Montreal, December 5, 2000
The Commissioner of Official Languages: An ombudsman as agent of change
Speech to the Forum for Ombudsmen
organized by the Institute for International Research
Dr. Dyane Adam - Commissioner of Official Languages
Check against delivery
Ladies and gentlemen:
It is an honour for me to make this presentation to this Forum for Ombudsmen organized by the Institute for International Research. The exchange of ideas that takes place at such events enriches our thinking about our respective roles and thus helps advance our work.
I have entitled my presentation "The Commissioner of Official Languages: An ombudsman as agent of change." Why this title? On what parts of the Official Languages Act can it be based? Is the concept of agent of change compatible with the ombudsman role that is an integral part of my mission? Can ombudsmen, in general, be seen as agents of change? Those are the main questions that I will attempt to answer in my speech.
Before answering these questions I would first like to explain the perspective from which I view the role of language in our societies. As the Mexican writer Octavio Paz said, "Man is the only being who seeks another" (our translation). In this meeting with the other, language obviously plays a major role. It is a particular way of communicating with those who occupy the same geographical space in time. After more than two centuries of life together, Canada's language policy is part of the heritage shared by Anglophones and Francophones in our country.
Have no fear, however; I do not intend to give you a history course today. I will just go back to the 1960s to define the role of the Commissioner of Official Languages.
As you know, the Commissioner of Official Languages derives her mandate from the Official Languages Act, which was passed in 1969 and revised in 1988. While less explicit than the 1988 Act, the 1969 Act already contained the germs of a law aimed at change. When the Act states its purpose as being to ensure the equality of status of English and French as to their use in all federal institutions, it is impossible not to think that this implies a change in the place held by our two official languages in the federal administration. In fact, French held a rather meagre place in it. Aware of this fact, the members of the Royal Commission on Bilingualism and Biculturalism had said that the Commissioner of Official Languages, a position whose creation they recommended, was to be the "active conscience" of Canadians in language matters. Those words imply a vision of change as regards Canada's linguistic reality.
Let us put it another way. Since the language rights guaranteed by the 1969 Act, such as the right to obtain federal services in one's language and to work in one's preferred language, were in many respects more an ideal than a reality, it was clearly necessary to change ways of thinking and acting. A change of mentality and of heart was required.
The various commissioners, taking this as their benchmark and also respecting the more traditional role of neutrality inherent in the role of complaints investigator, have in a variety of ways been catalysts of change. They realized that change in federal institutions could not occur in a vacuum. It had to take place along with a major change in Canadian society. This is why they advocated, among other things, the learning of a second language by young people, exchanges between the two linguistic groups, and better facilities for the education of the linguistic communities in their language.
A major advance toward the equality of the two languages was the passage of the Canadian Charter of Rights and Freedoms in 1982. The equality of the two languages in federal institutions is now rooted in the very Constitution of the country. What is more, a new and fundamental element of equality is added in the Charter: the right of Canadians to have their children educated in their language, where numbers warrant. The Supreme Court has subsequently given this right broader scope by stating that it includes the right to be involved in school management.
In my view, the 1988 Official Languages Act confirms the Commissioner's duty to be an agent of change. Going beyond institutional bilingualism, the Act now includes a formal commitment by the federal government "to enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and fostering the full recognition and use of both English and French in Canadian society." The words "vitality," "development" and "fostering" are terms that call for action, movement and change. This commitment cannot remain a dead letter. Ensuring that it becomes a reality is an integral part of the Commissioner's mission. In my opinion, these concepts give a firm foundation to the concept of the Commissioner as agent of change.
Moreover, a decision handed down by the Federal Court in 1992 corroborates this vision of things. The Court at that time stated, "A quite unusual power to intervene has been conferred on the Commissioner and, when he receives a complaint, Parliament has expressly ordered him to get to the heart of the matter and not simply to examine the technical legality of the actions taken1 by the government department against which the complaint is laid." This decision means, in our view, that the Commissioner must go to the very root of things to ensure that the proposed solution really promises to resolve the situation. This is a very dynamic view of the Commissioner's role.
To include concepts in an Act and even to have a clear interpretation by the courts does not, however, mean that these concepts become reality by waving a magic wand. They depend on the context in which they operate. In this regard, the lean diet that its political masters have imposed on the federal administration since the early 1990s has definitely reduced the momentum that Parliament wanted to restore to linguistic duality with the 1988 Act. The administrative landscape was seriously affected by the staff reductions, institutional reorganizations and transfers of responsibility to other levels of government and to the private sector. Social and cultural values such as the official languages were relegated to the back burner.
What impact have these changes had on the language rights situation? After a study conducted in 1998 on the impact of these transformations, my predecessor concluded that they had resulted in a subtle but cumulative erosion of language rights. In view of this disturbing diagnosis, we might have thought that the government would have responded to check this erosion and give renewed impetus to Canada's official languages policy by taking advantage of the economic upturn of the late 1990s. Our governments continued to say from time to time that linguistic duality was an important value of Canadian society, without realizing that a plant that is not given fertilizer and attention withers away.
Given this continuing stagnation, I felt it necessary to sound the alarm in my first Annual Report to Parliament last October. I stated unambiguously that the government was not providing the leadership it should to affirm linguistic duality. In reading previous annual reports, I was greatly struck by the repetitive nature of complaints. The measures taken by institutions are often superficial or repetitive and have no lasting effect. Moreover, over the years, a number of institutions have developed almost total immunity to recommendations, to the reminders in our annual reports and even, in some cases, to court remedy. Passivity and inertia have unfortunately often gained the upper hand over innovation and creativity.
How can we escape from this vicious circle? Our traditional approach of investigation followed by recommendations has proven inadequate, in many cases, to bring about the required changes. As a result, it seemed to me essential to redirect my organization's efforts to make it act as an agent of change in order to transform the culture of federal institutions.
To this end, I intend to diversify our methods of intervention. We will continue to investigate complaints, but we will develop new methods to resolve them more effectively. We will make more use of negotiation, mediation and conciliation in the hope that the results will be more tangible and lasting. We believe that a solution arrived at jointly by the parties will have a more permanent impact than a solution recommended solely by the Commissioner. Have no fear, this does not mean abandoning our role of defending the public interest. The solutions arrived at will still have to comply with the linguistic guarantees set out in the Official Languages Act.
This change of orientation also implies a more proactive vision of our role as ombudsman. As we do in everyday life to prevent problems, we must develop our ability to anticipate what is developing on the horizon and act further in advance rather than just be reactive. Allow me to give you an example. The government's tabling of the bill on air transport in Canada late in 1999 gave me an opportunity to have a persistent problem rectified, the question of the linguistic obligations of Air Canada's subsidiaries such as Air Nova and Air Ontario. Despite a remedy application filed with the courts in 1997 to have this question clarified, the impasse persisted. More than 400 complaints concerning Air Canada's subsidiaries had accumulated since 1994 without any action being taken on them. I therefore intervened when the bill was being examined by Parliament to have the situation clarified, and linguistic obligations with respect to the subsidiaries are now incorporated into the Act. This role of keeping on top of things is soundly grounded in the Official Languages Act, which allows me to "initiate a review of any regulations or directives made under this Act that affect or may affect the status or use of the official languages."
I believe that thus far I have answered the first two questions asked in my introduction, namely, those concerning the basis in the Official Languages Act for the concept of agent of change and the compatibility of this concept with our role as ombudsman.
I have yet to deal with the most delicate question, namely can ombudsmen in general be seen as agents of change? It is obviously not for me to tell you how to play your role in your area of activity. It seems to me, however, that an ombudsman cannot restrict herself to recording failures to comply with an Act or to tirelessly repeating the same recommendations without the risk of undermining her credibility. I must say that I am fortunate in this regard, since the Official Languages Act specifies that "it is the duty of the Commissioner to take all actions and measures2... with a view to ensuring" the achievement of the objectives of the Act.
As I see it, an ombudsman must take all the measures required to overcome the resistance and roadblocks that deprive Canadians of their rights. Otherwise, he risks being seen as a powerless observer or as a moral support in the face of inaction. Confronted with increasingly complex acts, regulations and administrative standards, citizens are often at a loss when they feel wronged. When an inadvertent error is involved, the ordinary intervention of an ombudsman is often sufficient. However, when there is a persistent problem requiring a more comprehensive remedy, or a deficiency originating in the very wording of an Act or regulation or in widespread attitudes that are contrary to the principles of justice and equity, an ombudsman must try to convince the political or administrative authorities to take action that gets to the root of these situations.
In my opinion, this links up with the important concept, enunciated by the Federal Court, of the need to "get to the heart of the matter." It is a concept that goes very well with what I see as an ombudsman's intrinsic responsibility. As ombudsmen, we must apply the well-known maxim of Boileau: "go back to your work again," that is, keep at your task tirelessly and take every opportunity to get the message across.
How can we achieve the changes desired? In many cases, changes to the very culture of an organization are involved. The best way to achieve this, I believe, is by educating and raising the awareness of the persons involved. The key players must be carefully identified and led to understand that the implementation of important rights or principles could be compromised if practices, standards or laws are not changed. I have therefore asked my team to be more proactive with regard to federal institutions by intervening as early as possible in the event of changes to policies or standards that could have a negative impact on the Official Languages Act. We will also intervene more with responsible managers to find solutions with them to the deficiencies brought to light by complaints. For my part, I will devote a great deal of time and energy to intervening at the higher levels of the federal administration, because they provide the impetus for any real change to the culture of the government.
It is interesting to note that a number of ombudsmen in Canada and other countries increasingly see their role in this light. I think that in this way we help to move our societies forward toward greater respect for the principles of equality, equity and justice.
Are these principles being applied in the area of language? Despite the obstacles and the lack of government leadership for too many years, I still hope for improvement. Some important political and administrative players have shown sensitivity to the need for a major renewal if the culture of the public service is to be more imbued with the fundamental value of linguistic duality. In recent judgments, the Supreme Court has also affirmed the inalienable character of language rights while restating the need for continuing progress toward their implementation. In the Beaulac case, the Supreme Court, in the person of Mr. Justice Bastarache, stated that language rights "must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities." In my view, this statement reaffirms the need for continued movement toward the full achievement of linguistic equality.
The Governor General of Canada recently said that language is the expression of a person's soul and sensibility. It forges our collective identity. I feel privileged as Commissioner of Official Languages to defend the richness of our linguistic duality and our cultural diversity in a world that is becoming more and more homogeneous. It is an onerous but extremely stimulating task. You also play an important role in protecting human rights in public administration. Each of you contributes in your own way to the noble task of strengthening the intrinsic values of democracy.
Thank you.
Notes
