ARCHIVED - CHAPTER IV: IMPLEMENTATION OF THE OFFICIAL LANGUAGES ACT: STRONGER LEADERSHIP FOR BETTER RESULTS

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“THE OMBUDSMAN MUST DISTURB THE ADMINISTRATION, OTHERWISE IT WOULD BE USELESS FOR HIM TO EXIST; BUT HE MUST NOT DISTURB IT TOO MUCH, OTHERWISE IT WOULD QUICKLY BECOME IMPOSSIBLE FOR HIM TO ACT.”

ANDRÉ LEGRAND

As the previous three chapters have shown, strong leadership is needed to overcome a number of the challenges that federal institutions face regarding official languages. Because Canadian society is evolving—and the federal public service with it—these institutions will have to adapt to new realities and changing expectations of Canadians towards their government. At the same time, institutions will be called upon to take into account the rights and values on which official languages policies and legislation are based as well as the need to ensure the full application of the law. When senior officials and public servants show strong leadership in recognizing these rights and values and in ensuring that they are respected, then federal institutions will achieve better and lasting results for Canadians.

The Commissioner recognized these new realities and, as outlined in Chapter I, he is changing the way in which he carries out his ombudsman role, adding new approaches to resolving complaints and focusing greater efforts on preventing noncompliance. In the spirit of this renewed approach, this chapter will present results and analyses for the last year as well as examine several trends over a number of years. It will also examine institutions or themes that warrant special consideration. By giving the reader a glimpse of the bigger picture of the official languages issues being studied, the Commissioner hopes to raise awareness and inspire institutions to show stronger leadership in areas that are highlighted as problems year after year.

THE MAJOR OFFICIAL LANGUAGES STORY OF 2007–2008

In October 2007, the Commissioner released his final investigation report on a variety of decisions the federal government made as a result of an expenditure review conducted in 2006.1 The investigation stemmed from 118 complaints that the Office of the Commissioner of Official Languages received from concerned individuals and organizations about the implications of the budget cuts and related changes affecting the vitality of official language minority communities in Canada. The significance of many of the decisions, the broad scope of the investigation and the potential far-reaching impact of the Federal Court decision for years to come make this the major official languages compliance story of 2007–2008. Above all, this story highlights the need for stronger leadership from the federal government in the implementation of the Act.

The Government of Canada’s 2006 expenditure review led to a number of budget cuts and related changes to a variety of federal programs and offices, including the elimination of the Court Challenges Program and cuts to Status of Women Canada; the Canada Volunteerism Initiative; the Adult Learning, Literacy and Essential Skills Program; youth employment programs; the Public Diplomacy Program; the Museums Assistance Program; Canadian foreign missions; and the Canadian Policy Research Networks. The complainants alleged that a number of the expenditure decisions made by the federal government were in violation of the Official Languages Act, notably the obligation of federal institutions to take positive measures to enhance the vitality of official language communities in Canada and to promote linguistic duality in Canadian society. After closely examining nine of the expenditure review decisions, the Commissioner determined that the complaints were founded and that although the impact of expenditure review decisions on official language communities varied, the needs and interests of these communities were not given due consideration in the decisionmaking process that led to the results of the 2006 review.

The government’s decision to eliminate the Court Challenges Program, the central concern of most complainants, stood out among the expenditure review decisions. The Commissioner’s investigation report includes a comprehensive analysis of the Program showing that its significant contribution to the advancement of language rights in Canada over the years is unquestionable. Indeed, the Program was linked to virtually all major court decisions on minority language rights in Canada since 1994.

Other affected programs, such as those offered by Status of Women Canada, were also identified as being particularly important to official language communities. During his investigation, for example, the Commissioner learned that Francophone women’s groups rely on funding from Status of Women Canada to help them bear the responsibility for the transmission of language and culture that extends beyond that borne by majority-language women’s groups. These groups also tend to fill gaps in French-language social services for women where other government support is primarily delivered in English.

While the Commissioner fully acknowledges the government’s right to govern and to revise its priorities, policies and programs, government actions should nonetheless respect the law, in this case the Official Languages Act. It has now been 20 years since provisions related to the advancement of English and French were added to the Act, and nearly three years since Parliament strengthened the federal government’s obligation by adding the notion of positive measures and allowing this part of the Act to be subject to court remedy. However, the Commissioner’s investigation into the expenditure review shows that the provisions for supporting official language communities remain outside the decision-making process when it counts the most.

In his final investigation report on the 2006 expenditure review, the Commissioner recommended a series of corrective measures, beginning with Treasury Board Secretariat and Canadian Heritage conducting a thorough assessment of the impact of the decisions in the context of the review, with priority assigned to the elimination of the Court Challenges Program. The Commissioner also recommended that the results of this assessment be submitted to the President of the Treasury Board to provide the basis for a government review of the decisions and that steps be taken to ensure that future expenditure reviews fully comply with Part VII of the Official Languages Act.

Without commenting specifically on the Commissioner’s recommendations, the federal government challenged his conclusion that there had been an infraction of the Act. One of the key expenditure review decisions, the elimination of the Court Challenges Program, was brought before the Federal Court of Canada in February 20082 following an application by the Fédération des communautés francophones et acadienne du Canada for court remedy under the Act. The Federal Court ruling will, for the first time, give the courts an opportunity to clarify the scope of the obligations of federal institutions under the amended Act.

Understanding the considerable impact that this case will have on federal institutions and official language communities for years to come, the Commissioner filed a motion to intervene in the proceedings. As an intervener, the Commissioner argued that the duty to take positive measures imposes a twofold obligation on federal institutions: to not adversely affect the development of official language communities and to take concrete measures to ensure the vitality of these communities. In order to carry out this duty, institutions must therefore have a thorough understanding of the needs and particular interests of these communities, and how the decisions of these institutions may affect community development.

As for the other decisions made during the expenditure review and examined in the investigation report, the Commissioner is closely following the federal government’s actions and is considering all the options at his disposal to follow up the report recommendations. This could include, for example, a special report to Parliament or to the Governor-in-Council.

LESSONS LEARNED

This compliance story illustrates the need for stronger leadership at both the political and administrative levels to ensure that the decisionmaking processes of all federal institutions and the government as a whole comply with the letter and spirit of the Act. When making major decisions, such as budget cuts or the creation or elimination of programs, decision makers must take into account and understand the needs of official language communities3. This reflex is all the more important given Parliament’s decision in 2005 to strengthen the provisions of the Act related to the advancement of English and French.

What does the obligation to consider the needs of official language communities mean for federal institutions facing budget cuts or program reviews? There is a clear need to assess the potential impact of any review on an institution’s ability to carry out its official languages obligations. Such an assessment, which should be carried out with proper consultation, must be consistent with the principles, laid out by the Commissioner in last year’s annual report, for the implementation of Part VII of the Act. The three principles address the need for institutions to adopt a Part VII reflex, ensure the participation of Canadians and have a continuous process for improving the programs and policies that relate to Part VII.

In addition, as mentioned in Chapter I, in May 2007, Canadian Heritage released the Guide for Federal Institutions4 (the Guide) for the implementation of the amended Part VII. The Guide lists a number of key questions to consider when making important decisions, such as those regarding the adoption, review or elimination of policies or programs. It also encourages institutions to conduct impact assessments, support decisions with research, consult appropriate interested groups and individuals and take measures to counteract any potential negative impact. Showing leadership by asking some of these key questions will go a long way to ensuring that future reviews—whether government-wide or specific to an institution— respect the obligations set out under the Act.

Key questions for institutions to consider when making decisions such as adopting, reviewing or eliminating a policy or program (from the Guide for Federal Institutions)

  1. What impacts could the initiative have on official language minority communities, and on fostering the full recognition and use of both English and French in Canadian society?

  2. What research activities could be undertaken to validate this preliminary assessment of impacts?

  3. What actions could be taken to consult official language minority communities, […] or key stakeholders involved in the promotion of official languages?

  4. If it has been established that the initiative could have a negative impact on the development of minority communities or on the promotion of linguistic duality, […] which measures are planned to counteract any identified disadvantages?

In light of the investigation into the 2006 expenditure review and its conclusions, the Commissioner urges the federal government to take the necessary corrective measures to fully respect the Official Languages Act. Federal institutions could begin by following the three principles that he laid out in last year’s annual report, and by asking themselves some of the questions in the Guide concerning the adoption, review or elimination of a policy or program when conducting similar reviews in the future.

The 120-day timeframe for implementing three recommendations contained in the final investigation report expired in early February 2008. In its subsequent response to a follow-up request by the Commissioner, the government reiterated its commitment to implement fully its Part VII responsabilities, citing a recent example of consultation and the possible development of new tools to assist federal institutions in fulfilling their linguistic obligations. However, the government remained silent on the Commissioner’s recommended corrective actions. As he considers other options, the Commissioner has decided to use his annual report to reinforce one of his recommendations and to call for clear action from the government. More specifically, he calls upon the Secretary of the Treasury Board to take action to prevent similar situations of non-compliance with the Act in future expenditure or similar reviews.

RECOMMENDATION

The Commissioner recommends that the Secretary of the Treasury Board demonstrate, by December 31, 2008, that the Secretariat (the lead federal institution for expenditure review) has taken the necessary steps to ensure expenditure and similar reviews within the federal government are designed and conducted in full compliance with the commitments, duties and roles prescribed in Part VII of the Official Languages Act.

Notes

1 A preliminary investigation report was also sent to complainants and institutions implicated in May 2007.

2 Fédération des communautés francophones et acadienne du Canada v. Her Majesty the Queen, F.C. No. T-622-07.

3 For more information on this subject, see Chapter II.

4 The Guide is available on the Canadian Heritage Web site at www.pch.gc.ca/progs/lo-ol/outils-tools/tdm_e.cfmGovernment site.



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