Ottawa, October 6, 2005
Notes for an Appearance Before the House of Commons
Standing Committee on Official Languages
Dr. Dyane Adam - Commissioner of Official Languages
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Mr. Chair, Honourable Members:
I thank you for allowing me to testify, once again, in favour of Bill S-3. I say once again because this is not the first time since this Bill was introduced, whether under the name Bill S-4, S-11 or S-32, that I have had the opportunity to express my views on the subject. However, I sincerely hope that this will be the last time since the time has come, in my view, for Parliament to seize this opportunity to move the debate in the right direction.
I would obviously like to emphasize my great admiration for the author of this Bill, the Honourable Jean-Robert Gauthier. I would also like to take this opportunity to recognize the leadership of the Honourable Member of Parliament Don Boudria, who has enthusiastically sponsored this Bill in the House of Commons.
Since I believe I am one of the last witnesses to be heard, I will comment on the Bill first. Moreover, since I have had the opportunity to see the kind of questions put to the other witnesses, I will endeavour to answer your questions, insofar as possible. After that, I would be pleased to discuss any questions concerning this Bill, which is so important for the future of official language minority communities.
Bill S-3 in its original version
It will undoubtedly not come as a surprise if I tell you that I fully support Bill S-3 in its original version. This Bill has the merit of being clear, concise and precise. It is not necessary to go back very far in time to note that, following the amendments made to the Official Languages Act in 1988, the Government of Canada and its institutions have always had a great deal of difficulty living up to their obligations and duties under Part VII. Many have believed, and still believe, that the ultimate responsibility for this Part falls to the Department of Canadian Heritage for the simple reason that this department is responsible for coordination pursuant to section 42 and plays a prominent role with respect to promotion.
I will spare you all the details concerning the implementation of Part VII since 1988. My office has, in fact, published numerous studies and reports on this topic over the last few years.
Having said that, time is marching on and it is clear that while officials endlessly debate how to implement Part VII, concrete progress for official language communities is a long time coming. While there have certainly been some worthwhile initiatives from time to time, and some departments and agencies have collaborated effectively with these communities, this remains too often the exception rather than the rule.
However, this is not good enough and this Bill corrects a serious shortcoming by clarifying–I was almost tempted to say “finally!”–the responsibilities of federal institutions.
In this debate, we tend to get bogged down in the details, to spend more time hair-splitting on issues such as obligation of means versus obligation to achieve results. Therefore, it seems to me more important to concentrate on the objectives of Part VII of the Act. As Professor Braën rightly pointed out, when we go to the doctor, we do not expect him to cure us on the spot. That is not his obligation. But he has a duty to perform an examination, formulate a diagnosis and propose appropriate treatment, tailored to the specific needs of his patient.
And that is what the communities are also looking for: that the government take an interest in their situation and sit down and work with them to come up with a diagnosis and propose government actions adapted to their specific needs; that is the basic thrust of this Bill.
If I understand correctly, the major problem with the Bill S-3 from the government’s perspective is that federal institutions may be faced with an obligation to achieve results. As far as I am concerned, all that Bill does is to clarify that there is indeed an obligation to act for all federal institutions, and not only for the Department of Canadian Heritage and the 34 designated institutions. That is one of the most important aspects of this Bill. The Bill will allow the government to specify, by means of regulations, how institutions must act in order to support the development of the communities and to promote the full recognition of English and French.
The vital components
A number of amendments have been suggested to date and we must recognize that some have been dismissed by most of the witnesses. I am open to the idea of further improving this Bill since the essential point is that it be passed by the Canadian Parliament. I have been urging the federal government to take action to ensure passage of this Bill since at least my last two annual reports. Having said that, in my view, Bill S 3 contains three vital components which must remain, otherwise the Bill will become meaningless.
First of all, it is essential to preserve subsection 41(2), which clarifies federal institutions’ obligation to act. In order to address the government’s concerns, I believe the wording can be discussed. It is my understanding that several government representatives feel that the verb “assurer”, in the French version, appears to impose an obligation to achieve results. So, let us change it to “mettre en œuvre cet engagement.” The wording of this subsection would read as follows:
“Il incombe aux institutions fédérales de veiller à ce que soient prises des mesures positives pour mettre en œuvre cet engagement.”
The reference to the qualifier “positives” is important so that institutions feel they are obligated to act and to be proactive in the implementation of Part VII. To say the least, it would be startling if the Government of Canada set the bar lower for itself than did the Government of New Brunswick, who, in the Act Recognizing The Equality of The Two Official Linguistic Communities in New Brunswick, has committed to take positive actions.
The second aspect of the Bill that absolutely must remain is the possibility for the Governor in Council to prescribe, by regulation, the manner in which the duties under Part VII are to be carried out. We can discuss later what the manner could be, but for the time being, I am pleased to see that subsection 41(3) does not appear to pose any major problems.
Finally, the third aspect which in my view is fundamental is the possibility of legal action, hence the proposed amendment to subsection 77(1). Some have openly questioned whether this aspect would unleash a flood of legal actions. These fears are unfounded.
Since 1988, when it became possible to launch court actions related to violations of Part IV of the Act—which deals with language of service—, the courts have only dealt with a dozen or so proceedings. Furthermore, these proceedings are in fact due to the lack of clarity concerning the federal government’s obligations, as in the case of the Forum des maires, to take a recent example. That is why the communities find themselves forced to turn to the courts. When federal institutions demonstrate leadership and adopt, without being forced by the courts, the dynamic and liberal approach that the Supreme Court has clearly indicated they should follow, Canadians, and official language minorities, do not feel it necessary to resort to the courts. Legal challenges become necessary, indeed inevitable, where there is no other choice, when goodwill and respect are lacking.
Several issues have been raised concerning the inclusion of an amendment to section 43, which deals solely with the obligations incumbent on the Department of Canadian Heritage. Some believe that this amendment would force the federal government to interfere in areas of provincial and territorial jurisdiction. Although I do not agree that this amendment could contradict the Canadian Constitution and thereby allow the federal government to act in areas that fall exclusively under provincial jurisdiction, if this amendment becomes an obstacle to passage of the Bill, I do not believe that it is essential and vital to preserve it.
Hence, what I am proposing is quite simply not to amend section 43 in any way and to leave it as it is currently stipulated in the Act. This way, we will not have to waste time on another debate which will further distract us from the objectives of the Bill, the importance of which is recognized by everyone here. The essential point of Bill S-3 is to clarify the obligations of federal institutions.
Conclusion
I cannot over-emphasize the importance of your work on this vital Bill. I urge you to continue to debate it carefully and thoroughly, as you have done so far. However, bear in mind the objective in your debates, namely that it is less important to protect the status quo for federal institutions as much as possible, which would perpetuate the current vagueness and lack of clarity, than it is to take concrete action to fulfill once and for all the promise made in 1988 when this Bill was adopted, namely that the federal government would do everything in its power to act, in its areas of jurisdiction, while seeking partnerships with other provinces and territories, in order to foster the development and enhance the vitality of official language minority communities.
So then, if you will, allow me to reiterate my recommendations:
1. The wording of subsection 41(2) in the French version of the Official Languages Act would read as follows:
“Il incombe aux institutions fédérales de veiller à ce que soient prises des mesures positives pour mettre en œuvre cet engagement.”
2. As for section 43 of the Official Languages Act, I propose that you make no amendments and that you leave it as it is currently worded.
I will be pleased to answer your questions. Thank you once again for your invitation.
