Official Languages Committee on March 19th, 2019

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

Thank you very much.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Clarke.

Mr. Arseneault, it is your turn.

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

Thank you, Mr. Chair.

Thank you, Mr. Kong and Mr. Forgues.

My first question is for Mr. Kong.

Is the interpretation coming through, Mr. Kong?

[Hoi Kong]

I understand French well.

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

Excellent. What a wonderful place, this country of ours.

Mr. Kong, I graduated from the faculty of law at the Université de Moncton way back when. Pierre Foucher taught me constitutional law. You may know him. I was one of those students who cursed constitutional law. Today, being in Canada’s Parliament, I realize it is the proverbial umbrella protecting the rights of all Canadians, safeguarding our entire mosaic and all the other laws.

I’m not going to tell you whether I’m for or against an administrative tribunal. That said, two official languages commissioners told the committee that it wasn’t all that important to have a tribunal. According to them, what mattered a whole lot more was having a clear and specific act devoid of any ambiguity. When you have a clear, specific and unambiguous act with teeth, you have less need for an administrative tribunal. I just wanted to hear your take on that.

You know as well as I do that Commonwealth countries have historically delegated matters to administrative tribunals in order to relieve pressure on the court system. A parallel system of administrative tribunals emerged so that certain sectors could deal with so-called specialized matters. The original intent was to relieve pressure on the court system.

The official languages commissioners noted that, with the creation of an administrative tribunal, citizens wanting to have their language rights respected would have to invest time and energy in long and often costly proceedings.

I’d like to hear your thoughts on that. Are we better off with an administrative tribunal or a clear and specific act, or both?

[Hoi Kong]

I don't think that the only issues around adjudication of disputes around language acts are just questions of clarity. Obviously, we would want a law that's clearer; I think that's a good idea.

On the question about whether to create a tribunal, setting aside the issue of clarity, I don't think even the most absolutely clear law is going to eliminate the need for adjudication and for resolution of disputes. If we set that aside, then the question is which institution is better able to handle the adjudication.

From an accessibility standpoint, establishing an administrative tribunal is a good idea.

There are issues of complexity of procedures. There are issues of costs. If what we're concerned about is ensuring that claimants can vindicate their rights, the judicial system, with its relatively high cost, with its relatively high levels of complexity, may not be the best venue.

On the question of whether we're simply shifting the load and pushing disputes off to administrative tribunals, that may be the case, but I think we just have to weigh it against the advantages that are gained by creating a tribunal that's more accessible.

Finally, on the issue of expertise, as I said in my introductory remarks, if you have a tribunal that is specifically constituted by members who have a specific expertise in language rights—particularly people who are sensitive to this situation of linguistic communities—that might make the adjudication of those disputes a little bit more effective, rather than simply being a way of shifting responsibility.

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

Thank you. That’s quite compelling.

Mr. Forgues, welcome to the committee. This is my first time meeting you, so it’s a pleasure to make your acquaintance. I was trying to figure out which area you’re from. Forgues, your last name, makes me think you’re from Moncton, or the southeast part of the province, but your accent suggests you're from the north.

You raised a very telling point. Everyone here knows this, but we dare not say it, or at least, we aren't clear about it: the problem lies with all the institutions that are supposed to be mindful of their official languages obligations. The real problem is in the fulfilment of those obligations by the institutions. They are the first roadblock that people encounter when they are trying to exercise their language rights.

What is your take on a modernized Official Languages Act? You spoke earlier about giving the act some teeth. How do we give the act teeth so that institutions truly feel and understand the weight of their responsibilities to those concerned?

[Éric Forgues]

Allow me to clarify something. I’m not from New Brunswick. I was born in Ontario.

[Some hon. members]

Oh, oh!

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

Well, then. There you have it.

[Éric Forgues]

I did grow up in Quebec, though, and I’ve been here for about 20 years, so I may have picked up the accent in my neck of the woods.

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

What a big, beautiful country this is.

[Éric Forgues]

As for the institutions, yes, they have an obligation. It’s possible to reinforce that obligation in the act. It is possible to set up an official languages tribunal and to give the commissioner more of an enforcement role. I’ve learned something though, throughout my work on the value given to language when offering services in both official languages. I now realize how important it is that the act set out an active offer obligation. Otherwise, the offer of service can take various forms. Establishing the obligation in the act would have the benefit of clarifying the issue.

What does active offer mean? It’s a term that is very misunderstood and therefore needs a clear and specific definition. I've realized, however, that even if the term is defined, a heavy-handed approach is not enough. The real focus has to be on building organizational skill and capacity to establish the resources and practices necessary to ensure service of equal quality in both official languages.

That’s why I say relying on the act alone is not enough. It can help things along, of course, but we have to resolve all of the issues related to implementation. That requires careful consideration. Establishing regulations and directives may be one way to go, but perhaps we should consider other resources that aren't currently on the radar. It may be appropriate to create a centre of excellence specializing in the area, to guide agencies and institutions and give them the tools they need to ensure an active offer of service in both official languages.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Forgues.

It is now François Choquette’s turn.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

Thank you to both witnesses for being here today and giving us insight into the modernization of the Official Languages Act. Their expertise is much appreciated.

I’m going to start with Mr. Kong.

You listed the reasons why we should consider an administrative tribunal. You gave three good ones, and you did a good job of explaining them. I’d like to spend more time discussing the tribunal model as it relates to official languages and the division of roles and powers between the commissioner and the tribunal. You talked a bit about that, giving some examples.

What model would make for the best official languages tribunal?

[Hoi Kong]

I think it depends a lot on the commitment of resources.

If you were to have a tribunal that gives claimants direct access, I think you would need to ensure that they are sufficiently supported in making claims, because otherwise the concerns about accessibility, the gains in accessibility, will essentially be lost.

I think that, if you commit the resources, then it's a good idea to have direct access tribunals, in part because the history of the model of commission with tribunal has shown that there are quite a large number of delays that arise when you have a commissioner who has multiple responsibilities. It's hard to achieve all the functions that a commissioner would be charged with, in addition to bringing complaints and referring complaints to a tribunal.

I think if you have sufficient resources to support claimants in front of a direct access tribunal, and then you ensure that the commissioner has all the resources necessary to do the kind of systemic work that Monsieur Forgues has noted to support communities, then I think you can allow the commissioner to focus on larger systemic questions rather than spend all of the time on specific complaints. Assuming sufficient resources and assuming that the commissioner is going to be freed up and given powers to do systemic inquiries and the kinds of cultural changes that Monsieur Forgues has mentioned, I think that a direct access tribunal would be a good model to proceed with.

[François Choquette, NDP, Drummond, QC]

Now I’d like to turn to you, Mr. Forgues.

You spoke at length about the importance of not just adopting an enforcement-based approach, but also ensuring the efficacy of the Official Languages Act. I think that’s a very important point. Of course, we shouldn’t limit ourselves to an enforcement-based approach. Official languages have to seen as an integral part of our identity as Canadians, something to be proud of, something to recognize and celebrate. That is paramount.

Do you consider the current act to be effective in that sense? Do you think the notion of celebrating official languages is already built in? If so, where in the act is that housed? If not, as we review or modernize the Official Languages Act, should we add elements that would make the act more effective on that front?

[Éric Forgues]

At the first forum in Moncton on March 12, Michel Bastarache made another important point. He bemoaned the fact that official language minority communities are now perhaps the only ones who care about official languages. If that’s true, linguistic duality and official languages may be playing a smaller and smaller role in defining who we are as Canadians. That is cause for concern. Diversity, or some other notion, set of values or vision of the country may take precedence in defining our identity.

In that event, promoting linguistic duality, as required under part VII of the Official Languages Act, would become quite the challenge indeed. Collectively, as a society, we would have to take a hard look at the cultural characteristics that define Canadian identity if we want to reach a point where respect for the Official Languages Act is a no-brainer, mainly for those who must implement the act and those who must comply with it. The work, therefore, has to focus on our values as Canadians.

[François Choquette, NDP, Drummond, QC]

I completely agree with you. Many want to take advantage of the 50th anniversary of the Official Languages Act to shine a brighter light on official languages and to hold a national forum that brings together a range of stakeholders, from prime ministers and commissioners to members of the public. Promoting linguistic duality—and you stressed the importance of this at the beginning of your remarks—is also a matter of leadership among those at the top. For decades, prime ministers have been silent on official languages during national forums. It's a topic that rarely makes it onto the agenda, and that is why it’s so important to keep promoting it.

Thank you both.

[The Chair, Liberal, Denis Paradis]

Thank you for that, Mr. Choquette.

Ms. Fortier, you may go ahead.

[Mona Fortier, Ottawa—Vanier, Lib.]

Thank you, Mr. Chair.

Welcome to you both. Thank you for being here this morning.

Mr. Forgues, I want you to know how much I appreciate your research, and have for a long time. When I was a small business owner, I was fortunate enough to make use of your research findings in my work, proposals to establish schools in different parts of the country. Your data played a key role. Those schools exist today because we had the right data to start with. My hats off to you and Mr. Landry for the work you've done.

Research is precisely what I’d like to talk about because the data are so important, crucial even. Figuring out where to find the missing data has been the subject of much discussion. In that vein, can you tell us which data are important? Should the Official Languages Act stipulate the need for statistics and data on rights holders? I’d like to hear your thoughts on that.

[Éric Forgues]

Doing so is essential, in fact. In one of its reports, this committee recommended that Statistics Canada establish an advisory committee to examine the enumeration of rights holders and thus provide a more accurate picture. If such a provision were included in the Official Languages Act, it would certainly be a boon for communities.

It's becoming clear that the data to assess the need for schools in communities is not available. That data would enable the different levels of government to better meet their obligations and build schools where they are needed. In some communities, the information had to be collected through door knocking. Rodrigue Landry was in charge of that initiative at the time. People were hired to go door to door to determine the number of potential students in each community.

Supported by the Statistics Canada data available to us, we are continuing that effort. Although the data are incomplete, we are still able to assess part of the demand. We do it for school boards. They aren't the most visible studies, but they do result in reports. That said, these tools are important to determine the number of schools warranted.

It's unfortunate, though, that the information has to be collected regionally. The data should be available for the entire country in order to capture the full demand. That way, we could better deal with the issue as a whole, not just to build schools, but also to expand existing ones all over the country.

[Mona Fortier]

I'd like to delve further into the issue. Education is fundamental, of course, but so are health and immigration. I won't go as far as to say that immigration is a new issue for us, but 50 years ago, it wasn't something that factored into the act. Today, however, we recognize the vital role immigration plays.

Tell us, if you would, about some of the studies you're working on, ones that are being hampered by the lack of federal data or research. Are there other language-related data we should be collecting for research purposes?

[Éric Forgues]

The federal government hosted two symposiums on research in the area of official languages. If memory serves me correctly, they were in 2008 and 2011. In both cases, it was agreed that the government, academia and the communities needed to work together more closely. It didn't happen, though. Academics and communities work together from time to time, but there's room for a lot more collaboration.

We live in a knowledge-based society, and if society is to have a proper vision of itself, if it is to grow and move forward, it needs access to accurate data. That's an area that has suffered serious neglect, as I mentioned at the beginning of my remarks. We are operating in the dark, feeling our way along, without really knowing where we are going because we haven't recognized how vital research is to the implementation of the Official Languages Act, specifically part VII, which deals with community development. Before we can determine the best way to meet communities' needs, we have to identify what those needs are.

[Mona Fortier]

Sorry to rush you, but I have a limited amount of time. I think the chair is about to tell me I'm out of time.