For those around the table who are not legal scholars, section 77 is the one that allows judges to grant appropriate and just remedy. It presupposes that a person is already before the court, the court in this case being the Federal Court. It is the mechanism that the Official Languages Act has established. If you are talking about administrative fines, that is the mechanism you have to go through, but if you are talking about administrative monetary penalties, or AMPs, you don't have to. The responsibility would go directly back to the Commissioner of Official Languages. You would not need to rely on subsection 77(4).
Subsection 77(4) leaves the door open to various options. The courts could have been innovative in the matter of sanctions. We have seen Justice Moreau award compensatory damages in the Northwest Territories case. In the Thibodeau case, we saw the court of first instance make an order that was termed “structural”. It had the power to do so. The Supreme Court reversed the order, saying that it was too vague, and so on. However, the court's power to make a ruling already exists.
The difficulty comes in the fact that judges are prudent; they do not wish to be too innovative in terms of the remedies they grant. So we could provide them with some ideas. We could, for example, tell them to levy a fine or to order compensatory damages, and to develop a series of criteria along those lines. We are not going to rewrite the act this afternoon, but we could tempt them a little by telling them that they have the power to act and, if they do so, they will be reflecting Parliament's intention.