CHAPTER THREE: TOWARDS NEW OFFICIAL LANGUAGES REGULATIONS
Previous Page | Table of Contents | Next Page
In her annual report last year, the Commissioner urged the government to review the Official Languages Regulations—Communications with and Services to the Public (hereinafter the "1992 Regulations"). This call to action arose from the following observation: progress in improving the capacity of public institutions to respect the rights of Canadians to be served in the official language of their choice was stagnating.
The Commissioner spared no efforts to further this issue in 2005. In particular, she undertook a pan-Canadian consultation tour, mobilizing some 250 people from official language communities, associations, and academic and professional communities.
This consultation allowed her to examine numerous changes that have taken place within Canadian society since the 1992 Regulations were adopted. The decreasing proportion of linguistic minorities, multiple affiliations, technological innovation, migration to urban centres and the increased number of people with knowledge of both official languages are all factors that influence the Canadian public's right to communicate with and receive services from the government in the language of their choice.
The results of the pan-Canadian consultation were clear: the 1992 Regulations, developed to meet the needs of a bygone era, are no longer relevant and need to be modernized. In addition, the consultation reinforced the need to begin discussion on new regulations for official languages. The timing seems right, following the adoption of Bill S-3, which clearly conferred on the government the obligation to take positive measures to respect its commitment to linguistic duality.
This chapter first paints a general picture of the current regulatory framework. It then examines the only regulations adopted by the government under the Official Languages Act, namely the 1992 Regulations. It shows how ill-adapted these regulations are to today's reality. The chapter continues with a rationale to guide the government in the development of new, more coherent and effective official languages regulations. In particular, this chapter proposes principles on which the government should base its approach to renewal.
THE 1992 REGULATIONS, DEVELOPED TO MEET THE NEEDS OF A BYGONE ERA, ARE NO LONGER RELEVANT AND NEED TO BE MODERNIZED.
The current regulatory framework
Federal institutions' obligations to the public and to official language communities are linked to a specific legal framework. They stem first from the Constitution Act, 1867 and the Canadian Charter of Rights and Freedoms. These fundamental laws guarantee the equality of status of English and French within the institutions of Parliament and the Government of Canada, and grant language rights to all Canadians.
In 1988, to ensure full implementation of these constitutional rights, Parliament revised the Official Languages Act, 1969 and specified the obligations of federal institutions. Pursuant to the Official Languages Act, 1988, the government could also adopt regulations to specify how the Act is implemented.
To date, only one set of regulations has been adopted: the 1992 Official Languages Regulations—Communications with and Services to the Public. They set out criteria for the implementation of the linguistic obligations of federal institutions with respect to communications with and services to the public (Part IV of the Act). Regarding other obligations provided for in the Act, the government has chosen other tools to direct their implementation, such as policy and administrative directives.
The 1992 Regulations: ill-adapted to contemporary reality
REGULATIONS BASED ON NUMBERS
The 1992 Regulations are limited to specifying the circumstances under which the offices of federal institutions are required to serve or communicate with members of the public in the official language of their choice. Offices must accordingly fulfill this obligation when the use of English and French:
- has been the subject of "significant demand"; or
- is justified by the "nature of the office".
In an effort to help the government define in the Regulations what constitutes "significant demand", Parliament identified four criteria in the Act:
- The number of persons in the English or French linguistic minority and the proportion the minority represents of the population of the region served;
- The volume of communications or services;
- The particular characteristics of the minority community;
- Any other factors that the Governor in Council considers appropriate.
These four criteria are not mutually exclusive. On the contrary, they may be seen as a whole composed of complementary elements. But in 1992, the government chose to limit itself primarily to only two of the four criteria: the first and the second.
Essentially, this means that the government is limiting itself to numerical criteria13 to decide whether there is a significant demand and, accordingly, whether there is an obligation to communicate and deliver services in both official languages. The government has therefore taken very little account of the "particular characteristics" of English or French linguistic minorities.
| The Charter and the Act require that the head office or headquarters of federal institutions provide services in both languages. |
Problems with the application of numerical criteria
Strict application of numerical criteria gives rise to unfair, complex and unequal situations.
For the purposes of this discussion, we will examine the cases of Yarmouth, Nova Scotia, and Sept-Îles, Quebec. Some 625 French-speaking people live in Yarmouth14, representing 8.4% of the total population in this region. These people have the right to receive all local services in their language. By contrast, despite their larger numbers (870), members of the Englishspeaking community of Sept-Îles have the right to receive only key services15 in their language. This is because they do not comprise at least 5% of the region's total population. How can this situation be justified in terms of equity?
The strict application of these numerical criteria also has an impact when determining the number of federal institution offices that will be designated bilingual for the purposes of services and communications. Thus, in Greater Vancouver, where 30,830 Francophones representing less than 2% of the total population live, federal institutions, except for Canada Post, are required to offer their services in French in only one of their local offices. How can there be genuine accessibility and services of equal quality when a member of the public is forced to go across the city to obtain a service in the official language of his or her choice, at the only office required to provide it in that language? There are similar situations in other large urban centres such as Edmonton, Québec, Calgary and Victoria.16 Yet, in each of these cities, there is a dynamic official language community committed to its own development.
Another problematic application of the 1992 Regulations concerns the public travelling on the Trans-Canada Highway, and the RCMP's linguistic obligations towards them. The Regulations were formulated in such a way that the linguistic obligations of RCMP offices have been defined based on local population, rather than in consideration of the public travelling on the Trans-Canada Highway. Depending on which stretch of the highway members of the public are stopped or need the services of the RCMP, they may or may not have the right to be served in the official language of their choice. Is it really necessary to remind the government that the Trans-Canada Highway is not used exclusively by the local population, but by the Canadian public as a whole?
The travelling public using the services of Air Canada is subject to the same kind of anomaly. The 1992 Regulations are such that the public's rights are defined based on the bilingual nature of the flight and of the airports where it takes off and lands. As such, a member of the public may lose his or her language rights and regain them on a single trip, depending on the stops that are made.
LANGUAGE RIGHTS OF THE PUBLIC TRAVELLING WITH AIR CANADA
For instance, a member of the public travelling from Halifax to Regina with a stop in Toronto has the right to bilingual service at the airport in Halifax. This right is lost on the plane to Toronto, but regained at the airport in that city. Later on, this person has the right to bilingual service on the flight to Regina, but upon arrival at the airport in that city, this right is once more revoked.
Hence, the issues are not simply theoretical. Some language communities have lost their right to be served in their language following application of the census data of 2001. Offices of Social Development Canada and Human Resources and Skills Development Canada17 are no longer required under the Regulations to offer bilingual services in Labrador City (N.L.), Moose Jaw (Sask.) and Sainte-Rose-du-Lac (Man.).
We must also acknowledge that the Official Languages Regulations—Communications with and Services to the Public, in their current form, give more consideration to the operational constraints of federal institutions than to the right of the public and members of a community to receive services of equal quality in the official language of their choice.
For example, services are offered by federal institutions based on the administrative division of regions—so strictly, that a community can find itself divided between two service areas for offices of the same federal institution and thus be deprived of the right to be served in the official language of its choice. This is the case for the Franco-Albertan community of Falher, which does not have the right to be served in French by the Canadian Food Inspection Agency office located in Grande Prairie given the low proportion it represents of the general population within the Agency's service area.
| Offices of Social Development Canada and Human Resources and Skills Development Canada are no longer required under the Regulations to offer bilingual services in Labrador City (N.L.), Moose Jaw (Sask.) and Sainte-Rose-du-Lac (Man.). |
Towards more coherent and effective regulations
We saw in previous sections of this report that under the Official Languages Act, 1988, the government may adopt regulations to specify how certain Parts of the Act are implemented. To date, only the Official Languages Regulations—Communications with and Services to the Public (1992) have been adopted. These regulations have a limited scope, since they deal with only one part of the Act; i.e., Part IV—Communications with and Services to the Public.
However, regulations that affect only a single part of the Act do not foster coherence and effectiveness.
One must remember that, since 1988, the government also has other obligations under Part V (Language of Work). It decided to adopt policies and administrative directives rather than regulations to specify how this part of the Act is implemented. However, research and studies conducted by the Commissioner over the last few years have led her to conclude that the federal government does not currently make use of the appropriate tools and supports to implement this part of the Act seriously.18 The Commissioner notes that progress on this subject seems to be stagnating (see Chapter 7).
In addition, the adoption of Bill S-3 in 2005 granted government the authority to enact regulations regarding Part VII (Advancement of English and French). In other words, it may, by way of regulations, specify how federal institutions must work to foster the growth and development of official language communities and promote linguistic duality in Canadian society.
Given these circumstances, there are calls to open a discussion on the implementation of federal institutions' obligations under the Act. In addition to modernizing the 1992 Regulations, the government must establish a step-by-step renewal process leading to more coherent and effective regulations.
To set this renewal process in motion, the government should plan for new regulations, taking into account the need to specify the implementation of federal institutions' obligations under Part IV. It should also consider the relevance of specifying the obligations of federal institutions under other Parts of the Act. In this way, the right of the public and the communities to equal access to services of equal quality has a better chance of being fully implemented.
| The case of Forum des maires de la péninsule acadienne v. Canada is a good example of the need to modernize the 1992 Regulations. This case involves the Canadian Food Inspection Agency's decision to transfer certain positions from one region to another. The Court of Appeal indicated that the Agency's failure to take into account the impact of the move on the rights of communities to be served in their language infringed on Part IV of the Act. New regulations with respect to service to the public should stipulate the process to be followed in such cases. Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) (F.C.A.), [2004] 4 F.C.R. 276, 2004 F.C.A. 263. |
The case of Canada Post in Edmonton outlines new possibilities in this area. To fulfill its linguistic obligations, the institution opened a postal outlet in Cité francophone, a community centre in Edmonton. By choosing to open a bilingual outlet in this location, the federal institution accomplished two things at once. First, it fulfilled its obligations with respect to bilingual services (Part IV); second, it did so in a way that fosters growth and development of the Franco-Albertan community and promotes linguistic duality (Part VII). New regulations should urge federal institutions to come up with similar innovative solutions.
| Necessary links between Parts IV and VII The case of CALDECH (Centre d'avancement, de leadership et de développement économique communautaire de la Huronie) provides a good example of the links to be made between Parts IV and VII. In this case involving Industry Canada, the Commissioner raised the following argument: in order for the community to receive services of equal quality in its language, the department must not only ensure that the funding agency offers services in both official languages, but it must also ensure that the services meet the particular needs of the Francophone community. For the department, such a requirement instead falls under Part VII. The issue is now before the Federal Court of Appeal. Desrochers v. Canada (Industry) (F.C.), [2005] 4 F.C.R. 3, 2005 FC 987. |
Guiding principles that should inspire new official languages regulations
The conceptual approach that should guide the government in modernizing the 1992 Regulations and establishing the required links with the implementation of Part VII of the Act rests on a number of guiding principles.
1. SUBSTANTIVE EQUALITY
The Official Languages Act aims to realize the equal status and use of English and French in federal institutions. It also aims to advance their equality of status and use within Canadian society. The Supreme Court of Canada has taught us that, to achieve equality, "it is not enough to treat all persons or all similarly situated persons equally if they have different needs."19 Equality should not be seen as merely an administrative accommodation.
New regulations should therefore have as their objective the implementation of the principle of substantive equality, as defined by the courts. To achieve this, the government should take into account the specific characteristics of official language communities, which have the right to be served in the official language of their choice, and consider their needs when determining service delivery mechanisms, as well as program delivery.
2. THE REMEDIAL CHARACTER OF LANGUAGE RIGHTS
This principle, expounded by the Supreme Court of Canada, means that language rights provided for in the Charter must also serve as a remedy to correct the progressive erosion of minorities speaking either official language.
Therefore, new regulations must also have the objective of fostering the growth and development of official language communities. According to this principle, significant demand should not be defined exclusively on quantitative criteria, but also on qualitative criteria. As such, institutions should be required to serve official language communities wherever they are, regardless of their proportion of the total population within the service area.
![IT IS NOT ENOUGH TO TREAT ALL PERSONS [...] EQUALLY [...] IF THEY HAVE DIFFERENT NEEDS.](/images/user/Illust8_e.jpg)
"IT IS NOT ENOUGH TO TREAT ALL PERSONS [...] EQUALLY [...] IF THEY HAVE DIFFERENT NEEDS." 19
3. COHERENT AND EFFECTIVE IMPLEMENTATION OF THE ACT
New regulations regarding the obligations of federal institutions should foster the coherent and effective implementation of the Act as a whole, rather than a piecemeal implementation.
4. SIMPLICITY
New regulations should bank on simplicity to enable citizens as well as federal institutions to better understand the rules governing language rights. For instance, services to the travelling public should not be fragmented.
5. ACCESSIBILITY
New regulations should focus on the accessibility of services, in order to reach Canadians in their own environments.
Such a principle presupposes that, in some cases, services are offered within proximity of official language communities.
This chapter dealt with the obligations of federal institutions to respect the rights of Canadians to be served in the official language of their choice. In terms of official languages, such a discussion inevitably leads to the broader issue of development and growth of communities and advancement towards the equality of English and French within Canadian society.
In order to respond more adequately to the needs of official language communities, the government must first be attentive to the realities of these communities. This attention presupposes that citizens are treated with respect. It also involves a culture of service delivery in both languages, accessible and based on an active offer.
Adapted, coherent and effective regulations can be an instrument allowing for the implementation of all obligations set out in the Act. By adopting such regulations, the government is more likely to reach multiple goals, including the delivery of fair and accessible services, the promotion of linguistic duality, and the development and growth of communities.
| Therefore, the Commissioner recommends: That the President of the Treasury Board, for the purpose of establishing adapted, coherent and effective official languages regulations within the government:
|
