Modernizing the Official Languages Act: The Commissioner of Official Languages’ Recommendations for an Act that is Relevant, Dynamic and Strong

Message from the Commissioner of Official Languages

Our official languages form the foundation of Canada’s diverse and inclusive society. They are central to our identity, as evidenced by the languages of our institutions, our democracy, our schools, our universities, our public spaces and our business community.

1969-2019

The Official Languages Act is celebrating its golden jubilee in 2019. The Act has helped us achieve many things over the past 50 years: greater representation of our two language communities within the federal government; improved access to federal services in both official languages; the advancement of English and French in Canadian society; and support and assistance for the development of official language minority communities. However, challenges are springing up from everywhere, and the Act as we know it is no longer up to the task.

A true modernization of the Act is needed so that official languages can 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.

This position paper outlines many findings and presents my recommendations for an Act that is relevant, dynamic and strong. It is the result of a lengthy process of consultation, discussion and review by my office, supplemented by decades of experience in overseeing the Act, and it reflects my team’s ongoing commitment to the promotion and recognition of both official languages. I would like to extend my sincere thanks to all those who participated in our national consultation, which had a significant impact on my vision for a modernized Act.

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 for modernization, which is based on the principles of a relevant, dynamic and strong act, is that the Commissioner needs more tools to be able to carry out its mandate more effectively. Ultimately, however, it is still up to federal institutions to meet their obligations.

Indeed, my vision for modernizing the Act extends well beyond legislative and regulatory changes. In addition to a modernized Act, leadership in official languages and a cultural shift are required. I am calling on everyone to take the necessary action to ensure that linguistic duality can thrive throughout Canada.

Executive summary

It has been 50 years since the first Official Languages Act was passed. While we celebrate the progress and many successes achieved since 1969, it is a good time to conduct and in-depth review of official languages needs and think about whether the tools offered by the Act meet those needs effectively.

The Commissioner’s repeated calls to modernize the Act have been echoed across Canada by both language groups, highlighting the urgent need to review the current legislative framework and draft new regulations to meet the expectations and reflect the realities of all Canadians.

The Commissioner is therefore recommending a holistic approach to modernizing the Act that goes well beyond legislative and regulatory change. To create a cultural shift so that linguistic duality can reach its full potential across Canada, he has made 18 recommendations under the three pillars of his vision for an Act that is relevant, dynamic, and strong.

These recommendations are based on the experience and expertise of the Office of the Commissioner of Official Languages dating back to the introduction of the first Act, coupled with a range of studies and analyses, as well as months of public consultations with the Canadian public.

During the consultations, many participants said the modernized Act should be designed to be applied as a consistent and seamless whole. The Commissioner agrees with this approach and has sought to make it a priority, both through his recommendations and, more generally, through this document.

The following pages propose legislative changes and new regulatory frameworks in the areas of justice, communications with and services to the public, language of work in the federal public service, governance, compliance, advancement of Canada’s two official languages, and the vitality and development of official language minority communities.

 

After all the work that has been done over the past half-century, I believe we need to re-examine our social contract. Official languages are everyone’s businessEndnote 1.

Raymond Théberge, Commissioner of Official Languages (2018 – present)

Overview of the changes that have shaped the Official Languages Act

The first Official Languages Act was passed unanimously in July 1969 and came into effect on September 7 of the same year. A new Act was passed 19 years later, in July 1988, and came into effect on September 15 of that year. Aside from an amendment to Part VII in 2005, the Act has not been reviewed in depth since 1988.

After five decades, we can safely say that linguistic duality is part of Canada’s national narrative and that the Act has been instrumental in its growth. However, we should note that linguistic duality as a Canadian value has not always been something on which Canadians have agreed.

The 1969 and 1988 acts addressed the specific social contexts and realities of their times. In fact, when drafting the 1969 Act, the legislators’ objective was to strengthen national unity by recognizing the equal status of English and French and ensuring equal access to federal services in either official languageEndnote 2. By making English and French the official languages of Canada, the then government endorsed the spirit of the recommendations made by the Royal Commission on Bilingualism and BiculturalismEndnote 3. The right to be heard before the federal courtsEndnote 4 and to communicate with and obtain services from the federal government in either languageEndnote 5 were enshrined in the first Act.

Language-related resolutions, policies and regulatory measures followed, including the Resolution on Official Languages in the Public ServiceEndnote 6, which was adopted by Parliament in 1973 to ensure equal access to federal government positions and to enable public servants to work in the official language of their choice; the Consumer Packaging and Labelling RegulationsEndnote 7, which came into effect in 1974 and stipulated that certain product packaging information to be in both English and French; and the 1977 government policy paper entitled A National UnderstandingEndnote 8, which explained the historical reasons for Canada’s language policy and presented an overview of its application. In 1982, the Canadian Charter of Rights and Freedoms constitutionalized not only the equal status of both official languages, but also language rights, including the educational rights for official language minority communitiesEndnote 9. Collectively, these measures sought to put an end to over a century’s worth of debate and ambiguity about whether Canada was an English-speaking country with a French-speaking Quebec or a bilingual country big enough for both official languages to thriveEndnote 10.

The enactment of the Act in 1969 and the years that followed resulted in significant advancements in terms of official languages and Canadian identity, despite the fact that the scope of the Act was still relatively limited and ensured only the public’s right to communicate with and receive services from the federal government in either official languageEndnote 11.

It was against this backdrop that the 1988 Official Languages Act gave new momentum to linguistic duality by defining language-of-work rights and recognizing the importance of advancing English and French and enhancing the vitality of official language minority communities. In fact, the addition of Part VII to the Act was partially an attempt to address the demographic challenges experienced by these communitiesEndnote 12 and to support them after the tabling of the 1987 Meech Lake Accord, which would have amended the Constitution and recognized Quebec as a “distinct society” within CanadaEndnote 13. By being an extension of the constitutional language guarantees enshrined in the 1982 Canadian Charter of Rights and Freedoms and having quasi-constitutional statusEndnote 14, the 1988 Act greatly expanded the scope of linguistic duality.

The last major amendments to the Act were made in 2005, when the duty to implement the commitments set out in Part VII of the Act was added, making this part enforceableEndnote 15. This meant that federal institutions now had specific obligations under Part VII of the Act and that an application could be made for a court remedy if these obligations were not met. As a result of these amendments, federal institutions now have to take positive measures to support the development of official language minority communities and to foster the full recognition and use of both official languages in Canadian society.

This legislative process has consolidated and codified the legal foundation on which Canada’s linguistic duality rests. The challenge now is to ensure complete implementation of the Act to give it full effect. Considering the Office of the Commissioner of Official Languages’ experience and the current context, it is clear that this cannot be accomplished without making major amendments and structural changes to the Act.

Why modernize the Official Languages Act?

Even today, people throughout the country are still asking questions about the importance of linguistic duality as a Canadian value. Despite the constitutional status of English and French and the major language rights advances made before the courts over the years, the perpetuity of Canada’s official languages is at the mercy of the changing priorities of whichever government is in power. That is why modernizing the Act is an opportunity to breathe new life into linguistic duality, both to preserve its gains and to ensure its continued growth.

On the Act’s 40th anniversary in 2009, then Commissioner of Official Languages Graham Fraser was already noticing that the Act had reached a plateau in terms of its implementation. He described how institutional bilingualism within the federal government had made little progress in the preceding years:

Federal services are not always automatically offered in both languages everywhere in designated bilingual offices, and the situation regarding language of work is stagnating. What is more, the problem of chronic under-representation of Anglophones in the federal public service in Quebec persists. All-too-frequent cutbacks and a continuing lack of leadership are causes for concernEndnote 16.

These words are still as relevant today as they were a decade ago. This inertia has also had other serious consequences, particularly for the development of official language minority communities.

Although there has been significant progress, a number of recurring issues continue to impede the successful achievement of the Act’s objectives. After half a century, the Office of the Commissioner has found federal institutions generally take a fragmented approach in applying the provisions of the Act. There are several reasons for this, including ambiguity and the difficulties that arise in trying to apply certain provisions, such as those based on geographic divisions that date back nearly 40 years. Beyond these considerations, the Act could include new provisions to address issues that were missed by the drafters of the 1988 Act.

The current Commissioner, Raymond Théberge, believes that modernizing the Act is crucial in light of the many changes that have shaped Canadian society since the last major review in the late 1980s—changes such as demographic and identity shifts, as well as the growing importance of new technologies in government communications and service delivery. These changes alone demonstrate the very real need to modernize the Act so that it continues to be an effective tool for protecting and promoting Canada’s linguistic duality.

More than simply an update, the modernization of the Act must generate results that have a real and tangible impact on the equal status and use of both English and French in Canadian society and on the vitality of official language minority communities. Canada needs a modern Act that reflects the reality of present and future generations, and this can be achieved only through legislative and regulatory changes.

Progress made since the recommendations of the 2016–2017 annual report

A lot of the groundwork has been laid since 2017 in terms of discussions and consultations on modernizing the now 50-year-old Act, not only by the Office of the Commissioner but also by a variety of official languages stakeholders.

In her 2016–2017 annual report, Interim Commissioner of Official Languages Ghislaine Saikaley recommended that the government “assess the relevance of updating the Act, with a view to establishing a clear position in 2019Endnote 17.” In the spring of 2017, the Standing Senate Committee on Official Languages began a five-part study on modernizing the Act, with plans to hear evidence from young Canadians, official language minority communities, legal experts, federal institutions, and stakeholders who have witnessed the evolution of the ActEndnote 18. The House of Commons Standing Committee on Official Languages has also been focusing on the issue over the past two years, beginning its study on the modernization of the ActEndnote 19 and making various recommendations for the government on this issue in other studiesEndnote 20.

In the summer of 2017, the Office of the Commissioner formed an internal working committee on modernizing the Act, and the issue soon became one of the organization’s top priorities. In the fall of 2017, the Office of the Commissioner began a series of informal discussions with official language minority community leaders and other key stakeholders to update them on its efforts and explore issues regarding possible changes to the Act. In the spring of 2018, it conducted an on-line public survey and received more than 4,200 responses from Canadians in every province and territory. It also conducted formal consultations across Canada with individuals and groups who have specific experience in official languages. After the last formal meeting in late summer 2018, the Office of the Commissioner had met with more than 300 people and received several written submissions. The collaborative spirit that emerged from the public and formal consultations did much to shape the Commissioner’s vision for a modernized Act, and the ensuing recommendations reflect many of the participants’ suggestions.

In addition to the Office of the Commissioner’s efforts, many individuals and organizations have been asking for the Act to be changed to better reflect the future of linguistic duality in Canada and the new realities of Canadian society, especially those of official language minority communities. The Standing Senate Committee on Official Languages has received many detailed briefs and proposalsEndnote 21, from which a clear consensus has emerged about the Act’s flaws and about possible amendments.

On June 6, 2018, Prime Minister Justin Trudeau officially announced that the Government of Canada would modernize the ActEndnote 22, a strong and direct response to the Interim Commissioner’s 2017 recommendation. On March 11, 2019, the Minister of Tourism, Official Languages and La Francophonie announced the launch of her review to modernize the ActEndnote 23. As the government begins its contemplation on how to amend the Act, the Office of the Commissioner is lending its unique outlook to the public debate, a perspective developed over nearly half a century of experience in ensuring compliance with the Act.

Vision of the Commissioner of Official Languages

As Canadian society looks to the future, the Act must do likewise. The last time the Act underwent a major revision, there was no Internet or social media, and none of today’s younger generations had been born yet. Today’s youth are eager to learn about each other’s culture, and they dream of a country where living in English and French is the norm. They want the federal government to commit to long-term leadership in making this dream come true. There is no denying that the 1988 Act has aged and that the younger generations do not identify with it.

During the consultations on modernizing the Act conducted by the Office of the Commissioner in the spring and summer of 2018, many stakeholders said that the modernized Act would need to be designed in such as way as to be applied as a whole. They noted that a coordinated application of all parts of the Act would have a positive impact on every obligation contained therein and most especially on the duty to take positive measures to enhance the vitality of official language minority communities.

To make this vision a reality, the modernized Act must recognize that its parts are interdependent—that there are, for example, intrinsic links between the representation for both language groups within the federal public service, the rights related to language of work, and the obligations related to communications with and services to the public, and that those rights and obligations have a broader impact on the other parts of the Act. Federal institutions whose workforces reflect the presence of both language groups, whose positions are staffed with proper language requirements, and whose culture promotes the equality of English and French are more likely to communicate with and provide services to the public in both official languages, to support official language minority communities with real action, and to advance linguistic duality in Canadian society.

Taken together, the recommendations made by the Commissioner in this document are intended to result in an Act that is structurally logical and clearly consistent throughout all of its parts. The approach described in the following pages, and the ensuing recommendations, stem from the three pillars on which the Commissioner’s vision is based: having an Act that is relevant, dynamic, and strong.

The changes the Commissioner is proposing were not developed in isolation. On the contrary, most are designed to have cross-effects throughout the Act. If the current legislation is not changed so that it can be implemented holistically, and if appropriate effective regulatory tools are not developed to support it, then the Official Languages Act will remain static and become increasingly outdated.

An Act that is relevant

For the Commissioner, the main reason to modernize the Act is to make it current and relevant. The modernized Act should, in every aspect, reflect both the current needs of Canadian society and the future aspirations of that society to be a country that fully embraces linguistic duality.

To achieve this, a number of amendments need to be made to various parts of the Act. For example, the government must ensure better access to the federal justice system in English and French, it must clarify the obligations regarding communications with and services to the public and make sure they meet the needs of Canadians; it must update and clarify the rights and obligations regarding language of work within the federal public service; and it must develop a regulatory framework to deliver on its commitments to enhance the vitality of official language minority communities and to foster the full recognition and use of both official languages.

Providing better access to the federal judicial and quasi-judicial systems in both official languages

 

[T]he role of federally constituted courts remains vital to the preservation and continued evolution of a legal system composed not only of civil and common law elements, but also characterized by the use of English and French in all regions of the countryEndnote 24.

Victor Goldbloom, Commissioner of Official Languages (1991–1999)

Part III of the Act sets out the language rights and obligations in the administration of justice at the federal level. Federal courts, including quasi-judicial bodies created by Parliament, have obligations regarding the use of English and French in civil proceedings.

Serious flaws have been noted in recent decades. For example, the Act does not guarantee that everyone can be heard and understood in the official language of their choice before the Supreme Court of Canada without the assistance of an interpreterEndnote 25. Other shortcomings include the difficulties surrounding the publication of federal court decisions of public interest and importance in both official languages and the problems involved in posting English and French versions of publicly reported decisions simultaneously.

Changes need to be made to this part of the Act must be amended so it can fulfill one of its basic principles: full and equal access to courts in both official languagesEndnote 26.

(1) Ensuring that all Canadians can be heard and understood in the official language of their choice before the Supreme Court of Canada

Section 16 of the Act stipulates that, in civil proceedings before federal courts, the person hearing the case must understand English or French, or both, depending on the language(s) chosen by the parties. However, section 16 also specifically exempts the Supreme Court of Canada from this requirement.

The Commissioner and his predecessors have always maintained that “bilingualism is a fundamental skill for Supreme Court judgesEndnote 27.” Parliamentarians and other official languages stakeholders have also been saying similar things for yearsEndnote 28.

The Act is not concerned with the appointment of Supreme Court justices. Removing this exemption would ensure that anyone who appears before Canada’s highest court can be understood by the judges in the official language of his or her choice without the assistance of an interpreter.

Although this proposal does not completely resolve the problem of appointing bilingual judges to the Supreme Court of Canada, the amendment would improve access to justice for many Canadians in the official language of their choice.

 

Recommendation 1

The Commissioner of Official Languages recommends that the exemption for the Supreme Court of Canada be removed from section 16 of the Official Languages Act.

 

(2) Improving access to federal court decisions of public interest and importance

Final decisions rendered by federal court judges must be filed with the court registry and be made available to the public in both official languages. This step is part of a court process governed by Part III of the Act. However, when decisions are “made available,” they have not yet been “communicated” within the meaning of Part IV of the ActEndnote 29.

Furthermore, a decision does not necessarily have to be made available to the public simultaneously in both official languages. Section 20 of the Act states that final decisions must in some cases be made available simultaneously in both official languages and in other cases be issued first in one official language and then, as soon as possible, in the otherEndnote 30.

Applying this provision has long been a challenge for federal courts. As far back as 1999, then Commissioner Victor Goldbloom said that operational constraintsEndnote 31 made it hard for some courts to meet their section 20 obligationsEndnote 32 and recommended legislative amendments to address the issueEndnote 33. More recently, the Courts Administration Service, which provides services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of Canada, and the Tax Court of Canada, said that insufficient resources and consequent delays make it much harder to meet section 20 requirementsEndnote 34.

Though two decades old, Victor Goldbloom’s recommendations are no less relevant today. The federal courts’ obligation to make all final decisions available in both official languages is broad in scope, requiring that even factual decisions of no public importance be translated into the other official language. This means that many federal courts must issue bilingual versions of numerous factually bound decisions arising out of unilingual proceedingsEndnote 35. A review should be conducted of the rationales for requiring these types of decisions to be made available in both official languagesEndnote 36.

This review would help to ensure that rulings or decisions of public importance are made available more quickly in both official languages, and that the funding allocated to federal courts to translate these decisions is more effectively managed.

 

Recommendation 2

The Commissioner of Official Languages recommends that the public’s access, in both official languages, to final decisions of public interest and importance issued by federal courts be improved through legislation.

 

(3) Ensuring that federal court decisions are issued simultaneously in both official languages

Decisions by federal courts are made public, on-line and otherwise, after the judgement is handed down. Unlike the process by which these decisions are “made available,” as noted above, this service or communication falls beyond the scope of Part III of the ActEndnote 37 but within the requirements set out in Part IV.

However, clarification is needed to ensure that courts communicate their decisions to the public simultaneously in both official languages.

This problem has been noted several times in recent years, not only by then Commissioner of Official Languages Graham Fraser in 2016Endnote 38 but also by the House of Commons Standing Committee on Official Languages in 2017Endnote 39.

The current difference in interpretation as to whether section 20 or Part IV should be applied to federal court decisions that are posted on-line is a major barrier for Canadians to access the decisions in the official language of their choice because many important rulings end up being available in just one official languageEndnote 40.

Therefore, either section 20 or Part IV of the Act must be amended in order to clarify the language obligations.

 

Recommendation 3

The Commissioner of Official Languages recommends that decisions by federal courts and tribunals be required through legislation to be made available simultaneously in both official languages.

 

Ensuring that communication and service delivery requirements are clear and meet Canadians’ needs

 

The public’s fundamental right to communicate with and to receive services from federal institutions in either official language is established in section 20 of the Canadian Charter of Rights and Freedoms. Although section 20 of the Charter acknowledges that this right can be exercised by the public, its purpose is mainly remedial, since its primary goal is to enable official language minorities to develop, thrive, strengthen their identity and promote their vitalityEndnote 41.

Graham Fraser, Commissioner of Official Languages (2006–2016)

In the wake of various past and recent legislative efforts to amend Part IV of the Act and its regulationsEndnote 42, the Commissioner tabled a special report to Parliament in May 2018 on the review of the Official Languages (Communications with and Services to the Public) Regulations. Among other serious issues, the report found that the exclusively quantitative definition of “significant demand” had an exclusionary effect on official language minority communities, that the Regulations were applied inconsistently and incoherently, and that they failed to provide details that could facilitate the implementation of active offerEndnote 43.

The new draft Regulations tabled in Parliament in October 2018 contain key improvements, but there are still shortcomings, such as exclusively quantitative criteria, that had been pointed out in the Commissioner’s special report. Although the new vitality criterion seems to be qualitative at first glance, it is based on minority language education rights, which may be claimed only “where numbers warrantEndnote 44.” This approach to providing services in both official languages is inconsistent with the vision of an Act whose parts and regulations are designed to fully achieve its purpose.

Modernizing the Act gives the government an opportunity to review some of these shortcomings and make changes that reflect the key role Part IV of the Act plays when Canadians interact with federal institutions. The five principles outlined in the special report to ParliamentEndnote 45 are just as relevant for the government’s broader review of modernizing the Act.

In addition to these concerns, there are two other aspects of Part IV, also noted in the special report to Parliament, that warrant careful consideration and are the focus of specific recommendations. First, the obligations of federal institutions that serve the travelling public need to be clarified. Second, the scope and substance of the requirement to make an active offer must be defined.

(1) Clarifying the obligations of federal institutions that serve the travelling public

Federal institutions that serve the travelling public are often the first point of contact for visitors to Canada. Unfortunately, some have trouble understanding and appreciating the fact that English and French must be treated equally at all times in their interactions with the public. In his 2010–2011 annual report, then Commissioner of Official Languages Graham Fraser noted that most major Canadian airport authorities had a minimalist interpretation of the Act and continued “to interpret their language obligations in a very narrow way, as if they only applied to the travelling public and not the general public, and as if the Act only applied to the area restricted to travellers but not the rest of the airportEndnote 46.” This interpretation does not seem to be consistent with the legislative intent seen in the 1988 debatesEndnote 47.

The 2010–2011 annual report also contained a recommendation calling for legislative changesEndnote 48; however, it was never implemented, and the problem remains unresolved.

Modernizing the Act is an opportunity to clarify the wording of section 23 so that federal institutions that serve the travelling public do not confine their obligations to a narrow interpretation of sections 22 and 23.

 

Recommendation 4

The Commissioner of Official Languages recommends that the legislation be amended to clarify the obligations of federal institutions that serve both the travelling public and the general public.

 

(2) Defining the scope and substance of the active offer obligation

Active offer is one of the keys to effectively applying Part IV of the Act. Added when the new Act was passed in 1988, this obligation requires federal institutions to make “an open invitation to the public to use one of our two official languages . . . when communicating with or receiving a service from the federal government. Active offer includes a bilingual greeting, such as ‘Hello! Bonjour!’, and visual cues, such as signs, that support this invitationEndnote 49.”

During the Office of the Commissioner’s consultations in 2018, participants said that some federal institutions repeatedly failed to make an active offer and that interpretations of the scope of this obligation varied widely from one institution to the next, as did the execution. As a result, federal institutions struggle to provide an active offer routinely and consistently in situations where they are in direct contact with the publicEndnote 50. However, the obligation is vital to advancing the equality of status and use of both official languagesEndnote 51. Its importance, especially in the context of linguistic insecurity, was confirmed during the Office of the Commissioner’s 2018 consultations with official language minority communities.

The consultations also showed that the active offer obligation is meaningless unless the quality of the subsequent service is equal in both official languages.

The Commissioner is therefore recommending that the obligation’s scope and substance be clarified by making regulations under section 33 of the Act to supplement the current regulations made under section 32 of the Act.

Proposals to regulate active offer are not new. Commissioner D’Iberville Fortier was already raising the issue as early as 1990, noting that given active offer’s central role, the conditions for its existence should be clearly established, as should the rights of the public and the obligations of the federal governmentEndnote 52.

Regulations could include a preamble or interpretive clause stating that active offer is important in terms of progress toward substantive equality and that, when required under Part IV of the Act, it is the first step in providing services of equal quality in both official languagesEndnote 53.

Regulations could also set out clear rules regarding who is required to make an active offer, when it must be made and how to transition from making an active offer to providing the communication or service in the official language chosen by the member of the public. Accountability mechanisms, application principles, guidelines, instructions or policies could also be developed to ensure that this obligation is met.

The Commissioner is of the view that regulations on active offer should include the following:

Who has to make an active offer

Guidance on who is required to make an active offer (e.g., employees in unilingual positions may need to make a verbal active offer in some situations).

When and how to make an active offer

Guidelines on when an active offer must be made and when other visual or technological means may or must be usedEndnote 54.

How to transition to a communication or service

Procedures and standards on how to follow the active offer with service in either official language while respecting the principle of substantive equality (e.g., referring the client to a bilingual colleague, developing standards for waiting times).

How to maintain organizational capacity

General rules for federal institutions on how to plan services and organize employees to ensure that they always have the capacity to actively offer services in both official languages, including verbally, where required under the Act.

Where services are required to be provided in both official languages

Rules for informing the public as to where services can be obtained in both official languages (e.g., which offices have language requirements, whom to contact to obtain these services). This is key to effectively meeting the active offer obligation. The information would also be required to be updated regularly.

Promoting available services to official language minority communities

Encouragement for all offices of federal institutions (whether designated as bilingual or unilingual) to promoteEndnote 55 the services they provide in both official languages, especially those that meet the specific needs of official language minority communities. The regulations should also encourage offices of federal institutions to provide information on where these services can be obtained in the event that they are not available in the minority official language and to put processes in place to consult and obtain feedback from the communities so that services are provided appropriatelyEndnote 56.

Ensuring good governance

Reporting and accountability mechanismsEndnote 57.

What principles, guidelines, instructions or policies are required

A requirement for the responsible central agencyEndnote 58 to develop application principles, guidelines, instructions or policies to help federal institutions implement all of the obligations set out in the regulations. The regulations could also include an incentive system for federal employees that could help to change their perception of the active offer obligationEndnote 59 and cast it in a more positive light, thus helping to improve both their attitudes and those of their superiors.

 

Recommendation 5

The Commissioner of Official Languages recommends that the scope and substance of the obligation to make an active offer be clarified through regulations.

 

Ensuring that public service language-of-work rights and obligations are relevant and clear

 

We must ensure that it becomes easy to use and learn official languages in the workplace. By educating public servants in this way, we are reiterating our commitment to offer services to Canadians in both English and FrenchEndnote 60.

Raymond Théberge, Commissioner of Official Languages (2018 – present)

In its current form, Part V of the Act grants rights that are subject to specific geographical limitations. Language-of-work obligations for federal institutions are limited to the National Capital Region and to the regions designated as bilingual for language-of-work purposes listed in Treasury Board and Public Service Commission Circular No. 1977-46Endnote 61, a document that dates back to 1977.

Canadian society and public service workplaces have changed a great deal since the Circular was issued and even since language-of-work rights were added to the Act in 1988. Federal institutions are offering their employees workers more flexibility and mobility than could even be imagined in the late 20th century. The advent of virtual teamsEndnote 62, the impact of restructuring in many institutions, the increasing popularity of teleworking and the relocation of head offices are all new situations that are not covered by Part V of the Act.

In addition, current language-of-work rights are based on defined geographical divisions that have not been updated in more than 40 years. These divisions are now completely disconnected from the fluctuating values of “significant demand” in Part IV of the Act, which determine the offices where federal employees are required to communicate with and provide services to the public in both official languages. This disconnect creates a conflict in the way parts IV and V of the Act are applied and prevents their aims from being fully achieved. Employees who are required to communicate with or serve the public in both official languages (Part IV) can perform their duties much better if their work environment is conducive to the effective use of both official languages (Part V). In other words, federal institutions that value the equality of English and French in their work environments are more likely to communicate with and provide quality serves to the public in both official languages.

The consultations conducted by the Office of the Commissioner confirmed that a federal workplace conducive to the effective use of both official languages does a great deal to achieve the aims set out in Part IV of the Act.

Part V is clearly in need of a major update, as it is based on geographic divisions that result in an inconsistent and ineffective application of the Act.

To address these concerns and to ensure consistency between parts IV and V of the Act, the Commissioner is recommending that language-of-work rights under Part V apply to all federal offices and facilities that are required to communicate with and serve the public in both official languages under Part IV.

The Commissioner is also recommending that regulations be made in accordance with section 38 of the Act. The regulations could have a provision ensuring the preservation of language-of-work rights in regions that are currently designated by Circular No. 1977-46 as being bilingual for language-of-work purposes. They could also require the list of these regions to be updated regularly to reflect any changes to the bilingual designation of offices under Part IV. The updated list could be appended to the regulations as a schedule.

 

Recommendation 6

The Commissioner of Official Languages recommends that specific legislative amendments and regulations be made regarding language-of-work rights in order to:

  1. ensure that language-of-work rights are consistent with the communications and service delivery requirements in Part IV of the Official Languages Act and in the Official Languages (Communications with and Services to the Public) Regulations; and
  2. preserve language-of-work rights in regions designated as bilingual for language-of-work purposes and ensure that the list of these regions is updated.
 

Aside from the issue of where federal employees should have language-of-work rights, the nature of the services that federal institutions must provide to their workers in both official languages (currently listed in section 36 of the Act) is not always consistently interpreted, nor is the obligation to provide those services consistently applied. Barring a court ruling that would clearly define these services, the Act needs to be amended and regulations need to be made to clarify its content and include the right to training in both official languages throughout the public service—a key factor in achieving the aims of Part V of the Act.

The Commissioner is recommending that the regulations include a non-exhaustive list of the rights and services set out in subsections 36(1)(a) and (b) of the Act, which would be guaranteed to employees in federal offices designated as bilingual under Part IV of the Act and in regions designated as bilingual for language-of-work purposes under Part V of the Act. The Commissioner is also recommending that rights involving training, services provided to individuals and services that are centrally providedEndnote 63 be guaranteed for employees of all federal institutions in Canada. Given that nearly all federal institutions already have the capacity to provide these services to their employees in both official languages, either through the Canada School of Public Service or through centralized administrative services, the services should be provided throughout the federal public service. New regulations should also contain a non-exhaustive list of individual and centrally provided services covered by the new provision on training.

 

Recommendation 7

The Commissioner of Official Languages recommends that:

  1. specific legislative amendments be made to give all federal employees in Canada rights involving training, services provided to individuals and services that are centrally provided; and
  2. a non-exhaustive list of services provided to individuals and services that are centrally provided be included in regulations regarding language-of-work rights.
 

Lastly, federal employees’ right to be supervised in the official language of their choice is an important part of ensuring that the work environment is conducive to effective use of both official languages. At present, subsection 36(1)(c)(i) of the Act is interpreted inconsistently and often applied too narrowly. As Interim Commissioner Ghislaine Saikaley noted in her 2016–2017 annual report:

The Treasury Board’s Directive on Official Languages for People Management stipulates that, in regions designated as bilingual for language-of-work purposes, only employees who occupy “bilingual or either/or” positions have the right to be supervised in the language of their choice. The Office of the Commissioner maintains that the Act gives the right to every employee in these regions, regardless of the language requirements of their positionEndnote 64.

The wording of subsection 36(1)(c)(i) of the Act should therefore be amended so that the modernized Act stipulates that all employees in regions designated as bilingual for language-of-work purposes have the right to be supervised in the official language of their choice, regardless of the language requirements of their position.

 

Recommendation 8

The Commissioner of Official Languages recommends that the Official Languages Act state that all employees in regions designated as bilingual for language-of-work purposes have the right to be supervised in the official language of their choice, regardless of the language requirements of their position.

 

Developing regulations that strengthen the government’s commitment to enhance the vitality of official language minority communities and promote both official languages

 

The Government of Canada must ensure that the concept of positive measures is understood and that all federal institutions meet their obligations. Part VII objectives must be seen to be concrete. They must be planned and executed by government departments and agencies to ensure the vitality of official language [minority] communities and the promotion of linguistic duality in Canadian societyEndnote 65.

Graham Fraser, Commissioner of Official Languages (2006–2016)

Implementing Part VII of the Act is a challenge for many federal institutions. There are very few guidelines, and none have the force of law. The latter was made abundantly clear in May 2018 during the Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development) case when a Federal Court justice made the following brusque statement:

It is undeniable, in my opinion, that the scope of the duty contained in section 41 is hamstrung by the absence of regulations. And, it must be said, this regulatory silence and the resulting vagueness are probably detrimental to the linguistic minorities in Canada, who may be losing a potential benefit under Part VIIEndnote 66.

Unsurprisingly, this was echoed when the Office of the Commissioner consulted with official language minority communities. Community members said federal institutions did not do enough to promote the recognition and use of both official languages, did not understand the communities’ realities, did not follow the principle of substantive equality to address the unique needs of official language minority communities across Canada, and did not understand the overall impact of the Act’s various sections on their vitality.

Subsection 41(3) of the Act states that the Governor in Council may make regulations prescribing the manner in which federal institutions’ duties under Part VII are to be carried out. Although it has been discussed at length, this power has never been exercised. In 2004, Senator Jean-Robert Gauthier, who sponsored a bill that led to amendments of the Act the following year, pushed for regulations to clarify the obligations of federal institutions in the development of official language minority communitiesEndnote 67. In 2010, then Commissioner of Official Languages Graham Fraser also noted that federal institutions’ approach to implementing Part VII obligations was fragmentedEndnote 68.

Regulations for Part VII would help achieve the objective of advancing the equality of status and use of both official languages.

In terms of content, they could clarify some of the concepts that characterize this part of the Act and set parameters for implementing the obligations that require federal institutions to take positive measures to enhance the vitality and support the development of official language minority communities and foster the full recognition and use of English and French in Canadian society. The following are suggestions for Part VII regulations that could help federal institutions meet their obligations proactively:

Preamble

A preamble stating the principles and objectives on which the regulations are based, including the advancement of the equality of status and use of both official languages, and the obligation of federal institutions to act in a manner that does not hinder the development and vitality of Canada’s Anglophone and Francophone minoritiesEndnote 69.

Definitions

Definitions that could help clarify the scope of the two commitments in subsection 41(1) of the Act:

  • The commitments to enhance the vitality of the English and French linguistic minority communities in Canada and to support and assist their development could be explained in more detail by including concepts regarding the culture, economic prosperity and institutional autonomy of official language minority communities (i.e., their active involvement in federal decision-making processes that affect their development and vitality).
  • The scope of the commitment to foster the full recognition and use of both English and French in Canadian society could be described as having an impact on all English-speaking and French-speaking people in Canada, as requiring federal institutions make efforts to advance the equality of status and use of both official languages in all fields of endeavour, and as being subject to change in order to reflect Canada’s diversity. It could also include a more inclusive description of linguistic duality by recognizing that many Canadians no longer consider themselves to be a member of just one official language community.

Directives

Clear directives that could include the following statements to guide federal institutions in taking positive measures:

  • Positive measures cannot be actions that are already required under another provision of the Act or under other Canadian legislation.
  • Positive measures cannot be taken without first determining and understanding the needs and interests of official language minority communities in areas concerning their development and vitality.
  • Taking positive measures means that, from initial planning to final reporting, federal institutions must proactively take the two commitments in Part VII of the Act into account when making decisions on matters such as policies, programs and funding agreements.

Designation of federal institutions with specific duties

A list of federal institutions designated to be assigned specific duties based on their key role under Part VII of the Act, especially those that may have a bigger impact on official language minority communities or on the recognition and use of both official languages. The duties may involve:

  • setting up an advisory committee of official language minority community members to counsel senior officials from designated federal institutions on the priorities and needs of their communities;
  • actively and publicly reporting on steps taken by designated federal institutions to meet their Part VII commitments, including those based on advisory committee recommendations; and
  • sharing knowledge and best practices with other federal institutions.

It would be understood that designating institutions in no way changes the obligation of all federal institutions to comply with Part VII.

Government-wide action plan

A requirement for a central agency to coordinate the implementation of a government-wide action plan on official languages that would include current federal commitments to form partnerships with official languages stakeholders, communities, and organizations; to invest in official languages in order to address public concerns; to ensure government transparency and accountability; and to favour evidence-based policy decisionsEndnote 70.

Part VII regulations that included the aforementioned suggestions would be invaluable in helping Canada to ensure that linguistic duality and official language minority communities continue to thrive and be a government priority for decades to come. It is time to give full effect to the will of Parliament, as reflected in Part VII of the Act, by making such regulations.

 

Recommendation 9

The Commissioner of Official Languages recommends that the Governor in Council make regulations prescribing the manner in which the duties of federal institutions under Part VII of the Official Languages Act are to be carried out. This should be done in consultation with official language minority communities across Canada and other interested groups.

 

An Act that is dynamic

To stay relevant over time, legislation must be dynamic so that it can be applied even as Canadian society changes, while resting on a solid foundation so that it can withstand whatever challenges the future may hold.

This could be accomplished by entrenching in the Act the key principles that have changed the way language rights are interpreted and applied today, by drafting a technology-neutral Act to ensure its relevance as new technologies emerge, and by requiring that the Act undergo a regular review.

Codifying legal principles that have shaped the nature and scope of language rights in Canada

The key role of case law in developing language rights is well worth noting. Codifying case law principles in the Act’s preamble would confirm that, even after a major reform, they would continue to be just as important in interpreting and applying the Act. Although there is no specific need to codify them, the principle of substantive equalityEndnote 71, the remedial nature of language rightsEndnote 72, and the Act’s quasi-constitutional statusEndnote 73 clearly deserve a prominent place in the legislation. Because these three principles are key to the legislation, it is vital for official language minority communities that they be included in the Act and upheld.

The preamble of an act is not a source of positive law, but it does have important legal effectsEndnote 74, and its interpretive nature is vital to understanding an Act’s purpose and scopeEndnote 75.

There are legislative examples where legal principles have been codified in a preamble, including An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession ReferenceEndnote 76. Although it was adopted in a unique political context, this federal statute is still of interest in that its preamble cites what the Supreme Court of Canada has “confirmed,” “stated,” and “determined.”

Nunavut’s Official Languages Act is also of interest in that its preamble states: “Understanding, because of the fundamental character of the values expressed and the important federal, territorial and Inuit objectives reflected in this Act, that the Official Languages Act shall enjoy quasi-constitutional status in lawEndnote 77.”

For federal legislation, for example, we might consider adding this text to the preamble:

and whereas the Official Languages Act has quasi-constitutional status;

and whereas language rights are remedial in nature and must in all cases be interpreted purposively, in a manner consistent with the preservation and development of English and French linguistic minority communities in Canada;

and whereas substantive equality is the correct norm to apply in language rights;

The Commissioner is of the opinion that codifying these legal principles would help federal institutions apply them more effectively and understand their importance in relation to the obligations under the various parts of the Act.

 

Recommendation 10

The Commissioner of Official Languages recommends that the principle of substantive equality, the remedial nature of language rights and the Act’s quasi-constitutional status be codified in the preamble to the Official Languages Act.

 

Considering the impact of new technologies on official languages

Advances in digital technologies have had a clear impact on federal institutions’ official languages obligations and have far surpassed what the drafters of the 1969 and 1988 acts could have foreseen.

Federal institutions are using new technologies to provide information and services to unlimited numbers of people simultaneously. In addition to this one-way communication, they can now engage in instant and ongoing dialogue with the public. A good example is the increased use of social media and on-line collaborative tools to get Canadians involved in major debates and government initiatives. Federal institutions can also proactively share data, information and documents electronically, which could not be done before. These new opportunities, available through various initiatives aimed at having a more open government, are providing unparalleled transparency and access; however, they are also raising official languages issues.

One of the challenges in the shift to a more open government will be creating enough space for both official languages.

Making the Act technology-neutral is a good way to ensure that it can adapt to ongoing changes in Canadian society. Participants in the Office of the Commissioner’s consultations used the term many times in reference to laws whose purposely broad language makes them adaptable to both recent and future changes. Rather than be outstripped by technological advances, the modernized Act needs to stay relevant over time.

A technology-neutral Act will help federal institutions effectively apply the principle of substantive equality by ensuring that they follow the principle’s basic tenets (equality of status and use of both official languagesEndnote 78; access to services of equal qualityEndnote 79) regardless of the tool or technology being used The previous recommendation to codify the principle of substantive equality is therefore needed so that the principle continues to be applicable no matter what new tools federal institutions may develop or use to engage with Canadians.

While the Act must be interpreted in today’s contextEndnote 80, the Commissioner sees this approach as a chance for Parliament to pass a modernized statute that ensures full respect for the rights enshrined in it while leveraging opportunities and benefits from rapid technological change.

To this end, every provision contained in the Act must be reviewed to ensure that there is no reference to specific communications tools, whether new or conventional.

The government could also take a page out of the Library and Archives of Canada ActEndnote 81 and include definitions of terms relating to communications, publication and documentation so that the chosen format or method is not restrictiveEndnote 82. For example, because the terms “printed,” “recording,” or “online” could limit the application of a provision, they would need to be defined so as not to limit the Act’s scope as technology changes.

The Commissioner does note, however, that that a technologically neutral Act would not diminish the importance of federal institutions’ obligation to communicate effectively and efficiently with the public, especially with official language minority communitiesEndnote 83. On the contrary, effective communication means federal institutions must choose the means of communicating that best suits the target group’s needs and circumstances. Print media may be the best way to reach these communities in some cases, as it is a clear expression of substantive equality.

 

Recommendation 11

The Commissioner of Official Languages recommends that a technology-neutral Act be drafted to ensure full adherence to the principle of substantive equality.

 

Reviewing the Act regularly

In the past three decades, implementing the Act has grown more challenging as modern forms of communication, new work environments and opportunities in the federal public service, and the general evolution of language rights have revealed legislative shortcomings. As a result, we find ourselves with an Act that can keep pace only through its interpretation by the courts and that cannot easily adapt to a rapidly changing Canadian society.

A regular review of the Act would be a good opportunity for Parliament to assess how well the Act is working and to consider ways to improve it.

This proposal is consistent with the federal government’s recent proposal to add a provision to the Official Languages (Communications with and Services to the Public) Regulations requiring that they be reviewed every 10 yearsEndnote 84. It would also address the concerns of stakeholders who feel that the Act must be able to adapt to any official languages issues that arise at any given time.

Similar obligations have been added to legislation at the federal, provincial and territorial levelsEndnote 85. The Commissioner is of the opinion that, as with New Brunswick’s Official Languages Act, any provision requiring a review of the Act must include a time limit for the reviewEndnote 86. To ensure transparency, the review process should also include public consultationsEndnote 87.

Requiring the Act to be reviewed at regular intervals for potential issues would offer an unprecedented opportunity to keep the legislation from becoming outdated.

 

Recommendation 12

The Commissioner of Official Languages recommends that a provision be added to the Official Languages Act requiring a regular review of the legislation.

 

An Act that is strong

Although it is vital to ensure that the Act is relevant and dynamic, the legislation cannot be properly implemented unless it is sufficiently strong and has a clear and comprehensible structure. The government therefore needs to think seriously about the structural changes that need to be made to the Act in terms of factors such as governance and compliance. With regard to compliance, it must consider the tools the Commissioner needs use to conduct thorough investigations or ensure that recommendations are followed.

The terms “reporting,” “accountability” and “law with teeth” were repeated often during the Office of the Commissioner’s public consultations. Most stakeholders made it clear that they felt the Act had governance and compliance issues and that a modernized Act needed enforcement mechanisms to ensure more effective implementation and compliance.

A clear consensus emerged from the consultations: if the review of the Act is limited to simply updating the provisions without also reviewing the responsibilities of the various key stakeholders or examining how compliance can be ensured, it will be a missed opportunity to create a truly strong Act that inspires exemplary implementation.

Removing barriers to compensation for language rights violations

In 2013, then Commissioner Graham Fraser argued before the Supreme Court of CanadaEndnote 88 that damages for breach of the fundamental rights enshrined in the Official Languages Act should not be limited by other instruments such as the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention)Endnote 89.

In 2015, the Honourable Stéphane Dion tabled a bill to amend the Carriage by Air Act to state that it would not restrict the fundamental rights guaranteed under the Official Languages Act and the Canadian Human Rights ActEndnote 90. In doing so, he stated the following:

This bill solves a problem that we as legislators need to solve, a problem that undermines the basic rights of Canadians. This bill will correct one of the flaws undermining the rights that protect us all.

The bill would clearly establish that a Canadian citizen, when taking an international flight under Canada’s jurisdiction, could be entitled to damages if her or his rights are not respected with regard to the Official Languages Act or the Canadian Human Rights ActEndnote 91.

Being able to claim damages following an infringement of rights under the Act is a recognition of their basic value and an assurance that breaches will be penalized. The availability of a right of remedy is important and fulfills an essential function in ensuring the effectiveness of fundamental rights that Parliament wanted to protect.

As Dion said when he called for the Carriage by Air Act to be amended, modernizing the Official Languages Act is another opportunity to correct this flaw. A subSection could be added to section 77 stating that nothing in instruments such as the Montreal Convention shall abrogate or derogate from the rights provided for under the Act, especially as concerns the award of damages in cases where those rights have been infringed.

 

Recommendation 13

The Commissioner of Official Languages recommends that the Federal Court be given the ability to award damages for any breach of the Official Languages Act, without exception or exclusion.

 

Giving the Commissioner of Official Languages more flexibility for investigations

Excellence is one of the Office of the Commissioner’s key values, which is why it is always striving to provide better service to the Canadian public by continuously improving its investigative processes. Delays and their impact on complainants, even on whole communities, are a major concern for the Commissioner, and so his office works tirelessly to address the issue by all available means. The Commissioner has come to the conclusion, however, that without amendments to make the Act clearer and more flexible, the optimal efficiency and effectiveness he is seeking will remain just out of reach.

With the right tools, the Commissioner can be more effective in fulfilling his role not only as a protector of language rights but also as a promoter of those rights in order to help the federal government and its institutions meet their obligations. If the Commissioner has the means to bring lasting change to federal institutions, the Canadian public will see tangible benefits.

Modernizing the Act is an opportunity to review the Commissioner’s investigation tools and determine how his investigative process could better serve Canadians. It is also an opportunity to identify ways in which he might be able to be more flexible so that the public can reap the full benefit of his strategic and targeted actions in his role as an agent of change.

Although there are several solutions could help to achieve these objectives, three changes are being proposed to give the government a deeper understanding of the issue.

(1) Process complaints more effectively

Section 58 of the Act states that “the Commissioner shall investigate any complaint madeEndnote 92,” with some exceptions listed in subsection 58(4). The Commissioner may thus refuse or cease to investigate any complaint if the subject matter is trivial, if the complaint is frivolous, vexatious, or not made in good faith, or if the subject-matter does not involve a contravention or failure to comply with the spirit and intent of the Act or does not come within the authority of the Commissioner.

Official languages commissioners have found it difficult to apply some of the exceptions under subsection 58(4), and few exceptions have ever been used. Clearer and more specific provisions regarding exceptions would make it easier for the Commissioner to decide where to make exceptions so that he could take strategic action to address systemic official languages issues.

Other legislation on language rights, human rights and freedom of information are more flexible. For example, an investigation into a complaint may be refused or ceased if: 1) the subject matter of the complaint has already been investigated and dealt withEndnote 93; 2) the complaint is received after a limitation period has expired (e.g., one year after the incident)Endnote 94; 3) the federal institution has already taken corrective action at the time of the complaint or during the investigationEndnote 95; or 4) there is insufficient evidence to pursue the investigationEndnote 96.

The Commissioner could also be allowed to refuse or cease to investigate a complaint on any other grounds he deems appropriate, which would ensure enough latitude to address any other situations that do not fit the categories set out in subsection 58(4) of the Act. However, it should be noted that whatever exceptions are added to subsection 58(4), the Commissioner will always be required to give reasons for refusing or ceasing to investigate, in accordance with subsection 58(5).

The examples above are a good starting point for the government’s review of this issue, as they would help ensure that the Commissioner’s investigations are effective in serving the Canadian public by addressing issues that are new, are relevant, or would have a significant impact on official language minority communities.

 

Recommendation 14

The Commissioner of Official Languages recommends that the Official Languages Act give the Commissioner more flexibility in investigations.

 

(2) Clarify the obligation to conduct investigations in private

Subsection 60(1) of the Act requires that the Commissioner’s investigations be conducted in private to safeguard the integrity of the process and to encourage complainants and witnesses to come forward by protecting them from any damage or harm that may result from being involved in a complaint. Confidentiality is a key element in ensuring the proper conduct of investigationsEndnote 97, which is one of the Commissioner’s chief duties under the Act.

While recognizing the importance of conducting investigations in private, the Commissioner is of the opinion that this obligation does not prohibit him from making the recommendations, findings or summaries of investigations available to the public. Not only do these tools help to support the Commissioner in other aspects of his duties—as advocate, educator, agent for change, etc. —they also promote transparency and, more importantly, help to raise awareness among federal institutions and the Canadian public.

To give him more flexibility in his work and to specify the means he has at his disposal to raise awareness among federal institutions of their obligations (including consequences if they are not met), the Commissioner is calling on the government to consider clarifying the wording of subsection 60(1) of the Act.

 

Recommendation 15

The Commissioner of Official Languages recommends that the Official Languages Act clearly state that the Commissioner may make the recommendations, findings and summaries of investigations available to the public.

 

(2) Clarify the Commissioner of Official Languages’ discretion to submit investigation reports to the President of the Treasury Board

If, after carrying out an investigation, the Commissioner concludes that the complaint is founded, he must report this conclusion to the President of the Treasury Board and to the federal institution concernedEndnote 98.

If the Commissioner were given the discretion to decide which investigation reports should be sent to the President of the Treasury Board, he would be able to focus his efforts on the more serious issues or systemic language rights violations.

This could be done by changing the wording of subsection 63(1) of the Act in order to make this obligation a discretionary power.

It is important to note that if, after carrying out an investigation, the Commissioner concludes that one of the measures set out in subsection 63(1)(b) must be taken, and particularly where an act or its regulations or any directives of the Governor in Council or the Treasury Board should be reconsidered, the Commissioner would still have to report his conclusions to the President of the Treasury Board.

 

Recommendation 16

The Commissioner of Official Languages recommends that the Official Languages Act state that the Commissioner, in his discretion, may submit certain investigation reports to the President of the Treasury Board.

 

Adding new compliance mechanisms to the Commissioner of Official Languages’ powers

The Commissioner already has broad investigative powers under the Act, such as summoning and enforcing the attendance of witnessesEndnote 99, making reportsEndnote 100, issuing recommendationsEndnote 101, reviewing regulations or directives made under the Act or that affect the status or use of official languagesEndnote 102, and appearing as a party or intervenor in adjudicative proceedingsEndnote 103.

During the Office of the Commissioner’s consultations, concerns were raised several times about the effectiveness of the Commissioner’s powers once investigations are complete (i.e., power to make reports and issue recommendations). Many suggestions have already been made with regard to new mechanisms, for either the Commissioner or another entity, to improve federal institutions’ compliance with the Act.

The issue of giving the Commissioner more enforcement powers to improve compliance was the subject of debate even before the 1988 Act was passedEndnote 104. More recently, it was included in specific recommendations by the House of Commons Standing Committee on Official LanguagesEndnote 105. The Commissioner is of the opinion that it is vital for the government to consider new compliance mechanisms to supplement his power to investigate, report and make recommendations so that he is fully equipped to help federal institutions improve their compliance with the Act.

Although there are a number of options that are worth exploring for the government, the Commissioner is proposing three solutions that align with his mandate of ensuring full compliance with the Act:

  1. Give the Commissioner the power to impose administrative monetary penalties.
  2. Give the Commissioner the power to enter into enforceable agreements with federal institutions subject to the Act, coupled with administrative monetary penalties.
  3. Add provisions to ensure that monies from these penalties are put into a linguistic duality fund.

(1) Give the Commissioner of Official Languages the power to impose administrative monetary penalties

An administrative monetary penalty is a sanction or penalty that may be imposed when a law is violated. The purpose of this administrative mechanism is to promote compliance with an act and not to punishEndnote 106. It is meant to be transparent, predictable, detailed, consistent, fair, and impartialEndnote 107.

In other words, the aim of administrative monetary penalties is to promote compliance with specific provisions of an act by counterbalancing the financial incentives associated with non-compliance. Given the nature of this mechanism, it would be necessary for the violation of one or more of these provisions to have occurred prior to the filing of the complaint. Penalties could be based on the type of violation, and the amounts could vary depending on mitigating or aggravating factorsEndnote 108. This tool would thus be an effective way to promote compliance with a given statute.

Having the power to impose administrative monetary penalties would help the Commissioner address a wide range of non-compliance issues and protect both the public’s language rights and those of federal employees. To ensure that the Commissioner’s new power would not undermine his impartiality, credibility or independence as an investigator,  a new administrative directorate would have to be created that was responsible for handling penalties and separate from the Investigations DirectorateEndnote 109.

Various federal statutes already have this mechanism, including the Conflict of Interest ActEndnote 110, the Pay Equity ActEndnote 111, the Environmental Violations Administrative Monetary Penalties ActEndnote 112, and the Environmental Violations Administrative Monetary Penalties RegulationsEndnote 113. The Pay Equity ActEndnote 114 and the Environmental Violations Administrative Monetary Penalties ActEndnote 115 also have provisions to impose administrative monetary penalties on government institutions.

The model for the future Accessibility Commissioner, a position created under Bill C-81, An Act to ensure a barrier-free Canada, is instructive. Appointed by the Governor in CouncilEndnote 116, the Accessibility Commissioner can impose administrative monetary penalties on all regulated entitiesEndnote 117, including federal institutionsEndnote 118, for contravening various provisions of the Accessible Canada Act or of regulations made by the Governor in CouncilEndnote 119. In conjunction with this power, the Accessibility Commissioner can also enter into a compliance agreement with the regulated entity, which may result in the reduction of all or part of the penalty for the violationEndnote 120. Compliance or enforceable agreements are thus intended to complement administrative monetary penalties. A similar model could be considered for the Commissioner of Official Languages. Provisions on administrative monetary penalties would have to be detailed in regulations or in a new part of the Official Languages ActEndnote 121.

(2) Give the Commissioner of Official Languages the power to enter into enforceable agreements and impose administrative monetary penalties

Under an enforceable agreement, also called a compliance agreementEndnote 122, an organization agrees to take measures to meet its obligations, whether statutory or non-statutory. In other words, an enforceable agreement is a voluntary agreement to ensure that organizations comply with legislation and/or meet their commitments within a specified time frame.

If the Commissioner had the power to enter into enforceable agreements, he could sign an agreement with any federal institution subject to the Act in order to ensure that specific commitments were honoured. These commitments could correspond to the recommendations issued in the Commissioner’s investigation report in the event that a complaint was deemed to be founded or if a breach of the Act was confirmed.

This is an attractive solution in light of the fact that in some cases it has become very difficult for the Office of the Commissioner to ensure that institutions honour their commitments. Air Canada is the most obvious example. Whenever Air Canada agrees to implement the Commissioner’s recommendations following an investigation, it can be difficult to effectively monitor that implementation under the current system, despite the many resources that are committed to this process. This issue is explored at length in Commissioner Graham Fraser’s June 2016 special report to Parliament: “[D]espite the passing years and repeated interventions by the commissioners of official languages, the situation has not changed much, and setbacks have been much more frequent than progress. As things currently stand, systemic problems are a barrier to lasting improvementsEndnote 123.”

Supplementing administrative monetary penalties with enforceable agreements would encourage federal institutions to improve their compliance because, among other things, the Commissioner would not be able to file legal proceedings or intervene in an action brought by the complainant while the agreement is in forceEndnote 124. Changes to Part X of the Act would therefore need to be considered.

Other federal commissioners have an option in their enabling statute to enter into agreements with private organizations, including the Privacy Commissioner of Canada under the Personal Information Protection and Electronic Documents ActEndnote 125, the Commissioner of Canada Elections under the Canada Elections ActEndnote 126, and the Commissioner of the Financial Consumer Agency of Canada under the Financial Consumer Agency of Canada ActEndnote 127.

Enforceable agreements can also be considered for government institutions. As noted earlier, Bill C-81 authorizes the Accessibility Commissioner to enter into compliance agreements with federal institutions (included in the definition of “regulated entities”) to supplement the use of administrative monetary penaltiesEndnote 128.

This model is entirely feasible for the Official Languages Act, as it could apply to all types of organizations, whether public or private. The formal nature of enforceable agreements is an asset. Giving the Commissioner the power to enter into these agreements with federal institutions subject to the Act would help him to follow up more effectively on whether and how they are meeting their commitments.

Adding this mechanism to the Act would promote cooperation by giving the institution the opportunity to address the issue. It would also ensure penalties for continued non-compliance. In addition, it would bring certainty and clarity to the process, which are currently lacking.

(3) Ensure that monies from penalties are put into a linguistic duality fund

Monies collected through administrative monetary penalties could be used to set up a linguistic duality fund, much like the one that was created for the environment. The Environmental Violations Administrative Monetary Penalties Act states that revenue obtained by the Receiver General through administrative penalties is to be used “for purposes related to protecting, conserving or restoring the environment or for administering that FundEndnote 129.”

The Commissioner is recommending that the modernized Act include a similar mechanism. The fund could be managed by an organization operating at arm’s length from the government and from the Office of the Commissioner, and members of the public could submit proposals for projects that align with fund objectives. It would thus be used for priority projects that will benefit both of Canada’s official language groupsEndnote 130.

The fund would in no way lessen federal institutions’ obligation to support official language minority communities and to promote linguistic duality. In other words, federal institutions would not be able to consider payment into the fund as fulfillment of either of those obligations. The fund would be an opportunity to use the revenue generated by the administrative monetary penalties for projects that promote linguistic duality in Canada.

 

Recommendation 17

The Commissioner of Official Languages recommends that new mechanisms be added to the Official Languages Act to improve compliance with the legislation, including the power to impose administrative monetary penalties, the power to enter into agreements with federal institutions subject to the Act, and the creation of a linguistic duality fund.

 

Improving official languages governance

 

[T]here is no universal model for horizontal governance, but rather a variety of approaches that are tailored to each specific situation. However, [I] would like to point out that official languages clearly stand out from other horizontal issues because all federal institutions must fulfill common obligations and this issue is related to fundamental values and national unityEndnote 131.

Graham Fraser, Commissioner of Official Languages (2006–2016)

The current governance structure for Canada’s official languages has numerous flaws. While many can be addressed through legislation, others will need major changes at all levels within the federal government.

Under the current Act, the Treasury Board is responsible for the general direction and coordination of the policies and programs of the Government of Canada relating to the implementation of parts IV, V and VIEndnote 132, and the Minister of Canadian Heritage must encourage and promote a coordinated approach to the implementation of Part VIIEndnote 133. Aside from these specific tasks, federal institutions have a shared obligation to achieve the Act’s objectives.

This legislative structure raises a number of issues. For example, the Treasury Board has broad discretion to carry out its duties but no responsibility for Part VII. And the role of Canadian Heritage is limited to promoting a coordinated approach to implementing Part VII, which means that it does not have the same guidance and support as parts IV, V, and VI.

Since federal institutions share many of the same obligations, they need to work together to collectively achieve better results for all Canadians, including official language minority communitiesEndnote 134. In practice, this requires a horizontal approach, which has been proven to be complex and difficult to manageEndnote 135.

To ensure that federal institutions meet their obligations and carry out their responsibilities, the government has introduced a number of mechanisms over the years to coordinate official languages governance, with varying success. Since the early 2000s, it has tried making a central agency, and then a department, responsible for official languages, it has appointed official languages champions in institutions, and it created (and then scrapped) an interdepartmental committee of deputy ministersEndnote 136.

None of the mechanisms have thus far produced the expected results, and it will be impossible to find one that ensures strict adherence to the Act until key aspects of effective and efficient governance are in place.

Governance issues are not unique to government and extend well beyond the federal administration. During the Office of the Commissioner’s consultations, many stakeholders said they noted serious governance problems, especially in terms of transparency and accountability, and even proposed solutions to help create a stronger and clearer framework.

For example, it was suggested that, similar to New Brunswick’s Official Languages ActEndnote 137, the federal government be required to prepare an overall implementation plan for the Act and that federal institutions be required to prepare their own action plans and status reportsEndnote 138. The latter could report on the strategies used and progress made in meeting objectives, and include an accountability framework for each obligation. This would mean major changes to the Act, such as adding a sectionEndnote 139 or making regulationsEndnote 140 on these specific requirements.

During the consultations, it was often pointed out that the Act does not give anyone full authority or responsibility for administrating the legislation, unlike New Brunswick’s Official Languages Act, which states that the Premier is responsible for the administration of the ActEndnote 141. It was also often suggested—by various stakeholders—that the Act assign this responsibility to a central agency like the Treasury Board or Privy Council OfficeEndnote 142. Many also proposed adding Part VII obligations to the responsibilities the Treasury Board already has under subsection 46(2)Endnote 143 and replacing “may” with “must” at the start of the provision to make these responsibilities a positive obligation.

These solutions are based on the premise that central agencies are often best able to promote horizontality in the public service since they oversee policy-making throughout the government. Central agencies, especially the Privy Council Office, “play an important role in horizontal issues management particularly in clarifying relationships among ongoing initiatives, in establishing priorities, and in managing the policy load of departmentsEndnote 144.”

The issue has largely become a debate about which government body should be tasked with overseeing and administering the Act as a whole.

Although many of these solutions, either singly or in combination, would help lay a solid foundation for a better legislative structure for governance, the government can achieve this only with major structural changes. It will be up to the government to decide which solution or combination is best.

The Commissioner is more concerned with the question of how good governance can be achieved. Regardless of the governance structure provided for in the Act, defining everyone’s responsibilities clearly and unequivocally will help ensure more comprehensible and coordinated official languages governance. Good official languages governance should take the following five principles into account:

  1. Establish clear direction and leadership at the most senior levels of the federal government.
  2. Establish a consistent accountability framework.
  3. Make official languages a top priority and a key aspect of government planning, and activities.
  4. Ensure effective stewardship of official languages.
  5. Address setbacks while ensuring ongoing progress toward the substantive equality of official languages.

(1) Establish clear direction and leadership at the most senior levels of the federal government

Since official languages leaders must be able to influence government horizontally, the minister and senior officials in each federal institution need to set the tone for leadership. Making official languages a key factor in government decisions shows they are a priority throughout the Government of Canada.

(2) Establish a consistent accountability framework

The Act needs a clear accountability framework to ensure continued government-wide commitment to meeting official languages obligations. Because official languages are a horizontal issue, implementing the Act is a shared responsibility for all federal institutions. The Act must therefore set out clear responsibilities and make one or more authorities accountable for drafting regulations, ensuring compliance, providing oversight and coordinating the implementation of all parts of the Act.

(3) Make official languages a top priority and a key aspect of government planning and activities

In order for linguistic duality to thrive, central agencies must make official languages a government-wide priority. This will ensure that they will be reflected in activities, action plans and all other tools that federal institutions use to deliver on the government’s priorities.

To give full effect to the spirit and intent of the Act, the government structure and responsibilities for official languages must be consistent and appropriate at each level. A strong show of leadership will help federal institutions ensure that official languages obligations are clearly understood at each level, that planning is done properly and that outcomes are monitored effectively.

(4) Ensure effective stewardship of official languages

Promoting official languages is a fundamental part of achieving the Act’s objectives. The federal government must therefore provide shared leadership to ensure that linguistic duality is promoted as a fundamental Canadian value. All senior federal officials, including deputy ministers and their management teams, must be committed to the Act’s objectives and show that commitment by promoting them in the workplace. They need to take all appropriate measures in their areas of activity to implement the Act, both in spirit and intent. For example, maintaining sufficient bilingual capacity at all times can help ensure ongoing respect promotion of official languages. Senior officials must also recognize the added value that official languages and linguistic duality bring to a results-oriented culture that values initiative.

(5) Address setbacks while ensuring ongoing progress toward the substantive equality of official languages

Inertia or simply a lack of progress can lead to setbacks or decline, and when this affects substantive equality, proactive measures must be taken to get back on track. When it comes to implementing the Act, standing still is not an acceptable result for the Commissioner. When language rights are endangered by government action or inaction, the federal administration has a responsibility to review the official languages governance structure to make sure it aligns with government programs and services that are constantly changing to reflect the needs of Canadian society. The government also needs to take measures to provide proper protection for official languages and ensure continued progress toward substantive equality. It is important to note that all federal employees have a collective duty to ensure that progress is being made toward substantive equality for all aspects of the Act.

Taken together, these five principles are meant to help the government build a functional official languages governance system. The Commissioner cannot overstate the need for a strong and effective governance structure, without which the federal government’s commitment to official languages will always be less than 100%.

 

Recommendation 18

The Commissioner of Official Languages recommends that the government adhere to the following five principles to ensure clear and coordinated governance of the Official Languages Act:

  1. Establish clear direction and leadership at the most senior levels of the federal government.
  2. Establish a consistent accountability framework.
  3. Make official languages a top priority and a key aspect of government planning and activities.
  4. Ensure effective stewardship of official languages.
  5. Address setbacks while ensuring ongoing progress toward the substantive equality of official languages.
 

Stakeholder suggestions that deserve a closer look

During public discussions on the need to modernize the Act, ideas were proposed by stakeholders from across Canada with experience and expertise in a variety of fields.

Many suggestions were made as part of the Standing Senate Committee on Official Languages’ study on Canadians’ views on modernizing the Official Languages Act, before the House of Commons Standing Committee on Official Languages, and during the Office of the Commissioner’s consultations. Below are just a few examples of proposals that deserve further study by the government. Because discussions on modernizing the Act are still taking place, other suggestions may also need to be examined to ensure a thorough review.

Court Challenges Program

A number of stakeholders suggested that the Court Challenges Program—and, more specifically, the language rights component of the program—be enshrined in the Act to ensure its continued existenceEndnote 145. The language rights component has already been the subject of legal actionEndnote 146, which led to the creation of the Language Rights Support Program in 2009.

Given that the Court Challenges Program has been eliminated and reinstated by various governments over the years, the Commissioner agrees that the current government should consider this proposal for legislating the continued existence of a body that funds language rights court cases.

Special nature of New Brunswick

Various stakeholders proposed that the Act recognize New Brunswick’s constitutional specificityEndnote 147. While the proposal encompasses several specific suggestions, the general aim is to recognize and give effect to New Brunswick’s special status as Canada’s only officially bilingual province.

Since this status is recognized in the Canadian Charter of Rights and Freedoms, it would be useful to examine this issue in more detail.

Part VI of the Act

Part VI of the Act has been discussed at great length, both in the Office of the Commissioner’s consultations and during studies conducted by both parliamentary committees on official languagesEndnote 148.

Part VI states that the government is committed to ensuring that English- and French-speaking Canadians have equal opportunities for employment and advancement in federal institutions and that the workforce of federal institutions tends to reflect the presence of both official language groups in Canada. Through these commitments, Part VI plays a vital role in making sure that the other parts of the Act are better implemented. The Commissioner is of the opinion that ensuring equitable representation of both language groups in federal institutions (Part VI) and giving employees the opportunity to work in the official language of their choice (Part V) will improve the quality of services in both official languages (Part IV).

Therefore, the Commissioner agrees that the government could consider better oversight to help this part of the Act achieve its objective and address the concerns of Quebec’s English-speaking community.

Section 55 of the Constitution Act, 1982

Section 55 of the Constitution Act, 1982, provides for the drafting and enactment of French versions of constitutional documents that are officially available only in EnglishEndnote 149.

Though much effort went into implementing this section, the goal of having constitutional documents in both official languages has still not been achieved.

That is why, as some stakeholders have proposed (including the Canadian Bar Association), the government should consider adding a provision to the Official Languages Act specifically requiring the Minister of Justice to make every effort to enact the French versions of constitutional documentsEndnote 150 so that all of the documents are officially bilingual.

The Commissioner agrees that, to ensure that this constitutional promise is kept, Parliament must closely monitor the government’s progress in implementing section 55 of the Constitution Act, 1982. Considering that these documents are the very foundation of our country, it is inexcusable for this promise to remain unfulfilled.

Administrative tribunal

Many stakeholders said that an administrative tribunal specializing in language rights issues would be an effective enforcement mechanism and be more accessible to Canadians. The tribunal would have jurisdiction over all matters concerning not only the Act but also other federal laws affecting language rights. Some stakeholders even suggested that it should have the power to impose fines or issue compliance ordersEndnote 151.

In the Commissioner’s opinion, the effectiveness of an administrative tribunal would depend largely on the mandate and powers Parliament chose to give it. While it will be important to clarify how it would work, it is an option that clearly warrants more study.

A look ahead

Canada has distinguished itself by being a global leader in linguistic duality and support for official language minority communities. It should be proud of the progress it has made in the past five decades to turn linguistic duality into a strength and a quality that has helped shape our national identity. However, Canadians need to continue to should stay vigilant so that this value remains part of our collective consciousness. There is still a lot of work to be done before we can achieve all the goals of the Act, our key tool for safeguarding Canada’s linguistic duality.

Modernizing the Act has become a key step in order for English and French to be truly equal in status. The Office of the Commissioner’s years of experience and expertise in overseeing the Act give it a unique and insightful perspective on the best solutions for modernization.

The Act needs to be easy for federal institutions to understand and apply, and it should both reflect and adapt to a changing Canadian society. It should also have a clear structure and mechanisms so that stakeholders understand their rights and obligations and can navigate its enforcement framework. Above all, it should be a consistent and coherent whole, such that the interdependence of its parts should be evident, as each has a critical impact on the others.

The Commissioner is confident that if the legislative amendments and regulatory frameworks proposed in this document are adopted in their entirety, they will have tangible benefits for the implementation of all parts of the Act—whether it be communications with and services to the public, language of work in the federal public service, the advancement of English and French in Canadian society, or the development and vitality of official language minority communities (the beating heart of the Act).

That is why the Commissioner’s vision is based on having a relevant, dynamic, and strong Act that is structurally logical and clearly consistent.

In other words, he is simply proposing that all of the components of the modernized Act—its various parts and its future regulations—be reviewed and reformed holistically.

List of recommendations

  1. The Commissioner of Official Languages recommends that the exemption for the Supreme Court of Canada be removed from section 16 of the Official Languages Act.
  2. The Commissioner of Official Languages recommends that the public’s access, in both official languages, to final decisions of public interest and importance issued by federal courts be improved through legislation.
  3. The Commissioner of Official Languages recommends that decisions by federal courts and tribunals be required through legislation to be made available simultaneously in both official languages.
  4. The Commissioner of Official Languages recommends that the legislation be amended to clarify the obligations of federal institutions that serve both the travelling public and the general public.
  5. The Commissioner of Official Languages recommends that the scope and substance of the obligation to provide an active offer be clarified through regulations.
  6. The Commissioner of Official Languages recommends that specific legislative amendments and regulations be made regarding language-of-work rights in order to:
    1. ensure that language-of-work rights are consistent with the communications and service delivery requirements in Part IV of the Official Languages Act and in the Official Languages (Communications with and Services to the Public) Regulations; and
    2. preserve language-of-work rights in regions designated as bilingual for language-of-work purposes and ensure that the list of these regions is updated.
  7. The Commissioner of Official Languages recommends that:
    1. specific legislative amendments be made to give all federal employees in Canada rights involving training, services provided to individuals and services that are centrally provided; and
    2. a non-exhaustive list of services provided to individuals and services that are centrally provided be included in regulations regarding language-of-work rights.
  8. The Commissioner of Official Languages recommends that the Official Languages Act state that all employees in regions designated as bilingual for language-of-work purposes have the right to be supervised in the official language of their choice, regardless of the language requirements of their position.
  9. The Commissioner of Official Languages recommends that the Governor in Council make regulations prescribing the manner in which the duties of federal institutions under Part VII of the Official Languages Act are to be carried out. This should be done in consultation with official language minority communities across Canada and other interested groups.
  10. The Commissioner of Official Languages recommends that the principle of substantive equality, the remedial nature of language rights and the Act’s quasi-constitutional status be codified in the preamble to the Official Languages Act.
  11. The Commissioner of Official Languages recommends that a technology-neutral Act be drafted to ensure full adherence to the principle of substantive equality.
  12. The Commissioner of Official Languages recommends that a provision be added to the Official Languages Act requiring a regular review of the legislation.
  13. The Commissioner of Official Languages recommends that the Federal Court be given the ability to award damages for any breach of the Official Languages Act, without exception or exclusion.
  14. The Commissioner of Official Languages recommends that the Official Languages Act give the Commissioner more flexibility in investigations.
  15. The Commissioner of Official Languages recommends that the Official Languages Act clearly state that the Commissioner may make the recommendations, findings and summaries of investigations available to the public.
  16. The Commissioner of Official Languages recommends that the Official Languages Act state that the Commissioner, in his discretion, may submit certain investigation reports to the President of the Treasury Board.
  17. The Commissioner of Official Languages recommends that new mechanisms be added to the Official Languages Act to improve compliance with the legislation, including the power to impose administrative monetary penalties, the power to enter into agreements with federal institutions subject to the Act, and the creation of a linguistic duality fund.
  18. The Commissioner of Official Languages recommends that the government adhere to the following five principles to ensure clear and coordinated governance of the Official Languages Act:
    1. Establish clear direction and leadership at the most senior levels of the federal government.
    2. Establish a consistent accountability framework.
    3. Make official languages a top priority and a key aspect of government planning and activities.
    4. Ensure effective stewardship of official languages.
    5. Address setbacks while ensuring ongoing progress toward the substantive equality of official languages.
 
Date modified:
2019-05-09