Ottawa, September 3, 2003
Speaking Notes for a Presentation before the Senate Standing Committee
on National Finance with regard to Bill C-25
Dr. Dyane Adam - Commissioner of Official Languages
Check against delivery
Mr. Chair,
Ladies and Gentlemen of the Committee,
I would like to thank you for giving me the opportunity to comment on Bill C-25 on the modernization of the public service.
Introducing legislative reform to modernize the public service of Canada was indeed a tremendous challenge for the government. The President of the Treasury Board, with the help of many public servants, has shown great determination in introducing this piece of legislation.
The public service is a key institution in Canada’s political system. It is a crucial link between Parliament, the Government and the Canadian people, providing a multitude of services that contribute to the well-being of all Canadians. The public service must be responsive in order to better serve the public, but it must also reflect the values of the society it serves. The legislation on which it is based must give practical expression to these values. Linguistic duality is a fundamental value of Canadian society whose foundations can be found in our Constitution. For its part, the Official Languages Act sets out the obligations of federal institutions with respect to services to the public and language of work. The current government also reaffirmed its commitments to linguistic duality in the Speeches from the Throne in 2001 and 2002. In its Action Plan for Official Languages1 released in March 2003, the government also set the objective of creating an exemplary public service with regard to official languages.
In my presentation today, I would like to show how this bill could contribute to linguistic duality.
1. First of all, I will outline the contribution of the Office of the Commissioner of Official Languages (OCOL) to this reform.
2. Second, I would like to ask you to make three changes that all pertain to the new Public Service Employment Act. These amendments relate to language training, the Public Service Staffing Tribunal and competition notices.
3. Third, since the legislative reform will involve updating related policies and regulations, I would like to see action taken to correct certain anomalies.
1. OCOL's contribution to the modernization of the public service
Since the Treasury Board Secretariat decided to reform the public service, OCOL has stepped in to reiterate that linguistic duality is at the very heart of the public service. We produced a public document entitled Towards a Modern and Bilingual Public Service, which summarized our approach and our suggestions to the government. These suggestions were intended to ensure that the official languages become an integral value in the operations of the public service and part of the culture of each institution. The key points were as follows:
- include fluency in English and French as basic skills and treat them as such in the classification of positions;
- work toward the widespread use of imperative staffing for bilingual positions;
- require that all deputy ministers be bilingual; and
- include language training in public servants' training and professional development plans.
Last March, I appeared before the House Standing Committee on Government Operations and Estimates to suggest changes to Bill C-25. Since linguistic duality is intrinsically related to work in the public service, I suggested that this value be included in the preamble to the Act. In accepting this change, the Government and members of Parliament recognized that all the objectives of the Official Languages Act are reaffirmed through this reform. At the third reading of Bill C-25, the Treasury Board President reiterated that linguistic duality is indeed one of the "guiding principles" of the new Act. Since linguistic duality is so clearly part of the foundations of the public service, I ask you to consider these additional changes that could give practical expression to this value.
2. Proposed changes to Bill C-25
A) Language Training
The first change I would like to suggest pertains to language training. Since the very beginning of the official languages program, this training has sought to increase the bilingual capacity of the public service while ensuring that unilingual Canadians can join the public service and advance in it. Bill C-25, however, does not reflect this.
Many people agree that language training must be an integral part of professional development. It is not enough to simply satisfy, on paper, the language requirements for positions. The Action Plan for Official Languages, for example, states that language training should be improved and offered earlier in a public servant's career. The President of the Treasury Board is also in favour of reviewing language training, which is currently the responsibility of the Public Service Commission.
In order to foster a consistent approach, I suggest that the language training of public servants become the responsibility of the new School of Public Service, which is provided for in Bill C-25. By doing this, Parliament would show that learning the second language is part and parcel of developing the knowledge and skills that managers and employees must have to effectively perform their duties in the federal public service. The school could impart the values inherent to the language and culture through its professional development programs. I therefore recommend that the following subsection be added to the mission and duties of the future school:
"provide language training so that public servants can reach the proficiency levels required for positions designated bilingual in order to ensure that the Official Languages Act is implemented and to help employees achieve their career goals."
B) Bilingual Capacity of the Public Service Staffing Tribunal
The second change I would like to suggest pertains to the bilingual capacity of the Public Service Staffing Tribunal. Bill C-25 provides for the creation of a new independent tribunal that would be responsible for reviewing complaints about internal appointments. I note with interest that failure to respect the right to be evaluated in the language of one's choice in an appointment process will be included among the potential grounds for complaints before the new tribunal.
A study we conducted in 1999, The Equitable Use of English and French Before Federal Courts and Administrative Tribunals Exercising Quasi-Judicial Powers,3 showed that some federal tribunals face challenges with regard to upholding language rights. The members of federal tribunals appointed by Governor in Council do not always have the language skills required to meet the demand from the parties being heard. Yet section 16 of the Act clearly states that federal courts have the duty to ensure that the person hearing a case is able to understand the official language chosen by the parties, without the help of an interpreter. As a result, all courts and tribunals must maintain sufficient bilingual capacity at all times to ensure that the language of the hearing does not alter impartiality procedures or cause undue delays for the parties. This does not mean that every member of the tribunal must be bilingual, but rather that the tribunal "as a group" must be able to function effectively in both languages.
I am therefore of the opinion that the collective linguistic capacity of tribunal members must be considered as early as during the appointment process. Moreover, the bill already provides that candidates must have certain qualifications in order to be appointed as tribunal members. I am not suggesting adding further qualifications, but rather making the Governor in Council accountable by adding the following to section 88 of the bill:
"The Governor in Council shall ensure that members of the tribunal, as a group, are able to hear complaints in both official languages, in accordance with the provisions of section 16 of the Official Languages Act."
C) Competition notices
Since I appeared last March with regard to Bill C-25, some people have raised the issue of competition notices. I have carefully reviewed this matter and am of the opinion that the language requirements must be clarified. As compared with the old Public Service Employment Act, this bill has an omission that could threaten certain acquired rights. The new bill does not state that competition notices must be posted in both official languages. It is only logical that if employees have the right to be evaluated in the language of their choice they should also be able to learn of a competition in their preferred language. Without an explicit provision in this regard, however, the bill is open to interpretation. I suggest therefore that wording similar to that of the old act be repeated in section 33, which pertains to types of appointment processes:
"An advertised appointment process must be communicated in both official languages."
3. Elimination of non-imperative staffing
In order to serve the public in both official languages and guarantee public servants' right to work in their language, a number of positions in the public service are designated bilingual. These positions are usually staffed by qualified candidates with the required language skills. Through exclusion orders, however, a person not meeting the language requirements may be appointed to a bilingual position. Such persons are allowed two years to acquire these language skills, at public expense. This is referred to as "non-imperative staffing," to use the bureaucratic jargon.
What was intended as a transitional measure has become a long-standing practice. According to the 2001-2002 Public Service Commission annual report,4 non-imperative staffing is still used in 20 percent of the bilingual positions staffed. This is a significant anomaly that the government must address in its review of the implementing regulations and related policies.
I therefore recommend that non-imperative staffing be eliminated gradually, starting with internal staffing. This would send the message that a public servant must first acquire the knowledge required for a bilingual position before applying for it. Motivated individuals wishing to prepare themselves must be granted equitable access to language training, regardless of the linguistic designation of their position. Greater emphasis must also be placed on maintaining the skills acquired. At the same time, persons not meeting the requirements of the bilingual positions they hold must be transferred within a reasonable time. The President of the Treasury Board took clear action in this vein last March with regard to senior officials. A recent study by the Canadian Centre for Management Development on language of work, entitled French to Follow?,5 also makes similar recommendations. I suggest that imperative staffing should be the rule for managers as of April 2004, and that the same rule apply for other positions as of April 2006.
Insofar as external hiring is concerned, I suggest that, for the time being, the government be allowed to continue to recruit people who do not meet bilingualism requirements. However, people who still do not meet the linguistic requirements of their positions after the two-year period for learning the second language through publicly funded training could not be selected for an appointment in the public service. Appointments to positions designated bilingual should therefore always be conditional on acquiring and maintaining these skills. This would require a change to the exclusion order. Since the government intends to make major investments to encourage the learning of the second official language in schools, it seems only natural that non-imperative staffing should be gradually eliminated for external staffing. This would constitute another major step in making the public service a bilingual institution that reflects the fundamental value of linguistic duality.
Conclusion
In an era of pluralism and diversity, the public service must continually adapt in order to reflect changes in society. It must do so while continuing to include official languages among its underlying values. A bilingual public service can play a crucial role by helping to build bridges between our two official language communities and thus help to make our society more open to differences, the key to continued progress in accommodating the rights enshrined in our country's Constitution.
Thank you for your attention. I would be glad to answer any of your questions.
Notes
1 See http://www.pco-bcp.gc.ca/aia/default.asp .
2 See http://www.ocol-clo.gc.ca/html/rights_droits_e.php.
3 See http://www.ocol-clo.gc.ca/html/stu_etu_051999_e.php.
4 See http://www.psc-cfp.gc.ca/centres/annual-annuel/2002/index_e.htm.
