Status of Women Committee on May 1st, 2008

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

So, you are—

[The Chair, Liberal, Yasmin Ratansi]

Madame Boucher, one short question.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

So you are very protected, because there was legislation to cover all these aspects.

[Graham Fraser]

Yes. This is set out in the act.

Initially, this salary protection did not exist. This was brought in by means of an amendment to the act in 1988 which set the Commissioner's salary at the same level as that of a Federal Court judge.

You talked about the Commissioner's independence. There are four components to this: non-interference by the government, adequate financial resources, the ability to report to Parliament without seeking the government's permission and direct access to the courts.

Our legal advisors are not Department of Justice employees; they are our employees, our legal counsel. We recently went to court as an intervener in the SAANB-Paulin case, which was heard by the Supreme Court. The RCMP uses lawyers from the Department of Justice in its defence. Since we have our own lawyers, there is no conflict of interest if they have to testify against an institution that uses government lawyers.

[The Chair, Liberal, Yasmin Ratansi]

Merci.

We'll go to Ms. Mathyssen, for seven minutes.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you, Madam Chair.

Thank you very much for being here. I think it's a very useful experience to hear what you have experienced.

In 1994 when the Standing Committee on the Environment put forward recommendations to create the Commissioner of the Environment, it was thought that the advisory committee mechanism would enable the commissioner to solicit regular input from a cross-section of Canadians. Do you have any discretionary power to appoint individuals to one or more of those advisory committees to assist you in the performance of your duties?

[Graham Fraser]

Are you talking about advisory committees of our own or about those environmental advisory committees?

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Well, I think yours would probably be more appropriate.

[Graham Fraser]

What we are free to do, and what we have done in a couple of areas, is set up advisory committees that are essentially voluntary. I mean, we don't pay people to be on those committees, although we will pay their expenses. We will fly people to Ottawa for the meetings.

Two are under way now. We have embarked on a process of changing the role of the ombudsman. One of the things we concluded was that we'd reached a certain plateau in dealing with some institutions. It struck me that there's a kind of constant routine with some institutions in which you're simply complaint-driven. You get complaint investigation report after complaint investigation report without getting any sense that you're actually changing the behaviour of the institution. So we are establishing a prevention function, without abandoning our obligation under the act to investigate complaints, and asking institutions in which we see some chronic problems how we can sit down with them and actually talk about how they can meet their obligations under the act.

As part of that re-examination of the role, we've set up an advisory committee on the role of the ombudsman. We have brought people from across the country, and every few months or so we have a meeting and go over things.

Similarly, I feel very strongly that universities have a role in terms of official languages. We've embarked on a joint study with the Association of Universities and Colleges of Canada. As part of that study, we put together a consultative committee of people from universities, the federal government, English-speaking universities outside Quebec, an English-speaking university in Quebec, French-speaking universities in Quebec, and French-speaking minority universities outside Quebec, just to make sure they were aware of what we were interested in and what we were doing. There was some discussion about the questionnaire we were going to embark upon with the institutions. We found that input to be very useful in both cases: the consultative committee on the role of the ombudsman and the one for universities.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

So that has just begun. You haven't completed the dialogue yet.

[Graham Fraser]

No. In neither case have we completed it. We have had at least one meeting of each organization, of each committee, and others are planned.

I'm not sure whether in the past there were other consultative committees. Catherine, do you want to speak to that?

[Catherine Scott, Director General, Policy and Communications Branch, Office of the Commissioner of Official Languages]

In the same way, I think, under the former commissioner, from time to time there were specific advisory committees on specific issues, but not necessarily a long-standing and permanent advisory committee that advised the office.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Should the committee decide to recommend in the report that we create a commissioner for gender equality, are there any lessons you've learned from your experience in the Office of the Commissioner of Official Languages that you'd like to share with the committee? Is there any wisdom you could impart so that we can make the best possible recommendations?

[Graham Fraser]

Well, I believe very strongly in the independence of the office, and I believe very strongly in the importance of the Office of the Commissioner of Official Languages having a strong relationship not only with Parliament as an abstraction but with parliamentarians and with parliamentary committees.

I really appreciate the relationship I have with the Standing Committee on Official Languages, both in the House and in the Senate, and in addition to formal appearances before committees, I try to maintain less formal contacts with members on those committees from each of the parties. There have been instances when, for example, one of the parties was putting forward a private member's bill where our legal branch was available for consultation, not only for that party but for other parties as well. We make it clear to MPs from all parties that we're available, not just to Parliament in the abstract and the committee in specific, but to parliamentarians from all parties.

If a party comes or if a member comes and says, “I'm working on a private member's bill; what do you think?”, we will make it clear that we will provide advice, but we will provide the same advice to the other parties as well, because the other parties may say, “Here's this private member's bill, and we're trying to decide whether we're going to support it or not.”

So we don't give partisan advice as to whether a party should support a bill, but we will give our interpretation of what a bill means.

[The Chair, Liberal, Yasmin Ratansi]

Time is up.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

But I was just getting started.

[The Chair, Liberal, Yasmin Ratansi]

You'll get another round.

Would you like to finish your answer? I thought you were finished.

[Graham Fraser]

I don't want this to be formulated in terms of advice, but in my experience, one of the reasons I think the parliamentary panel is so important is that it enables me as commissioner and my colleagues to develop a reporting relationship—on financial matters as well as the subject matter that is our responsibility to cover—to Parliament rather than reporting to the government.

[The Chair, Liberal, Yasmin Ratansi]

Thank you.

We go to the next round for five minutes. Mr. Pearson.

[Glen Pearson, Liberal, London North Centre, ON]

Thank you, Madam Chair, and Mr. Fraser and staff.

I always enjoy it when Madame Boucher asks a question, because she continues to say that it has to get past successive governments so we don't do something that just fits one, and she's right. That's what we need to be working towards.

However, I'm a fairly new parliamentarian here, and I'm trying to deal with the reality of what you have just said in your opening presentation. You talked about a particular instance that happened. You made a recommendation. The government did not take that particular interpretation, so you had to go another route and do it.

So am I correct in assuming, then, that if we as a committee took as our direction creating gender budget legislation about a commissioner, it could still happen that the government would ignore that, if that commissioner made a recommendation?

[Graham Fraser]

Absolutely.

There are two kinds of roles we can play. We can point out that the law is not being respected, and if the law is not being respected—if an institution digs its heels in and says, “We're not respecting the law because that's not our interpretation and we don't have to”—then we will end up before the courts, or sometimes the complainant will take the action and we will intervene with the complainant.

For example, Air Canada did not share our interpretation of what its obligations were under the act. So that ended up going to the court of appeal, and the court said that actually Air Canada has an obligation of results. It can't just show what it's trying to do; it actually has to perform.

[Glen Pearson, Liberal, London North Centre, ON]

I guess what I'm looking for, Mr. Fraser, is that if we create something that could go for successive governments, it doesn't mean that the government would have to respect it, and the only recourse for that, then, is to go to the courts.

[Graham Fraser]

No. When a recommendation is not respected, under the Official Languages Act there are a number of things we can do. We can make a special report to Parliament, we can make a special report to the Governor in Council, and we can go to court.

[Glen Pearson, Liberal, London North Centre, ON]

So these are the things that we would want to ask if we had a gender commissioner.

[Graham Fraser]

That's right. And when we feel that a federal institution has not respected its obligations under the act, we have that strategic decision to make. In some cases, what we can also do is simply draw it to the government's attention in our annual report, saying that this department is not living up to its obligations.

There are a number of other specific ways in which we can follow a file. With National Defence, for example, there have been real concerns about the availability of training in both languages, so we are doing a study on training. We are consulting quite closely with the military so they know what we're doing.

When an institution fails to live up to its obligations under the act, it's not necessarily because they're digging in their heels and saying they refuse; they will quite often say that they recognize they have a real problem in an area. So it becomes a question of trying to establish a constructive relationship and seeing how they can work on this difficulty.