Official Languages Committee on Nov. 27th, 2018

[The Chair, Liberal, Denis Paradis]

We are continuing our study on the modernization of the Official Languages Act pursuant to Standing Order 108(3).

This morning we are pleased to welcome Mr. Michel Doucet.

Welcome, Mr. Doucet.

We will proceed as usual. You have about 10 minutes for your presentation, and then we will have a round of questions and comments.

Mr. Doucet, we are listening.

[Michel Doucet, As an Individual]

Thank you very much, Mr. Chair.

First of all, I want to thank the members of the committee for inviting me to speak today on the important plan to amend the Official Languages Act of Canada.

When you live outside the city of Ottawa and the province of Ontario, and especially when you live in the Atlantic provinces, you often get the impression federal government bodies have forgotten you. It's also something of a surprise and a joy to receive an invitation to come and speak to you.

I don't intend to speak for too long because I prefer to answer your questions.

However, I will take the liberty of making a few opening remarks and outlining some ideas for amending the Official Languages Act.

As you know, the Official Languages Act was passed in 1969. Mr. Samson and I were there at the time, and we remember it well. We were also there when it was replaced in 1988—Mr. Arseneault wasn't yet born—by a new act inspired by provisions of the Canadian Charter of Rights and Freedoms, which was adopted in 1982, more specifically by sections establishing the principle of the equality of status of English and French—section 16—and guaranteeing the right to be served by federal institutions in the language of one's choice—section 20.

The act thus provided for a scheme to implement the provisions of the Charter, and the official language minority communities received it favourably at the time. Should it be amended today? Probably, because I think statutes should be regularly revised in response to changes in society. Should we start over from scratch? I don't think so. The foundational aspects of the 1988 act are still sound. In my view, improving it and clarifying some of its parts so they meet the needs of Canada in 2018 would be enough.

I would emphasize, however, that the act cannot be a response to all the problems and challenges facing the minority communities. We live under a federal system in which the provinces have certain exclusive jurisdictions. If we don't want to wind up in endless court battles, we will have to respect the division of powers between the federal and provincial governments, while guaranteeing the development and vitality of the official language minority communities.

That being said, it's essential that the provinces also shoulder their responsibility to protect the official language minority communities, particularly the francophone communities outside Quebec. We shouldn't give the impression that official languages issues are solely a federal government responsibility. Provinces such as New Brunswick must fully accept their responsibilities in this field.

I'm aware that, in light of current events, it's hard to imagine the provinces agreeing to play their role, but we also don't believe the federal government can solve all problems with a single statute.

I have a list of amendments and subjects that could be addressed in the new act, and I'm going to touch on them briefly. Given the time allotted to me, I prefer to answer your questions.

I obviously want to revisit the bilingualism of judges at the Supreme Court of Canada. Subsection 16(1) of the act should be amended, but that won't be enough. Section 5 of the Supreme Court Act, which concerns the composition of the court, must also be amended.

Since I'm a lawyer, I would emphasize that there should be an assessment of the ability of judges and the courts to speak both official languages. A self-evaluation is currently done by candidates for judicial appointments, and we know it's often inadequate.

Equal weight should also be assigned to decisions rendered in both official languages.

I submitted a suggestion several years ago, but I want to take another look at it. I'm talking about statutory protection for the Court Challenges Program.

I recommend that another amendment be made respecting the implementation of specificity. I would like to clarify a point here. I've obviously read the briefs submitted by the Société de l'Acadie du Nouveau-Brunswick requesting that the specificity of New Brunswick be recognized in the Official Languages Act. I must admit I see problems ahead as a result of that request. If the Official Languages Act is to recognize the specificity of all the provinces, the process will be endless. However, this could be done by regulation.

I believe an amendment was recently made to the regulations on the provision of services in both official languages recognizing that there must be an active offer of service wherever a minority school is located. We could go even further. The federal regulations on specificity should also acknowledge the specificity of the provinces.

In other words, I don't understand—I had to go to the Supreme Court of Canada to compel the Royal Canadian Mounted Police to discharge its linguistic obligations in New Brunswick—why the federal government wouldn't acknowledge that the active offer of service exists on a de facto basis across New Brunswick given that New Brunswick has decided to extend its obligations to include the entire province. We can do the same in Ontario and recognize that an active offer exists in the regions designated by the French Language Services Act.

Next, we must specify what is meant by "positive measures" in part VII of the act. I don't like people telling me that a positive measure is anything that isn't negative; that's not enough. We should define by regulation what we mean by positive measures.

I'll be prepared to answer questions on this aspect since I brought the lawsuit in response to the cancellation of the Court Challenges Program. In my view, the federal government's lawyers had quite an odd interpretation of positive measures, but we can come back to that.

With respect to the powers of the Commissioner of Official Languages, we obviously have to discuss the creation of a language rights tribunal. Contrary to what you might think, this isn't a new idea. It was previously proposed by Victor Goldbloom when he was Commissioner of Official Languages and revived several times in the 1990s. Having sat on the Canadian Human Rights Tribunal, I don't understand why the Official Languages Act couldn't provide for a similar system in which the Office of the Commissioner of Official Languages would be responsible for conducting investigations but would refer to the language rights tribunal cases in which it couldn't secure the cooperation of federal institutions. The tribunal would have the authority to issue enforceable orders, as does the Canadian Human Rights Tribunal.

So these are the amendments in question. There are others, which we can come back to during our discussion.

Canada will be celebrating the fiftieth anniversary of the Official Languages Act this year. The rights recognized under this quasi-constitutional act are fundamental rights rooted in our commitment to equality and respect for minorities.

However, these values are unfortunately questioned by certain governments, and I would remind you here that the Government of Ontario is not the only one. Although the situation of New Brunswick is less compelling and discussed less extensively at the national level, it's also a cause for concern, even though language rights there are attacked in a less visible fashion.

Sometimes I would like the Office of the Commissioner of Official Languages of New Brunswick to be abolished because that would mobilize more people. In recent years, we've observed a troubling decline in political commitment to language rights in New Brunswick—by all parties, and I'm not playing politics here. Of course, the rise of the People's Alliance on the political stage increases that concern.

The principle, object and nature of language rights are now well established. I agree with the remarks my colleague the Honourable Michel Bastarache made before the committee when he said it was unacceptable that we should have to appear before the courts in 2018 to assert language rights that have been recognized for 50 years.

Furthermore, as the three decisions in 1986 showed, the courts don't have a consistent approach either. We shouldn't take it for granted that they'll always interpret our rights generously. That's why, today, we should build on the gains we've achieved in recent years.

Sometimes I feel we spend our time reinventing the wheel, constantly fighting, again and again, the same battles we thought we had won. There comes a time when you wonder whether there really is a political will to implement language rights. I even wonder whether a revised Official Languages Act, even the best one in the world, will change anything in this state of affairs if there's no political will to implement these rights.

What has to be changed in Ottawa and in certain provinces is the majority perception of linguistic equality. In other words, language rights are not merely the business of the minorities; they are also the business of the majority, whose perception must be changed. Unfortunately, that change will come from neither an act nor the courts; it will come from a political message and the political commitment of all political stakeholders.

Thank you for your attention. I'm ready to answer your questions.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Doucet.

Let's begin our round right away with Mr. Clarke.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Thank you very much, Mr. Chair. I'm always honoured to start the rounds of questions.

Mr. Doucet, we are pleased to have you here with the committee. On behalf of the members, I would like to thank you for your lifelong commitment to official languages.

[Michel Doucet]

It's a cause I've been advocating since I was about 15 years old. So it's been 48 years.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Precisely. I've heard good things about you, of course.

Getting right to it, would you prefer to have an administrative language rights tribunal established or coercive powers granted to the Commissioner of Official Languages?

[Michel Doucet]

I'd prefer an administrative tribunal over coercive powers granted to the Commissioner of Official Languages, who has a special relationship that he must maintain with the federal institutions. It would be difficult, in a way, to grant the commissioner the power to impose penalties, while asking him to retain that special relationship through which he can encourage the institutions to rectify matters in certain situations.

I'd obviously prefer to see a tribunal with experts who can assess the situation, as is the case with the Canadian Human Rights Tribunal. However, the commissioner's powers will have to be increased if the tribunal option isn't adopted. The commissioner can currently make recommendations, but, unfortunately, those recommendations very often don't result in the expected changes.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

I'd like to take a closer look at the tribunal issue with you. I'm very pleased to see that you sat on the Canadian Human Rights Tribunal.

[Michel Doucet]

I did so for 10 years.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Excellent.

How does it work when a tribunal decides to order a department or central government organization—not an individual—to pay a monetary penalty or pay back funding? Several people have told me it makes no sense to compel a department to pay penalties to the government.

[Michel Doucet]

It worked very well on the Canadian Human Rights Tribunal, which could make an order when a department or federal institution was found guilty of violating the Canadian Human Rights Act.

It could be an enforceable order requiring the institution to make a particular change or establish a program to increase officials' awareness of the requirements of the act by a certain date. Furthermore, if the tribunal found that the department had taken action that caused the complainant to lose money, it could issue an order to that effect and require the department to compensate the individual for the loss suffered as a result of the violation of his or her rights. The tribunal also had the option of ordering payment of punitive damages for psychological injury to the person as well as non-monetary damages.

That's what's done at the Canadian Human Rights Tribunal. It doesn't award damages in all cases, but it has the power to do so where it finds the institution has clearly failed to discharge its obligations. That may seem odd, but it sends a very strong public and symbolic message. I believe the message is clear when an institution is directed to pay punitive damages.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Do you remember whether the tribunal has ever ordered the payment of large amounts?

[Michel Doucet]

There's a limit. If my memory serves me, for example, the limit for punitive and non-monetary damages is $20,000 in a single case. However, the amount of damages could be quite substantial in the case of monetary losses suffered by an individual.

The most important thing is not necessarily the damages as such, but rather the fact that the tribunal issues an order. Although some people seem to say an order isn't important, the point in this instance is to connect the parties and compel the institution to correct its behaviour. The tribunal's order is more than a mere recommendation; the institution is thereby directed to make changes in accordance with a schedule or else be held in contempt of the tribunal.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

I see.

As regards governance, would you prefer that the act be the responsibility of the Treasury Board or the Privy Council?

[Michel Doucet]

I'll let someone else answer on the governance issue.

To my mind, what's even more important is that there be the political will to ensure those rights are fully implemented. Whether it be the Privy Council, the Treasury Board, Canadian Heritage or any other organization, the governance issue will change nothing if the will isn't there. The message has to come from above, from the political authorities, who must acknowledge that those rights are fundamental and implement them.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

But that's done in a haphazard way.

What institution would you prefer if a government were less interested in the issue?

[Michel Doucet]

In that case, we'd wind up in court.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

What institution would you prefer regardless of the situation? Canadian Heritage has no power.

[Michel Doucet]

I doubt the institutions that would have to administer the act would be interested in doing so if the government wasn't interested.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

That's true.

[Michel Doucet]

I look at what's happening back home in New Brunswick. As a result of the lack of interest of successive governments, the various departments and institutions aren't very interested in implementing the provincial Official Languages Act. That lack of interest and will infects all political parties.

I think the most important message must come from above, directly from the office of the Prime Minister, who must confirm that this is a fundamental value. If he doesn't deliver that message, you can obviously hope the institutions will ensure the act is implemented, but, if the government doesn't urge the institutions to act and that isn't a priority for it, I doubt it will be a priority for them: they'll do whatever they want.

The perfect example of this is New Brunswick, which has 50 years of official languages history. The province has a very good act, and we have constitutional guarantees, but there's no will to implement that act. Consequently, it'll be impossible to change the public administration culture as long as there's no will.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Clarke.

Talking about New Brunswick, now we'll hear from Mr. Arseneault.

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

Thank you, Mr. Chair.

Professor Doucet, or should I call you Maître Doucet...

[Michel Doucet]

That era's over.

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

When I began studying law in 1988, there were a lot of young professors who would eventually acquire national reputations.