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Giving French and English Their Due Place in the Administration of Justice

Notes for a speech to be given at a luncheon of the Association des civilistes

Dr. Dyane Adam - Commissioner of Official Languages

Check against delivery

Ladies and gentlemen,

I am delighted to speak to you. Your work is not only intrinsically important, but is also essential to effective bilingualism and bijuralism in Canada.

As you must know, my role as Commissioner of Official Languages is to make every effort to ensure recognition and respect for the status of both official languages, the spirit of the Official Languages Act and the legislator's intent as regards the administration of federal institutions, specifically the promotion of English and French in Canada.

I must tell you, it is a formidable challenge.

Some of you may remember that, in November 1995, the Commissioner of Official Languages published a major study entitled The Equitable Use of English and French Before the Courts in Canada.

This study revealed that the right of the accused to receive a trial in the official language of his or her choice, as stipulated in the Criminal Code, was very unevenly enforced from one province or territory to another. It also pointed to weaknesses relating to language in the way provincial courts administer other federal acts, including the Divorce Act and the Family Law Act. We accordingly made 13 recommendations to help the government address these discrepancies, together with the provinces.

In response to these recommendations, the federal Minister of Justice a year later published a working paper entitled Towards a Consolidation of Language Rights in the Administration of Justice in Canada - also known as the Francoeur Report. A subcommittee of the Program for the Integration of Both Official Languages in the Administration of Justice, chaired by Ms. Antoine Hacault, submitted comments on the working paper and on the recommendations found in the Commissioner's study. These comments were very useful in several respects, including observations on:

  • the best way of providing an active offer of service in both languages;
  • the use of both official languages before provincial courts of appeal;
  • the disclosure of evidence in the language used at the hearing;
  • procedural requirements applicable for bilingual proceedings;
  • access to legal aid services in both official languages;
  • improving the quality of interpretation services; and
  • the appointment of judges and the language training provided to them.

The department completed this detailed work in 1998 and then made its own recommendations. The departmental committee on bilingualism and bijuralism endorsed these recommendations in principle in March 1999. The Official Languages Law Group then conducted the appropriate interdepartmental consultations and submitted final recommendations to the Minister. We do not yet know when these proposals for legislative amendments might be submitted to our new elected officials.

Fortunately, the Office of the Commissioner did not wait for the results of this initial study to launch further studies. In the fall of 1996, we undertook a study focussing on The Equitable Use of English and French Before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers.

This study was intended above all to provide an overview of the way both official languages are incorporated into federal court mechanisms and to identify problems attributable to bilingualism rules. Completed in 1999, this study provides a series of recommendations designed to enhance the implementation of the rights and responsibilities set out in Part III (Administration of Justice) and Part IV (Communications with and Services to the Public) of the Official Languages Act. In particular, these recommendations include the following:

  • improve the active offer of services in both official languages;
  • from the outset of a case, determine the official language of the parties and witnesses;
  • standardize the procedures for determining the official language to be used by the attorney representing the federal court;
  • rationalize the legislative provisions governing decisions rendered in both official languages; and
  • establish a priority system to determine the order in which decisions are made available to the public in both official languages.

Since the recommendations we made on the basis of that study pertain exclusively to federal organizations, we have every hope that they can be implemented more quickly.

We also noted with interest that the Assemblée régionale Amérique of the Assemblée parlementaire de la Francophonie, in its meeting of September 29 and 30, 2000, considered the issue of access to justice for Francophones in North America. It unanimously adopted a resolution requiring the Standing Joint Committee on Official Languages to hold working sessions on the Office of the Commissioner's 1995 and 1999 studies and on my investigation report dealing with the implementation of the Contraventions Act and the City of Mississauga, made public in March 2000.

The chairman of the Association des juristes d'expression française de l'Ontario, Peter Annis, also expressed to the co-chairs of the Standing Joint Committee on Official Languages his desire to have the committee examine this entire matter. We sincerely hope that new committee members are appointed as soon as Parliament resumes and that they give particular and urgent attention to this issue.

For my part, I will at the first opportunity stress to the next Justice Minister the great importance I attach to the rapid and effective implementation of our recommendations on the administration of justice.

In this regard, I was pleased to learn that the request for project funding by the Fédération des associations de juristes d'expression française de Common Law for the implementation of recommendations included in the Office of the Commissioner's 1999 study was recently approved by the joint committee on the Canada-national organizations agreement and by the Minister of Canadian Heritage. This federation and its jurists' associations intend to work with the Commissioner and with the Department of Justice's legal counsel on the implementation of these recommendations, as well as with administrators of quasi-judicial tribunals.

Finally, I have the pleasure of announcing that we have just completed another study on the linguistic obligations of federal Crown representatives. It will be released to the public shortly. The recommendations it contains will, I believe, help to better define the linguistic obligations of these officials in their dealings with the public and with the parties and will help them better respect the language rights of all those concerned. We attach particular importance to ensuring that the Crown informs representatives of their linguistic obligations and implements a system for appointing representatives that respects language rights.

We undertook this series of studies because we considered it very important to identify and define as clearly as possible the language rights of our fellow citizens before Canadian courts, and in particular the language rights of Anglophone and Francophone minorities.

The federal government's commitment to promoting the growth and development of these communities, as set out in section 41 of Part VII of the Act, must clearly apply first and foremost in areas unequivocally under its jurisdiction. Just as charity begins at home, so too must the law begin by putting its own affairs in order.

This is why we deplored the fact that the changes made in 1996 to the Contraventions Act and to the regulations and agreements established for their implementation did not include linguistic guarantees similar to those set out in part XVII of the Criminal Code and in Part IV of the Official Languages Act. For those unfamiliar with the 1996 changes, briefly, they allowed the government of Canada to authorize, through regulations, a province, territory or municipality to issue minutes and undertake proceedings for violations of federal acts or regulations in accordance with the penal procedure of the particular province or territory. In our opinion, in view of its commitment to protecting official language minorities, the government must actively ensure that the agreements concluded with provincial, territorial and municipal authorities guarantee respect for these rights. This is after all where it really counts.

With the consent of the Association des juristes d'expression française de l'Ontario, we accordingly took legal action in November 1998. The first part of the hearing for this case was last March. It continued on October 17, 18 and 19. We expect the decisions in a few months.

Issues such as the impact of the changes made to the Contraventions Act are of particular interest to us because they will allow the courts to clarify the scope of the federal government's commitment set out in Part VII of the Official Languages Act.

Recently, in the Beaulac case, the Honourable Justice Bastarache of the Supreme Court of Canada, speaking on behalf of the seven judges in the majority decision, reiterated that language rights "must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada". Moreover, he stressed the need for language rights to "be interpreted as a fundamental tool for the preservation and protection of official language communities where they apply."

These comments, which echo the provisions of Part VII of the Act, imply that respect for language rights goes far beyond simply improving the bilingual services provided by federal institutions. It requires instead an active commitment to giving minorities reasonable access to institutional resources such as education, health care, culture, economic development, etc. They must be given the scope to live and develop as fully fledged communities.

The same type of issue has been raised at the provincial level, specifically in Ontario. The struggle for the survival of the Montfort Hospital clearly illustrates the active and complementary relationship between the principle of bilingual service guaranteed by law and the pursuit of community development.

In order to develop, a linguistic community needs more than bilingual services. It needs environments conducive to the effective use of its language. In order to survive, a linguistic community needs a network of institutions in which its members can live in their language and culture, a network that anchors their identity.

If you have read the headlines in the media last week, you are aware that we have announced our decision to intervene in the Montfort case. In our opinion, the Ontario Court of Appeal's ruling on fundamental issues of the provinces' obligation to promote the development of official language communities will be crucial.

In the past, we deplored the lack of central co-ordination and planning for the implementation of Part VII. There was a lack of leadership at the highest levels and no overall policy on the participation of federal institutions in community development. There have been numerous signs of progress since that time.

Incidentally, I would like to commend a good many of you for the important work of textual interpretation and explanation you have done to lead these institutions to a better understanding of the scope and range of the federal government's commitment to official language minorities.

Part VII offers many ways to consolidate the foundations of linguistic duality by multiplying the opportunities for minority communities to develop, grow and evolve in as many areas as possible, in their own language. A community is essentially a group of people who talk to each other, who work together and share the same ambitions and dreams.

At a time when the federal government has undergone profound changes, Anglophone and Francophone minorities, more than ever before, recognize Part VII as an essential tool for their development. These transformations, brought about by financial constraints, technological progress and the desire to serve citizens more directly, have created a new order for these communities.

The federal government has to rally its forces and once again assert, loud and clear, its commitment to linguistic duality. This is the essential message of our recent Annual Report, which stresses the glaring lack of commitment and firm leadership.

I note however that, even before my report appeared, a shift seems to have begun, thanks in part to the renewal of the Committee of Deputy Ministers Responsible for Official Languages and other co-ordination mechanisms.

Following our forceful intervention and that of other interested groups, the federal government decided that the regional carriers of Air Canada and future regional subsidiaries would be subject to the provisions of the Act with respect to service to the public.

This decision could be interpreted as an indication of federal government's renewed interest in ensuring the equal status of both official languages in areas under its jurisdiction. I hope that the long period of withdrawal and offloading has come to an end.

The protection of language rights, like the protection of all human rights, is everyone's business. Your presence here today is a sign that you are committed individuals who take your work to heart. I know you work very hard to give English and French their due place in the administration of justice.

Still, I must ask you to redouble your efforts. I need your help to nurture a renewed vision of Canada's linguistic duality. The federal government needs all of your talents to ensure that the principles of the Act are fully integrated into the organizational culture of all federal institutions. This Act is fair and necessary in human terms. It reflects the reality of Canada today and tomorrow. May you continue to be its leading defenders.

Thank you.