Notes for an appearance before the Standing Senate Committee on Official Languages

Madam Chair, members of the committee, good evening.

I am pleased to appear before this committee today for the first time since the beginning of this Parliament. Although I am not sure how many more discussions we will have before my term as Commissioner comes to an end in October, I would like to say that I am honoured to have been welcomed so frequently by your committee and to have had such productive exchanges with you.

The situation regarding CBC/Radio‑Canada is, understandably, a topic that I wish to address and advance before leaving, and so your notice to appear arrived at a rather opportune time.

As you know, I filed proceedings in Federal Court against CBC/Radio‑Canada in 2010. The decision to go to court was based on the fact that, for several years, CBC/Radio‑Canada had refused to recognize its obligations and had a very restrictive interpretation of my jurisdiction to conduct investigations. After receiving 876 complaints from Canadians about the budget cuts CBC/Radio‑Canada made to CBEF Windsor, I conducted an investigation that concluded that the national public broadcaster had not met its obligations under Part VII of the Official Languages Act, because it had not taken into account the negative impact of its decision on the Francophone minority community in southwestern Ontario. CBC/Radio‑Canada refused to participate in the investigation, arguing that its decision was related to programming activities, even though the issue was really about administrative decisions like budget cuts and job losses.

By bringing the case to court, I wanted to confirm that I have jurisdiction to investigate CBC/Radio‑Canada and to clarify its obligations under Part VII of the Official Languages Act.

On September 8, 2014 Justice Martineau of the Federal Court issued a decision that ruled in favour of my jurisdiction to investigate and dismissed CBC/Radio‑Canada’s position that the Canadian Radio-television and Telecommunications Commission (CRTC) had exclusive jurisdiction. The Federal Court’s decision stated that CBC/Radio‑Canada was subject to the Act and to Part VII, which includes the obligation to take positive measures to enhance the vitality and support the development of official language minority communities. CBC/Radio-Canada also has a duty to act in a manner that does not hinder the development or vitality of Canada’s English and French linguistic minority.

CBC/Radio‑Canada appealed this decision. On November 12, 2015, the Federal Court of Appeal overturned the Federal Court’s decision. It is important to note, however, that the Federal Court of Appeal did not rule on substantive issues, but instead found that the trial judge had made procedural errors.

This is why I have not brought the case before the Supreme Court of Canada. Because the Federal Court of Appeal did not rule on merit, it would be difficult to argue before the Supreme Court that the Federal Court of Appeal made errors of national importance.

Although the Federal Court of Appeal did not rule specifically on my jurisdiction with respect to CBC/Radio‑Canada, it did make it clear that the CRTC does not have the power to determine whether there has been a breach of the provisions of the Official Languages Act. This may seem obvious, but CBC/Radio‑Canada had argued that the CRTC was allowed to consider the principles and objectives of the Act when carrying out its mandate and that Parliament presumably wished to let the CRTC be responsible for matters relating to official languages. However, the Federal Court of Appeal clearly stated that the CRTC cannot reach any conclusions regarding breaches of the Act. In saying this, it reiterated—albeit indirectly—that the mandate given to me by Parliament authorizes me to investigate any matter related to the Official Languages Act.

In practical terms, I must admit that after five years of litigation, we are back to square one. Since the Federal Court of Appeal’s decision, however, I have been in discussions with CBC/Radio‑Canada, and I hope that we will soon find a way to resolve this impasse.

Clearly, my role as Commissioner of Official Languages is not to dictate programming decisions to the national public broadcaster. I agree with CBC/Radio‑Canada that journalistic independence is important. However, I maintain that CBC/Radio‑Canada is subject to the Official Languages Act, including Part VII, and that I have full jurisdiction over any investigation into allegations from the public that CBC/Radio‑Canada is not meeting its obligations under the Act.

On a related point, I am interested, as you are, in the digital shift currently under way at CBC/Radio‑Canada and in how the various regions across the country are being served. It appears to me that the same principles apply to this new structure: the national public broadcaster must reflect all of Canada’s English- and French-speaking communities while connecting Canadians to one another.

I would now like to move on to my second topic.

One of the achievements I am most proud of in recent years is my partnership with the Commissioner of Official Languages for New Brunswick and the French Language Services Commissioner of Ontario.

Memoranda of understanding have been established between our organizations that focus primarily on sharing best practices and facilitating the transfer of complaints between jurisdictions. I meet with Commissioners Boileau and d’Entremont every time we find ourselves in the same city, and our staffs are in regular contact with each other. In 2013, we published a joint report on access to justice and the bilingual capacity of Canada’s superior court judiciary. In November 2014, Mr. Boileau’s and my offices published a joint report on Francophone immigration.

Given the number of issues that overlap our jurisdictions, this ongoing partnership helps us to take more efficient and effective action, thus improving the services we provide to Canadians.

In closing, I would like to make brief mention of some of the publications my office will be releasing before the end of my mandate:

  • My annual report, which will be released on May 19, along with new report cards for 33 federal institutions
  • An overview of how I have exercised my role before the courts
  • A study on active offer to the public by federal institutions
  • A study on early childhood development in French-speaking minority communities
  • The results of a public opinion poll on what Canadians think about various issues related to official languages
  • A follow-up to my 2012 audit of Parks Canada

Thank you Madam Chair. I would be pleased to answer any questions you or your colleagues may have.

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