Precisely.
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.
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.
12:25 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Precisely.
12:25 p.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
However, we know that at this time the Treasury Board acts somewhat like an adjudicator when it comes to enforcing the act within the government administration. We also know it has fallen short on multiple occasions, as have several other departments, especially in their communications, for instance.
From the moment this administrative tribunal received a complaint from a citizen, I'm trying to see how the government, within its own institutions, could manage the situation. In fact, complaints do not always come from outside the government. Public servants could well complain about various situations.
12:25 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
That's right.
12:25 p.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
They have already done so in the past, and they will surely do it again.
How do you see this mechanism working under these circumstances?
12:25 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
A public servant going to court is something we see at the Federal Court right now. Being a public servant does not mean you stop being a citizen and having rights. We have the charter and it protects everyone's rights, including the rights of public servants.
As a citizen, anyone could resort to the tribunal, which would conduct a hearing and hear the evidence. If there was a commissioner's investigation, the hearing could consider the materials used in that investigation and the file could be entered into evidence. At the end of the hearing the tribunal could order a remedy, as the Federal Court does now. This would be done by an administrative tribunal, which would certainly be quicker and probably less costly for everybody.
12:25 p.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
No doubt.
Do I have any time left, Mr. Chair?
12:25 p.m.
Conservative
12:25 p.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
That's fine.
Earlier on, we briefly touched on the positive measures set out in part VII with Mr. Pelletier and Mr. Foucher. These measures could be used to facilitate the implementation or use of the act.
How do you think this definition could be made more concrete or targeted to ensure that more direct measures could be taken? That's very broad language.
12:30 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
The wording selected by Parliament when these part VII provisions were codified in 2005 included “positive measures” and the duty of federal institutions to ensure positive measures are taken for the implementation of the government commitments under section 41 of the act. I agree this is very broad wording.
One only has to read Justice Gascon's Federal Court ruling in Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development). His main finding was that the term is too broad and there isn't sufficient substance for a decision-maker to work with. One may disagree with Justice Gascon on that point, but the overall gist of the ruling was that part VII gives the Governor in Council the power to make regulations precisely to clarify and substantiate these terms. To date, this power that has never been exercised. That would then be a way to do just that.
Another mechanism would be to clarify the wording yourselves, when you work on the draft of a future official languages act. You could specify certain positive measures, give examples, and on that basis, a decision-maker could rule on whether a federal institution has taken positive measures, as is currently its duty to do.
12:30 p.m.
Conservative
12:30 p.m.
Saint-Jean, Lib.
Thank you, Mr. Chair.
Hello, Dr. Larocque, and thank you for joining us on video conference from Montpellier. We are a bit envious.
I think everyone agrees that the act must be more binding. You talked about the legal context. There is one thing we realized pretty much everywhere during our tours. There is no accountability when it comes to bilateral agreements, for one. I'm thinking particularly of minority French school boards, which have no control over money. In fact, most of them have told us that they do not receive the full amounts provided by the federal government.
What could we do to ensure that there is accountability and that all minority groups, not just those in this specific case, are not shortchanged?
12:30 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
I want to make sure I'm understanding your question properly, Mr. Rioux.
Are you asking me what we could do in the context of a bilateral agreement to ensure better accountability?
12:30 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
That would involve explicitly including in the agreement a duty to report and perhaps also providing for the Treasury Board to take a more active role in terms of tracking the money and ensure it is used properly. There is the case of some transfers made to the Yukon, for example, where the money wasn't used for the originally intended purposes. This was only done when the courts got involved. It seems to me that this could have been avoided if the obligations had been explicitly set out in the agreement. This is just an idea that came to mind.
I will admit that my research has not yet addressed this subject in much detail. My main focus to date has been on claims mechanisms for litigants.
12:30 p.m.
Saint-Jean, Lib.
I would like to come back to the specific case of Ontario's French-language university. Just how much can the federal government do to ensure that Ontario's francophone minorities, especially those in the Toronto area, can have those courses?
Would it be possible to have a mechanism in the official languages act for extraordinary situations, as is currently the case? We know that education is a provincial jurisdiction. Would there be a mechanism to further expand the positive measures?
12:30 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
You are asking me an excellent question that I haven't really thought much about.
Off the top of my head, there are a couple of things to consider. You first said that education is a provincial jurisdiction. That is true. However, official languages are not. They constitute a matter secondarily associated with the subjects listed in sections 91 and 92. Certain Supreme Court decisions dating back to the 1970s tell us that. The Jones ruling comes to mind.
The Supreme Court put forward the idea, without elaborating on it, that it would not be impossible for Parliament to legislate on official languages in an area of provincial jurisdiction, on the grounds of its overall authority to make laws for peace, order and good government, and that official languages issues are sufficiently related to national unity as to justify federal intervention. Therefore we would need a Parliament that would try to do this and see whether a province would actually challenge that action. Perhaps we would find that the Province would be happy to see money coming in, even in one of its own areas of jurisdiction.
Also, we should not forget about the possibility of negotiating. Everything can be negotiated. That would be an easier way to get there.
In short, I've always found interesting this Supreme Court idea that Parliament has the overall authority to legislate on official languages. In fact, another related issue that interests me is the role that Parliament could play in regard to the City of Ottawa. Municipalities constitute another matter very much under provincial purview, but the nation's capital is a distinct city. The City of Ottawa is different from other cities. Could Parliament then pass a law or take positive measures to promote official languages in the City of Ottawa, when municipalities fall under provincial jurisdiction?
I wrote a paper on the subject and I think that the answer is yes, based primarily on section 16 of the Constitution Act, 1867, which declares Ottawa to be the seat of government, and on section 16 of the Charter of Rights and Freedoms, which stipulates that English and French are the official languages of Canada. I can envision federal legislation, on the grounds of those provisions. The capital city belongs to everyone. It's not strictly an Ontario city, even if it is in Ontario. Ottawa belongs to all Canadians.
I think that could justify financial and legislative federal action to promote bilingualism in the City of Ottawa. In fact, that is something I would like to see in the next official languages act. My colleague Linda Cardinal and I submitted a brief on this issue to the Senate, and we are preparing to submit one to you as well.
12:35 p.m.
Conservative
The Vice-Chair Conservative Alupa Clarke
Thank you Dr. Larocque. We would really like to see that document.
We will now move on to Mr. Choquette.
12:35 p.m.
NDP
François Choquette NDP Drummond, QC
Good afternoon, Dr. Larocque.
Thank you very much for your presentation.
I would like to come back to the commissioner's powers. You mentioned that in your opinion, the commissioner currently has enough powers, and there is no need to give him more. I have a question about the commissioner's powers.
You are probably aware that the commissioner has the power to investigate, among others, and the power to obtain information upon request. For example, any department or organization may need documents and request that they be sent over.
I'm giving you that example because in the Netflix case, which concerns me a great deal, there was an agreement between Canadian Heritage and Netflix. Under this agreement $25 million would be added for francophone-related investments. We do not really know what those investments will be. There were complaints. I made such a complaint, to find out what would be the approach taken in terms of the positive measures cited in part VII.
To my knowledge, the commissioner did not exercise his investigative power to demand the documents that would enable him to properly conclude his report. To my knowledge, the power to demand documentation has never been used by the commissioners. Am I mistaken? Why don't the commissioners exercise that power? They have gone to court several times on a few files.
When they do request documents, however, they are told those are confidential and they make no further efforts. They don't demand the documents, even if they would keep them confidential afterward. I understand that these documents would probably not be made public because they are confidential, but they could at least be properly used to inform investigations.
As you said, the commissioner does have certain powers, but it seems that he never uses them. Why is that, in your view?
12:40 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
I can't really explain it, either.
I've just completed a comparative study of Canada's various language laws and I looked precisely at the issue of the commissioners' powers to secure evidence, compel certain witnesses to appear, force them to appear when they refuse or are reluctant to do so, and to demand that documents be produced. All commissioners have these powers.
They have the power to do this. Why don't they use it? My take is that perhaps the individuals who occupy these positions see their role in a certain way. On an idiosyncratic level, it may be that they just behave that way. They prefer to act more strategically and they tell themselves that they will not insist too much on one thing because they will ask for more on something else. Maybe that's the kind of calculation that goes on. We would need to ask the people who have served in these positions either at the federal level, in Ontario or elsewhere in Canada.
Also, one thing is interesting. Under the New Brunswick Official Languages Act, the Commissioner of Official Languages for New Brunswick has all the powers of a public investigator, in accordance with the New Brunswick Inquiries Act. When we look at this law, we can see that the powers of the public investigator include summoning people to appear and, if they refuse, send them to jail until they change their minds. The commissioner then has the power to temporarily imprison someone. The federal commissioner has no such power. To my knowledge, the Commissioner of Official Languages for New Brunswick is the only one that has that power—which has never been used.
That is the point you have made, Mr. Choquette. They have the powers, but they do not use them. I think this can be explained by a lot of strategic factors at play that may vary from one file to another. It could be a matter of not being bold enough or of not being certain of their right to exercise those powers. This has not been tested yet. One thing is certain, and the law is clear on this: they do have the powers.
12:40 p.m.
NDP
François Choquette NDP Drummond, QC
The commissioner recently concluded its investigation of the RCMP and bilingual services on the Hill. That took five or six years.
The recommendations that came out of that are quite simple. They include making an inventory of bilingual staff, a biennial reminder of linguistic obligations and an action plan when complaints are received. There is nothing hard about that. In my opinion, it's inexplicable that the RCMP has not even followed up on these three recommendations. Faced with that fact, the commissioner issued a report indicating that no action was taken and that there is nothing more that can be done.
That is the problem we are facing. The same applies to the National Energy Board, which has once again trampled on language rights by publishing the Trans Mountain report in English only. I will file a complaint with the Office of the Commissioner of Official Languages, but unfortunately I fear there will be no consequences.
Would the administrative tribunal you talked about be able to resolve these problems that keep coming up in organizations reluctant to apply the Official Languages Act?
12:45 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Absolutely.
First, we have to understand that in the federal and New Brunswick official languages laws, as well as in the language legislation of other Canadian provinces and territories, for instance the Northwest Territories or Nunavut, there are certain mechanisms that enable the respective language commissioners to exert more pressure as cases progress and move forward.
The work of the Commissioner of Official Languages of Canada culminates in the tabling of a report to Parliament, drawing the attention of the public and issuing public comments on the recalcitrance of the federal institution concerned. At the end of the day, that does not carry much weight. Very often it can work, but it's still soft power, and the results can be less than convincing.
This is where an administrative tribunal, which would have the power to issue interim orders and orders following a proper and full process, could order the issuance of those reports as well as a remedy. It could even impose administrative or monetary penalties.
12:45 p.m.
Conservative
The Vice-Chair Conservative Alupa Clarke
Thank you, Dr. Larocque.
You may continue your remarks by answering a question from another member. I'm truly sorry, but we have to move on because of time constraints.
Mr. Arseneault, you have the floor.
12:45 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Thank you, Mr. Chair.
Good afternoon, Dr. Larocque. How are you?
12:45 p.m.
Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
I'm fine, thank you.
How are you?