure whereby it will deliver the services.
The Attorney General's brief states that the legislative amendment made, which makes Part VII triable before the courts, does not change the nature of the rights. Given that the nature of these rights has not been changed, the specific role of the courts is thus extremely limited. The role of the courts would be to ascertain that the Department of Canadian Heritage has indeed adopted a support program for minorities. However, the courts would not have the right to study the components of the program. All the government has to do is state that it has a promotion program in order to fulfil its promotional mandate. The courts must also ascertain whether the various departments and agencies have prepared and tabled an implementation plan, because this is directly stipulated in the act. Here, the role of the courts would be to ascertain whether the plan has indeed been tabled. Once again, it would not be possible for the courts to check whether a particular action complies with Part VII.
The Attorney General of Canada states that the judicial assessment would be an overall assessment to determine whether the government, by taking the measures in question, has fulfilled the general purpose of the act.
I find this approach clearly insufficient for two basic reasons.
First, I believe that the Attorney General is wrong about the scope of Part VII, because he applies the ordinary statutory rules of interpretation, and not the rules of interpretation that are adapted to language rights. He claims that these are individual rights only.
The Supreme Court has already clearly affirmed, in several rulings, but particularly in the Beaulac and Desrochers cases, that the right to receive government services set out in section 20 of the Charter and in the Official Languages Act is not a purely individual right, because it is interpreted according to the context and because the very purpose of the act is to promote the services with a view to strengthening linguistic communities and ensuring their survival as well as their role within public life in Canada.
If we have taken a contextual approach wherein the law is viewed as restorative, it is because there has been a desire not only to establish language equality but equality amongst speakers, those who speak these languages, and we have moved from a notion of formal equality to one of substantive equality. This is what the Supreme Court confirmed in Desrochers.
In other words, it is not enough for a government department to say to an individual requesting a service "I will serve you in your language," the given service must be adapted to the needs of the individual requesting the service; this means that when the government establishes a program it must consider the fact that it has two communities to serve: one French-speaking and one English-speaking.
If a program is designed according to the needs of the majority community and then translated for the minority, it is not equal service; the majority receives services that meet their needs and priorities and the needs and priorities of the minority are ignored in so far as these are different. The government's obligation will therefore depend on the nature of the services.
What is significant and new in Desrochers is that there has been a shift from the notion of formal equality — I will serve you in the language you ask to be served in — and substantive equality — I will give you services adapted to your needs, in your language. The ruling establishes minority rights as the right to an institutional structure designed to serve the minority as the majority is served.
If we do not have tailored institutional services, then we have institutions that satisfy the needs of the majority and make accommodations for minorities. There is quite a difference between providing equal services and facilitating matters for individuals requesting service in the other language.
Personally, it would seem to me that the Attorney General's approach is one of the past, of accommodation. You may want to be tried in French in Vancouver, but the system is designed for anglophones; we will facilitate things for you if you insist on your rights and find someone capable of satisfying your needs. That is the old approach.
The approach called for by the Supreme Court is one of substantive equality. The Department of Justice, when it establishes criminal trial courts in Vancouver, must consider that there will be requests from both francophones and anglophones. It must therefore provide an institutional structure, staff, and the full range of services in order to serve individuals equally in either language.
If this is true and this is what is found in Part IV, what of Part VII? In his factum the Attorney General described Part VII as inferior to Part IV as interpreted by the Supreme Court of Canada. Yet, the Supreme Court in Desrochers renders a decision based only on your rights under Part IV and says there would certainly be more under Part VII. Of course that would be the case, otherwise there would not have been a Part VII.
What is difficult is to identify exactly what is prescribed in Part VII because it does not set out the rights of each individual. It describes government obligations. Therefore it is far more along the lines of social rights, housing rights and employment rights. In this case, it is the right to fair treatment from government in the planning of its services.
I do not share the Attorney General's view that courts would have no role to play, that they would exist to determine whether or not a department has fulfilled its obligations under the act. If that were the case, it would be a procedural right. I have the right to demand that they follow the appropriate procedure and publish a report, and that is it. Formal equality is not substantive equality. The content of Part VII cannot be that.
What then can Part VII mean? What are these "positive measures"? At the very least they serve to ensure that each time services are introduced, the fact that there are two equal communities needing equal access to services of equal quality is considered. From the beginning we must consider possible impacts. What would be the impact of my decision on a minority community? Would it have a negative impact? If so, can it still be justified?
The courts cannot simply be limited to assessing the overall plan because that would mean that their role would be restricted to conducting judicial reviews of the process, and not to ultimately ensuring a substantive right.
I will give you an example: today, in New Brunswick legislation has been passed which does away with all francophone administrative organizations in the health care field. In New Brunswick there is the Act, similar to Part VII, which recognizes the equality of the two official linguistic communities in New Brunswick. So, what if the federal government decided to do away with francophone health organizations and replace them with bilingual provincial organizations that do not represent the community and decided to do away with elections; everyone would be appointed by government and two thirds of members would therefore not be from the region where the clients being served are from. As I have already said, it is a bilingual institution. This would mean that francophone rights in the health care field have been restricted to service delivery, to communication. You have the right to ask for French-language services and demand French-language services, but you are not entitled to homogenous institutions and a management right. All of that has been eliminated.
Let us assume we are before the Federal Court, and if I follow the Attorney General of Canada's reasoning, it would mean that I do not have the right to ask the court whether the striking of all of these francophone institutions is consistent with Part VII. I can only ask whether, of all services provided by the province this year there were "positive measures" for the development of the francophone community. If there were some positive measures, that is fine, because the government has the choice of methods it can employ. It can add some, withdraw some, change some and ultimately, there is no judicial review. Do you think that would be consistent with the spirit of the act? I would have to say no.
If we draw a parallel with the Montfort Hospital, that would mean that had there been a Part VII within the Ontario legislation, the court would not have had the authority to decide whether or not closing the Montfort Hospital was legal. All it would have been able to do is assess whether overall, the Ontario government provides programs which foster the development and preservation of francophone communities.
It seems abundantly clear that Part VII is linked to the Official Languages Act and to rights already recognized and that it creates a positive obligation for the government to act for the development of minorities. We probably cannot claim that we could go before the courts to demand the creation of a program and new spending, but the right to a judicial review has been created.
Under this right of review, the courts must determine whether the government, when it created programs, considered their impact on minorities and the ability for minorities to access equal quality services, the purpose being to issue orders to ensure this is done.
Social, justiciable rights recognized in law come under new law. It will take some time for jurisprudence to develop on the matter. But the government should be sensitive to the fact that in the development of linguistic rights, we are at a point where we know that having an institutional structure is fundamental to the preservation of minorities.
I believe that on the occasion of the 40th anniversary of the Official Languages Act, we need to take a step forward and act positively by giving ourselves the means to go further in service delivery and to ensure that these services are genuinely accessible and adapted to the needs of communities.
The Deputy Chair: Thank you. One thing is certain, you have us dreaming of a 40th anniversary that takes us one, and perhaps two, steps forward.
Senator Losier-Cool: Mr. Bastarache, I listened intently to your presentation. I must say that since being appointed to the Senate, I have been fascinated by the Official Languages Act. However, you will quickly see that I am neither a constitutional expert nor a lawyer.
At the beginning of your presentation, you referred to shortcomings and you mentioned the Desrochers decision. Would this ruling allow for the institutional structure you alluded to at the end of your presentation? I thought Desrochers could be interpreted through Part VII.
Mr. Bastarache: In Desrochers, the parties argued that pursuant to Part IV, francophones were entitled to services of equal quality. The parties attempted to set standards for determining whether or not services were of equal quality.
The government had argued that under the Official Languages Act, equality meant equality in service delivery. In other words, francophones have the same opportunities that anglophones have to request services in French and receive them, but that has nothing to do with the quality of the services received.
The court rejected this argument, finding that if a person requests a service in his or her own language but receives something inadequate, it is of no use and becomes an empty right. The government has the obligation not only to communicate with the individual in his or her language, but to provide service that is adapted to needs, as is done for the majority requesting service in the majority language.
With respect to Part VII, it was argued that the service offered was perhaps not adapted to the francophone community. Should that offer of services to francophones been set aside and should another service have been provided to accommodate francophones and meet the department's objectives?
The court ruled that this was something that could be discussed under Part VII, but that for the time being, Part VII was not justiciable. The court decided not to rule on Part VII, but held that pursuant to Part IV, given the fact that the government has the obligation to provide equal quality services, what is involved is substantive equality and not formal equality. That means that from an institutional standpoint, the government must get organized and act as though there were two communities needing to be served.
I was saying that it was a first step in the direction of what was required under Part VII. For the court, there is something different. In cases where you have two poorly-planned and poor-quality services, one could deduce that francophones have the same right to poor services as anglophones, but that they do not have the right to demand different services that better meet their needs.
This is why it is necessary to have an institutional approach to ensure that the services provided, regardless of their quality, be accessible to both communities. Moreover, depending on the nature of the service, if consultations with the minority are required with respect to its needs and priorities, that consultation must be undertaken for each group separately, as the needs of one group are not the needs of the other.
Under Part VII, if the department's mandate is, for instance, small business development, as in the Desrochers case, would it not be important for departments to plan and develop specific programs for the minority in order to ensure its vitality in this department's area of work.
It would require something new, but the court has not ruled on that. It simply suggests that it would have to be something different and that it be things of that nature, rather than simply institutional structure requirements pursuant to Part IV.
Senator Losier-Cool: Can you provide us some examples of what could sit under this institutional structure? Could the government pass regulations for the application of Part VII?
Mr. Bastarache: Yes, the government could certainly do that, in that it does pass regulations for departments and agencies. But for government as a whole or for Part VII as a whole, it seems to me that it would be very difficult.
Because we are talking about Part VII and the measures that the government takes to enhance and support the development of the minority, and because these measures are taken individually by each department, each government agency. At this point, I think that we should focus more on the process for developing service delivery channels and efforts to that end.
From the start, from the planning stages, departments must ask what the impact on the linguistic minority would be. That is how we know whether or not programs are adapted to the needs of both linguistic minorities. Otherwise, programs are created as though they were neutral. That is often the error made by government.
It is false to say that a program is neutral. It is neither French, nor English, nor ethnic. Everyone is a citizen. Some speak French, others English. That is a purely theoretical concept.
In practice, things are quite different. All organizational systems reflect a culture, be it administrative, legal or judicial. It is not a coincidence that programs are developed in a certain way and adapted to the specific needs of a community. If you develop them based on the needs of the majority and then translate pamphlets, you have not met the requirements of the act, because you have not provided equal quality services. You have, however, communicated in both languages.
Senator Losier-Cool: Forty years ago, was that why the Official Languages Act was passed to reflect that culture?
Mr. Bastarache: At first, the Official Languages Act was for the delivery of services in both official languages in a general sense. The quality and availability of French services were very limited then.
When the act was first implemented, it was the official languages themselves, French and English, which were considered equal independently of the people speaking them. That is why there was complete separation between the right to service in the language spoken or the mother tongue. In other words, I am a francophone, I was educated in French and I speak French at home. However, I have the right to request English services from the federal government, and the opposite is also true. The issue of services was depersonalized. In a way, that aspect still remains. However, the courts finally determined that realistically, if we want to serve language communities, we cannot simply answer questions in the language in which they were asked; the social objective is far greater than that. The reason why we have official languages is to maintain two official language communities throughout Canada.
[English]
Senator Jaffer: I want to welcome you here also. It is a real pleasure to have you here today.
You said something that to me is strong, namely, the equality and quality of service. I am not saying today, but do you not think in the future, in a few years, we need to have a Supreme Court of Canada where the judges are bilingual?
Mr. Bastarache: That is a touchy question for me to answer because when I do so, I feel that I am commenting on the abilities of my former colleagues.
If you think about it, we have had a Supreme Court for 125 years, and it is still not entirely bilingual. We obtained the right to services in our language in 1969. That is quite a long time after the Constitution. We corrected the injustice in Manitoba 100 years after they were spoiled.
We have come a long way, but it took a long time, and we should ask ourselves how much maturity we have achieved. Are we willing to take the next step and say that we really believe in equality of languages, and we know there is a price to pay?
The people from New Brunswick may remember in 1969, when the Official Languages Act was adopted in New Brunswick, the premier made one fundamental mistake when he presented the act. He wanted to comfort the majority, and he said that no one who works for the civil service will be negatively affected by the adoption of the Official Languages Act. That was the wrong thing to say because it is obvious that there is always a price to pay. Obligations will have to be assumed by members of the majority if they really believe in equality of the minority.
Therefore, it is the same here. If we really believe in a truly bilingual justice system, there is a price to pay for this. Are we willing? Have we matured enough to live up to our rhetoric?
Senator Jaffer: I want to push you further, if I may.
We recently passed legislation on the right of the accused to have the trial — we had that before, but now even more so — in one of the official languages. I come from British Columbia and am concerned about that. You again talk about the equality and quality of service, and I have been talking to our Law Society of British Columbia representatives who say that some training exists for judges and some for Crown counsel but none for defence counsel. Therefore, if a person chooses to have their trial in French, few defence lawyers can be called upon.
We are not creating the equality and quality of service. It is okay to say that you have the right, but you also have to exercise that right, and you cannot if you cannot access the services. For me, this is empty. I would like to hear from you about your experience.
Mr. Bastarache: As you know, we have always had a problem in this area because of the double jurisdiction. The Criminal Code is federal, but the administration of justice is provincial. The federal government has subsidized many provinces to provide the basic institutional infrastructure necessary to carry out the rights that are contained in the Criminal Code, but it goes much further than what you say. You have a right to a trial in French in Vancouver but not to an appeal.
Senator Jaffer: That is right; you are right.
Mr. Bastarache: Is that not nonsense? Suppose you have a trial for fraud and 10,000 documents are presented in French. What will you do for an appeal? Will you translate them all, or will you abandon your appeal because the victim himself must present a translation of documents?
We are trying now, in this country, to accommodate people at the appellate level and to constitute ad hoc tribunals capable of hearing an appeal in that language. However, is it very normal that you have half a right in criminal justice? It is a difficult task, like you said, for an accused to say that he or she has limited access to counsel. Also, as you know in British Columbia, you will probably face more time in jail before you get your trial, and then under what circumstances will it run?
I find a bit offensive that, as I mentioned earlier, we have had this act for 40 years. How long does it really take to adjust the system to provide the service that is guaranteed in our legislation? I know everyone will say that it is costly, and so on. However, what value do you put on equal rights and on justice?
[Translation]
Senator Tardif: Mr. Bastarache, it is a real privilege for our committee to have you here with us. We thank you for having accepted the invitation to appear.
The Commissioner of Official Languages, Graham Fraser, identified five important criteria to consider with respect to "positive measures": a proactive and systematic approach, concrete and measurable steps, measures adapted to the needs of communities, and measures that are regularly assessed and that result from genuine consultation.
You referred to the needs of communities and to consultation. However, generally speaking, what do you think of these criteria? What criteria would you add to clarify the idea of "positive measures"?
Mr. Bastarache: I think these are good criteria, but they are more administrative or political in nature and not legal. In other words, if we apply these criteria and then ask a court to determine whether or not they were met, the court would not be able to do so, because the criteria are too general. When we talk about implementing legislation, it is necessary to define things far more specifically.
For instance, if you say that service delivery requires an impact analysis from the start and people then challenge the quality of services, and if the department is unable to show it has considered the impact on the francophone community and tried to adjust its services or its administrative structure to address this, the department could face a court decision forcing it to change or restructure its program or to undertake consultations in order to change its service delivery method.
These types of provisions are necessary. The commissioner is right to say to government that this is the type of thing that should be included in all programs. However, I think it is important, before all else, to adjust the institutional structure. We cannot forget that these are not services for the general public, but rather for a francophone community and an anglophone community. One must then ask whether the needs are the same. If we are talking about roads, you can say yes. However, if you are talking about health care, education or cultural services, the needs, the communities and the resources are not the same. Therefore, if the government wants to meet its departmental objectives for a community, it must use different means than those it uses for the other community. The government cannot meet its objectives unless it considers this factor from the start.
The commissioner also mentioned one point that does not appear in your list. He said that the government should not have the right to move backwards. He was referring specifically to the Court Challenges Program. He said that the court should be able to ask the government to justify abolishing the Court Challenges Program. I believe the commissioner is right and that the Attorney General is wrong. That does not mean that the government cannot abolish the program and have the right to do what it can afford. However, it does mean that when a decision has a negative effect on a community, the government must justify and explain it, because it is a measure that runs counter to its obligation to promote and develop the community.
The fear that courts will tell government how to structure its affairs is unfounded. The government has an obligation to justify its actions in the context of its obligations.
When the government takes measures to cut a francophone institution, like the Court Challenges Program, whose positive results are well known, it seems perfectly legitimate to me to ask the government some questions. Why did it do that? Has it analyzed the impact it will have on the community? Does it plan to provide alternative measures to offset the loss? Is this decision in keeping with its obligations?
To say that more money has gone to education does not seem relevant to me. But that is what the Attorney General indicated when he said that the overall budget for minorities increased that year. My answer is that that is very good, but it has nothing to do with the matter at hand.
Senator Tardif: During his appearance before our committee, the Minister of Justice indicated that the advice he provided to other departments and organizations about Part VII was confidential. We then asked him to explain the advice he provides to departments when they ask him what "positive measures" are and how to implement section 41 of Part VII. The Minister of Justice then indicated that he could not answer that question because it was confidential.
What do you think of that statement? How can we assess the implementation of Part VII if we do not know what is said about the section?
Mr. Bastarache: I believe that the only way for him to maintain confidentiality is to say that it is a matter of lawyer-client privilege.
I do not know how this principle could apply in this case. This is a government policy for the implementation of an act. The Department of Justice should be able to explain how it would like departments to understand their obligations. Even if, in theory, the minister was right — and I will not express an opinion on that — it seems to me that there is something wrong with it. Departments must know their obligations in order to meet them. In my opinion, they must be able to tell the public what they believe their obligations to be. It seems very strange to me to say: "I am not able to tell you what my obligations are, but here is what I am going to do."
Senator Fortin-Duplessis: Mr. Bastarache, it really is a pleasure to have you here before our committee.
I am somewhat concerned by the new support program for linguistic rights, which focuses on mediation. As you know, in all negotiation or mediation, there is an aspect of give and take.
Do francophone communities outside Quebec or Quebec anglophones inevitably have to give up gains in one area in order to achieve progress in others?
Mr. Bastarache: I see a fundamental internal contradiction in the new program. It was crafted for what are called "test cases," that is, major constitutional issues that have never been resolved by the courts. The objective of the program is to fund activities that will help to clarify the law, to establish whether the legislation is constitutionally valid and to determine the scope of linguistic protections.
How can you negotiate the scope or the existence of a right and the constitutionality of a law? That to me seems to be an impossible task. Mediation can be offered when legislation is implemented or applied. They say that the application of the legislation is not a factor in the program criteria, which include major national issues, key issues of interpretation and determination of the content and the nature of law. However, if there is no discussion about the implementation of the law, the law is simply known. But if there is no agreement as to how it should be applied, why are mediation and discussion imposed? What will there be to discuss?
For example, I am taking the Government of New Brunswick to court in order to have part of its health act declared unconstitutional. What is there for me to negotiate? I am asking the court to declare its law unconstitutional. There is nothing to negotiate. The law is either constitutional or it is not. There is nothing in between. No agreement can say that a law is half constitutional.
If the program does not fund all linguistic cases, including implementation when it is challenged, but only those cases pertaining to the determination of content and scope of people's rights, then it appears to me that there is no room for mediation.
Senator Fortin-Duplessis: Since there is no Canadian language rights tribunal, what other ways are there to restore language rights to those who have lost them or who feel unfairly treated?
Mr. Bastarache: You have the problem we have had since the former program was abolished. People will have to fund their own cases, to find people to provide them with sufficient financial support and lawyers to work on a volunteer basis.
With the new program, the only thing we can hope for is that the people administering it will realize, once they get a sense of the kind of questions that are asked, that these are not issues that can be addressed through mediation and that they will undertake to move directly to the second phase and fund the court actions. There should be some discretion in how the program is administered. I have a hard time understanding how mediation can be reconciled with the nature of the program as described by the minister.
Senator Fortin-Duplessis: Thank you very much.
Senator Pépin: Good evening. This is my first day on the committee and I must say that I am very pleased to begin with you.
A question was asked earlier, and I just want to make sure that I understood your answer. The nature of the service is what must determine the government's reaction; it must provide an equal level of service, not a compromise. Do you think that each department should have a structure and regulations to govern the application? Would that facilitate the application of a law, or is there a better way?
Mr. Bastarache: The danger with a regulatory framework is that people might think that facts can be appreciated in a mechanical way. For example, section 20 states that the federal government must provide services at head offices, but only where there is sufficient demand. Have you seen those regulations? There are ten pages of very dense text in very fine print. They are incomprehensible. I guarantee that none of you could find information about the services available. It is all very mechanical. They refer to 3,000 people, or 5 per cent of the population, and list exception after exception. I am not sure that was the intended objective.
When I think of government services, I ask myself the following question: when we talk about "sufficient numbers," is it "sufficient" from the point of view of administrative needs or the needs of the people we are serving? The administrative and regulatory system is based on the needs of government. Imagine if we decide to provide services in a city of approximately one million people. If this is 5 per cent of the population or a minimum of 5,000 people and we only have 4,900, what do we do? We have all the staff in place. Do we ask them to stop providing the service? This does not necessarily follow.
If the objective is to support a community, will the numbers truly determine this issue or should there not be a more qualitative assessment? Should we not see with our own eyes a real community within that city? Is there a community life, institutional infrastructure that the government should help maintain? I think that this kind of approach would be more consistent with the objectives set out in Part VII of the act.
However, it is not easy to include this principle in regulations. That is why I would lean more towards obligations in terms of the method, in other words planning should be based on the two communities to whom services are being provided; the public should be consulted on its needs, et cetera.
Senator Losier-Cool: I cannot help but tell you that I feel like I am hearing the late Senator Beaudoin who told us repeatedly in committee that it was not a question of numbers but rather a question of rights! That is exactly what you have just said.
[English]
Senator Seidman: Thank you so much for coming before our committee today.
Much of what you have discussed with us today is certainly not trivial from a legal perspective and also from a philosophic perspective. You have asked us to confront some fundamental principles. You say in your guidelines, submitted to us today, on page 2, if I might quote:
Relations between linguistic groups are based on history, attitudes and self-perception. The minority is always in a state of cultural insecurity, and if it can only count on the courts for its protection, it seems to me that it will be difficult for it to find its place in society on the basis of the recognition of its substantive equality.
In light of this, I would be interested in your comments on the most recent ruling of the Supreme Court of Canada just last week, when they struck down Bill 104 in Quebec limiting immigrants' access to English-language schools.
Mr. Bastarache: The decision was really consistent with what had been said in Solski v. Quebec. It basically recognizes that the Government of Quebec had a legitimate aim in preventing people from diverting the system of free choice by artificially putting children in school for a small period of time just to access the public system.
However, the law itself was badly drafted because it made no nuances at all. Suppose a person has their child in a private school, wants to keep them there but loses their job and cannot afford it any more; or the parent is moved by their employer to a city where there is no private school, or the children have mental disabilities and cannot follow the program in French?
No accommodation was made for those special circumstances. In that sense, the law had to be found to be unconstitutional, but I think Justice LeBel in his reasons said that the province still had the ability to determine whether the choice was one that was only aimed at gaining access without really having decided that the children belonged to a language community, that they want to integrate into that community. The artificiality could be seen by the fact of sending the children for only a few months, but that there would be other criteria that would be used.
In that sense, it fell into the same analysis as the Solski decision, which is the one that dealt with people who move from one province to another. The difficulty, of course, is that you cannot control the way these discretionary powers are exercised. This, I think, was the critique of English-language groups of Quebec. They said that it is all fine in theory, but, in fact, if the administrative tribunal in charge of this is not acting fairly, there is no recourse. I cannot comment on that because there is no way of verifying whether this concern is real or not. However, it is very difficult for the court to find another compromise.
[Translation]
Senator Mockler: Thank you very much. In 1969, when I was studying political science, we read your comments on the former Robichaud government, among other topics. I am a product of that government.
I must tell you that I was the first francophone chairman following the adoption of legislation recognizing the equality of both linguistic communities in New Brunswick. This was in district 32, in the Grand Falls region.
With each successive government, we saw the modernization of the Official Languages Act of New Brunswick. On behalf of those whom I represent, I must tell you that you are one of the leading authorities and also, to use one of Mr. Louis Robichaud's expressions, you are no doubt a magnanimous jurist.
My question concerns the role of politicians and judges. In my opinion, the government must recognize its obligation to take action as we progress towards equality. Should we seize this opportunity today to modernize the Official Languages Act?
Mr. Bastarache: I don't believe that it is necessary to make major amendments to the act. Rather, a change in attitude is required. Ultimately, changing structures, definitions and obligations does not lead to much if the change is not followed by concrete action. What concerns me in Canada is that the whole philosophy of linguistic accommodation was developed by the courts, rather than by government.
The Supreme Court ruled that we were entitled to our own schools and to manage those schools. The Supreme Court has just ruled that it is real equality and not official equality that applies. The Supreme Court ruled that in the area of criminal law there is not sufficient accommodation, and people needed to be heard in equal institutional structures.
Will minorities indefinitely rely on the courts to define their rights? Once defined by the courts, how can we ensure that governments will follow and accept the new system and accept the fact that they are responsible for language policy?
Because no language policy could be negative. Often, we say with regard to fundamental rights, that there are negative rights and positive rights. A negative right means that the government can do nothing to prevent you from exercising your rights. The best example of a negative right is the right to the freedom of expression. The government could not pass legislation preventing you from speaking about a certain subject in public.
An example of a positive right is the right to education. You cannot exercise your right to education if the government does not build schools or hire teachers. A positive right calls for a positive action by the government. What we need is for the government to accept the changes that are occurring in terms of the concepts and definitions through the lens of the courts.
It must accept that it is the real master of linguistic accommodation and that it must adopt a working plan and set clear objectives enabling access to services of equal quality in both linguistic communities. It should not wait for the courts to order it to do so.
When you look at the Supreme Court's rulings, count the number of times the federal government has won a language rights case. The government says that it passed the Official Languages Act and is funding Canadian Heritage, but it is constantly going before the courts and losing its case. If it is losing, it is likely because its case has no merits.
Senator Mockler: First, governments must recognize that they have an obligation to ensure we are constantly moving towards equality. What mechanisms should politicians be using? What actions should we be taking?
Some action must be taken following a ruling by the Supreme Court. We live in a democracy; we have an electoral process by which we elect our representatives, no matter where they come from or what their ethnic background is. If we want to recognize progress and update the act without always going before the Supreme Court, what mechanisms should we be using?
Mr. Bastarache: The government must stop resisting implementing rulings. The court has clarified the right and has indicated what needs to be done and political and administrative decisions should be made in order to do that.
But it seems that, quite often, there is resistance. They see that they have lost; they are not happy and will do the least amount of work possible. They will do what they are required to do in order not to violate the legal order.
But if we take a different attitude, if we accept the fact that the obligations are clearer, that we know what needs to be done, we are able to build the administrative structures and adopt institutional approaches that will be in keeping with the rulings of the court.
That is why I started by quoting the Attorney General in the 2007 case because I find it harmful and concerning that the Official Languages Act is being amended to say that now Canadians can go before the courts to ensure the implementation of Part VII of the act.
The government's first reaction is to say that Part VII does not mean anything, that it is nothing new, that their obligations have truly been met. Ultimately, all the court can do is verify whether the specific requirements set out in the act, such as the tabling of a report or the creation of a support program for minorities, have been met.
Is that really what we wanted to do? Why change the law in order to get the courts to do so little? Is that really in the spirit of the proposed changes and really in the spirit of Part VII?
The Deputy Chair: Honourable senators, we will now begin a second round of questions. I would appreciate it if questions were a little shorter so that all senators have an opportunity to voice their opinion or ask another question of Justice Bastarache before our hour is up.
[English]
Senator Jaffer: I have a more specific question on the Court Challenges Program. I do not want to put you in any compromising position, of course, but you were on the court for a number of years, almost 11 years. You must have seen many Court Challenges Program cases come before you, and it was a way, as we all know, for ordinary citizens to enforce their rights.
With the Court Challenges Program now discontinued, that is a further blow to the official languages. I want to get your opinion on what will happen now, especially when you consider that going to the Supreme Court of Canada is a very expensive process, which will stop the ordinary citizen from enforcing their rights.
Mr. Bastarache: It was a very important program and had a tremendous impact. If you look at all the challenges that happened in the area of education, I believe all of them were financed through the program. You must remember what the program was like though. The program provided $25,000 at the first level. Do you know any case that runs for $25,000? All counsel were working at minimum rates. It paid expenses more than anything else. A very limited amount of money was available. It was not very costly for the government. However, it was the only source that gave sufficient funds to engage the process, and the end result was terrific. The number of pupils who have had access to education in their language, in the minority language, has quadrupled in four or five years and has quadrupled again. The number of schools and school boards that were created all through these actions is tremendous.
There is no way that as many cases could have proceeded without this assistance because you are talking about minority populations that are very small, have very limited resources and people in those communities do not like to be singled out either. It is difficult to find people who will carry the banner and accept all of the social discomfort that comes with being identified with a case such as that. It is not only the time you put in and the effort you put in, but it is also very stressful for those people.
I represented three or four people who lost their jobs because they were challenging the government. They were government employees. Some of them were under contract and the contracts were not renewed, so it created financial stress on top of everything.
To say that we will take away this limited right, and then you just consider the nature of these challenges. In almost all the cases, it was people asking for a school for their children. It is hardly subsidizing the left wing something or other. It is basic in our society. In all cases, we are talking about implementation of constitutional rights — rights that we recognize ourselves as the most important in the country.
I really believe it is a shame that we do not have real support for these court challenges. Of course, we would all prefer not to have challenges by having governments really assume their responsibilities in a more open way, but I suppose there will always be a role for the courts. The limited program that we had was really, to me, a minimum, and it should not have been tampered with.
Senator Jaffer: The way I saw it was not just the people getting their rights in education. For my neighbourhood, my neighbour's children go to French school, my grandson goes to immersion. It creates an environment where it is natural that both languages are spoken. Therefore, it is a more expansive role than if you do not have the language in the community.
Mr. Bastarache: That is very true. For the people who are challenging, it is a very personal thing, and of course they want directly education for their children. As you say, when they obtain that right, it has a spillover effect that is fundamental to our society. It is not really a question of tolerance. Tolerance, to me, is not the right word. You do not want to tolerate people because they want to be served in their language. You want full integration, full participation and full opportunity for people to be citizens who are recognized and have an equal status. All of that is better achieved, as you say.
The Deputy Chair: When we talk about this program, someone somewhere must have felt that through this program the government gave money to some people so that they could sue the government. I think this may be one of the reasons, at one point or another, that this program was caused to disappear; not that I agree with it, but this was what was said at that time.
[Translation]
Senator Tardif: Justice Bastarache, I share your opinion concerning the resistance to the implementation of the Official Languages Act. I would also say that a minimalist approach has been taking root in the implementation of the Official Languages Act.
Often, minority official languages communities cannot make real progress unless they go before the courts. I agree that there needs to be a real commitment on the part of governments. And in many cases, since this real commitment does not exist, people are obligated to go to court.
When you look particularly at Part VII, you need to get a handle on what the words "positive measures" really mean. You said that the criteria used or the suggestions offered by the commissioner were more administrative criteria. What would be some examples of legal tests as one tries to get an understanding of the extent of the commitment to institute "positive measures" for the development of the two official languages communities?
Mr. Bastarache: That would be the legal obligation to verify the impact of the programs on the two communities before a program is implemented. You would need to determine whether the administrative structure provides equal access to services, and check whether the services provided are equal and not just formally speaking, but in actuality.
I find it quite abnormal that there are people who are still insisting today, 40 years after the Official Languages Act came into effect, that they should be able to employ people who are not capable of providing an equal service, and then give them language training. That may have been justifiable 40 years ago, but it no longer is today. Honestly, there is no longer a justification for that. We are now up to the 30th collective agreement since all this started, and surely we are able to sit and meet different objectives to those. When a service is provided, it must be equivalent to the service in the other language. But if it is a translation, if it is someone who is practising in an attempt to learn the language, well then it is perhaps satisfactory for the person in question, but it certainly does not equate to equal access to an equal service for the public. These obligations need to be defined either in the legislation or the regulations.
In other words, the criteria are always a little more vague because you are dealing with social rights. And yet, they are specific enough to be verifiable by the courts. If the court is seized with such a matter, it may call on the deputy minister or the person in charge of the program to prove that he or she has examined the impact on the community and demonstrate the steps taken so that the institutional structure meets the obligation to provide separate service to the two communities based on their own needs. That is something that can be defined.
The courts can carry out these checks and then issue orders compelling the government to do what it should have done from the beginning and provide services of equal quality.
Senator Tardif: Do the communities have specific responsibilities in that regard?
Mr. Bastarache: I think that in many areas, there is a need to consult the communities to some extent in order to gain a full understanding of their needs and priorities; I think that people have to speak up. It is a little bit like in the area of human rights; if someone has a physical disability, and does not tell anyone about it, and that person gets sick and complains that he or she was not accommodated, well then it is quite difficult for the employer to accommodate an individual if the employer is unaware the person has a condition preventing him from carrying out his duties.
The onus is on the communities to inform the government that the service is inadequate, does not meet their needs, et cetera. A proactive approach presupposes that the government should be the first to consult and obtain the information it needs in order to implement programs through which it will meet its obligations.
Senator Losier-Cool: My question is a follow-up on what Senator Tardif said, and that is that our committee is really trying to put a finger on what a "positive measure" really is when considering Part VII.
When you use the word "impact," it made me think of the environment and all the environmental impact studies that are done. Could the government perhaps flesh out Part VII — in terms of its linguistic impact — in a general regulation, without necessarily bringing forward amendments?
Mr. Bastarache: That is a good example. That is precisely an area where the government is not entitled to act without having really measured the impact of its decision on the environment and even on the communities. Aboriginal communities, for example, if you want to build a dam in the Far North or elsewhere, must be consulted; there must be development plans. And there is a way of doing something along the lines of that philosophy when it comes to language. One would expect that certain measures would have an impact and so there should be impact assessments, public consultations, and things along those lines.
Senator Losier-Cool: So those are examples of "positive measures."
Mr. Bastarache: Yes.
Senator Fortin-Duplessis: My question is a little different from the others. By supporting the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Canada recognized in the right to culture one of the most important fundamental rights. The equal dignity of cultures, equal access, and the exposure of cultures to the world at large is part of defining this right.
Could this convention have a major impact when it comes to protecting language rights guaranteed by the charter, because it is one of the rare treaties acknowledging the importance of collective rights, which is one of the cornerstones of Canada's legal culture?
Mr. Bastarache: I believe that language is the primary conduit for culture. If someone arrives in Canada as an immigrant, from a different culture, and does not speak French or English, and if I were to ask you what was the first thing that person should do in order to be accepted in Canada and demonstrate a willingness to integrate, you would tell me that that person should learn one of the two official languages. It is so obvious that language is the primary vehicle for integration and that linguistic integration brings with it cultural integration. When you become part of a cultural group, you do so through language.
And seen in that light, it makes language rights even more important. But we really do not need that because we have a statement by the Supreme Court, in the Quebec Secession Reference, that linguistic protections are included in minority rights, which in turn is one of the fundamental principles on which Canada's democracy is based.
There is no higher level than that, in terms of the philosophy and principles that should guide us in enacting legislation.
Senator Pépin: In order to fulfil our responsibilities as parliamentarians or as a government, do you believe that we should be far more proactive than reactive when we draft legislation, but also in response to certain Supreme Court decisions? Also, is the use of mediation a positive thing or a step back in comparison to the Court Challenges Program which used to be in place?
Mr. Bastarache: In response to your last question, mediation is useless in the context for which the program was intended. It would be useful if the government were prepared to fund cases on the enforcement of the Official Languages Act.
As far as the role of parliamentarians is concerned, as a parliamentarian you can suggest new approaches to the government, that it also change its way of seeing the needs of the population it is serving. The best example is section 20, that I referred to earlier, where the government is taking a purely mathematical approach in determining where it should offer services in both official languages. In my opinion, we should scrap that purely administrative approach and ask ourselves in which communities these services should be offered.
The other thing we need to ask ourselves is whether it is really logical to say that we must provide a service in a minority language when the numbers are sufficient, but that we only count people with whom the minority language is their mother tongue or the language most frequently spoken at home. I think that if you accept the fact that there are two official languages in Canada, you should count everyone who speaks the language in question and not have it just limited to those people for whom it is the mother tongue or the language most often spoken at home.
Furthermore, in minority communities, it is awful to say that it is limited to people who speak the language most of the time at home because of exogamy. A lot of people are in mixed marriages. And in mixed marriages, by far, most of the time English is the language most frequently spoken at home. That does not mean that those people do not know how to speak French, and it does not mean that they do not want to speak French either. I think that we should be giving everyone who wants services in French an opportunity to get those services. If you want to count heads, you need to count everyone who speaks French and not just those for whom French is the mother tongue.
The Deputy Chair: Mr. Bastarache, on behalf of my colleagues I would like to thank you very sincerely for your kindness and for all the details that you have provided to us. I speak for myself in saying that I felt like I had gone back to school with my gray hair and that felt good. I would like to thank you very much.
Colleagues, we will suspend this session and move in camera in a couple of minutes.
(The committee continued in camera.)