Official Languages Committee on March 19th, 2019

[The Chair, Liberal, Denis Paradis]

Good morning everyone.

Pursuant to Standing Order 108(3), we are continuing our study on the modernization of the Official Languages Act.

With us this morning, by video conference, is Hoi Kong, holder of the Right Honourable Beverley McLachlin, P.C., Professorship in Constitutional Law, Peter A. Allard School of Law, University of British Columbia.

Welcome, Mr. Kong.

Also joining us, from Moncton, New Brunswick, is Éric Forgues, Executive Director of the Canadian Institute for Research on Linguistic Minorities.

Welcome, Mr. Forgues.

We'll start with Professor Kong for a 10-minute presentation.

After that, we'll begin a round table with the members of the committee.

We're glad to have you with us, even if it's a video conference.

[Hoi Kong, Holder of The Right Honourable Beverley McLachlin, P.C., Professorship in Constitutional Law, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you so much.

I'm so grateful for this opportunity to present to this committee on the question of the modernization of the Official Languages Act.

Today I will address the specific question of whether and how an official languages tribunal should be established.

My presentation will proceed in three main parts. First, I will survey the reasons for establishing an official languages tribunal. Second, I will examine the institutional design options for the relationship between the commissioner and an official languages tribunal. Third, I will address some issues relating to the operations of an official languages tribunal.

Let me start with the reasons for establishing an official languages tribunal.

As the members of the committee are all very well aware, there are multiple avenues by which judicial remedies are available under the Official Languages Act, in particular from section 77 forward. Given that there are these options for judicial remedies, why might we think that an official languages tribunal would be a good idea? Let me suggest three possible reasons.

First is a reason relating to the separation of powers. The language of subsection 77(4) grants the Federal Court broad remedial discretion. Indeed, the language echoes the language of subsection 24(1) of the Constitution Act of 1982. However, the Federal Court has cited from the Supreme Court of Canada's reasons in the case of Doucet-Boudreau v. Nova Scotia (Minister of Education) to note that there are separation of powers limits on the extent to which a Federal Court, or indeed any court, can exercise its remedial jurisdiction.

Today I don't venture an opinion as to whether the court has in fact been reticent to use the full range of remedies available to it, although I do know that the Fédération des communautés francophones et acadienne du Canada believes it has.

My point is that separation of powers considerations act as a limit, in principle, on what remedies a court may order. By contrast, administrative tribunals are not limited by such considerations. They are therefore comparatively freer to order remedies that are, in the words of my colleague Cristie Ford, “prospective, open-ended, and subject to ongoing revision and elaboration.”

In light of this, I would agree with the FCFA's recommendation that any provision specifying the proposed official languages tribunal's remedial powers include a non-exhaustive list of possible remedies, including ones that allow for appropriate continuing oversight. That is the first rationale for establishing an official languages tribunal, a rationale grounded in concerns about the separation of powers.

Let me turn to the second rationale for establishing an official languages tribunal. Complainants contemplating a proceeding in front of the Federal Court may face issues of accessibility that they would not face in front of a well-designed and well-funded official languages tribunal. An official languages tribunal modelled on human rights tribunals in the provinces and at the federal level would have simplified procedures and would provide assistance to complainants seeking to present claims before it.

Concerns about accessibility have long justified the creation of human rights tribunals, and although there are some ongoing concerns about whether they have delivered on the promise of greater accessibility, I think it is generally accepted that they are more accessible than the courts. There is reason to believe that this would also be true of an official languages tribunal, so a second possible rationale for an official languages tribunal centres on issues of accessibility.

Third, an official languages tribunal would likely have greater expertise in resolving disputes under a revised official languages act than would the Federal Court. The source of this potential relative advantage would be twofold. First, in a revised official languages act, Parliament could specify that official language tribunal members must have specific expertise relevant to interpreting and applying the Official Languages Act. Second, once established, an official languages tribunal would, through repeated exposure to disputes under the Official Languages Act, develop expertise in the application and interpretation of its provisions.

Those are three rationales for creating an official languages tribunal, despite the fact that there are judicial remedies available under the Official Languages Act.

Let me turn now to the possible relationships between the commissioner and an official languages tribunal.

Generally speaking, there are two kinds of relationships between human rights commissions and tribunals in Canada, and these may provide templates for how to structure the relationship between the commissioner and an official languages tribunal.

In the first model, a human rights commission acts as a gatekeeper for a human rights tribunal. It investigates and attempts to settle complaints; decides whether complaints should be referred to a tribunal for adjudication; and once a claim is before a tribunal, it can offer assistance to a claimant, represent a claimant or represent the public interest.

Critics argue that a commission in this model occupies potentially contradictory roles. A perception of conflicting roles may arise because at the investigation phase the commission is intended to be neutral, but if the complaint goes before a tribunal and the commission participates in the adjudication, it will take a position.

Related to this criticism is another that charges these kinds of commissions would undertake their functions in improper ways, particularly in contexts where human rights systems are underfunded. Critics argue that commissions have, for instance, used threats of delays as a means of pushing complainants to settle. Critics charge this model with devoting disproportionate resources to addressing individual complaints and diverting commission resources and attention from systemic issues.

That is a first possible relationship between the commissioner and the official languages tribunal, one in which the commissioner would undertake the kinds of gatekeeper functions that a human rights commission does in the first model of human rights commission and human rights tribunal relationships.

In the second model, which is the one currently in operation in Ontario, complainants have direct access to a human rights tribunal and the tribunal itself processes the application, offers mediation services and adjudicates on the merits of a dispute. In this model, the commission:

would no longer receive, process, mediate, and investigate complaints and, where...appropriate, forward them to the Tribunal. Instead, the Commission's role would...focus on developing policies, providing information and promoting compliance with the Code. However, the Commission, [under the revised Ontario model, does retain] its authority to initiate and intervene in applications before the Tribunal.

This model addresses the concerns about contradictory roles discussed above, as the commission would no longer have gatekeeping, settlement and investigative functions. In addition, in some jurisdictions, the direct access model has resulted in significantly reduced wait times.

Nonetheless, the direct access model has been subject to some criticism. For instance, Dominique Clément argues that, “In British Columbia, the Human Rights Tribunal spends more time vetting complaints for dismissal than adjudicating the merits of human rights complaints.”

In addition, because tribunals do not conduct investigations or provide representation for complainants, direct access models are perceived to be less accessible.

These are two kinds of models that could be used in structuring the relationship between the commissioner and a potential official languages tribunal.

Let me turn now to some operational issues. Under the second model, obviously the commissioner would focus on systemic concerns rather than individual complaints, and would not have investigative or gatekeeping functions, although the commissioner could retain the power to participate in a tribunal hearing to advance public interest arguments.

If this model were adopted, there would have to be sufficient commitment of resources to ensure that claimants would be able to present informed and competent complaints before the tribunal. There are models for providing this kind of support, whether through clinics or through support centres.

If a tribunal were created, since a tribunal would be charged with interpreting and applying a quasi-constitutional statute, the official languages tribunal would need to be insulated from any suggestion that it is subject to partisan influence, so it would be important to have clear criteria for expertise for appointments, protections for security of tenure during a term and potentially even protections around reappointment.

Finally, I suggest that a revised official languages act should include a provision that allows for a review after three years of coming into force. A similar provision was available in the Human Rights Code of Ontario when they revised their code.

Likely, simply because there are going to be large systemic changes with the coming into force of a new OLA, it would be helpful to have stakeholders and experts able to comment on whether or not the revised OLA has achieved its legislative objectives.

These are some thoughts about the creation of an official languages tribunal, rationales for its creation, issues around institutional design, and finally some operational questions.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

We now turn to Mr. Forgues, of the Canadian Institute for Research on Linguistic Minorities.

Mr. Forgues, you have approximately 10 minutes. You may go ahead.

[Éric Forgues, Executive Director, Canadian Institute for Research on Linguistic Minorities]

Thank you for the invitation and the opportunity to contribute to the committee’s study.

I’m going to begin with a few words about our research institute, for those who aren’t familiar with us.

The Canadian Institute for Research on Linguistic Minorities was established in 2002. From 2003 to 2012, it was headed by Rodrigue Landry, whom many of you no doubt know. I took over as executive director in 2012 but have been with the institute since its early days in 2003.

The institute was created with the support of funding from the Department of Canadian Heritage, pursuant to an agreement signed by then minister Stéphane Dion and the Université de Moncton. That’s a little bit about the institute’s history.

Now, I will just mention the institute’s mission: to promote a greater knowledge of the status of Canada’s official language minorities and a better understanding of the priority issues that concern them. To that end, the institute is committed to carrying out, in co-operation with its partners, relevant research work that can support the various stakeholders of official language minorities and the public policy-makers in language matters.

As for me, I am a sociologist, and my main area of interest is the development and vitality of communities.

The Government of Canada’s desire to modernize the Official Languages Act, in consultation with Canadians, is a golden opportunity to reflect on the ideal act tailored to the needs of official language minority communities. It is an opportunity to think creatively about how to overcome the challenges.

Being the optimist that I am, I envision at least three scenarios for the future of minority communities and official languages. First, I envision communities thriving in their language, thereby reversing the trend towards assimilation. Second, I envision greater recognition of communities and their autonomy, specifically their capacity to determine their own future. Third, I envision enhanced implementation of and compliance with the Official Languages Act.

I also see at least two potential pitfalls.

First, the government invests significant sums in official languages, through the five-year official languages action plan, without establishing tools for rigorous analysis—tools that would allow the government to identify communities’ needs clearly and adequately measure the impact of its investments on communities. The government holds extensive consultations, mainly at the organization level, but invests little in public policy research to support official languages.

The Standing Senate Committee on Official Languages, the Commissioner of Official Languages, this committee and now Minister Joly are currently conducting, or have recently conducted, consultations on the modernization of the Official Languages Act. I was in Moncton on March 12, for the first forum on promoting culture and bilingualism, hosted by Minister Joly. The vast majority of participants were heads of organizations who hammered messages they had previously delivered in other venues.

The government's practice of consulting on the modernization of the Official Languages Act and the development of the official languages action plan is certainly a good one, but consultations should focus more on individuals who do not necessarily belong to organizations.

Furthermore, research should guide the development of the action plan and the modernization of the Official Languages Act. That requires coming up with a research plan that can generate a relevant body of knowledge related to the objectives of the act. Not doing so makes it more likely that the process to determine language policies will essentially amount to adjudicating the various interests expressed by the organizations. For that reason, I think it’s important for the government to work more collaboratively with the research community.

The second potential pitfall has to do with the lack of leadership shown by elected officials and the heads of government institutions subject to the Official Languages Act. This leadership is crucial if the act is to be respected because it sends a strong message that language rights and government obligations matter.

At the first forum on the modernization of the Official Languages Act, held in Moncton on March 12, Michel Bastarache underscored the importance of raising the profile of the government’s official languages efforts and the symbolic importance of linguistic duality. Promoting linguistic duality hinges on symbolic gestures that improve the status of minority communities. When those gestures come from government leaders and elected officials, they send a strong signal to all Canadians because they lend legitimacy to the minority language and linguistic duality.

Now I’d like to discuss the relationship between the Canadian government and official language minority communities. Then, I will say a few words on the efficacy of the Official Languages Act, and lastly, I will comment on the need for clarity in part VII of the act.

I will now turn to my first point. The relationship between the government and official language minority communities has changed tremendously since the passage of the first iteration of the Official Languages Act. The two sides have established a collaborative relationship, a partnership even, when it comes to implementing the Official Languages Act, specifically the measures that stem from part VII. In my view, the act cannot be implemented without strong partnership between the government and the communities, and that partnership must be articulated in the act.

As I see it, the partnership extends beyond merely consulting with communities. In the draft bill to modernize the Official Languages Act submitted by the Fédération des communautés francophones et acadienne, or FCFA, on March 5, the organization included an obligation for the government to establish a five-year plan for the development of official languages. The government would do well to include that obligation in the next version of the act. The plan should be developed in co-operation with communities and their representatives. The government should endeavour to develop the plan jointly with official language minority communities because community partners and organizations play an active role in the plan's implementation. Otherwise, the organizations are likely to become nothing more than agents executing the government’s plans.

True partnership between communities and the government involves recognition of the autonomy of communities and their ability to make decisions, govern themselves and build capacity. That is the way to really integrate the service principle of by and for communities into the Official Languages Act.

My second point relates to the implementation and efficacy of the act. As many have pointed out, one of the biggest challenges of the Official Languages Act has to do with its implementation. Numerous stakeholders maintain that the act needs more teeth.

What the act's 50-year history has taught us is that some institutions struggle to respect the act. While a lack of will may be to blame, a poor understanding of the language dynamics within a minority community may also contribute to the problem.

Establishing an active offer of service in both official languages necessitates organizational change. Work dynamics, culture, perceptions, attitudes, beliefs and so forth have to change.

An enforcement-based approach has its limits. When people change their behaviour, not because they are forced to do so, but because they have internalized the standards underlying the behavioural changes, it leads to better outcomes. Although necessary, enforcement and punishment are not enough. It will not be enough to give the act more teeth without building in an understanding of sociolinguistic dynamics in the workplace and service delivery. Keeping with the corporal metaphors, I would say the act needs a brain as well. To better implement the Official Languages Act, it will be necessary to leverage management expertise on how to bring about organizational change.

The Canadian government needs to improve its know-how with regard to implementing the Official Languages Act and give departments and agencies the expertise and resources they need to better support their implementation efforts.

The challenges around compliance with the act call into question its efficacy. An act is considered effective when it produces the desired effect. It would befit the government to examine the challenges related to the act’s effectiveness and to explore the conditions that would make it more effective. The government may have underestimated the sociolinguistic dynamics that favour the use of the dominant language and thus prevent full respect of the Official Languages Act in minority communities. The financial, human and material resources required to ensure compliance with the act may have also been underestimated.

A number of factors determine how effective or ineffective an act is. I will mention some of them.

First, the legal conditions must be considered. This means relying on what the act says, knowing what its objectives are and what it prescribes and prohibits. Another important consideration is recognition of the rights set out in the act and the level of obligation it imposes. Clarity and specificity also play a role. The clearer an act is, the less room it leaves for interpretation. An act needs to be consistent in relation to not only itself, but also other acts. Case law is another important factor. In addition to improving compliance with the act, court decisions provide clarity around its meaning. The remedies provided for in the act also help determine how effective it is. Does it set out any remedies? If so, what kind? Legal remedies? Complaints to the commissioner? Complaints to the institutions concerned? What authority does the commissioner have? How binding are the available remedies?

In addition, it is important to establish the right conditions for the implementation of the act. That ties in with the leadership I mentioned earlier; the commitment must come from the top. Also necessary is an information and awareness campaign to educate people on the act so that they understand it. The regulations spelling out how the act will be implemented, on a practical level, play a big role as well, not to mention internal directives issued, the financial, human and material resources allocated, and access to any necessary language training. Consideration must also be given to the resources available to the commissioner, new administrative boards—such as the tribunal discussed earlier—designated champions and coordinators as well as those responsible for the implementation of the act. Implementation will also depend on organizational skills and capacity, in terms of factoring language into how workload and services are managed.

As well, social factors can help determine the effectiveness of the act. These factors include the social, political, economic and cultural context, people’s attitudes and perceptions, the buy-in of those responsible for applying, enforcing and respecting the act, and the support or opposition of interest groups.

Making the Official Languages Act more effective requires a holistic approach that takes account of all those dimensions.

[The Chair, Liberal, Denis Paradis]

Mr. Forgues, sorry to cut you off, but we’re going to move into the question and answer portion now, so that we have enough time for everything. You can provide more information as you answer questions.

We’ll start off this round of questions with Alupa Clarke.

Mr. Clarke, you have six minutes.

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

Thank you, Mr. Chair.

Good morning, Mr. Kong and Mr. Forgues. Thank you for being with us today.

Mr. Kong, I think you have been very specific in your opening remarks. I might come back to you, but I'll just start off with Mr. Forgues, with all due respect, as I have many questions for him.

Mr. Forgues, please be as succinct as possible.

You talked about the efficacy of the act. Have you seen the FCFA’s proposed bill?

[Éric Forgues]

Yes.

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

How does it rank in terms of efficacy?

[Éric Forgues]

I think the bill proposed by the FCFA is rather well done and has some good ideas, but I would suggest a few minor changes.

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

What are they?

[Éric Forgues]

I’ll start with the good part. Creating an official languages tribunal is a good idea, and I also think using research to better support the implementation of the act is very positive. On the whole, I think the bill is quite good.

However, I would point to a few issues. With respect to consultation, establishing an advisory council under the act is a good thing, but I would have included more community representation. As the proposal stands, the membership of the advisory council would include an FCFA representative, a Quebec Community Groups Network, or QCGN, representative, and a representative from each community. I would have liked to see a truly representative advisory council, one that couldn't serve as a pretext not to consult communities when creating policies.

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

I understand. That’s one of my concerns as well.

Do you support an administrative tribunal for official languages?

[Éric Forgues]

Yes.

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

The FCFA is proposing that it be mandatory to review the act every 10 years. Given the principles of the Westminster system, I’m not so sure it would be smart to force Parliament to undertake such a specific exercise every 10 years.

You’re a sociologist, so do you think that a mandatory review every 10 years could have a deflating effect on organizations like the FCFA? After all, they are a mobilizing force and a significant part of their focus, or underlying desire, is reforming the act. From a sociologist's standpoint, do you think a deflating effect would be likely?

[Éric Forgues]

No, on the contrary. I think there would be greater mobilization around the act.

Adopting a five-year plan would allow societal changes to be taken into account. Does society change so quickly that the act would need to be reviewed every 10 years? I think it would be a good idea. The current model guiding the government’s actions has been in place since the 1990s.

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

It’s a bit reactive.

[Éric Forgues]

Yes, but what really comes to mind is the work that’s done under the Canada-community agreements, as we used to call them. Nowadays, we talk about contribution agreements and direct involvement in the communities. The current model was developed in the 1990s.

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

I’m going to move on to another question. As I'm sure you can appreciate, Mr. Forgues, I need to be speedy.

I’m not sure I understood this correctly. At the beginning of your statement, you said that compliance with the Official Languages Act was better today than in the past, and then you talked about the lack of leadership within government agencies. Did I get that right? How is compliance with the act better today?

[Éric Forgues]

I didn’t say compliance with the act was better. I think there was a misunderstanding.

It’s important to examine the conditions that lead to greater compliance with the Official Languages Act. Earlier, I talked about the principles that would need to be incorporated in any measures aimed at improving compliance with the Official Languages Act. Certain conditions may have been underestimated; I’m referring to conditions that make it difficult to respect the Official Languages Act in certain contexts. Take, for example, language of work or language of service requirements. For large organizations, that means building skill and capacity. I would say a major shift has to happen on that front. If the necessary resources and expertise were fully assessed and understood, that shift would be easier.

What I mean is that it shouldn’t be expected to happen simply because it is mandatory. There is a whole process involved.

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

How much time do I have left, Mr. Chair?

[The Chair, Liberal, Denis Paradis]

You have 30 seconds.

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

Excellent. That’s loads of time.

Of course, many want to see the word “shall” replace the word “may” in part VII. Taking into account the federal dynamic and the Constitution Act, 1867, do you think that change is necessary?

[Éric Forgues]

I think that is something the FCFA called for.

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

Very well, but you, Mr. Forgues, what do you think?

[Éric Forgues]

I think it’s an important change, as well. Without it, the act is less binding and gives people the choice as to whether or not to comply. That change would make it clear.