CHAPTER ONE: AMENDING THE ACT—A POSITIVE TURNING POINT
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The House of Commons and Senate made a historic decision by passing Bill S-3 in November 2005.
The bill succeeded in strengthening the Official Languages Act (the Act) by imposing new obligations on all federal government institutions.1 Consequently, these institutions now have the duty to take "positive measures" to enhance the vitality of English and French communities in Canada and to foster full recognition and use of both English and French in Canadian society (promotion of linguistic duality). Federal departments and agencies must also demonstrate that their policies, programs, guidelines and priorities take into consideration the interests and needs of official language minority communities and contribute to promoting full recognition of both official languages in Canadian society. If there has been a violation of these obligations, an application to the court is now possible.
This legislative change effectively settles the old debate surrounding the implementation of Part VII of the Act of 1988, particularly of section 41.
GIVING THE OFFICIAL LANGUAGES ACT SOME TEETH
The ambiguity that once existed regarding the legal scope of the government's fundamental commitment under this Part of the Act is now clearly removed. The amendment represents a significant change, or as the Commissioner put it, "a positive turning point." Positive because this legislative amendment gives rise to a renewed sense of hope about the prospect of enhancing the vitality of official language communities and encouraging the promotion of linguistic duality. A turning point because the long-awaited shift in attitude is now supported by a clearly expressed legislative will. Other important changes can be foreseen and will certainly follow.
In this chapter, we review the series of important events that led to the passage of Bill S-3. We then describe in greater detail why it was so important to amend the Act. Finally, we outline the measures that the government and institutions must take in order to implement the new provisions of Part VII.
Bill S-3: a long and winding road
In many ways, the debate surrounding the meaning and scope of the obligations of federal institutions with respect to official languages goes back to the 1982 adoption of the Canadian Charter of Rights and Freedoms which, among other things, recognized the equality of English and French in Canada and guaranteed the linguistic rights of all Canadians.
This was followed in 1988 by the passage of the new Official Languages Act, which ensured the full implementation of all language rights guaranteed by the Charter. Official language communities enthusiastically greeted this new piece of legislation and, along with it, the Government of Canada's promise to enhance their vitality and development and to promote linguistic duality.
However, the actions that were to flow from the commitments spelled out in the new Part VII of the Act turned out to be half-hearted and, at best, haphazard. Often they were the outcome of goodwill gestures on the part of individual ministers or senior bureaucrats. And when the players change, the whole game returns to square one.
Faced with this reality, in March 1994 Commissioner Goldbloom initiated a study of the implementation of Part VII by the government and 58 federal institutions. Five months later, the Right Honourable Jean Chrétien announced the adoption of a ministerial accountability framework, whereby 27 designated federal institutions would be required to consult the communities and develop an action plan for the application of Part VII to be submitted to the Minister of Canadian Heritage.
Federal government institutions continued to have difficulty, however, in understanding the extent of their obligations and fulfilling them. Signs of progress were few and far between.
| Wording of the legislative changes (Bill S-3) in bold 41. (1) The Government of Canada is committed to (a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and (b) fostering the full recognition and use of both English and French in Canadian society. (This section remains unchanged but is renumbered as subsection (1) of section 41.) 41. (2) Every federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments under subsection (1). For greater certainty, this implementation shall be carried out while respecting the jurisdiction and powers of the provinces. 41. (3) The Governor in Council may make regulations in respect of federal institutions, other than the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Ethics Commissioner, prescribing the manner in which any duties of those institutions under this Part are to be carried out. 77. (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV, V or VII, or in respect of section 91, may apply to the Court for a remedy under this Part. |
In February 1996, the Commissioner published A Blueprint for Action: Implementing Part VII of the Official Languages Act, 1988.2 In his study, he attempted to shed some light on the subject by making the following observation:
"Part VII is about fairness and equity. Equity for minority official language communities who suffer disadvantages and do not derive from federal policies and programs all of the benefits that majorities do. The purpose of Part VII is to remedy those disadvantages, and to ensure fair treatment. It requires changing the way these policies and programs are currently being conceived, adopted and implemented."
In June 1996, the Standing Joint Committee of the Senate and the House of Commons on Official Languages concluded that immediate action had to be taken to strengthen the implementation of Part VII of the Official Languages Act. Among other things, the Committee recommended that the central agencies play a more active role and that all federal institutions work together more co-operatively.
Later, in his 1998 annual report, the Commissioner said: "Ten years after the Act came into force we find that the federal government's support for the vitality and development of the communities has scarcely increased; in fact, direct financial support has decreased."
| A Major Omission: The Commissioner reiterates that when "positive measures" are at issue, it is important not to lose sight of all the obligations contained in the new Part VII. In fact, the federal government and its institutions have the obligation to foster the full recognition and use of both English and French in Canadian society (linguistic duality) and equally to enhance the vitality of English and French minority communities in Canada and support their development. |
Bridging the Gap: From Oblivion to the Rule of Law, a 1999 study by Senator Jean-Maurice Simard, proposed that a minister be appointed to oversee the government-wide implementation of Part VII. In 2001, the federal government designated a minister responsible for official languages.
Meanwhile, the Commissioner, on behalf of the communities, turned to the courts, and there it was confirmed that the federal government saw Part VII of the Act only as a political commitment,3 that is, a commitment that imposes no obligation to act on the part of federal institutions and creates no specific enforceable right.
| "The federal government's commitment to promoting the vitality of Canada's English- and Frenchspeaking minorities is binding on all federal institutions. To the best of our knowledge, no federal institution has yet developed an overall plan for action on this statutory commitment nor is there a plan at the government-wide level. When the federal government decides to adopt, revise or do away with a policy or program, what provision does it make for review of the effects of those policies and programs on the vitality of these minorities? How will it incorporate this element in its ongoing program evaluation and decisional process? Where do the responsibility centres lie?" Excerpt from the Annual Report of the Commissioner of Official Languages (1992). |
In her second annual report (2000-2001), Commissioner Adam examined the scope of Part VII of the Act, in light of federal institutions' claims that they do not have a duty to act. The Commissioner urged the goverment to set out clear guidelines in order to remove any ambiguities regarding the interpretation of the provisions of Part VII of the Act. In her annual report the following year, she formally recommended that the government define the legal scope of the commitment put forth in Part VII as it concerns official language communities.
FEDERAL INSTITUTIONS CLAIM THEY DO NOT HAVE A DUTY TO ACT.
In March 2003, Mr. Chrétien introduced an Action Plan for Official Languages. The plan contained an accountability and coordination framework that specified the responsibilities of ministers and federal institutions with respect to Part VII. Despite some laudable efforts, however, the same problem persisted: this framework was subject to the vagaries of government decision making.
The Commissioner thereafter intensified her efforts to have the government clarify by statutory or legislative means the obligations of federal institutions with respect to Part VII. In her annual reports of 2002-2003 and 2003-2004, she reiterated her recommendation that the government clarify the legal scope of the commitment regarding official language communities. Both in the Senate and the House of Commons, parliamentary committees were committed to moving forward on this issue.
Ultimately, it is the Honourable Jean-Robert Gauthier who deserves the credit for having proposed strengthening the Official Languages Act. From the time his first bill was introduced in 2001 until the passage of Bill S-3 in November 2005, the Senator worked tirelessly to strengthen this part of the Act. The Commissioner supported the four bills on the occasion of her appearances before the parliamentary committees responsible for studying them. The government and Parliament retained the amendments proposed by the Commissioner during the appearances leading up to the passage of the bill.
In the end, Parliamentarians came to recognize the importance of clarifying, once and for all, the scope of the commitment made by the federal government in Part VII.
Why did Part VII need to be changed?
We have just seen that the ambiguity surrounding the meaning and scope of Part VII of the Act allowed the machinery of government to grind on for years after 1988 without paying much attention to its commitments. At last it became essential that these commitments be more clearly defined.
As a result, federal institutions now have positive obligations to ensure that substantive equality is achieved. The Supreme Court of Canada best explained the principle of substantive equality in its Beaulac judgment of 1999:
"This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State; […] It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation."4
The Supreme Court's judgment in the Beaulac case should have guided the government toward a more coherent implementation of the Official Languages Act. Such an orientation would have been conducive to the development and growth of official language communities.
Parliament took the first step in giving the government new direction. To stay on the right path, the government must now keep a firm grip on the wheel and accelerate into the turn. The country's political leaders must be the driving force in implementing the Act. Remember, the journey toward change has already begun. A Privy Council memorandum of December 2005 reminded department heads of the important legislative change that came into effect with the passage of Bill S-3.
All federal institutions must now consider how they can ensure the vitality and development of official language communities and promote linguistic duality. Meeting the first objective will involve rethinking how federal institutions understand the communities and sustain relationships with them. The following chapter on horizontal governance provides a number of promising directions: it describes several mechanisms currently in place—such as simple information sessions—and suggests turning these mechanisms into opportunities for co-operation and avenues for the sharing of knowledge, expertise and resources.
TOWARDS SUBSTANTIVE EQUALITY
The changes brought about by the amendments to the Official Languages Act also imply shifting some of the burden that used to be borne by the communities alone. With the adoption of Bill S-3, the federal government commits itself to finding the appropriate means and tools—namely, policies and programs—to give traction to the Act and the recent legal decisions.
Federal institutions must also work together to enhance the vitality and support the development of official language communities. In order to support the development of these communities, however, we will need to identify and adopt "developmental indicators"—the means to measure the vitality of specific communities. Chapter 4 of this report examines this subject in greater detail.
With respect to the promotion of linguistic duality, the Government of Canada and its institutions must review their commitments in light of changes to the Act. Steps should also be taken to respond to this pressing need. This subject is examined in Chapter 5.
The Government of Canada and its institutions must also respect the provisions of the accountability and coordination framework that is part of the Action Plan for Official Languages. Chapter 6 of this annual report examines the Midterm Report on this five-year action plan. Since the accountability framework already encompasses all federal institutions, it will surely provide a point of departure for the development of a clear and comprehensive statutory framework. (These new regulations are put forth in Chapter 3.)
Bill S-3 equipped the federal government and official language communities with tools to strengthen linguistic duality in the future. From now on, federal institutions must help to make official language communities more dynamic places to work and live. They must also put in place new governance mechanisms that will enrich their understanding of what is required to promote community vitality and development.
The institutions of government must also incorporate into their policies and programs concrete measures to promote linguistic duality in Canadian society. All Canadians should have an opportunity to explore and appreciate the richness that linguistic duality brings to Canadian society as a whole.
In conclusion, the government and its institutions must ensure a more proactive management of their obligations with respect to official language communities and the promotion of linguistic duality, and must be accountable for actions taken.
