Official Languages Committee on Oct. 30th, 2018

[Michel Bastarache]

I think that would be section 20 of the charter, which concerns services provided to the public. It should include various things. Mandatory active offer would be one, and service of equal quality.

I'll give you an example. The last amendment to the Official Languages Act aimed to make the application of part VII mandatory. That part states that the government has the obligation to take steps to foster the development of minorities, and to protect them. Who controls that? What does that mean?

I have always said that if we want to offer service of equal quality, we must, right from the beginning of the planning process, take into account the fact that there are two communities to be served. Currently, a program is prepared in English, it is discussed in English, its parameters are established in English, and then it is sent to the translation bureau; and presto, you have a French version of the program. That way of doing things is impossible, since the communities do not have the same needs.

In preparing a new program, you should be able to say that it will look like this for the anglophones, and like that for the francophones. The Supreme Court has already confirmed that that is the only way to establish service of equal quality. Equal quality service does not mean that you will provide exactly the same service, but that the community will derive the same benefit from it given its particular circumstances. If you did that, I think there would be far fewer complaints. At this time, programs are developed, and then documents are distributed that get translated into French. People then say that that is of no use in their communities, and they file complaints.

A system based on complaints is never effective, especially since that takes up time and money. Remember that the reinstatement of the court challenges program was promised two years ago, but it is still not back.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you.

I will yield the rest of my speaking time to my colleague.

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

Good morning, Mr. Bastarache.

[Michel Bastarache]

Good morning.

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

It is a pleasure to have you here.

Your first profession was law. Afterwards, you aspired to become a justice of the Supreme Court, and you succeeded in that. Now, you are back as a lawyer. And so you have an overarching perspective, which is very interesting. Your testimony is extremely important to us as we consider the modernization of the Official Languages Act.

I will try to ask some questions quickly, because time is flying by.

You have always been in favour of having bilingual Supreme Court justices, and I imagine that that is still the case.

[Michel Bastarache]

Over the past two years, we have had the proof that that is possible. Two bilingual justices were appointed, one from the west and one from Newfoundland and Labrador.

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

Should that bilingual obligation be included in the act?

[Michel Bastarache]

I believe it should.

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

Very well.

You have always spoken about the creation of administrative tribunals, and you did so again today. How important is that? How can we do that quickly?

[Michel Bastarache]

A detailed study needs to be done to see how that could apply in this area, but it is certainly one of the possibilities. Some people think that all that is needed is that the commissioner have powers of sanction and refer things more often to federal court. The problem is that if cases are referred to the courts, it will take two years and cost $100,000. The communities are always short of money to take their cases before the courts. That is why the court challenges program is important. Administrative tribunals are generally faster and cost less.

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

You referred to the Beaulac decision, which you drafted yourself with your colleagues the other justices. This is what you said:

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.

Should we add a section in the Official Languages Act to codify that principle?

You said it; now we have to determine how we are going to do that.

[Michel Bastarache]

Those are general principles. Most of the time, general principles are found in the preamble of an act, where its objectives are defined. I've never really thought about this.

Mr. Beaulac's case was interesting. He was a francophone from Quebec who lived and worked in British Columbia. Of course, he worked there in English. He asked that legal proceedings take place in French, since he was a francophone. The court asked him, since he understood English, why it should bother to find a bilingual judge, the services of bilingual clerks and so on. That was the gist of the problem.

A fourth trial was ordered. The issue was whether that trial should be annulled because of what British Columbia anglophones considered a procedural irregularity. We maintained that this was not a procedural irregularity but a fundamental right, and that if there had to be a fourth trial, then there would be a fourth trial. It was the only way to stop things.

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

Should you have the time to think about it, could you send us a note about that?

[Michel Bastarache]

Yes.

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

Some changes have been announced to the public services provision criteria set out in Official Languages Regulations. Among other things, the possibility of adding 600 bilingual offices was raised.

Is this really a proper response to the issue of providing services to the public in both languages?

[Michel Bastarache]

Of course, if there are more offices, things will be better, but the criteria used to open or close offices have to be very clear.

The reason behind the proceedings launched by SFM in Manitoba was the federal government's formula for the calculations. There had to be 500 people who spoke French. The percentage was also mentioned—2% or 5%, I can't quite remember. According to that formula, if there were 498 people, the services could be reduced the following year, even though all of the bilingual public servants were in place. And that is what was done in some places.

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

The proposed changes take the vitality of a community into account. For instance, the number of schools is taken into consideration.

[Michel Bastarache]

Yes. The presence of a school was added to the criteria. That should improve things greatly.

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

Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Samson.

Mr. Choquette, you have the floor.

[François Choquette, NDP, Drummond, QC]

Mr. Bastarache, thank you very much for being here with us today.

I have a clear recollection of your presence at the committee when we studied the amendment that would have required that Supreme Court Justices be bilingual in order to ensure access to justice in both official languages. I am pleased that you reminded our committee about the importance of amending the Official Languages Act to ensure that all justices of the Supreme Court will be bilingual, and that everyone will have access to justice.

According to your presentation, there are three ways of approaching changes to the law. First of all, we may consider the courts. I'll get back to that later. We may also take into account the public's expectations. This involves, among other things, section 20 of the charter, which deals with services to the public. Finally, we can evaluate the quality of the act's implementation, of course.

We talked a little about the Commissioner of Official Languages. He is our watchdog for linguistic duality, or at least that is what we hope.

Recently, in British Columbia, the federal court handed down a decision about much bandied-about part VII of the Official Languages Act, which is about the engagement of the federal level, but is not accompanied by any regulations. According to that decision, part VII does not mean much, because there is no clear definition of what a positive measure looks like. In other words, if the measures don't hinder anything, there is no problem. There is no real engagement on the part of the government.

[Michel Bastarache]

It's worse than that.

Department of Justice representatives appeared before the Standing Senate Committee on Official Languages and said that withdrawing services from a minority did not run counter to part VII, insofar as the government's overall activities contained important measures to promote minorities. This means that nothing would ever contravene part VII, since the government is always doing something positive somewhere.

In my opinion, this really showed that there was no intention, at least not on the part of the Department of Justice, of implementing part VII.

[François Choquette, NDP, Drummond, QC]

How should we modernize part VII of the Official Languages Act? It is true that positive measures have never been defined. The fact remains that the decision, even though it is currently being appealed, has some very serious consequences. For instance, in his recently published preliminary report on Netflix, the Commissioner of Official Languages concluded that there are positive measures, since the government has an official languages plan. It's like what you just said. Since there are measures, no one cares much about the agreement concerning Netflix.

What points should we improve? What could you suggest to make part VII mean something that could be translated into concrete improvements in the daily life of communities?

[Michel Bastarache]

I think that could be done through the Official Languages Regulations, since that is how the act is applied. Obviously, the regulations should specify how the Official Languages Act should be interpreted. In my opinion, the first thing that should be done would be to define what constitutes a positive measure, and how government organizations that have the duty to adopt positive measures should be overseen.

I think that the very first step in a positive measure is to take into account the consequences on minority communities of all decisions that are made, and of all programs that are put into effect. Things should be considered upstream. We should not wait for things to be done, and then wonder if something else needs to be done to correct the mistakes. We should be avoiding the mistakes right from the outset. When a department has a program, whether it's an economic development program or something else, the positive measure consists in studying the positive impact that program will have on the community, and ensuring that some elements of the program will meet the specific needs of that community.

[François Choquette, NDP, Drummond, QC]

In fact, one Commissioner of Official Languages report mentioned that there had been cuts everywhere to all programs without thought about the consequences this would have on services in official language communities, nor of the fact that this contravenes the act.

When Treasury Board prepares a budget, should it not ensure that special consideration be given to official languages?