Evidence of meeting #135 for Official Languages in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was federal.
A recording is available from Parliament.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
Yes, that would be great.
Liberal
The Chair Liberal Denis Paradis
I am told that Mr. Foucher cannot stay longer either. Mr. Pelletier and Mr. Foucher notified us that they could not stay any later than noon.
Go ahead, Mr. Généreux.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
Mr. Pelletier, Mr. Foucher, thank you for being here.
I want to quickly come back to the Commissioner of Official Languages.
Personally — I am not speaking for my party — I have always had a problem with the idea of a monetary penalty of any kind. The question is quite simple: if the Commissioner of Official Languages obtains the power to fine the government — regardless the department — for non-compliance with the Act, who will pay? We can all agree that the money will come out of the left pocket only to be put in the right pocket.
I can't imagine a scenario where the Commissioner of Official Languages would give a department X fine only to then have the Treasury Board asked to disperse the funds required to pay the fine. Something doesn't add up there. However, if the commissioner asked the Treasury Board to reduce the budget of a department or a given project as a form of penalty, then the department would be sure to react differently than if it were to receive a simple fine because money talks. In any case, it comes out of the same pocket.
Fining Air Canada is different. By the way, Air Canada is the only airline subject to the Act. The others can do what they want and will no longer be penalized in any way, which will do nothing to improve the French situation in Canada.
See what I mean? I understand the idea of using some sort of pressure on all the departments, but the reality is — as you said, Mr. Pelletier — that it takes political will to enforce the Act.
Professor, Faculty of Law, University of Ottawa, As an Individual
The important thing is to hit the pocketbook, as you said. So far, departments only get recommendations. These punishments would apply only to repeat offenders, those who still do not understand after 4, 5, 6, or 10 investigations, that they are still in breech of the Act and have still not corrected the problem. It is up to you to consider the political possibility of addressing this with fines or reduced budgets. My main argument is the need for immediate, direct, financial consequences for the departments.
Liberal
The Chair Liberal Denis Paradis
It is noon, the time at which we promised to release you. However, this discussion is truly very interesting. Can we invite you to come back to resume this discussion? If so, I will ask the clerk to work out a time for you to appear again.
Liberal
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
Yes, we need to schedule two hours, especially at your going rate.
Liberal
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes, Mr. Chair.
Liberal
The Chair Liberal Denis Paradis
There are a lot of outstanding issues and your very interesting testimony gives the committee food for thought.
Thank you very much for being here this morning.
We will now suspend the meeting.
Conservative
The Vice-Chair Conservative Alupa Clarke
Honourable colleagues, we will resume the meeting later.
Mr. François Larocque is here with us. He is a professor at the Common Law Section of the Faculty of Law at the University of Ottawa.
Welcome, Mr. Larocque. Can you hear us?
Dr. François Larocque Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
I can hear you just fine.
Conservative
The Vice-Chair Conservative Alupa Clarke
That is great.
I will give you some context. Our committee asked the Standing Senate Committee on Official Languages, which is conducting a parallel study on modernization of the Act, to indicate to us the areas it did not have time to explore or delve into. That committee recommended a number of possible topics and our committee decided to address the concept of an administrative tribunal and the positive measures provided for in Part VII of the Act. I think I am the one who gave your name to the clerk because it seemed to me that you are an expert on issues related to tribunals and Part VII.
Mr. Larocque, you have 10 minutes for your testimony. Then we will do an enthusiastic tour of the table.
You have the floor.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
That is very kind of you.
Hello, Mr. Chair and honourable members of the committee. Thank you for inviting me to take part in this meeting of the House of Commons Standing Committee on Official Languages.
I also want to thank the committee's technical and administrative team for going to such great lengths to allow me to testify remotely by video conference. It is truly a privilege to be here with you even though I am currently in Montpellier in the south of France. I hope my contribution helps you a bit in your study on modernizing the Official Languages Act.
Once I was connected online, I was fortunate enough to catch the end of the comments by my eminent colleagues Mr. Pierre Foucher and Mr. Benoît Pelletier. They are scholars and I'm not sure if can say much more than they did. I might even repeat some of the things you've already heard. You will let me know if it is helpful or not.
Let me quickly introduce myself to give you a better idea of who you are talking to. My name is François Larocque and I am a Franco-Ontarian from Sturgeon Falls, in Northeastern Ontario. It's a small, francophone majority community that is very engaged. I was raised and educated in French thanks to some fierce linguistic battles and certain events that occurred in that community in the 1970s.
I also had the good fortune of being born to a very engaged family that is very proud of its language and culture, even though we were Franco-Ontarians. My parents instilled in me the desire to preserve my language and culture for myself and I even made a career out of it.
I did all of my education in French except for my doctorate, which I did in English at Cambridge in the United Kingdom. I had no choice. I studied law in French at the University of Ottawa before doing an internship at the Ontario Court of Appeal with francophone judges who were on the bench at the time, including Justice Charron before she was appointed to the Supreme Court, as well as Justice Labrosse. I was there from 2000 to 2001, which means I was lucky enough to be the only francophone clerk at the Court of Appeal during the Montfort hospital case, which I am sure you are familiar with. That was a highly educational experience. I then did an internship at the Supreme Court of Canada with Justice Louise Arbour, before doing my doctoral studies. I have been a lawyer since 2002 and a professor at the common law program in French at the Faculty of Law at the University of Ottawa since 2005. I have held several administrative positions at the faculty, including two terms as associate dean in addition to being acting dean for nearly two years.
There have been two phases to the research component of my career so far. In the first, I worked on international law and human rights. Since 2010, nearly 10 years now, I have been focused on linguistic rights. Both my research and my professional practice as a lawyer focus primarily on linguistic rights. I have worked pro bono for clients who have linguistic rights claims and appeared before every court of the land, from trial courts all the way to the Supreme Court of Canada.
Since July 2018, I have held the Canadian Francophonie Research Chair in Language Rights. This is therefore a recent move and my project is just getting off the ground. I would be pleased to talk to you about it if you are interested.
I was told that the committee would like to focus on matters of legal mechanisms to ensure that federal institutions are compliant with the Act. If I may, I believe it would be useful to provide context by going over some basic principles before diving in. As I keep telling my students, the merits of our arguments and findings inevitably depend on the merits of our premise.
I would like to quickly go over some of the historical premises on which I base the opinions I would like to present to you today.
The first premise is that linguistic duality and protecting minorities is truly part of Canada's DNA. It has always been part of how we identify ourselves as a country, our history, and our future. The Supreme Court said in Mercure that linguistic rights “are basic to the continued viability of the nation”.
The second premise has to do with the Constitution Act, 1867, formerly called the British North America Act. That legislation established the first official federal bilingualism in legislative and judicial matters only. A century later, with the Official Languages Act in 1969, that official bilingualism extended to the entire federal government. At the same time, the first oversight mechanism was established, namely the Office of the Commissioner of Official Languages, as it was called at the time.
In 1982, Canada patriated the Constitution and adopted the Canadian Charter of Rights and Freedoms. As you know, section 16 makes English and French Canada's two official languages and gives them equality of status and equal rights and privileges. That is very important.
Six years later, in 1988, Parliament adopted a new Official Languages Act that enhanced the protection of linguistic rights by allowing, for the first time, recourse to the courts — namely the Federal Court — in the event of any failure to comply with the requirements of the Act. In 2005, this provision was enhanced by making Part VII justiciable.
As you can see, there has been a gradual progression since 1867 in developing legal mechanisms to protect linguistic rights in Canada. If I had to pick a moment that was a real game changer, it would obviously be 1982. Enshrining French and English as official and equal in the Constitution of Canada changed everything.
The importance of that moment cannot be overstated. With section 16 of the Charter, official bilingualism and the resulting rights are among the structural principles of Canadian law and order. Official bilingualism is no longer part of a simple administrative policy, as it was under the Pearson government, nor is it just legislative text, as it had been since at least 1969.
By codifying language rights within the Canadian Charter of Rights and Freedoms, the framers made fundamental rights guaranteed and protected by the highest law of the land. As the Federal Court puts it in Viola, the Official Languages Act of 1988 is truly an extension of the Charter. The starting point remains the Charter.
I believe that it is in this light that modernization of the Official Languages Act should be considered in 2019. It is also in this light that consideration should be given to the extent of existing legal mechanisms and the potential to ensure implementation of the amended legislation. We must account for the historic progression and constitutional foundation of linguistic rights by establishing implementation mechanisms for the next official languages act that are both accessible and robust.
You know as well as I do that the Official Languages Act currently provides for two major implementation mechanisms. First, there are the complaints to the Commissioner of Official Languages — in Part IX of the Act — which pave the way to investigations and reports. Second, there is the recourse to the Federal Court — in Part X — stating that if a person appeals to the court within the prescribed timeline and according to the prescribed procedures, they can obtain a remedy that the court determines to be “appropriate and just in the circumstances”. That is provided for under the legislation.
I would quickly like to make a few observations and recommendations regarding these two mechanisms. First, regarding the Commissioner of Official Languages, it is interesting to note that he is the first linguistic ombudsman in the world. That is a fact we do not emphasize enough and of which Canada can be very proud. The Office of the Commissioner of Official Languages has served as a model and paradigm, even archetype, for other language commissioners that exist elsewhere in Canada and around the world. Ireland and Wales come to mind, but there are others as well.
In my opinion, the Commissioner of Official Languages currently has the necessary skills and power to appropriately carry out the mandate he is given under the Official Languages Act. I believe that there are existing proposals to give the commissioner new powers, including the power to issue fines or other administrative financial penalties. I personally do not agree with those proposals. I think it sacrifices the very essence of the role of the language commissioner. I would be pleased to discuss that further with you.
The Commissioner of Official Languages is not a police officer or a judge. The Larendeau-Dunton Commission that proposed the creation of the Office of the Commissioner of Official Languages in 1968, described the role of the commissioner as the active conscience of the federal government on matters of official languages. The commissioner is a promoter of official languages and an ombudsman.
As a promoter, he proactively educates the public on bilingualism from coast to coast to coast. That is very important and that role must not be lost. As an independent ombudsman, he receives complaints and is equipped with rather significant investigative powers that allow him to shed light on systemic problems or even isolated shortcomings of the Official Languages Act. This also allows him to propose informal solutions to remedy the problems and to report directly to Parliament, which gives him independence.
Conservative
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Okay, I will go faster.
The commissioner's recommendations are not binding, but in the next official languages act, at a minimum, the duty of federal institutions to respond to the recommendations in writing should be codified and describe how the federal institution intends to comply, or not, with the recommendation. This is an important step that is currently missing. Right now, federal institutions can respond, but they are not required to do so.
My second comment pertains to the second mechanism, namely referral to the Federal Court. I would do away with that and replace it with a newly created administrative tribunal. Others have made that recommendation and I agree that it would be an excellent idea. An administrative mechanism could be faster and more accessible. It could have powers that would be very satisfactory for complainants and could also support the commissioner in his duties. It would be complementary to the commissioner's role but would serve a distinct function.
I would be pleased to talk about other recommendations with you in due course. Since I don't have much time, I will stop here.
Conservative
The Vice-Chair Conservative Alupa Clarke
Thank you, Mr. Larocque, for your historical overview.
These are very important premises. For a few minutes there I felt I was back at Université Laval and it was very nice to be in the classroom.
We will now move on quickly to Mr. Généreux.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
Thank you, Mr. Chair.
Thank you, Mr. Larocque.
Your testimony was very compelling. The few points of context you just gave us were very useful. You and I will get along famously, because I agree with you that the Commissioner of Official Languages is not in a position to possibly fine a department or suggest such fines, when the department that is supposed to pay is part of the same family and the money comes from the same pot.
The idea of an administrative tribunal sounds more sensible to me than the concept of having the commissioner both promote official languages and impose penalties. You very eloquently made the distinction between the two.
Still, do you think that creating such an administrative tribunal should be literally enshrined in law to follow up on what has been done so far, according to what you've mentioned?
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Absolutely.
There should be a separate part in the new official languages act—if the idea is to create a new act—that establishes this tribunal, provides a framework for it and protects it.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
What powers do you think this tribunal would have, officially?
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
There are several ways of considering it. I envision it as a mechanism that would give complainants a means of access, whether they had previously filed a complaint with the commissioner or not. Depending on the response they received, they could follow up by resorting to the tribunal. It would be a bit like appealing the commissioner's decision.
In addition, if the commissioner failed to make the appropriate recommendations, the complainants could then seek more appropriate remedy from such a tribunal.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
Do you envision a mechanism in place like the one at Air Canada, where there have been complainants on multiple occasions? Do you actually see the same principle for a department?
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Yes, absolutely. A department could be a respondent in an application or proceeding before the tribunal.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
The department could be required to compensate someone who might have been wronged, for instance.
