Official Languages Committee on May 2nd, 2019

[Graham Fraser]

The first would be to do a better job of promoting official languages. I thought Canada's 150th birthday celebrations were a missed opportunity to really promote official languages as an indispensable part of Canadian identity. When I was commissioner, I would often say that success was invisible but failure was obvious. Sometimes, I think the government's commitment to promoting Canada's two official languages lacks visibility.

In another connection, administrative changes related to language training have made it harder for public servants to access the language training they need. I can understand why the changes were made, but, now that the cost of language training comes out of the department's overall training budget, managers have a dilemma on their hands when it comes time to manage and approve employee training. Letting an employee take language training means allowing that employee to upgrade their skills in preparation for another job, rather than their current one, so managers have a natural tendency to say this to employees:

The manager will say, “Harvey, you are an excellent employee, you have a great future in the public service and you need to get your French, but right now what you need is a human resources qualification so that you can improve what you're doing in your current job.”

Given a manager's budget constraints, it is very hard for them to indulge their employees by investing in their professional development, rather than their current job.

[The Chair, Liberal, Denis Paradis]

Thank you very much.

It is now over to Mr. Arseneault.

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

Thank you, Mr. Chair.

Welcome back to the committee, Mr. Fraser. It's always helpful to hear what you have to say. You have a way of putting everything in such clear and simple terms.

With all the witnesses the committee has heard from thus far, we are starting to get a sense of what our recommendations for modernizing the act should look like.

What you're saying—and I'm repeating what other witnesses have said—somewhat confirms what your former counterpart Michel Carrier, New Brunswick's interim official languages commissioner, told the committee. He told us that we didn't necessarily need something with more bite or a powerful tribunal; rather, he recommended that we start by bringing clarity to the interpretation of the act by removing all the ambiguity. According to him, the objectives of the act are crystal clear, but the way to achieve them is totally vague.

Given all the case law related to the Official Languages Act, ranging from decisions of the Court of Appeal of New Brunswick—my province—to those of the Supreme Court of Canada, I'd like to hear your view. We all know the objectives of the act, which are set out in section 2, I believe.

[Graham Fraser]

It's important to keep the preamble in mind, as well.

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

You're right.

Isn't keeping the ambiguity in the existing act—meaning, we don't replace “may” with “shall”—at odds with the objectives set out in the preamble?

[Graham Fraser]

Yes, indeed.

Having listened to what other witnesses told this committee and the Senate official languages committee, I realize that legal experts have scrutinized the ambiguities and contradictions between parts IV and VII of the act. Consequently, I've come to the conclusion that one of the committee's key responsibilities is to bring clarity to the act.

By the way, I'm pleased to hear that my former colleague, Michel Carrier, and I share the same view. His positions are always well-thought-out, so I hold him in very high regard.

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

Not always.

[Graham Fraser]

Personally, I have always equated all the act's components, especially the preamble, with a value. If people view them as a Canadian value, and not as a set of burdensome obligations, they have a much easier time meeting the objectives set out in the act. As commissioner, I would say, time and time again, that inspiring people to take action was more effective than forcing them to do so.

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

This is a bit of an oversimplification, but it's as though we are giving official languages a car, a mandatory vehicle, if you will, because we recognize that the vehicle is necessary, but we haven't put any tires on the car. That makes it hard to drive the car and arrive at the desired destination. The more clarity we introduce into the act, the more effective it can be at achieving the objectives in a clear way and providing the necessary tools. Doing that makes it possible to achieve the objectives, of course, while steering clear of legal proceedings, courts, the need to turn elsewhere and so forth.

Now let's talk about the tribunal. Let's say the act is clear and unambiguous, leaving little room for interpretation. Now, as we know, lawyers are clever, and some may do their darndest to twist the provisions of the act. Despite our best efforts, then, it may still be necessary to go before the courts. An expert from Wales appeared before the committee, and I couldn't believe my ears when she said that, after just seven years in existence, the Welsh official languages tribunal had outdone us, here in Canada—we, who have more than a half-century of experience in the area. My understanding is that their administrative tribunal is more likely to give offenders a slap on the wrist. In our case, though, it's the person or institution who has to hire a lawyer or make the effort themselves. For example, it's the offending Crown corporation that, if it disagrees with the commissioner, has to appeal the matter before the courts.

What is your take on that?

[Graham Fraser]

I think it would be interesting to take a closer look at that approach. There's a saying that comes to mind whenever the discussion turns to giving the act more teeth or establishing a tribunal:

“When all you've got is a hammer, everything looks like a nail.”

This is the non-lawyer talking. If a government lacks the will to achieve progress, neither the act nor a tribunal is going to turn these objectives and values into a reality. Commissioner after commissioner, the organization that drew the most attention was Air Canada.

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

Poor Air Canada.

Sorry to cut you off, but I don't have a lot of time.

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

[The Chair, Liberal, Denis Paradis]

You're already out of time.

It is now Mr. Choquette's turn.

[François Choquette, NDP, Drummond, QC]

Thank you very much, Mr. Fraser, for being with us today and sharing your expertise and wisdom. As far as I know, you're one of the few people who held the position of commissioner for a decade. In fact, if memory serves me correctly, most commissioners serve for a term of seven years. You have considerable expertise.

You said part VII wasn't ready for the trash heap, far from it. You said that, during your time in office, it did what it was supposed to on a number of occasions. Would you mind talking about the positive features of part VII and why they matter so much?

[Graham Fraser]

It is so important, first because it was an innovation. For once, in an act, there was a rare obligation for positive measures, without the positive measures being clearly defined, either by regulation or in the act itself.

Often, the successes of Part VII were achieved in regions, where departmental directors were located. They studied that obligation and asked themselves what they could do for the official language minority community in their region.

There were often consultations. Fisheries and Oceans Canada participated in celebrations in Gaspé. In Alberta, Parks Canada provided an office for local francophone communities if, in exchange, they would provide French conversation classes for their employees. It was a win-win, enabling the department to be more engaged with the local community. The president of VIA Rail became aware of the obligation, but he did not see which community he could consult. He assured the FCFA that he took the obligation seriously. He did not see which minority community VIA Rail could assist, but the FCFA suggested a contribution to people's travel to the organization's annual meeting.

All the successes, therefore, came as the result of consultations and of a greater commitment from the departments to the communities, often at a very local level.

I used to say to myself that this is not the kind of success that one could imagine coming from a deputy minister's office, that is to say, a directive addressed to all a department's regional offices. It comes instead from the imagination, the innovation and the openness of spirit of the federal employees on site.

[François Choquette, NDP, Drummond, QC]

So we have to find a way to continue promoting those successes and to have more of them. In a way, that is the spirit of Part VII.

[Graham Fraser]

Yes.

[François Choquette, NDP, Drummond, QC]

There has been a little debate—and you slipped in a word or two about it to our colleagues—about the famous powers for the commissioner, whether the commissioner should be given more powers, and so on.

Mr. Fraser, could you tell me whether, during your mandate as commissioner, you had occasion to use the coercive powers you had? Let me explain: if an agency or a department refused to provide you with documents, you had the power to demand them. If someone refused to testify or to answer your questions, you had the power to require that person to come and testify before you.

You had coercive powers. Did you have occasion to use them? Did you use them?

People talk about giving the commissioner more powers, but the commission already has some. To my knowledge, however, it is as if the powers are not used.

If you did not use them, why not?

[Graham Fraser]

There was the power to compel testimony under oath, for example, that a commissioner, unlike other officers of Parliament, has never used. In the special report on Air Canada in 2016, we recognized the range of the powers of other officers of Parliament.

I do not know whether this is mentioned in the report, but we learned through the grapevine that some officers of Parliament who often use the power to compel sworn testimony, do so automatically at the request, or the preference, of the institutions. Some of them say that it is better for them that testimony is compelled. Then they just have to say that they had no choice. My impression, with the departments I dealt with, was that they were people of good will.

One organization was an exception, That was clear when people from Air Canada testified before your committee. Air Canada's position is that they are competing with other airlines that do not have the same obligations, and that it is not fair. Air Canada has the obligation; Westjet, as an example, does not. There is some resistance with Air Canada, which was sometimes reflected in our reports.

When I think about it, I am not sure whether fining Air Canada $25,000, for example, for this or that incident would be worth it. It is the cost of two business class tickets to Beijing. It is peanuts for Air Canada. It would make the news, but I don't know whether it is an effective way to change behaviour.

The FCFA suggested that all the penalties could be used to set up a fund for language training. But a fund of that kind could be set up without imposing fines. The idea of fining Public Services and Procurement Canada because a construction site does not have a bilingual sign is not very useful. What use is it for one federal institution to fine another federal institution? Is it really going to change behaviour?

I am not sure.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Fraser.

We now move to the next speaker.

Three speakers are left; time is getting on, so you will have three minutes each.

Mrs. Fortier, you have three minutes.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you very much.

Thank you for coming today, Mr. Fraser. I am pleased to hear that you are at the University of Ottawa, which is my alma mater, and a fine university in my constituency.

Officials from the Association des collèges et universités de la francophonie canadienne (ACUFC) were here earlier this week. The Association had a message for us: without the right to equal access to education in French as a first and a second language, from early childhood to the post-secondary level, we cannot talk about Canada's official languages having equal status.

I would like to hear what you have to say about that. Is there a way to strengthen the act as part of the modernization?

[Graham Fraser]

Studies have shown how important French-language education at pre-school level is for retaining students in the francophone system. When Ms. Meilleur was Ontario's minister of education, she told me about the experience in the city of Windsor, where they had created francophone early childhood centres and followed the children afterwards. An impressive number of those students continued to study in French, unlike the students who had not had the opportunity to attend a francophone early childhood centre.

The federal government already gives a considerable amount of money for first-language and second-language education to minority institutions, but that is not very well known. I discovered that it was difficult to find out what the provinces were doing with the money that Ottawa was distributing to them. When I was commissioner, one provincial education minister even told me that, when he received a federal cheque, he did not read the covering letter. That was tongue in cheek; his officials certainly read it. However, the provinces have a way of thinking that they decide how to spend the federal money they receive.

The fathers of Confederation decided that Ottawa would be responsible for major matters like the economy, or international activities, and that minor, less important matters, like health and education would be in provincial jurisdiction. For some time, Canadians have not agreed with the fathers of Confederation about the relative importance of those topics. Often, the conflicts between the feds and the provinces are about the major questions of education and health. They have always been thorny issues.

Take university chairs as an example. The federal government has succeeded in playing an extremely important role in university research, even though education is clearly a provincial responsibility.

[The Chair, Liberal, Denis Paradis]

Mr. Fraser, I am going to give the floor to Mr. Rioux for two minutes.

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

I will continue along the same lines.

As you so rightly say, education is in provincial jurisdiction. However, we see situations, such as in Vancouver, where only one francophone child in five can attend a French-speaking early childhood centre. There is also the situation with the Université de l'Ontario français.

Could the federal level obtain the jurisdiction necessary to ensure the vitality of bilingualism in Canada? Should that be clearly set out in the new version of the Official Languages Act?

[Graham Fraser]

You could try to go that route.

We are going through a period of new federal-provincial and even interprovincial tensions. Currently, there are tensions between British Columbia and Alberta. Could the provinces be ready to find common ground for understanding on the language issue, given that it is not as controversial as it was 50 years ago? It is possible.

The historian Matthew Hayday has published a book entitled Bilingual Today, United Tomorrow, which deals with an education initiative of the first Trudeau government, the official languages in education program. The program set out to finance French-language education. The book is a meticulous analysis of that initiative.

At one point, there was provincial resistance and budgetary pressure. If the trend had continued, there would have been 1 million immersion students in 2000. Because the funding hit a ceiling, there were only 300,000. It ended up being a question of money.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Fraser.

Mr. Clarke, you have the last word, for one minute.