Evidence of meeting #73 for Official Languages in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was questions.
A recording is available from Parliament.
4:36 p.m.
Pierre Foucher Professor, Faculty of Law, University of Ottawa, As an Individual
Thank you very much, Mr. Chair.
Good afternoon, ladies and gentlemen. I'm extremely honoured and pleased to be here today. It's been a long time since I've been invited to appear before a House of Commons committee. I'd like to start by saying that I practise bijuralism, that is, I teach civil law half the time and common law the other half of the time. I also head a research centre in the faculty of arts. That means I have three deans.
4:36 p.m.
Voices
Oh, oh!
4:36 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
That's it. We speak at least two languages.
I'm here to speak to you about the implementation of the Official Languages Act at Air Canada. In preparation, I obviously read the official language commissioner's report on Air Canada and the airline's response to the preliminary report.
I'm not going to wade into the numbers battle or comment on the evidence, which, according to the commissioner, is stacked overwhelmingly against Air Canada, while, on the contrary, the company argues that its relatively low number of complaints, in proportion to its volume of passengers, is proof of the progress it has made.
The parties profoundly disagree on the company's achievement of the objectives set out in the act. By its very mandate, however, the commissioner's office is the most appropriate authority to evaluate the pace of progress and delays.
I heard you discussing section 23 of the charter earlier. I could tell you from experience that the same kinds of comments are made about certain provincial governments that balk at fully implementing the education rights of their minority population. They argue that they are making strides and that progress takes time. If I were to do that, though, I would be straying from my point.
On the outgoing commissioner's recommendation, your committee took up the matter of strengthening the powers conferred under the act to bring Air Canada in full compliance with its requirements. In the report, the commissioner recommended a concerted approach on two fronts: first, improving sanctions through monetary penalties; and second, clarifying the scope of the act. I will address each of those two elements.
With respect to enforcement measures, I want to assure you that the commissioner's office did not come up with anything new. Should you decide to recommend that the government adopt solutions proposed in the commissioner's report, you won't be ushering in any new ideas. These types of sanctions exist elsewhere, in other sectors and in other statutes, applying to other administrative organizations.
All of the recommendations are appropriate. It certainly isn't easy to determine which one would be most effective, a question you may have for me. It's akin to asking how many crimes are prevented as a result of increased police powers.
Coming back to official languages, I will say that the number of complaints can certainly serve as a yardstick, but that the decrease in the number of complaints can be due to numerous factors, not just fear of the law. Each of the commissioner's proposals has its advantages and drawbacks.
Let's assess the four proposals. First, the commissioner suggests entering into enforceable agreements or compliance agreements. These agreements would have legal force and, if not adhered to, could lead to other sanctions. This is the model that the Office of the Privacy Commissioner of Canada uses. It would be a step up from the action plans Air Canada submits to the commissioner's office but does not follow afterwards. These agreements do not work, however, unless they go hand in hand with at least one other measure, given the need to compel a contracting party to keep its commitments.
Second, the commissioner proposes instituting statutory damages. They would be awarded simply for violation of the act, without claimants having to prove any negligence or actual loss stemming from the violation. The notion of statutory damages in the area of language law is already accepted. They were used in at least one decision in 2006, in a case involving the Northwest Territories. The ruling was issued by Judge Moreau. A range of damage awards would be prescribed, and the matter would first have to be heard by the Federal Court, which would then decide whether the act had been violated. If so, the court would take a number of factors into account in assessing the amount of the damages. This option requires the involvement of the court, and that can be costly.
Third, the commissioner suggests introducing fines. The Air Canada Public Participation Act would set out the violations for which fines would be imposed. Fines are punitive. Unlike statutory damages, which have a compensatory and deterrent function, fines are meant to be punitive. They replace imprisonment. They must be substantial so as not to be perceived by the company being fined as a hidden tax or the normal cost of doing business.
It's the cost of doing business.
For it to really be a fine, the wallet has to take a harder hit.
An administrative fine is a punishment frequently used in regulatory law to ensure compliance with regulations that prohibit wrongful conduct. Nunavut introduced such a system but, to my knowledge, has yet to use it. Quebec also uses this measure to ensure compliance with Bill 101, doing so more frequently. There, matters are referred to the director of criminal and penal prosecutions, who lays charges on behalf of the attorney general. If the court determines that the Charter of the French Language was violated, it can impose fines in accordance with the rates set out in the act, and has done so.
Last, but not least, the commissioner suggests using what he calls administrative monetary penalties, which are automatic fines that do not rely on the discretion of a judge. They are imposed by the organization overseeing legislative compliance. In this case, it would be the Office of the Commissioner of Official Languages. The Canadian Transportation Agency already has the authority to impose administrative monetary penalties for contraventions involving the advertising of air service prices. Air Canada is therefore accustomed to administrative sanctions.
The Canada Border Services Agency and the Competition Tribunal are also authorized to issue these penalties to airlines, including Air Canada. This is a quick and inexpensive mechanism for users, who don't have to go through the courts. It doesn't rely on the involvement of the director of criminal and penal proceedings or the discretion of a provincial attorney general. The commissioner's office could be authorized to impose the penalties. Language commissioners, however, generally don't like to have such a power, arguing that it undermines their neutrality and impartiality.
I think that internal safeguards can be put in place to make such a system work without hurting the commissioner's credibility. The system used by Quebec's liquor, racing, and gambling regulator, the Régie des alcools, des courses et des jeux du Québec, comes to mind; it has a separate division that deals with sanctions.
I will now turn briefly to the second part of the commissioner's report, which has to do with clarifying the scope of the act. One recommendation is meant to correct the effect of the Thibodeau decision—in fact, I believe he appeared as a witness before the committee. The idea is to specify that the well-known Montreal convention—which regulates the awarding of damages for breaches during international carriage by air—cannot apply or impede other monetary awards issued for violations of the Official Languages Act during domestic flights within Canada. Such an amendment is possible and would not be in breach of international law.
It is also clear that Air Canada's restructuring had the effect of shielding a number of its divisions from the application of the Official Languages Act. It will be necessary to find a way to prevent that going forward. The privatization act could include grandfather clauses and extend language obligations to regional carriers operating on Air Canada's behalf, even if they aren't subsidiaries. An order mechanism could also be incorporated.
Lastly, the commissioner examines a few hypothetical scenarios involving the scope of the Official Languages Act and Air Canada: keeping the status quo; subjecting all air carriers in Canada to the language obligations, including WestJet and Air Transat; and simply doing away with Air Canada's language requirements to let the market dominate. To my mind, the last scenario isn't an acceptable one because the market will always favour the strongest language. That's what sociolinguistics has shown us.
In a country that values linguistic duality, that will not work. The same logic could also be applied to ports, airports, and any other federal entity that might seek privatization, and in the medium term, that would put an end to the policy of official bilingualism. I don't think, therefore, that the solution is to exempt Air Canada from the application of the act.
It is also suggested that the Canadian Transportation Agency, known as CTA, be mandated to deal with the issue and given exclusive authority over the language policies of air carriers. That's not a good idea either. The Commissioner of Official Languages retains authority over implementation of the act, even though other entities might play a role. Such is the model of concurrent jurisdiction.
As I bring my presentation to a close, allow me to quote Justice Martineau of the Federal Court. There was a case between CBC/Radio-Canada and the Commissioner of Official Languages. One of the defence arguments made by CBC/Radio-Canada was that the Office of the Commissioner should not be conducting investigations into its use of language, or the use in its programming, because that was the responsibility of the Canadian Radio-television and Telecommunications Commission, or CRTC.
Justice Martineau's reply was: “I firmly believe that this obstinate quest to create, at all costs, a scission between “broadcaster” and “institution” is misguided and wrong from the point of view of enforcing a constitutional, quasi-constitutional or statutory linguistic obligation.”
In my opinion, we are equally unable to separate the functions of a commercial carrier and of a national institution providing air transportation. If the CRTC is able to regulate CBC/Radio-Canada's language policy, with the commissioner standing by its side, it seems to me that the commissioner should be able to keep all his powers of enforcement under the Official Languages Act.
We must remember that Air Canada is not just any airline, it is Canada's national airline. Air Canada belonged to the federal Crown, which is why its linguistic requirements have been maintained. The need to maintain them is as applicable today as at the time it was privatized.
I also concur with those who feel that Air Canada cannot divest itself of its commitments by changing its business structure. As the courts have held on a number of occasions, the government cannot escape its obligations indirectly by having work done by someone else.
Monetary penalties are a deterrent in terms of enforcing the law. They must be used sparingly, but they must exist in order to better ensure compliance with its obligations. If not, the Official Languages Act will remain an act that will be very difficult to enforce, even though it imposes legal obligations in the same way as any other act.
Thank you very much.
I am ready to answer your questions in the official language of your choice.
4:45 p.m.
Liberal
The Chair Liberal Denis Paradis
Thank you very much, Professor Foucher.
We will now go around the table, with each speaker having five minutes. We will start with Mr. Clarke.
4:50 p.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Thank you, Mr. Chair.
Thank you for joining us today, Mr. Foucher. It was much appreciated. You gave a great presentation, and I learned a lot from it.
Could you continue your explanations about the consequences and advantages of the commissioner's fourth recommendation, the one about administrative monetary penalties? You mentioned that one of the consequences would be to undermine the commissioner's credibility.
I will give you the time you need, as long as it is within my five minutes, to go more deeply into the consequences and advantages of that recommendation.
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
Let us start with the advantages. Administrative penalties are quick, easy, automatic, and set out in an act, a regulation or an order. There can be criteria in the act that would allow the commissioner to set the process in motion after he has written a certain number of reports on Air Canada's shortcomings in complying with the act.
The other solutions require people to go to court.
One of the disadvantages mentioned by the commissioners, but not by me, is that if a commissioner investigates Air Canada—or any other institution, if we extend the system to other federal institutions—he could be frowned upon. Air Canada could say that it is well aware that, if it does not do what is required, there will be an automatic penalty. That would change the commissioner's role into the language police, and the commissioner would not want that.
I say that there is a way of structuring the system in order to create a kind of partition between the commissioner's function to investigate and recommend, and the function involving administrative penalties. In the structure of the Office of the Commissioner of Official Languages, there would be a division dealing solely with administrative penalties. The commissioner could decide that enough was enough, and could send a report to his administrative division, which would set the process in motion.
4:50 p.m.
Liberal
The Chair Liberal Denis Paradis
It would be done somewhat along the lines used by the Régie des alcools, des courses et des jeux, as you mentioned earlier.
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
Exactly, the Régie des alcools, des courses et des jeux works a bit that way. There is a separation between the issuing of permits, regulatory matters, and the system of penalties, which operates completely separately in order to preserve the neutrality of the permit-issuing.
4:50 p.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
As for the consequences, you mentioned those that the commissioner's office suffered. What would be the consequences for Air Canada?
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
I imagine that if the penalties are high enough and frequent enough, at some stage, Air Canada, which is a private company, would react by increasing the price of air tickets. At that point, customers would react in turn by abandoning the company. Air Canada will realize that, for economic reasons, it can do nothing else but to comply with the act because the penalties are multiplying.
4:50 p.m.
Conservative
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
It could work.
As I was saying earlier, we will never know how many accidents we have managed to prevent by issuing fines to delinquent drivers. On the other hand, it is certainly a deterrent that encourages people to obey the law. If they do not obey the law, they will have to pay the price for it.
4:50 p.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
The Office québécois de la langue française has a language police section, does it not?
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes, the Office has that function, but the Office does not handle those matters itself. The Office sends the file to the Director of Criminal and Penal Prosecutions, the DPCP, which will lay the charge and go before the Cour du Québec to argue the case. Ultimately, the judges of the Cour de Québec will impose a penalty if they see a violation of the act. So it is no longer in the hands of the Office. The idea was to completely separate that role from the Office’s role, and it falls to the DPCP. There is another model, but you would have to imagine a division of Canada's Department of Justice that would handle prosecutions. In terms of offences, we know that, in general, the Department of Justice has delegated its powers of prosecution for summary offences to the provincial attorneys general. That is what gave rise to the offences affair at the beginning of the 2000s.
4:50 p.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Could you by chance give us any examples of carriers in Quebec that were delinquent and that had issues with the Quebec language police? How did they turn out?
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
No, I do not have any examples for you off the top of my head.
4:50 p.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
If ever an example comes to mind, could you send it to us?
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
Certainly. I can do some research.
4:50 p.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
As a final word, could you comment further about the opinion of sociolinguistic experts who say that, where no legislative protection is strictly enforced, it will be doomed to failure in the free market?
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
You want me to answer that in two minutes?
4:50 p.m.
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4:50 p.m.
Conservative
4:50 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
I have been working in the area for 38 years, so I have dealt with a lot of sociolinguists, political scientists, and the like. The evidence is overwhelming.
The sociolinguist Louis-Jean Calvet, for example, says that cities devour languages. In his opinion, people in the same city will all speak the same language in 15 years if nothing is done to protect the minority language. Another has said that languages in contact are languages in conflict, and the stronger language will win.
The evidence is overwhelming. There is no way around it. If there is no legislation to protect the use of a language or to provide it with space, the stronger language will dominate. That is even clearer here, in North America, where we are surrounded by 330 million anglophones.
