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.