Notes for an address at the annual meeting of the Language Rights Support Program (LRSP) at the University of Ottawa
Advancing Towards the Equality of Status and Use of English and French in Canada
Ottawa, Ontario November 23, 2015
Graham Fraser - Commissioner of Official Languages
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Beginning of dialog
I would like to thank the organizers of the Language Rights Support Program (LRSP) for inviting me to this annual meeting. I’m always delighted to be a panelist with my counterparts and friends Katherine d’Entremont and François Boileau.
I think you’ll agree with me when I say that the past 50 years have marked a veritable revolution in language rights. No one can deny the importance of the role of the Canadian Charter of Rights and Freedoms and, of course, the Official Languages Act. Today, I’d like to take some time to look more specifically at the importance of section 16 of the Charter, and Part VII of the Act.
A few years ago, I learned a thing or two about the events preceding the entrenchment of language rights in the Charter. At the time, Senator Serge Joyal, then a member of Parliament, had been asked by Prime Minister Pierre Trudeau to co-chair the parliamentary committee examining the Charter. Joyal agreed, on the condition that the principles of the Act be included.
The Prime Minister wanted Joyal to co-chair the parliamentary committee because of the role he had played in the 1976 language controversy better known as the “
Gens de l’Air Affair.” To defend the rights of French-speaking pilots to speak to French-speaking air traffic controllers in French, Joyal took the Department of Transport and Air Canada to court—ultimately unsuccessfully—at his own expense. During the controversy, he was a guest on a popular television program hosted by Lise Payette, who later became a Parti Québécois cabinet minister. Ms. Payette welcomed him on the set with the introduction: “
Our next guest is Serge Joyal, our hero!” [translation] Joyal told me he decided then that citizens should never have to act like a hero to defend their language rights in their own country. Author
Paul Claudel said, “
Men are only heroes when they can’t avoid it.” [translation]
Forty years later, we can avoid it. Canadian society is continuing to advance towards the equality of status and use of English and French, and it now has effective legal tools for claiming and asserting its language rights. There is no longer a need to act like a hero. We can count on vital programs, such as the LRSP (which used to be known as the Court Challenges Program), whose objectives are to advance constitutional language rights, lighten the financial burden on citizens and communities, and defend their language rights in court.
In 1982, the Charter significantly strengthened language equality rights by recognizing the right to education in the minority language and linguistic equality in the provision of federal public services. It also recognizes the equality of status and privileges of Canada’s two official languages as to their use in all institutions of Parliament and the federal government, and all institutions of the legislature and government of New Brunswick.
Just like the language provisions in the Charter, the purpose of the Act is to support the development of English- and French-speaking minority communities, and to promote advancement towards the equality of status and use of English and French in Canadian society. This fundamental purpose of the Act is spelled out in Part VII, which imposes specific obligations on institutions regarding the promotion of linguistic duality, and the development and vitality of official language communities.
Part VII addresses the legislative implementation of subsection 16(3) of the Charter, whereby Parliament and the provincial legislatures are committed to promoting advancement towards the equality of status and use of English and French. This November 25 will mark the 10th anniversary of royal assent for Bill S‑3, which strengthened Part VII of the Act by adding explicit obligations and providing a right to judicial remedy for violations under this part.
The legislative intent for the new provisions of Part VII, particularly the duty of federal institutions to take positive measures, was to ensure that the promotion of linguistic duality and the development of official language minority communities would be a crucial part of all federal institutions’ decision-making process when they develop programs or policies, revise them or consider eliminating them, or when they enter into funding agreements.
Today, just a few days shy of the 10th anniversary of this major amendment to the Act, I would like to share my thoughts on the implementation of Part VII, and invite you to reflect on the work that remains to be done so that we can continue to advance towards the equality of status of English and French.
When I was appointed Commissioner in October 2006, the government had already announced the elimination of the Court Challenges Program. I received more than 100 complaints about this.
This was the first real test of the “
new” Part VII. Many of you know the rest of the story: our investigation supported the complainants, and serious shortcomings were found in the process that led to the decision. The Fédération des communautés francophones et acadienne du Canada brought the matter before the Federal Court in 2008, with my support as an intervener. It allowed us to clarify and present our position on the nature and implementation of the new obligation set out in Part VII, namely to take positive measures to fulfil the federal government’s commitment. However, the Court did not have to render a decision owing to the out-of-court settlement that led to the creation of the Language Rights Support Program.
Since then, my office has carried out a number of major investigations into issues related to Part VII, and these investigations have often shown that federal institutions are not taking the needs and interests of official language communities into account in their decision-making processes.
In 2009, there was the investigation into the decision by CBC/Radio-Canada to cut staff at CBEF Windsor, a French-language radio station in southwestern Ontario, from ten to three employees, thereby reducing the production and broadcasting of local content. That measure generated 876 complaints, and my investigation led me to conclude that CBC/Radio-Canada’s decision was detrimental to the vitality of the Windsor area French-speaking community and that CBC/Radio-Canada had not assessed the impact of its decision on this community. On November 12, the Federal Court of Appeal rendered its decision and unfortunately it reversed the Federal Court’s decision for technical reasons related to the decision-making process used by the Federal Court. After five years of litigation, we are back to square one, because we have not received an answer regarding the question of my office’s jurisdiction to investigate complaints against CBC/Radio-Canada or the question of CBC/Radio-Canada’s obligations under Part VII of the Act.
More recently, I conducted a series of investigations following implementation of the Deficit Reduction Action Plan, whereby federal institutions had to reduce their operating expenses. Many of these investigations showed that the budgetary review conducted by several federal institutions did not take into account all of their obligations set out in Part VII of the Act.
In our investigations, we pay particular attention to whether federal institutions have ensured that they are not hindering the development of official language communities when making their decisions. We examine their decision-making processes and ask them if they have assessed the repercussions of any decisions they have made or are about to make. If such an assessment was conducted, we ask for clarification on how it was done in order to determine whether the communities’ needs were actually taken into account. Lastly, if negative repercussions are likely, we examine whether the institution took steps to mitigate these impacts on community development and vitality.
This interpretation of Part VII was inspired in part by the federal government’s rules for implementing this part of the Act, namely the Accountability and Coordination Framework, which formed part of the 2003 Action Plan adopted by the federal government to implement Part VII of the Act. It was also inspired by the handbook released by Canadian Heritage to guide federal institutions in carrying out their new duties under subsection 41(2) of the Act.
Aside from the obligation not to hinder the development and vitality of official language communities, the government must implement positive measures by being proactive and taking concrete steps to support community development and promote linguistic duality. The federal institution report cards issued by my office help to assess how well they are fulfilling this obligation, which requires ongoing efforts to address the specific needs of these communities, and those efforts must be compatible with the interests of the official language minority communities.
In my first annual report, in 2006–2007, I set out three principles to guide the implementation of positive measures by federal institutions: a proactive approach and targeted treatment; active participation of Canadians; and a continuous process for improving the programs and policies related to Part VII. However, three years later, I noted that many federal institutions still had not implemented these principles. That year, 10 of the 16 federal institutions that were evaluated received a rating of D or E for their implementation of Part VII.
There are various reasons for this. For example, some federal institutions do not understand their obligations under the Act in terms of promoting English and French, while others are not properly planning activities towards this goal. Implementation of Part VII of the Act is therefore a gradual process. I have often said that successful implementation depends to a large extent on the initiative and creativity put forth by federal institutions and communities.
In my 2013–2014 annual report, there was only one D and not a single E as regards Part VII. However, I noted that there was a common thread in terms of improvements that needed to be made, and that was assessing the impact of the positive measures taken to support the development of official language communities and, in particular, to promote both official languages. I strongly encouraged the institutions to come up with a formal procedure for assessing the impact of their positive measures.
To recap, over the past decade, I have noted that implementation of Part VII varies from one institution to the next. Federal institutions still do not have a true shared understanding of their duty to take positive measures. In 2005, we had to omit a definition or list of positive measures from the Act so that we would not hinder innovation and imagination, or frame the federal institutions’ decision-making process too restrictively. In view of the ongoing issues in fulfilling these duties, I believe the time has come to reflect on the opportunity to develop a regulatory framework that could, for example, clarify the decision-making processes institutions must follow in discharging their obligation to be proactive and not to hinder the development and vitality of official language communities.
Another matter that could be clarified in a regulatory framework is consultation. In my opinion, the duty to take positive measures includes an obligation to be familiar with the needs and interests of official language communities so that they can be taken into account in decision making. Consultation is a way for institutions to identify these needs and priorities, and to assess the repercussions of decisions or initiatives on community vitality. Subsection 43(2) of the Act imposed an explicit duty on the Minister of Canadian Heritage to ensure public consultation. Whether it be a good practice for federal institutions or a duty for Canadian Heritage, consultation paves the way for a new approach to collaboration between communities and institutions, which must ensure that the decisions they make and the steps they take are relevant and positive for official language communities. However, we would do well to review the processes used for consulting the groups involved, namely official language minority communities. All too often, the investigations conducted by my office show that federal institutions are not taking the appropriate steps to familiarize themselves with the communities’ needs and interests. I believe that the time has come to reflect on the need to develop an instrument that would provide more effective guidance.
In closing, I would like to quote Justice Martineau of the Federal Court, who, in my opinion, gave a good explanation of the objectives of Part VII in its 2014 ruling on CBC/Radio-Canada’s language obligations:
The provisions in Part VII are therefore geared towards long-term objectives whose achievement is dependent on political will. It cannot be otherwise and, as long as these provisions are not repealed by Parliament, the government must respect the commitment set out at section 41 of the [Act]. Because, in a singular manner, Part VII of the [Act] expresses the will of Parliament to place the federal apparatus at the service of a larger societal project that will encompass and surpass it, namely, the advent of a Canada that fully recognizes the equality of English and French, and in which official language minorities flourish.Footnote 1
- Footnote 1
Canada (Commissioner of Official Languages) v CBC, 2014 FC 849, para. 37.