ARCHIVED - Ottawa, November 20, 2007

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Notes for an address at a lunchtime talk
at the University of Ottawa’s Faculty of Law –
Civil Law Section and Official Languages and Bilingualism Institute 


Graham Fraser – Commissioner of Official Languages

Check against delivery  

 

Good afternoon ladies and gentlemen,

I would like to begin by thanking the organizers of this lunchtime talk for inviting me to speak to you today.

I just recently marked the first anniversary of my appointment as Commissioner of Official Languages. I have been convinced since the start of my term that it is essential to focus on learning both official languages as a means to build bridges between Canada’s two major language communities. We must, therefore, take a second look at official language instruction and promotion, especially among young people, and ensure that language education continues beyond high school.

With this in mind, I am very pleased to commend the University of Ottawa for its contribution as a bilingual institution. The University has demonstrated its commitment to linguistic duality through its ongoing work to improve this essential component of its mandate. Post-secondary education institutions have a key role to play in ensuring that both English and French are recognized as Canadian languages.

Pierre Trudeau defined language rights as two-fold: the right to learn and the right to use. The entire edifice of language rights that has been built in Canada over the years rests upon these two pillars. Several legal texts set forth these rights, including the Official Languages Act of 1969 and 1988, the Canadian Charter of Rights and Freedoms and the Supreme Court decisions that define the nature and scope of those rights, like Mahe, Beaulac, Arseneault-Cameron and Solski.

Pierre Trudeau called upon members of the legal profession to not only advocate respect for the Constitution but also actively encourage its evolution and progress in terms of linguistic duality in general.

Six years ago, the Ontario Court of Appeal ruling in the Montfort Hospital case stated, “the protections accorded linguistic […] minorities are an essential feature of the original 1867 Constitution without which Confederation would not have occurred.”

This statement by the Court of Appeal is simple, clear and extremely important: there would be no Canada if the Fathers of Confederation had not ensured that linguistic minorities would be protected and respected in the country they helped found.

I have long believed that the success of Canada depends on the success of its language policy. This success requires the utmost respect for linguistic duality and minority communities.

As Commissioner of Official Languages, I am responsible for federal language issues. My mandate essentially consists of ensuring that the status of each of Canada’s official languages is respected and that federal institutions comply with the Official Languages Act. My duties also include promoting linguistic duality and protecting Canadians’ language rights. I use many of the tools set out in the Act to fulfil this dual role.

You are probably all familiar with the Commissioner’s role as language ombudsman, which consists of ensuring that the government and federal public service comply with the Official Languages Act. I receive complaints directly from the public regarding federal institutions. I conduct investigations and then make recommendations for corrective measures, as needed. The Office of the Commissioner receives some 1,000 complaints per year, most coming from individuals who were not served in the official language of their choice, even though they were entitled to be. We also review complaints involving, for example, language of work and the obligation to support the vitality of official language communities.

Since I became Commissioner, I have been re-examining my role as ombudsman and what I could do to make it more effective. What could be done to ensure the commitment of federal institutions and achieve better results? Investigations are certainly an important part of the work carried out by the Office of the Commissioner, but we need to do more than just publish audit reports. This is why I have begun to broaden this role through intervention mechanisms based on a more efficient resolution of outstanding issues and on the prevention of problems that can contribute to them.

Another one of my main responsibilities as Commissioner is to promote linguistic duality within the federal government and Canadian society as a whole. I believe it is important that official languages stop being perceived as a burden and start being recognized as a value and leadership skill, particularly within the public service.

Finally, I am trying to do my part to contribute to the advancement of language rights in Canada. These rights are the result of a special and elaborate dialogue on official languages between the courts, Parliament and the provinces. As Commissioner, I contribute to this dialogue by intervening, when appropriate, before the courts in matters related to the Act, the rights and obligations set out in sections 16 to 23 of the Charter, language rights and the status or use of English or French. For example, the Office of the Commissioner intervened in Federal Court in the case Thibodeau v. Air Canada to clarify the language obligations of this former Crown corporation. I can also apply for a court remedy myself under the Official Languages Act.

Official language minorities across the country are increasingly claiming the rights that these laws afford them. One of Alberta’s first ever French-language trials was held earlier this year. English-language cases from the province of Quebec have helped to confirm the constitutional validity of the language rights provided for in the Criminal Code. Recently, the Yukon Court of Appeal rendered a decision on the issue of access to justice in French. Similar case law has also emanated from the courts of most provinces and territories.

I am confident in saying that much progress has been accomplished in matters of access to justice in the past forty years.

However, that is not to say that our work here is done. Much more is needed.

Members of official language minority communities continue to be underserved by the legal profession and to encounter difficulties in exercising their language rights before the courts. When they do choose to exercise their rights, they are faced with numerous obstacles and administrative delays that can be discouraging to the most tenacious litigant.

In large parts of the country, there is a shortage of lawyers able to represent their clients before the courts in both official languages. Most Canadian law schools do not sufficiently make their students aware of the existence and importance of these language rights. The majority of law students graduate knowing only half of the laws that they have studied—the ones written in English or the ones written in French. Once called to the bar, lawyers are rarely made aware or reminded of these rights and their importance for their clients.

Institutional hurdles are also numerous. There continues to be a shortage of judges able to hear cases in either official language, particularly before provincial and territorial trial and appellate courts. An insufficient number of judges able to hear cases in both languages are being appointed to the bench and bilingualism is often not being afforded sufficient weight in the selection process for members of the judiciary, despite the fact that access to justice in the language of choice is an important issue.

A shortage of bilingual court personnel and legal and administrative resources often compound the shortage of bilingual judges.

Although access to justice has long been a preoccupation of members of the legal profession, it has become even more of an issue for official language minorities since the abolition of the Court Challenges Program. The Program played a vital role in increasing access to justice for marginalized and vulnerable groups and made a unique contribution to democratic values. The Program allowed for the advancement of equality rights and language rights and reinforced an underlying principle of Canada’s justice system: that all citizens must be able to fully exercise the rights granted to them by the Constitution and the Charter.

As members of the legal profession, what role can you play, either individually or as a whole, in improving access to justice in both official languages?

Your contribution can take many forms. You can, and should, advise your clients of their right to proceed before the courts in the official language of their choice. If you are proficient in your client’s preferred official language, you can represent him or her before the courts in that language.

Continuing legal education is available for lawyers to learn, maintain or improve their legal vocabulary in both official languages. Law firms can, and should, ensure their employees are able to serve clients in both official languages and, in order to do so, ensure they have access to the support services and technical and legal resources they need.

Bilingualism provides many financial, professional and personal advantages for individual lawyers and law firms. Bilingual lawyers have a significant competitive edge regardless of the region or province in which they practise. They have a wider local client base and are increasingly sought after on the national and international level for their ability to work with and interpret federal and international legal instruments, and represent individual and corporate clients throughout Canada.

Many of us here today recognize linguistic duality as a fundamental part of our Canadian values. The challenge facing us is to promote and encourage a leadership culture in both official languages. In order to meet this challenge, we need to go beyond the senior levels of the public service to make sure that all Canadians understand the importance and value of linguistic duality.

Such efforts foster a culture that accepts linguistic duality. The University of Ottawa and the Official Languages and Bilingualism Institute play a key role in the use of official languages and the expansion of linguistic duality in Canada. The newly created institute is a wonderful example of official languages leadership, and the expertise it provides will benefit the Canadian and international university community.

Law faculties not only can, but should, play a key role in promoting the knowledge of both official languages and their use within law programs. Our country has a bilingual and bijural legal system that is a model for the world: a place where civil and common law systems coexist and intertwine and where the English and French languages can be used before most Canadian courts—although admittedly to varying degrees. Law programs, like those offered here at the University of Ottawa, allow students to acquire the knowledge necessary to properly interpret federal and international legal instruments, particularly Canada’s bilingual legislation.

However, exchanges, links and bridges between the two legal systems, between law programs and between those studying law in each official language should not stop there. For Canada to remain a source of inspiration, we must strive towards ensuring that all Canadian members of the legal profession are familiar with all Canadian laws and that all citizens have access to justice in the official language of their choice. It is up to students, members of the legal profession and law faculties to meet this challenge.

I would like to end by recognizing the University’s Student Federation Bilingualism Centre as an excellent example of leadership in official languages. I had the privilege of attending its official opening a few weeks ago and I was impressed to see that students took the initiative to develop this exemplary resource centre for other students.

Thank you, and now, if time permits, I will answer some of your questions.