ARCHIVED - IV. LEGAL ANALYSIS

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The examples identified clearly indicate that the federal government’s methods of service delivery to Canadians are changing both quantitatively and qualitatively. Some methods of cooperation have been developed because of the desire of certain departments to bring service closer to their clients and to eliminate duplication by means of local delegation. Other methods of cooperation result from a desire to support the vitality of the communities pursuant to section 41 of the Official Languages Act.

Delegation alone, or the implementation of section 41 of the Official Languages Act alone, would probably have produced very different results with regard to the delivery of government services by community groups.

Our research shows that, in the case of the minority official language communities, the new models of cooperation are most strongly established in western Canada and are beginning to take root in southern Ontario. There are few of these new types of cooperation in the Atlantic region or in Quebec.

There is a reason for this situation. Federal institutions can more easily serve the minority communities directly where their numbers are heavily concentrated. In the other regions, it is easier for federal institutions to establish models of cooperation with the community groups which can, in their turn, ensure the provision of the services directly to the target population.

In Atlantic Canada, federal institutions seem instead to rely on a strategy of direct provision of services.

In Quebec, some federal institutions rely on a strategy of increased consultation with the minority communities concerned and on more community participation in established structures such as the CFDCs.

The example of Economic Development Canada in the regions of Quebec is particularly enlightening in this regard. This institution is outstanding for its efforts with the official language community partners and it recently adopted a statement of principle about the full implications of section 41 of the Official Languages Act.

As mentioned above, the models of cooperation identified raise two basic questions in legal terms:

  1. Do the minority official language community agencies that provide government programs constitute “offices” within the meaning of section 20 of the Canadian Charter of Rights and Freedoms and section 22 of the Official Languages Act?


  2. Do the minority official language community agencies that provide government programs constitute third parties acting on behalf of the Government of Canada within the meaning of section 25 of the Official Languages Act?

Jurisprudence is not particularly enlightening with regard to the criteria for determining whether an agency constitutes an office of the government. However, previous court decisions can serve as guidelines with respect to the interpretation to be given to language rights.

In the Beaulac decision, the Supreme Court of Canada said, in paragraph 22: “With regard to existing rights, equality must be given true meaning. The Court has recognized that substantive equality is the correct norm to apply in Canadian law.”

This concept of the true meaning of equality leads to two other basic questions:

  1. What are the reasons for organizing the provision of services as they have been organized in the models of cooperation inventoried?


  2. Do the models of cooperation examined respect the principle of real equality of the linguistic communities?

As an example, considering only the local service points of Éducacentre, the regional ACFO or the CDEM in Manitoba, it is difficult to conclude that, in themselves, they are “offices” within the meaning of Part IV of the Official Languages Act, whether by reason of their nature or the nature of their activities. It would be a mistake, legally, to conceive of the office as being restricted only to the final contact between the public and the federal institution.

However, this study reveals one of the important impacts of government transformation; in defining the words “office” or “third party,” we cannot restrict ourselves to considering, in isolation, the ultimate point of service that provides the contact with the public. To fully understand the possible legal implications, it is necessary to consider the overall context in which the service is provided. We must therefore see the ultimate point of service as part of a whole established to better deliver a service to a given population.

The starting point is the federal department or agency; the end point is the public served. Between the two is a series of legal provisions, administrative arrangements and operational processes established to deliver the government service. The “office”, it seems to us, refers much less to the final contact than to this series of interdependent provisions, arrangements and processes.

A service of the federal government, whether it be delivered by a province, a municipality, a community agency or other “persons or institutions,” remains a government action and is therefore subject to the Official Languages Act. We believe it is reasonable to consider all of the service delivery arrangements or provisions adopted by a federal institution to answer the questions raised.

On the basis of these guidelines, we can analyze the examples inventoried as follows.

There are 88 CFDCs in the four western provinces, each covering a specific geographic territory.

To ensure respect for the Official Languages Act, a federal institution may ask itself the following question: is it preferable to attempt to provide bilingual services in a certain number of these CFDCs in areas where pockets of the minority population live, or is it preferable to create a French-language equivalent throughout a province to serve all of that province’s minority population?

If the CFDCs offered service exclusively in English in western Canada, for example, it would be possible to challenge this arrangement under section 20 by showing that such an approach denies “true equality” to the French speaking minority, since the CFDCs are the last links in a chain designed to deliver a government program to a given population, even if they are constituted as a non-profit agency. In this context, a CFDC, in itself, could technically be considered an “office” of the federal government.

We believe that the specific arrangements introduced by Western Economic Diversification Canada in the delegation of certain responsibilities to RDÉEs in the four provinces respect true equality between the majority and minority communities in economic development. The model adopted has the additional advantage of developing sound community links and expanding community institutional capacities.

Éducacentre presents a specific model because the federal service passes through two filters before being delivered to the target community; there is first a federal-provincial agreement and then a contract between the province and Éducacentre. This type of arrangement permits the effective delivery of services to the minority and respects the principle of “true equality” since Éducacentre is the last link in the chain of service delivery which begins with the federal government.

The only irritant in this model is the obligation imposed on Éducacentre by the province to submit reports in English only.

The London-Sarnia ACFO model is slightly different because this agency contracts directly with HRDC and provides services in French exclusively to a French-speaking clientele. HRDC contracts with another agency to provide the same services exclusively in English elsewhere. We believe that such an arrangement also respects the requirements of the Official Languages Act. To retain the services of a minority group in order to actively offer government services to the community is a way of promoting true equality. It might even be concluded that the model of cooperation established by HRDC in this case makes it possible to offer services to a community that might not otherwise request these services.

In the three preceding cases, is there a contravention of the Act because one office does not provide service in French and the other does not provide service in English, contrary to a literal reading of the Act or Regulations?

To answer this question, we must refer again to paragraph 25 of the Beaulac decision: “language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of the official language communities in Canada.”

Based on this, it seems clear to us that the equality of English and French is assured, access to service is equal, and the quality of service is equivalent in both languages.

Suppose a different situation: a federal institution assigns the delivery of a service to a majority group which provides the service only in the language of the majority of a province, without having put in place an appropriate counterpart for the minority community. In this case, there would obviously be a contravention of the Official Languages Act.

It therefore seems to us that the models of cooperation inventoried in this study ensure true equality in the provision of service. The arrangements and provisions allow the delivery to a linguistic minority of service substantially equal to that provided to the majority.

The task remains to determine the conditions that must be fulfilled to ensure compliance with the letter and the spirit of the Official Languages Act.

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