Moncton, November 7, 2008
Notes for an address at the Symposium: A Look at the Official Languages Act
of Canada, the Official Languages Act of New Brunswick
and the Protection of Language Rights
The Act and its Spirit: Openness and Inclusiveness
Graham Fraser – Commissioner of Official Languages
Check against delivery
Ladies and Gentlemen,
I would like to start by saying how pleased I am to be participating in this symposium on language rights organized by the Université de Moncton’s Faculty of Law, which is celebrating its 30th anniversary.
The past three years have been marked by a number of events. In 2006, we celebrated the 20th anniversary of Ontario’s French Language Services Act, which was adopted in 1986. In 2007, the Canadian Charter of Rights and Freedoms, which was adopted in 1982, turned 25, and this year we are celebrating the 30th anniversary of your faculty’s French-language common law program. Finally, 2009 will mark the 40th anniversary of the Official Languages Act of New Brunswick and the Official Languages Act of Canada.
These celebrations give us an opportunity to look at the progress that has been made in the area of language rights and to identify areas of reflection. As the President of France recently remarked during a trip to Québec City, observing anniversaries and commemorations means looking to the future, not just the past. The future is what we must work on together.
In fact, it’s this desire to shape our future that motivates us to review progress in language rights, and that has inspired the topic of today’s discussion: “Do official languages acts meet the needs of the people and communities for which they were adopted?”
We could answer that question like lawyers: “yes and no.” It all depends on our perspective. Given the amendments made to the Official Languages Act of Canada over the last 40 years, the statutory recognition of language rights allows us to respond in the affirmative. However, if we look at implementation through the machinery of government, our response is not so simple.
1. Statutory recognition of language rights at the federal level
In Canada, the recognition of language rights has often been the result of political compromise, linguistic crises and legal challenges. In some cases, this recognition has also stemmed from strong leadership on the part of the government and official language communities.
Over the past 40 years, two important changes led to statutory recognition of language rights at the federal level.
It was primarily thanks to the leadership of Prime Minister Lester B. Pearson that the 1969 Official Languages Act came into being. In the midst of a national unity crisis in response to rising Quebec nationalism, he recognized the importance of language rights and created the Royal Commission on Bilingualism and Biculturalism. This commission was mandated with providing recommendations based on equal status and equal opportunity, the foundations of the 1969 Official Languages Act.
In 1969, the adoption of the Official Languages Act enshrined formal recognition of the equal status of English and French. It also recognized the public’s right to receive services in both official languages from federal institutions in the National Capital Region and designated bilingual districts. However, in order to increase coverage of bilingual services, this concept of “territoriality” represented by districts would be abandoned in favour of one of “personality,” which is geared more towards the rights of individuals.
The Act also created the position of Commissioner of Official Languages, whose role involves ensuring implementation of the Act and investigating complaints from the public. However, the Act did not recognize the right of public servants to work in the official language of their choice or the right to apply for a court remedy in their language.
In 1988, the Mulroney government undertook a major revision of the 1969 Act in order to ensure full implementation of the rights guaranteed by sections 16 to 20 of the Canadian Charter of Rights and Freedoms.
The 1988 Official Languages Act is a quasi-constitutional statute that must be interpreted through the prism of its dual objectives. First of all, it ensures respect for English and French as official languages, as well as their equal status and equal rights and privileges as to their use in federal institutions. Secondly, it supports the development of English and French linguistic minority communities and advances the equal status and use of English and French within Canadian society.
Its objective therefore reminds us that recognition of language rights has both an individual and a collective dimension, because it is aimed at ensuring the protection and vitality of English-speaking and French-speaking minorities.
The Act of 1988 also differs from that of 1969 in that it is considerably broader in scope. In addition to being enforceable, it recognizes the public’s right to receive bilingual services in the National Capital Region, as well as where there is significant demand or where warranted by the nature of the office. It also recognizes the right of employees to work in their language and the right of complainants to deal with courts in their language. Finally, the 1988 Act sets out the government’s commitment to enhancing the vitality and supporting the development of official language minorities.
In 2005, the Official Languages Act was amended to clarify the scope and nature of the government’s commitment to official language minorities. In truth, the implementation of this commitment by institutions had been timid at best, and all too often dependent on the will of the government and ministers of the day.
In 2004, the legal challenge in the Forum des maires de la Péninsule acadienne case1 attempted to clarify the nature of the government’s commitment as set out in Part VII of the Act. The question was whether this commitment was essentially declaratory or whether it did actually involve an enforceable commitment that would impose obligations. The Federal Court of Appeal concluded that Part VII is essentially declaratory, that it imposes neither rights nor obligations that can be enforced by the courts, and that this is a debate best left to Parliament.
The matter was resolved before the Supreme Court could rule on the subject. Thanks to the leadership of Senator Jean-Robert Gauthier and of some parliamentarians, Bill S-3 was adopted in 2005. This bill imposes on federal institutions the obligation to take “positive measures,” and it recognizes the right of complainants to address the courts in the official language of their choice.
In short, this progress resulted from the goodwill of the government and ministers of the day, but it had even more to do with the intervention of parliamentary committees, language commissioners and communities. The truth is that Parliament imposed this obligation on the government—which is really quite exceptional.
This overview of the amendments made to the Official Languages Act over the past 40 years demonstrates how Parliament was able to make the necessary changes to the Act to ensure that it meets the needs of communities. In some cases, like that of Bill S-3, these changes grew out of a dialogue between judiciary and parliamentary procedures. Despite all of the amendments, the Official Languages Act is still not perfect and could certainly be improved. But I believe that the primary challenge lies in its implementation.
2. Implementation of the language rights recognized in the Official Languages Act
Over the past 40 years, the obligations set out in the Official Languages Act have been implemented by the government and the federal administration in a minimalist way, often without consideration for the spirit and intent of the Act.
By way of example, I would point to the implementation of the public’s right to receive government services in English and French, an obligation that is also found in New Brunswick’s and Ontario’s language regimes.
So let’s look at the official languages regulations on communications with and service to the public, which were adopted by the government in 1992 to determine how the language rights of the public and of communities would be met. The Regulations define the circumstances under which there is an obligation to provide services in both official languages, specifically where there is significant demand or where warranted by the nature of the office. The concept of significant demand is essentially based on numerical and demographic criteria. These criteria do not sufficiently take into account the specific characteristics and needs of communities. In some cases, this gives rise to situations of inequality for official language communities.
To illustrate, let’s compare two official language communities: the Francophone community of Yarmouth, Nova Scotia, and the Anglophone community of Sept-Îles, Quebec. In 2001, Yarmouth’s Francophone community consisted of 625 people and represented 8.4% of that region’s total population, giving it the right to receive all services from local federal offices in French. In contrast, the Anglophone community of Sept-Îles consisted of 870 people, which is less than 5% of the total population—the minimum percentage necessary in order to receive services from federal offices in their language. It therefore had the right to receive only key services in English.
How do we justify this situation in terms of equity? The Regulations are being interpreted as establishing a ceiling rather than a minimum threshold, and institutions are not encouraged to exceed that minimum threshold.
It is therefore my opinion that the regulatory framework adopted in 1992 does not meet the needs of official language communities and should be revised so that official language communities receive services of equal quality in their language from federal departments, regardless of their proportion in the region covered by the offices. But this has to be done in a strategic and targeted fashion.
As a matter of fact, that is the approach adopted by Service Canada in the development of its new service strategy, which would enable all official language communities to be served by a bilingual Service Canada centre within a radius of 50 km. This strategy was developed following consultations in 2006 with approximately 60 organizations representing official language communities, which identified their needs in terms of services. While implementing this new strategy creates obvious operational challenges, the fact remains that the initiative demonstrates strong leadership on the part of Service Canada, which took community needs into consideration in its strategy.
While recognizing that the delivery of bilingual services to the public has greatly improved over the past 40 years, implementation of the Act seems to have reached a plateau.
For instance, how do we explain that, 20 years after the 1988 Official Languages Act was adopted, institutions still don’t always seem to understand the importance of actively offering services to the public in both official languages? The truth is, many members of Francophone or Anglophone minorities may hesitate to ask for service in their language if they get the impression that they are a bother. Active offer therefore promotes the full exercise of these fundamental rights. Although active offer constitutes a key element of bilingual service, it is only available one out of every five times.
How do we justify that communities must still turn to the Supreme Court of Canada for recognition of their right to receive services of equal quality in their language—i.e., services that meet their needs? In the CALDECH2 case, the Supreme Court of Canada will soon rule on the question of whether the obligation to provide bilingual services may, in some cases, involve the provision of services that take into account the specific needs of official language minority communities (such as economic development services). This ruling will be just as important as the one rendered in Beaulac,3 which helped define the rules of interpretation that are applicable to language rights.
In short, how do we convince federal institutions to commit to liberally applying the Act, by going beyond respect for the letter of the Official Languages Act and taking into account its intent and its spirit?
Conclusion
There are three factors to ensure the success of a language regime: the leadership exercised by the various stakeholders; their willingness to work together to ensure that equality of English and French is a reality; and finally, productive dialogue between the courts, parliamentarians and the government. This is true in terms of both recognition of language rights and their implementation.
Federal institutions obtain better and lasting results for Canadians when the government, senior management and public service employees demonstrate strong leadership by recognizing the rights and values inherent in linguistic duality. But beyond the letter of the law, there is the spirit of the law. In order to respect the spirit of the law, which is a spirit of openness and inclusiveness, Canadians must recognize that both English and French, along with the cultures expressed through these two official languages, belong to everyone. We need to broaden our definition of “us.” The 40th anniversary of the Official Languages Act, which will be celebrated in 2009, seems to me the perfect opportunity to make this vision a reality.
1. Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) (F.C.A.), [2004] 4 F.C.R. 276, 2004 FCA 263
2. Desrochers et al. v. Department of Industry Canada et al., Supreme Court of Canada no. 31815.
