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The successive budget cuts at the start of the 1990s, the reorganizations of federal departments and programs, and the new opportunities offered by information and communications technologies have prompted governments to broaden their approach and diversify their methods of delivery of public services.

In August 1994, the federal government adopted a departmental accountability framework for the implementation of PartVII of the 1988 Official Languages Act. In section 41 of Part VII, the federal government makes a commitment to enhance the vitality of the minority official language communities and promote the full recognition of English and French in Canadian society. The gradual implementation of Part VII of the Act has also helped to diversify methods of federal program delivery.

In January 1999, the Fontaine Task Force on the impact of government transformations on the official languages tabled its report, entitled No Turning Back: Official Languages in the Face of Government Transformations. It recommended: “that the government implement pilot projects to explore the possibility of establishing partnerships with minority official language communities with a view to the delivery of certain services by the latter.”

With a view to preventing potential problems in the creation of new procedures, and in anticipation of possible impacts and consequences on the application of the Official Languages Act and the achievement of the objectives of the language provisions of the Canadian Charter of Rights and Freedoms, the Office of the Commissioner of Official Languages undertook this study, which has two objectives:

  • to inventory examples of new procedures for cooperation between the government and the official language communities for the delivery of services by community groups;

  • to determine the conditions that must be fulfilled to ensure respect for the spirit and intent of the Official Languages Act.

From a great many telephone interviews with representatives of federal institutions and the communities, a list was developed of some 100 examples of new models of cooperation whereby a minority community group ensures the delivery of a government service.

Some procedures for cooperation resulted from the desire of certain federal institutions to bring service closer to the target clientele and eliminate duplication. Other procedures for cooperation are the result of a desire to support the vitality of the communities in accordance with section 41 of the Act. The new models of cooperation are more common in western Canada and are beginning to take root in southern Ontario. They are rare in the Atlantic region and in Quebec. These services relate mainly to the area of economic development and employability.

Three typical examples were analyzed in detail: the London-Sarnia regional ACFO (Association canadienne-française de l’Ontario) model, a community agency that offers employability and training services at the local level; the Éducacentre model in British Columbia, an agency that offers similar services on a provincial basis; and the National Committee for Canadian Francophonie Human Resource Development model, which offers services at the national level. The latter organization works closely with the Regroupements de développement économique et d’employabilité (RDÉE) in the provinces.

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 of 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?

In the Beaulac decision, the Supreme Court of Canada states, 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.” And in paragraph 25 it added: “Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.”

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, regional ACFO or an RDÉE, 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.

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 are 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 therefore believe that it is reasonable to consider all the service delivery arrangements or provisions adopted by a federal institution in order to answer the questions raised.

It seems to us that the models of cooperation inventoried in this study ensure real equality in the provision of service; they are arrangements and provisions that permit the delivery to a linguistic minority of a service substantially equal to that provided to the majority. That is to say that the equality of English and French is ensured, access to the service is equal, and the quality of service is equivalent in either language.

The study also dealt with the following question: under what circumstances is it desirable to establish models of cooperation that enable an official language minority community group to provide a government service?

The preference is for procedures for cooperation governed by bipartite or multipartite partnership agreements. It is also preferable that the primary, if not only, mandate of the community agency be to deliver the service in question. This is true of the National Committee for Canadian Francophonie Human Resource Development at the national level and of Éducacentre at the provincial level. In some cases, the agency is created expressly to deliver the service.

In the absence of a partnership agreement and appropriate terms and conditions, including the creation of a community group established for this purpose, the provision of a government service by a community group that takes on this task as one of its other functions must be seen as only a temporary alternative solution, when the department has exhausted all other alternatives for providing the service directly while fully respecting its linguistic commitments. This is the case with the London Sarnia regional ACFO.

The recommendations are designed to support the efforts of community groups and federal institutions which are developing models for cooperation in the delivery of a service or program.

RECOMMENDATION TO COMMUNITY GROUPS

Any community group that wishes to establish a model of cooperation with a federal institution to provide a government service must:

  • ensure community support and coordinate its efforts with those of other community groups;

  • conduct a needs study and do implementation planning;

  • preferably, establish an independent agency that will provide the service; and

  • ensure that this new model of cooperation contributes, by the quality of the service provided, to the advancement toward equality of the minority and majority communities.

RECOMMENDATIONS TO FEDERAL INSTITUTIONS

Recommendation 1: Monitoring of New Models of Cooperation

That the Committee of Deputy Ministers Responsible for Official Languages assign the Treasury Board Secretariat and the Department of Canadian Heritage the responsibility of establishing, within the next six months, a central data collection system to monitor the development of models of cooperation between federal institutions and community groups that lead to the delivery of government services or programs to the minority official language communities.

That the Committee of Deputy Ministers Responsible for Official Languages assign the Treasury Board Secretariat and the Department of Canadian Heritage the responsibility for developing a management framework for models of cooperation between the government and community groups for the delivery of services in order to ensure respect for the spirit and intent of the Official Languages Act. This framework should be operational by March 31, 2001.

Recommendation 2: Overall Evaluation of Models of Cooperation

That the Treasury Board, in 2002-2003, provide for an overall evaluation of the results achieved following the implementation of new models of cooperation between federal institutions and community groups that lead to the delivery of government services or programs to the minority official language communities.

Recommendation 3: Needs Analysis and Implementation Planning

That each federal institution concerned provide adequate financial resources for the conduct of a needs study and for planning of the implementation of a new model of cooperation with a community agency for the delivery of a government service to an official language minority community.

Recommendation 4: Control and Accountability Mechanisms

That each federal institution concerned ensure in all cases that appropriate control and accountability mechanisms are put in place during the planning and implementation of a new model of cooperation with an official language minority community or one of its agencies for the delivery of a service. These mechanisms must, among other things, guarantee respect for the Charter of Rights and Freedoms, the Official Languages Act and the Official Languages Regulations.

Recommendation 5: Respect for the Principle of Equality

That each federal institution concerned ensure full respect for the principle of equality which is at the heart of the language rights of Canadians and for the quality standards applicable to the delivery of a government service by a community group.

That the federal institution concerned ensure that the employees of the community groups that deliver the service acquire and integrate the required professional and linguistic skills.

That the federal institution concerned periodically conduct a formal evaluation to measure the quality of the services provided by the community group and to ensure their equality.

Recommendation 6: Long-term Stability of the Provision of Service

When any model of cooperation by which a community group, directly or by subcontracting, ensures the delivery of a government service, each federal institution concerned must ensure that the delivery is planned on a multi-year basis. Such a model of cooperation must be part of a coherent framework and well-considered departmental strategy to promote the vitality of the communities. The federal institution must provide for a reasonable transition period in the event of the non-renewal of a model of cooperation. In this case, the federal institution must also establish appropriate mechanisms for reabsorbing the service in a way which promotes the advancement toward equality of English and French.

At the conclusion of this study, we set out certain principles which must guide the establishment of these models of cooperation in view of the responsibility of the Government of Canada to ensure the advancement toward equality of English and French pursuant to the Constitution Act, 1982:

  • any model of cooperation must, as a minimum, preserve acquired rights, including access to and the exercise of remedies, while clearly guaranteeing to the public concerned the right to services pursuant to the provisions of the Charter of Rights and Freedoms, the Official Languages Act and the Regulations;

  • any model of cooperation must define and establish mechanisms that will give the minority community services truly equal to those provided to the official language majority;

  • any model of cooperation must provide for appropriate control and evaluation mechanisms;

  • any model of cooperation must be established on a multi-year basis and ensure the stability of the service provided to the community;

  • any model of cooperation must provide for concrete transition measures that fully respect the principle of equality, should the service be reabsorbed into the federal institution in question.  

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