Language Rights and Francophones in Minority Settings: The Language Commissioners Speak
Octobre 22, 2021
Raymond Théberge - Commissioner of Official Languages
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Thank you very much, Professor Garon.
Thank you for inviting me to be with you today to discuss language rights and how they are protected in Canada.
Although today’s meeting is being held virtually, I would like to begin by acknowledging that I am speaking to you from a Treaty 1 territory, the traditional territory of the Anishinaabeg, Cree, Oji‑Cree, Dakota and Dene Peoples, and the homeland of the Métis Nation.
Recent events have served as a reminder of the often-tragic nature of the relationship between Indigenous peoples and settlers in Canada. We need to reflect on the many contributions Indigenous peoples have made to our country’s history so that we can continue to move forward on the journey toward reconciliation.
The theme of today’s webinar—the language rights of Francophones in minority settings—is particularly important to me. I grew up in a French-speaking community in Manitoba, and my career has taken me to Ontario, Quebec and New Brunswick, so I feel fortunate to have had the opportunity to experience Canada in a number of contexts, each with its own qualities and challenges.
I have long been involved in teaching, research and university administration and was appointed Commissioner of Official Languages in 2018. As an agent of Parliament, my role is to promote official languages, protect the language rights of Canadians and foster the equal status of both official languages in the federal government and in Canadian society.
Linguistic duality is the recognition of two official languages that have equal status and belong to all Canadians, regardless of their background. It is also the assurance that these languages and their speakers have a space of their own where they can thrive in every part of the country.
Today, language rights are clearly recognized and guaranteed by the Canadian Charter of Rights and Freedoms, which establishes the equality of status as to the use of English and French in all institutions of Parliament and the federal government.
The Charter also guarantees the educational rights of children in English‑speaking minority communities in the province of Quebec and of children in French‑speaking minority communities in the other provinces and territories of Canada.
Our official languages, as well as Canadians’ language rights, are also protected by the Official Languages Act. However, the recognition of language rights in Canada goes back several decades.
Following the Laurendeau‑Dunton Commission on Bilingualism and Biculturalism, Parliament passed the Official Languages Act in 1969 and created the position of Commissioner of Official Languages. In 1970, Keith Spicer became Canada’s first Commissioner.
The purpose of the Act is to ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in federal institutions.
The Act also aims to support the development of English and French linguistic minority communities and to advance the equality of status and use of English and French in Canadian society.
In the years since it was adopted in 1969, the Official Languages Act has undergone many changes that have broadened its scope and application. A new Official Languages Act was passed in 1988 and subsequently amended in 2005.
The Act applies only to federal institutions, including the Parliament of Canada and Crown corporations (including VIA Rail and Canada Post). Other organizations, such as Air Canada, the Canadian National Railway Company and NAV CANADA, continued to have language obligations after they were privatized.
It is important to note that the Official Languages Act does not apply to Canadian provinces, municipalities or most private companies.
This means, for example, that the services provided by the Ontario government are not subject to the federal Act, but rather to Ontario’s French Language Services Act.
The Official Languages Act governs communications with and services to the public, as well as language of work in federal institutions.
When do you receive services from the federal government? When you apply for a passport or employment insurance, or when you file your income tax return, you are dealing with the federal government.
When applying for a passport or for any other federal government service in person, you can obtain that service in the official language of your choice if the point of service is designated as bilingual. All information on a federal institution’s website, applications or social media platforms must be available in both official languages simultaneously.
Under the Official Languages Act, the Government of Canada is also committed to ensuring that English-speaking Canadians and French-speaking Canadians have equal opportunities to obtain employment and advance their careers in federal institutions.
In addition, the government is required to support the development of official language minority communities, foster the full recognition and use of both English and French in Canadian society and take positive measures to fulfill this commitment.
As Commissioner of Official Languages, my job is to ensure that federal institutions comply with the Official Languages Act. I am therefore the federal language ombudsman. I receive complaints on official languages issues, and my team investigates these complaints.
This is probably the part of my job that Canadians are most familiar with since some of my investigations are covered by the media.
There has been an upward trend in recent years in the number of official languages complaints filed with my office. Where we used to receive a few hundred complaints a year, the number of complaints has doubled or even tripled, depending on the year. We are now receiving more than 1,000 complaints every year.
Last year, in 2020–2021, we received 1,870 complaints, of which nearly 140 were related to the COVID‑19 pandemic.
Communications with and services to the public continue to be compliance issues, year after year.
I would now like to give you a brief overview of my office’s complaints process, if I may.
When a complaint is filed, the first step is to determine whether it is admissible. A complaint has to meet three criteria before an investigation is launched. It must:
- involve a federal institution subject to the Act;
- relate to an alleged violation of the Act; and
- concern a specific situation.
If the complaint is admissible, investigators then gather and analyze all information relevant to the situation cited in the complaint. Because my mandate as an ombudsman is to be independent and impartial, this part of the investigation process is done in cooperation with the complainant and the federal institution and can be done either through a facilitated resolution process or a formal investigation.
Our facilitated resolution process is an investigation process that resolves a complaint quickly while achieving lasting results for the complainant. Investigations that are conducted using this process are just as thorough as formal investigations, and the complainant must agree to its use.
In a formal investigation, a preliminary report that summarizes the issue and explains my position is prepared and sent to the complainant and the federal institution involved. Both parties are asked to provide feedback on the preliminary report so that the information included in our final report can be validated. The final report advises the parties whether the complaint is founded.
If the complaint is founded, I can make detailed recommendations to the federal institution to help it rectify the situation. These recommendations become formal and official when I issue my final report.
I follow up on every report that includes recommendations so that I can check whether the federal institution has implemented them.
If the recommendations have not been implemented and if any issues identified in the investigation are still unresolved, I may take further action to address those issues.
A specific and topical example of this is the number of complaints filed during federal elections. Although being able to vote in the official language of your choice is a fundamental right in Canada, it is still not always guaranteed across the country.
The complaints I receive in connection with federal elections concern the lack of an active offer of service in both official languages, the inability to provide service in the official language of the voter’s choice, and documentation provided in only one official language.
The number of complaints in recent years about the bilingual services provided to voters by Elections Canada shows that there are systemic issues. This is why I am working closely with Elections Canada—to find solutions to these issues and to ensure that Canadian voters receive services in the official language of their choice at every stage of the voting process, regardless of whether they choose to vote in advance, by mail or in person.
The cooperation between my office and Elections Canada helps us to resolve some issues quickly, sometimes within hours of the complaint’s being filed. For example, if I receive a complaint about a polling station, Elections Canada can adjust its approach and take prompt action to ensure that other Canadians have the opportunity to vote in the official language of their choice later that same day.
Although I cannot confirm whether this strategy and my recommendations are the main reasons, we seem to be seeing some progress in terms of the 2021 federal election, as we have received far fewer complaints so far than we did about the 2019 election.
As I said earlier, the purpose of our Official Languages Act is to protect the language rights of Canadians. Despite the amendments that have been made over the years, it is clear that the Act has not evolved at the same pace as Canadian society. In 1969, when the first Official Languages Act was passed, and in 1988, when it was significantly amended, the Internet did not exist—not to mention Facebook and Twitter—and no one had their own smart phone like they do today!
This is why a true modernization of the Act is needed—so that official languages can better meet the needs of the public and thrive in today’s Canada and in our country’s future. We need a modernized Act that fosters the vitality of linguistic minorities and guides federal institutions in complying with their duties to the Canadian public.
Just over two years ago, after consulting with Canadians and various stakeholders, I made a series of recommendations to the federal government to make the Act relevant, dynamic and strong.
If my recommendations are followed, modernizing the Act will have a tangible impact on the status and use of English and French in Canada. The recommendations are intended to guide Parliament in passing legislation that will help achieve its objectives, which are paramount to our social contract.
My vision of a modernized Act that is strong above all else is that, as Commissioner of Official Languages, I need to have more tools to be able to carry out my mandate more effectively and, most importantly, to improve federal institutions’ compliance with the Act.
For example, I recommended that new mechanisms be added to the Act, including the power to impose monetary penalties and to enter into enforceable agreements with federal institutions that are subject to the Act. These mechanisms could greatly assist me in improving compliance with the Act.
I also recommended clarifying the obligations of federal institutions that serve both the travelling public and the general public.
Another of my recommendations was to ensure that federal employees’ language‑of‑work rights are consistent with their obligations in terms of communications with and services to the public.
Take, for example, employees working in a Service Canada Centre in the Toronto area who provide bilingual services. Because Toronto is not in a region designated as bilingual for language-of-work purposes, these employees cannot work or be supervised in the official language of their choice, even though they are required to provide bilingual services to the public.
With regard to Part VII of the Act, which governs the advancement of English and French, the implementation and interpretation of this part of the Act continue to pose significant challenges. This is why I have recommended that regulations be developed for Part VII—so that some of the concepts can be clarified and so that parameters can be set to guide federal institutions in taking positive measures and honouring their Part VII commitments.
It is clear that modernizing the Act is essential. It has been needed for several years, now, and must be done as soon as possible. It will continue to be a priority for me until new legislation is officially enacted.
As you know, modernizing the Official Languages Act was one of the priorities announced in the federal government’s last Speech from the Throne. After presenting its intentions for a reform of Canada’s official languages in a document published last April, the Government tabled a bill in June that proposed a series of measures to address many of the issues facing the Official Languages Act. A number of my recommendations were included in the bill.
When the federal election was called in August, the bill unfortunately died on the order paper. However, the Government has committed to working with both official language communities to pass a new bill within the first 100 days of its mandate to achieve substantive equality of English and French and to strengthen the Act. I expect that this bill will include new compliance and enforcement powers, as I mentioned in my recommendations.
I look forward to getting back to work on the modernization file and to sharing with parliamentarians the results of an in-depth analysis that I will be conducting on the bill.
Official languages will undoubtedly continue to be a hot topic in the coming months, which shows how important they are and what an essential role they play in Canadian society.
An Official Languages Act that is stronger and more reflective of our reality can only help to support and strengthen Canada’s official language minority communities.