Thank you very much, Mr. Chair.
I'd like to start off by saying what an honour it is to appear before the committee. I've always appreciated how committed the committee members are to defending official languages.
I'm no longer the Commissioner of Official Languages and I have no intention of speaking as though I still am. I have tremendous respect for both of my successors, and I would never want to speak in Raymond Théberge's stead. I have great regard for him.
Nevertheless, my 10 years of experience as commissioner may provide the committee with some insight with respect to modernizing the act.
My comments will focus on issues related to part VII of the act.
When I became commissioner in 2006, part VII of the act had been amended only a few months before. Rather than push for regulations to govern the application of the new part VII, I felt that it would be best to allow federal institutions to innovate and develop their own practices regarding “positive measures” for the growth and development of minority language communities.
Indeed, many institutions took their responsibilities seriously and found imaginative and innovative ways to take positive measures. These ranged from participation and support for community activities to the provision of office space for community organizations in exchange for French conversation classes. The problems emerged when federal institutions did not, in our view, interpret those obligations in a satisfactory fashion. The first was the decision by the newly elected Progressive Conservative government—made between the announcement of my nomination and the confirmation of my appointment in 2006—to abolish the court challenges program. The court action launched by the Fédération des communautés francophones et acadienne, which I supported, resulted in an out of court settlement that resulted in the creation of the language rights support program.
The second was the elimination of nearly all local programming at CBEF Windsor, a French-language community radio station. The CRTC agreed with my argument and required that the programming be restored as a condition of renewing Radio-Canada's licence. The trial judge accepted my argument that Radio-Canada was subject to obligations under part VII of the act, but the decision was struck down on appeal on other grounds. Since then, a modus vivendi has been reached between Radio-Canada and the commissioner's office.
The last is the Federal Court decision rendered by the Honourable Judge Gascon, on May 23, 2018, in Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development).
As you know—and the judge noted this—the Fédération des francophones de la Colombie-Britannique argued that the federal department and the Canada Employment Insurance Commission had failed to fulfill their language obligations to the francophone linguistic minority when they entered into and implemented a transfer payment agreement with the provincial government. The agreement governed the administration of employment support measures to help workers return to the labour market.
As the judge noted, I intervened in the proceedings to argue how the sections of the Official Languages Act at issue in the case should be interpreted, in my view.
The decision is being appealed, and I would refer you to the arguments laid out by Commissioner Théberge's legal team in the memorandum of fact and law of the Commissioner of Official Languages of Canada submitted to the Federal Court of Appeal and posted on the website of the Office of the Commissioner of Official Languages.
Nevertheless, I think that, as lawmakers, you should take note of Judge Gascon's analysis. In his comprehensive decision—105 pages in English and 146 pages in French—he carefully compared the terms used, weighing their meaning in English and in French throughout the act.
Paragraph 213 of the decision reads as follows:
In short, even within the OLA itself, Parliament wanted the concept of “measures” to be one of variable geometry.
