Bill S-209 (Historical)

An Act to amend the Official Languages Act (communications with and services to the public)

This enactment amends the Official Languages Act to introduce the concept of equal quality of communications and services offered by federal institutions in each official language. The enactment modifies the criteria used to determine if there is a significant demand for communications and services in either official language.
The enactment specifies the locations where federal institutions have a duty to provide communications and services in both official languages.
The enactment provides for a review of the regulations enacted under Part IV of the Act after every decennial census.
The provisions on prior consultation are applied more specifically to regulations that provide for exceptions to the application of Part IV of the Act in certain circumstances or to certain bodies.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Are you telling me this conversation has to be conducted on a continuous basis rather than be of limited duration? The Senate has been studying Bill S-209 for more than a year. It would be very surprising if the changes proposed to the act were made before the next election; it's virtually impossible. The next government will therefore have to continue the exercise.

What exactly are you saying about the way the conversation should be conducted? I want to be sure I understand what you're telling me. Should it be done continuously or should it be limited in time?

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

I have two more questions to ask you.

I am concerned about the 5% francophone immigration target in the communities. We have already dealt with this. It worries me. In my view, it is extremely important to quickly discuss Bill S-209, which has been introduced by Senator Maria Chaput, to show that we are expanding our services.

[Graham Fraser]

That issue is a concern for the anglophone minority, in part because that minority has already suffered from asymmetry in the Constitution.

In section 23 of the charter, which concerns minority language educational rights, paragraph 23(1)(a) stipulates that anyone “whose first language learned and still understood is that of the English or French linguistic minority population” has the right to have their children receive instruction in that language. However, further on, in section 59, it is stated that paragraph 23(1)(a) shall come into force after a resolution of the National Assembly. That's an element of the Constitution. Anglophones who have not been educated in English in Canada don't have access to English schools in Quebec in the same way that francophones who settle elsewhere in Canada can have access to French schools.

Given that asymmetry, it's a matter of once bitten twice shy. On the one hand, there is considerable nervousness over the idea that there is no need to provide the anglophone minority with the same rights as those reserved for the francophone minority. On the other hand, if we broadly define what constitutes a minority community in Bill S-209, bilingual francophones may end up being considered as members of the minority community, when that is not really the case.

We sort of find ourselves between a rock and a hard place. I think that what's important is having a system that takes into account the community's real needs.

The mirror effect should in fact apply in some situations, and asymmetry may be more appropriate in others. I don't think we need to have a hard and fast rule that dictates how this should work, as the needs are so different in the country's minority communities.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Okay.

My second question is related to the first one.

With only 2% of francophone immigrants settling in minority communities and with more assimilation, if the same criteria are kept, Bill S-209 becomes problematic. Improvements have to be made to it.

Mr. Brison, President of the Treasury Board, came to testify before the committee a few weeks ago. He was open to the idea of changing the regulations to respond, in principle, to all the objectives of Bill S-209.

What do you think about that idea?

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Thank you, Mr. Chair.

Hello, Mr. Fraser. I'm always pleased to see you and, of course, your team. We appreciate the opportunity, especially since this is likely your last official appearance as Commissioner of Official Languages. Ten years is phenomenal.

I have three very quick questions. However, before I ask the first question, I want to go back to the word “leadership”, which you said earlier. I think a leader is considered good when the situation on the ground when they leave is better than when they arrived. It's easy to determine when no progress has been made. I think, in some cases, as you said, the leader in question did not adequately fulfill their duty to improve the situation.

As I now have little time remaining to ask my three short questions, I'll ask them and we'll take a quick look at all of them.

The first concerns the challenge of immigration, as you mentioned in your report.

The second concerns Bill S-209.

The third concerns the active offer of services.

Regarding immigration, you said, outside Quebec, fewer than 2% of immigrants speak French. How do you think the situation can be improved? You have one minute to respond, if that works for you.

[Graham Fraser, Commissioner of Official Languages, Office of the Commissioner of Official Languages]

Thank you, Mr. Chair.

With me today are Mary Donaghy, assistant commissioner, policy and communications branch; Ghislaine Saikaley, assistant commissioner, compliance assurance branch; and Pascale Giguère, director and general counsel, legal affairs branch.

Honourable members of the committee, good afternoon.

I am pleased to be here today to provide an overview of my tenth and final annual report, which I tabled in Parliament on May 19.

This annual report covers a range of issues that have emerged or been dealt with over the past year. Some issues reveal the progress, or lack thereof, over the 10 years that I've been commissioner. These include immigration, equality of service, early childhood development, and the significance of bilingualism at major national events, to name a few, but two issues in particular stand out.

First, it is clear that there is an ongoing problem in the area of access to justice in both official languages. Canadians who seek to be heard in the official language of their choice in our courts face barriers that are sometimes impossible to overcome. Lawyers often feel they have to warn their clients that if they insist on exercising their right to be heard in their preferred official language, the legal proceedings will take longer and will cost more.

One reason for this is that the bilingual capacity of the superior court judiciary remains a challenge in a number of provinces and territories. Those who apply for judgeships and self-identify as bilingual do not have their language skills tested. Once they are on the bench, they often discover they are unable to preside over a trial in their second language.

The previous federal government resisted taking any action to implement the recommendations I made in the 2013 study on access to justice in both official languages that I produced jointly with my provincial counterparts in Ontario and New Brunswick. And so the first recommendation in my annual report calls on the current government and, in particular, the Minister of Justice, to address this matter.

The second issue is one that was raised by former senator Maria Chaput, as well as by numerous community leaders. It's now been taken up by Senator Claudette Tardif in the form of Bill S-209. For decades, federal services have been delivered in both official languages in different parts of the country where there is significant demand for services in the language of the minority.

A minority community can be thriving and growing, but if the majority grows faster, services are lost. This is simply unfair. A community's vitality should also be taken into account, not simply the rate at which the majority community is growing. Bill S-209 provides a way of addressing this injustice, as would a revision of the official languages regulations.

In three years we will mark the 50th anniversary of the act, and planning should start now to conduct a review of how part IV of the act, which deals with communications with and services to the public, is applied. The second recommendation of my annual report calls on the government to make this a priority.

Meanwhile, in the federal workplace in 2015-16, complaints under section 91 of the Official Languages Act about the language requirements for public service positions increased by 13% compared with the previous year. One of the reasons for this is a long-standing disagreement between the Office of the Commissioner of Official Languages and the Treasury Board Secretariat.

The Secretariat advises institutions that a·BBB linguistic profile is appropriate for most supervisory positions, while I continue to insist that CBC is the minimum level to ensure clear and effective communications with employees in regions that are designated as bilingual for language-of-work purposes.

Along with the tabling of my annual report before Parliament on May 19, I issued new report cards that rate 33 federal institutions on their compliance with the Official Languages Act. I also released a report on my role before the courts over the past decade. Yesterday, June 7, I tabled a special report to Parliament that proposes options that should be examined by the federal government to ensure that Air Canada effectively meets its official languages obligations. I will present this report to you later on today, and will answer any questions you might have at that time.

During the course of my 10 years in office, I've delivered 528 speeches and intervened in 23 court cases, including nine before the Supreme Court of Canada. My office has processed 7,156 complaints.

As I look ahead, though, one thing worries me. Sometimes I get the impression that the attitude toward language policy is “it goes without saying”. And so we do not talk about it. But we have to talk about it. For if it goes without saying, it remains unsaid—and what is unsaid is often neglected or forgotten.

In that context, I would be remiss if I did not say how pleased I am that Royal Military College Saint-Jean is to regain its status as a university. For more than two decades, Canada's armed forces have suffered from the absence of a French-language military university, and this corrects a serious problem.

This year, I will present my eighth annual award of excellence to the organization Canadian Parents for French for its outstanding contribution to the promotion of linguistic duality. I congratulate the organization for its exceptional work and for respecting French as an integral part of Canada.

The Canada 2017 celebrations also offer a unique opportunity to showcase linguistic duality. Numerous groups throughout the country are hard at work organizing events to mark our sesquicentennial anniversary. Linguistic duality must be a key component in all these efforts.

I commend the honourable members of this esteemed committee for their continuing efforts to promote and protect our official languages.

I thank you for your attention and would be pleased to answer any questions that you have.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you very much for your question.

It should be said that the current regulations were put in place in 1991. There have been significant changes since that time. As I said recently to Senator Tardif, I am open to changes that would lead to modernizing the regulations and to reaching some of the objectives of Bill S-209. We can make a lot of progress by changing the regulations. This afternoon, I am going to meet with the Senate committee to discuss this same topic.

A lot of things have changed since 1991, such as technology, for instance. In my opinion it is clear that we must update the regulations. I would very much appreciate the committee's contributions to this.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Thank you very much, Mr. Chair.

Minister, I thank you and your colleagues for being here with the committee today.

Like you, I am a Nova Scotia MP. I am extremely pleased that you are here and that you occupy a very important position in our government.

Before asking my questions, I would like to say a few things.

First, as opposed to you, I lived in a bilingual environment and was exposed to both official languages. You are in a similar situation today, and I congratulate you. Your two children Claire and Rose can go to French schools in Nova Scotia or here in Ottawa. As you know, students obtain excellent results in French schools, and we are very happy about that. Over the past 10 years in the province, there has been a 22% increase in the student population of the Conseil scolaire acadien provincial, and a 15% decrease in English-language school boards. You are certainly welcome, and we welcome you with open arms.

Secondly, I find it a bit ironic that my colleagues across the way, the Conservatives, are troubled by the fact that there will be fewer positions over the next two years in the translation bureau, when they eliminated 400 over the past three or four years. That is what caused the problem that exists today, in large measure. To be honest with you, that saddens me.

To conclude, may I say that there is no doubt at all that the translation tool is only a comprehension tool. It is not an official tool, as you just mentioned. It is simply a work tool.

My question is very important, Minister. As you know, Senator Maria Chaput introduced Bill S-209, which is now being sponsored by Senator Claudette Tardif. What is your opinion on that? Could some measures in the bill be implemented by Treasury Board, even though the bill will not be studied by both Houses? It would be very important to know whether Treasury Board could implement certain elements of the bill through regulations or other measures.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

Thank you, Mr. Chairman.

Mr. Fraser, before asking my question, I would like us to talk about the Official Languages Act of 1969. It changed the Canadian landscape. It was a memorable turning point. I know, as a Nova Scotia Acadian from a small Cape Breton community, that the French language was dying at that point. At home, both my parents spoke French, but I went to an English school, since there were no French schools. Today, 50 years after the adoption of the Official Languages Act, the situation has changed a great deal. But the act will no doubt have to be refined and revised to meet current needs.

I would like to hear your comments about Bill S-209, introduced by Madam Senator Chaput. In your opinion, what could the positive impacts of that bill be?

[Graham Fraser]

Thank you very much, Mr. Chair.

Mr. Chair, members of the committee, good afternoon.

I'm pleased to appear today before this committee for the first time since the beginning of this Parliament. Although I'm not sure how many more discussions we will have before my term as commissioner comes to an end in October, I'm honoured to have been welcomed so frequently by your committee and to have had such productive exchanges with you.

I would be remiss if I did not say a few words about Mauril Bélanger's enormous contribution to official languages, both as a member of Parliament and as a minister. He has always been an invaluable source of support and guidance.

This afternoon, I would like to talk to you about measures to improve access to justice in both official languages, an audit of the Treasury Board of Canada Secretariat conducted by my office, and the work I plan to complete between now and the end of my mandate. We will also have an opportunity to discuss the main estimates, which were tabled not long ago.

With regard to the interest you expressed concerning the selection of the next commissioner, I have discussed the choice of my successor with both the former and current Clerk of the Privy Council Office and have provided them with a list of six criteria that I believe could guide their choice: competence, comfort and eloquence in both official languages; ability to articulate a vision of linguistic duality; independence, essential for any agent of Parliament; high ethical standards and a value of respect; comfort as a public figure; credibility based on prior experience with the issue of official languages, in terms of knowledge of the act, knowledge of linguistic minority communities, or knowledge of Parliament.

On reflection, I would add to that list the importance of being what a former colleague of mine called “a digital native”: someone who is comfortable dealing with the new challenges of social media and the Web 2.0 world and their implications for language policy.

Based on my conversations with the Privy Council Office, the process of developing selection criteria does not seem to be completed. If your committee believes that other criteria would be more appropriate, there's still time to share that information with Mr. Wernick.

Acces to justice in both official languages is one of the issues my successor will have to address. The year 2017 will mark 150 years of legislative and judicial bilingualism in Canada.

Too often, Canadians who seek justice in the nation's superior courts in the official language of the minority still have to plead their cases in the language of the majority, or incur additional costs and delays if they want to be heard by a bilingual judge. This is due in part to the bilingual capacity of the superior court judiciary, which continues to be a challenge in several provinces and territories.

This is why in August 2013 I published a study called “Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary”.

The study, conducted jointly with my counterparts in Ontario and New Brunswick, found that the process for appointing judges to superior courts did not guarantee a sufficient number of judges with the language skills required to hear Canadians in the official language of the minority without delays or additional costs.

I therefore made 10 recommendations to address the situation. I also stressed the importance of establishing a collaborative approach involving Canada's Minister of Justice, the minister's provincial and territorial counterparts, and the chief justices of the superior courts.

The Canadian Bar Association supported this study by adopting a resolution in February 2014 in which it urged the federal Minister of Justice to implement the recommendations of the study in co-operation with the provincial and territorial ministers and the chief justices of Canada's superior courts and appeal courts.

In 2015, then federal Minister of Justice Peter MacKay replied that he did not see the need to change the current process and initiated no discussions with his counterparts, despite the interest expressed by some of those counterparts, particularly those in Ontario and New Brunswick.

Indeed, some interesting initiatives have been undertaken in both of those provinces. In the spring of 2015, Madeleine Meilleur, Ontario's Attorney General and Minister responsible for Francophone Affairs, launched a pilot project to enhance access to justice in French.

The objective of the pilot, which focuses on an active offer of service, is to provide quality French language services to French-speaking litigants and lawyers at the Ottawa courthouse.

The minister also wrote to my office in 2015 and said she would support any measure the federal Minister of Justice took with respect to appointing bilingual judges.

In New Brunswick, provincial court judge Yvette Finn has been running a popular language training program since 2011 for provincially appointed judges from across Canada. I will meet with the current federal Minister of Justice soon to discuss the study and other collaborative opportunities that could be undertaken with Minister Meilleur.

I will also ask the Minister of Justice to implement the recommendations contained in the study report.

I am hoping that the government will also implement the three recommendations contained in my office's January 2015 Audit of the Treasury Board of Canada Secretariat within the context of the 2011-2012 Strategic and Operating Review. These recommendations focus on ensuring that the shortcomings found in the audit are not repeated in future expenditure reviews.

As a federal institution, the Treasury Board Secretariat must implement part VII of the act when carrying out its mandate. It is required to support federal institutions by providing clear instructions on what measures to take to meet their obligations fully and to avoid hindering the vitality of official languages minority communities during budget cuts.

The audit results are available on my office's website.

After 10 years as commissioner, I'm sure many of you expect me to provide an overview of the status of official languages in Canada. To that end, I intend to publish a series of key documents between now and the end of my mandate. These include my annual report, which will be released on May 19, along with new report cards for 33 federal institutions; an overview of how I've exercised my role before the courts; a study on active offer to the public by federal institutions; a study on early childhood development in French-speaking minority communities; the results of a public opinion poll on what Canadians think about various issues related to official languages; and a follow-up to my 2012 audit of Parks Canada.

In June I will table a special report to Parliament to propose options aimed at reinforcing the implementation regime applicable to Air Canada.

A number of other issues will continue to be a priority until this fall, including the jurisdictional conflicts between my office and CBC/Radio-Canada, and planning for the next iteration of the official languages roadmap. My office will also be monitoring Bill C-203 concerning the bilingual capacity of judges appointed to the Supreme Court of Canada, and Bill S-209 regarding part IV of the Official Languages Act.

On a final note, in addition to planning our own activities to celebrate Canada's birthday next year, my office is working with various federal institutions to encourage them to include and promote official languages during the celebrations commemorating the 150th anniversary of Confederation. In that context, we published a brochure for the organizers of the 2017 celebrations.

Thank you, Mr. Chair.

I'd be pleased to answer any questions you or your colleagues may have.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

My last question has to do with Bill S-209, which has now been introduced in the Senate four times.

If the bill is passed, what impact do you think the changes will have?