Official Languages Committee on April 2nd, 2019

[Stéphanie Chouinard, Assistant Professor, Department of Political Science, Royal Military College of Canada and Department of Political Studies, Queen's University, As an Individual]

Mr. Chair, and ladies and gentlemen of the committee, let me start by thanking you for the invitation to discuss the modernization of the Official Languages Act with you. It is an honour and a privilege for me to be here with you today.

My name is Stéphanie Chouinard. I have been an Assistant Professor at the Royal Military College of Canada in Kingston since 2017 and, since 2018, at Queen's University where I teach political science in both official languages.

The Royal Military College in Kingston and the one in Saint-Jean—I am not forgetting you, Mr. Rioux—are the only postsecondary institutions in the country that are subject to the Official Languages Act. This means that implementing the act is part of my daily life and I can see the successes, the occasional difficulties, and perhaps even certain failures in my place of work.

Nevertheless, the goal of my remarks today will not be to talk to you about the sometimes difficult relationship between the Canadian Armed Forces and their linguistic obligations. Rather, I will be talking to you about the way in which my research expertise can shed light on the possible reworking of the Official Languages Act.

My research expertise is in the relationship between the law and the minorities. I am a political scientist who specializes in language right, which is not as strange as it seems at first sight. I am basically interested in the impacts of language rights, both clear and hidden, from a sociopolitical perspective.

The major question that has guided my research in recent years is this: to what extent has the judicial system shown itself to be up to the task, or not up to it, of responding to complaints from minorities, especially the country's language minorities? What have been not only the advances, but also the limitations, of those language rights, including the Official Languages Act, in addressing the claims of Canadians who belong to official language minority communities?

In that context, I have studied the case law on language rights in Canada in depth, as well as its effect on public policy. One of my principal observations is that we are beginning to reach the end of the logical interpretation of the Canadian language rights system. That goes for the Official Languages Act as well as for sections 16 to 23 of the Charter.

Those legislative texts and the interpretations of them that judges have provided, as liberal and generous as they have been, no longer respond to the aspirations of the official language minorities in the country. Those aspirations not only include a request for autonomy and empowerment at community level, but also a profound desire to participate in the life of the state. While official language minority communities, especially francophone ones, have resolutely turned to the courts for justice in recent years, the Official Languages Act and the way the Federal Court interprets it have simply not met their expectations.

One of the reasons is certainly, as the Gascon decision has highlighted, the problem of the effective implementation of the Act, especially with regard to Part VII. Other reasons, in my view, are first, the notorious reluctance of the Office of the Commissioner of Official Languages to go to court since Parliament gave it the power to do so in 1988, and second, that the mandate to hear those cases rests with the Federal Court.

I would therefore like to urge a revision of the mandate of the Office of the Commissioner of Official Languages, and the creation of an administrative tribunal tasked with hearing cases involving allegations that the act has not been complied with.

As you probably know, the Office of the Commissioner of Official Languages has always lacked enforcement power. When it was created in 1969, the commissioner's position was seen like that of an ombudsman, with primarily the power of persuasion, just like the rest of the act at the time, in fact.

The first version of the act had no legal recourse. Parliament partially remedied that shortcoming in 1988. Bill C-72 still provided the commissioner with no power to issue orders. This means that the results of an investigation showing non-compliance with the Official Languages Act could be ignored, but it did guarantee the executive nature of some parts of the act. This executive nature was enhanced in 2005 with Bill S-3, but, as we now know, it did not have the desired effect.

From 1988, the ombudsman role for the Office of the Commissioner of Official Languages became intermingled with a policing role, to some degree, and the Federal Court acquired the job of punishing non-compliance with the act. Although, from then on, some provisions of the Official Languages Act could result in legal proceedings once a complaint was submitted to the commissioner's office, that possibility has always been considered one of last resort.

In 1988, D'Iberville Fortier, the commissioner at the time, seemed to be very reluctant to go to the court route, a discretionary power that was after all not clearly defined in the act, and this tradition has continued to this day. The cases that the Office of the Commissioner decided to take to court itself are few and far between. It prefers to seek intervener status in cases brought by individuals or civil society groups before the Federal Court.

However, as early as 1988, people spoke up not only to make the entire Official Languages Act enforceable, but also to call for an administrative tribunal for language rights. This was the case with the Fédération des francophones hors Québec, now the FCFA. The federation is still calling for such a tribunal, according to the bill it published a few weeks ago.

The reasons are quite simple. It would be easier for Canadians to access such a tribunal than to access the Federal Court. There would be more sanctions for direct violations of the act than decisions based on fundamental legal principles, which are more common in the Federal Court. In my opinion, such an amendment would give renewed meaning to the Official Languages Act, both for Canadians and for the political institutions that must comply with it. Some could finally obtain orders for non-compliance with the act, and others would finally have a tangible incentive to commit to respecting official languages. These incentives clearly seem to be lacking in the current system, which advocates a carrot and stick approach, as evidenced by the many naughty students found year after year in the Office of the Commissioner's investigation reports, some of which were mentioned earlier.

There is already a language regime in the world with a commissioner's office and a language administrative tribunal. It's in Wales. Both entities were created by the Welsh Language Measure, a law passed in Cardiff in 2011 to replace the Welsh Language Board. The board was established in 2012 and the tribunal was established in 2015. I know that Commissioner Meri Huws was invited to testify before this committee a few days ago. I hope I am not breaking parliamentary decorum. We can mention a person who's not in the room, right?

Ms. Huws testified before you at the end of March. You specifically discussed the difference between her role and that of the Office of the Commissioner of Official Languages of Canada, and the place of the language tribunal in Cardiff. I don't know whether the meeting with her gave you an idea, but I would like to invite you to take that model as a counter-example. The role of the Welsh Language Commissioner is both to investigate and to punish. Commissioner Huws is both judge and jury when she has to investigate complaints from the public.

The tribunal, on the other hand, has the role of hearing appeals against the Office of the Commissioner's decisions. Individuals or companies sanctioned by the commissioner for non-compliance with the status of the Welsh language can therefore appeal its decisions to the tribunal. In other words, the tribunal is not responsible for ensuring that violations of the Welsh Language Measure are punished, but rather for monitoring the actions of the office that is responsible for the punishment.

I would urge you not to emulate that example. Not only does it duplicate the role of the commissioner, a duplication that is already causing difficulties in Canada at this time, as we have seen over the past 30 years. It has also fostered conflict among parts of Welsh civil society towards the position of commissioner by implying, through the creation of the tribunal, that oversight of the office is necessary to avoid excesses. No officer of the Parliament of Canada is overseen in this way.

I think the Wales experience indicates that it would be wiser to let a tribunal, an entity considered neutral from the point of view of official languages, order sanctions following investigations by the Office of the Commissioner. As a result, the Commissioner of Official Languages of Canada would retain his role as ombudsman and investigator, and the punitive role would be assigned to the administrative tribunal set up to hear cases dealing with the various parts of the Official Languages Act that are binding. The Federal Court could certainly be given a role as a court of appeal for decisions of the administrative tribunal.

It goes without saying that the Office of the Commissioner's mandate should also be revised to specify when the Commissioner of Official Languages should take legal action and submit evidence in court, rather than leaving the decision to the discretion of the commissioner. A review of the Official Languages Act could therefore give new impetus to the Office of the Commissioner in its promotion and investigation roles, and impose a presence before the courts to ensure that its evidence and diverse knowledge of official languages, particularly with respect to recurring complaints and systemic problems, are useful to the proposed tribunal.

Thank you very much. I will give the floor to my colleague, Mr. Jedwab.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Ms. Chouinard.

[Jean Rioux, Liberal, Saint-Jean, QC]

Can you provide us with the text?

[Stéphanie Chouinard]

Yes, I would be happy to do that.

[Jean Rioux, Liberal, Saint-Jean, QC]

Thank you.

[The Chair, Liberal, Denis Paradis]

We'll include it in the transcript of the evidence.

Now we'll proceed with Jack Jedwab.

[Jack Jedwab, President and Chief Executive Officer, Immigration and Identities, Association for Canadian Studies and Canadian Institute for Identities and Migration, As an Individual]

Good afternoon.

Thank you for inviting me. I am very pleased to share my observations and recommendations on the modernization of the Official Languages Act.

I will begin by setting out a series of principles and providing our vision of the current state of official languages.

I am very proud to be part of the bilingual community in Canada. There are just over 6.2 million of us. My wife, four children and I are proud members of this bilingual community and we are looking for other members. We welcome all those who wish to be part of it with open arms.

Since the 1970s, Canada has been clearly undergoing a demographic revolution. This is largely due to immigration, but also to changes in the birth rate. The country we currently live in does not look exactly like it did in the 1970s. I know that because I was there. I remember the fabric of the country. There has been a significant evolution.

There have also been changes in discourse and policy on bilingualism issues. I remember that, after the Official Languages Act was passed, Canada's multicultural policy was implemented in 1971. I guess some of you remember that too. We have always talked about multicultural policy in a bilingual context. Then changes occurred and, in the 1980s, the focus was more on multicultural diversity, which is part of linguistic duality, the two official languages, and less on bilingualism.

We don't talk as much about multiculturalism within the bilingual framework but more about multiculturalism within the context of language duality, or with the predominance of two official languages. We've seen a shift in that area in large part, I think, to line up against our changing demographics or uneven geographic distribution of French and English speakers, and the degree of bilingualism to which that unevenness has given rise.

Just over 80% of our population... I'm sorry, it's probably a nightmare for interpreters when I switch from one language to another. I'm sorry, but that's how—

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

You are speaking quickly too.

[Jack Jedwab]

I'm used to speaking very quickly. I'll try to slow down.

The majority of the country, about 80% and a little bit more, is actually unilingual, unable to speak both official languages. They may be bilingual or trilingual in other languages, but in terms of our understanding of bilingualism officially, the vast majority is unilingual.

The 18% of us who are bilingual are the ones who get more attention. We're more the object, if you like, of the critical mass of people we'd like to expand through various programs, through our laws and through the policy delivery mechanisms and programs in place to effect those changes, notably in the education system, which is a provincial jurisdiction, as we know.

We also know that the concentration of our bilingual population is largely in Quebec, Ontario and New Brunswick, and again, it isn't large, given the population of New Brunswick relative to those larger provinces. It's been described as being very concentrated in the bilingual belt, which I'm sure is a term some of us have heard before. I can assure you, the bilingual belt—as I closely follow the demographic trends—has not stretched out very much over the years. My belt has stretched out over the years, but not the bilingual one.

If Canada can describe itself today, as it likes to do, as a bilingual country, it is largely a function of the concentration of bilinguals in those three provinces, and more specifically, in the area I've just described. At best, we can describe ourselves as a bilingual country from a de jure standpoint, not so much from a de facto standpoint, given the percentage of people who are bilingual.

In fact, paradoxically, my home province of Quebec can describe itself as more de facto bilingual, but not de jure bilingual, given the laws in place. This may seem a bit counterintuitive, but it's a function on the one hand of the geographic distribution of language communities in the country, and on the other hand of the predominance, I would argue, of English in North America.

Despite the challenges associated with expanding the number and percentage of people who are bilingual, this remains an extremely important objective. We must ensure measures are in place as much as possible to try to improve our percentage and increase the number of people who are able to speak both official languages.

This is important not only in terms of our official languages policy, but also in terms of meeting the needs of people from official language minorities. Linguistic duality has those two objectives specifically: first, to broaden the critical mass of people who are able to speak both languages and, second, to ensure the vitality and continuity of those who identify with official language minorities.

The two objectives are interrelated or interconnected to the extent that, for people who belong to and identify with official language minority communities, it is important to have a critical mass of people who speak the other language as a second language if they want to be able to interact as much as possible in their first language.

In my mind, one of the most important places for achieving official languages objectives and ensuring the vitality or continuity of the language of people from official language minority communities is the workplace. We will need more people in workplaces who are able to speak both languages, in order to allow members of linguistic minorities to interact in their first language.

That's why I suggest, as one example—and there are many—that the two are interconnected objectives, even though we may seem them as disconnected on some level, in terms of the way the law and the policies and programs are offered, formulated and delivered.

Let me quickly go through three other points. Regarding public opinion and messaging, we're all quite sensitive to public opinion surveys. We see battles of public opinion surveys as to where Canadians stand with regard to bilingualism and language minorities. It's very important, I think, in our messaging—not only as thought leaders and elected officials but as reflected in our laws—that we're quite clear and unambiguous about our commitments.

I would say that one of the things that's very important in this area, with regard to language duality, is to remind Canadians that it's a foundational proposition. It's fundamental to our country, its continuity and its cohesion.

It's also fundamental to a variety of programs. Let's take Canadian multiculturalism as an example. We need to be reminded that Canadian multiculturalism is situated within the context of those two official languages. I think that's something that needs to be quite explicit with regard to our Multiculturalism Act, so that there's no ambiguity about such things. I'll go into more detail about that in the question period, if I'm asked.

It is not only a need to provide services to official language minority communities. It is a collective responsibility of Canadians with respect to official language minorities. Sometimes, the impression is that it is offered to them, but it should be very clear that it is our leaders' responsibility, and that it must be very clearly written into our laws and policies.

It's also part of the messaging. We need to know via our legislation and other relevant policy documentation that linguistic duality and support for official language minorities is a binding historic commitment to our country. Not doing so can allow some politicians and some pundits to note that there are more Mandarin and Italian speakers in some of our larger provinces—you may have heard this from one of our leaders in my neighbouring province of Ontario—than there are French speakers. Doing so, I think, transgresses the responsibility and commitment that we have as a country to our language minorities.

The language of positive measures, which I talked about in support of community vitality—

[The Chair, Liberal, Denis Paradis]

Mr. Jedwab, I have to interrupt you to go to questions from the committee members.

I will ask you to conclude your remarks by answering the questions. I understand that you still have some things to tell us.

We will begin the round of questions and comments.

Let me give the floor to Alupa Clarke.

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

Thank you, Mr. Chair.

Good afternoon to both of you, Mr. Jedwab and Ms. Chouinard. I am very happy that you are here.

Ms. Chouinard, I think this is the first time you have appeared before the committee. You said it was an honour and a privilege to be here. I am glad to have given you this honour and privilege, since it was my office that invited you. I have seen all your expertise over the past year.

I wanted to hear what you had to say about the administrative tribunal. You mentioned it during your presentation, but I have a few specific questions.

But first, Mr. Jedwab, I want to tell you that I really liked what you said at the end of your opening remarks on the country's fundamental proposals, namely the two founding peoples and the multicultural environment in which we live. This fundamental proposal must never be forgotten. I agree 100% with this vision of the country.

Ms. Chouinard, I detected a contradiction in your comments that may not be a contradiction. I wanted you to correct or clarify what you said. You said that, since the Charter was enshrined, there has been a liberal and generous interpretation by the Supreme Court with respect to language rights. On the other hand, you said that the Official Languages Act and the Federal Court have not yielded the expected results.

Personally, I see this as a contradiction. Can you elaborate on it, please?

[Stéphanie Chouinard]

That's partly because the Commissioner of Official Languages has often hesitated to take legal action. As a result, the Federal Court has not been called upon as often as it could have been. However, I could have said that there was a time when the Federal Court's interpretations were liberal and generous. I am thinking in particular of the Gascon decision, which sort of “cut the legs from under” section 41 of the Official Languages Act.

That is why I made the comment.

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

Okay.

You say that the commissioner could have more coercive powers, or rather that he definitely has coercive powers right now, but that he does not always use them.

Do you think we should either strengthen the commissioner's coercive powers or create an administrative tribunal, or do you think we could do both at the same time?

What do you think the best option is?

[Stéphanie Chouinard]

In my opinion, it should be one or the other.

If the commissioner is given coercive powers and goes to court, he becomes both the judge and a party to the case at hand. If I had to choose an option, honestly, I might go for the tribunal, if a choice really had to be made.

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

We will make the choice. What choice would you make yourself?

[Stéphanie Chouinard]

The commissioner would be responsible for carrying out investigations according to what a modernized act would include. It would be his duty to submit evidence to the tribunal, but it would be up to the tribunal to impose sanctions later.

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

In your opinion, what are the main benefits of an administrative tribunal?

First, would it be an independent, autonomous tribunal, or would we give responsibility for language rights to the human rights tribunal, for example? Do you envision a completely separate administrative tribunal for official languages?

[Stéphanie Chouinard]

Yes. It would be just like the human rights tribunal.

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

What would be the benefits of that?

[Stéphanie Chouinard]

First, I think Canadians would be much less reluctant to go to such a tribunal than to the Federal Court. Second, if the act mandated the Commissioner of Official Languages to use knowledge—particularly the institutional memory of the Office of the Commissioner of Official Languages regarding certain naughty students who shall remain nameless, but whom you all know—and documentation as evidence in court, this would give new strength to the Official Languages Act.

This would send a tangible message, particularly to those naughty students, but also to all federal institutions, that the Official Languages Act is to be taken seriously and that there will be consequences for non-compliance with the act.

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

There is a lot of talk about the wording of the act and replacing the word “may” with “must”. That's interesting and it would be very good, but I have concerns about part VII and the impact it might have on the British North America Act and the separation of powers.

Do you think that this change of wording from the word “may” to “must” should also be done in part VII, while fully respecting the areas of jurisdiction?

[Stéphanie Chouinard]

That's a good question. The federal government could still remain humble and stay within its own jurisdiction, even if the wording of part VII were changed.

Another way to breathe new life into part VII would simply be for Parliament to create regulations.

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

Ah, yes, I heard that. Part IV has regulations, but Part VII doesn't.

[Stéphanie Chouinard]

Exactly.

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

It's like a body without legs, basically. We have no idea how to make it work.