First of all, since the meeting is televised, I thought the committee would be offering make-up service, not for you or me, Mr. Chair, since we're both young and good-looking, but my colleague, who has been under enormous stress for the past two weeks, could have used some foundation and a little rouge, but never mind.
Mr. Chair, ladies and gentlemen, members of the committee, good morning.
We are very pleased to appear before you today to outline our position on the modernization of the Official Languages Act.
The Commissioner of Official Languages for New Brunswick is an independent officer of the Legislative Assembly of New Brunswick. His role is to investigate, report and make recommendations with regard to compliance with the New Brunswick Official Languages Act. The commissioner also has a mandate to promote the advancement of both official languages in the province. It is under this promotion mandate that we wish to propose changes to the federal Official Languages Act.
The Office of the Commissioner of Official Languages for New Brunswick has prepared a brief on this matter. A few weeks ago, we officially submitted that brief to the Standing Senate Committee on Official Languages.
Part 1 of this brief describes New Brunswick's legal uniqueness in terms of language rights, and the shortcomings of the federal system created by the Official Languages Act in 1988 with regard to our province.
Part 2 calls on Parliament to address these gaps by recognizing New Brunswick's uniqueness in a modernized federal official languages act, and wherever possible, aligning the federal and New Brunswick language regimes.
Part 3 encourages Parliament to draw from the wealth of New Brunswick's 50 years of experience with official languages, particularly the most recent version of the New Brunswick Official Languages Act.
Allow me to summarize the first two parts of our brief. Our office recommends that the federal Official Languages Act be amended to align the obligations of the federal and New Brunswick governments to offer services to and communicate with the public in both official languages.
As you know, at the federal level, members of the public have the right to use English or French to communicate with or receive services from the offices of institutions of Parliament or the government of Canada where there is a significant demand or due to the nature of the office. This means that the federal act allows several offices of federal institutions in New Brunswick to be unilingual. Currently, at least two federal offices in New Brunswick offer services only in French and at least 51 federal offices offer services only in English. Examples of this are cited in our brief.
At the provincial level, however, the people of New Brunswick have the unconditional right to use English or French to communicate with or receive services from any office of an institution of the legislature or government of New Brunswick. In other words, the condition of significant demand does not apply to the provincial institutions of New Brunswick.
In New Brunswick, there is therefore a striking divergence between the complete institutional bilingualism and provincial communications and services and the partial and localized bilingualism in federal institutions. Parliament should therefore adjust the wording in section 22 of the federal Official Languages Act to reflect, in New Brunswick, the constitutional framework in which it operates, and to ensure that the federal system is consistent with New Brunswick's complete institutional bilingualism.
The Office of the Commissioner of Official Languages for New Brunswick calls on Parliament to modernize the federal Official Languages Act in order to expressly require that the federal government offer its services and communicate in both official languages throughout New Brunswick. To achieve this, all that is required is to provide that the obligations set out in section 22 apply to all offices of federal institutions in New Brunswick.
Section 16.1 of the Charter entrenches the equal rights and privileges of the English and French communities in New Brunswick, including their right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
This constitutional recognition, unique in Canada, is not reflected anywhere in the current federal act. Yet, the equal rights and privileges of New Brunswick’s official language communities must influence federal public policies.
Parliament should modernize the federal act in light of the addition of section 16.1 of the charter in 1993, to provide for and regulate the federal government's obligation to consider the equal rights and privileges of New Brunswick's English and French communities. Such modernization could be achieved by providing, in part VII of the federal act, an additional commitment—along with an obligation to take positive measures to implement it by the federal government—to recognize and promote the equality of status and equal rights of New Brunswick's English and French linguistic communities, including the right of these communities to distinct educational and cultural institutions necessary for their protection and promotion.
For example, the constitutional equality of both official linguistic communities in New Brunswick should guide the development and implementation of the federal government's immigration policies. The federal Official Languages Act should require the federal government to take into account New Brunswick's specific linguistic balance and the recognition of the equality of status and equal rights and privileges of the province's two linguistic communities in its immigration policies, so as to maintain the existing linguistic balance.
The addition of section 16.1 to Canada's Official Languages Act must help to support the act's practical application by means of statutory provisions specific to our province. In other words, the addition of section 16.1 to Canada's Official Languages Act must help to apply the principle of equality between our two linguistic communities. A modernization of Canada's Official Languages Act has the power to provide considerable support to the vitality of New Brunswick's official language communities.
Thank you for your attention.
Mr. Chair, ladies and gentlemen members, I am very pleased to be with you today.
I am accompanied by Joseph Morin, our legal counsel. I am also very pleased to find myself once again appearing before a parliamentary committee with my colleague from New Brunswick.
I would like to thank you for allowing me to appear today in order to present a brief regarding important issues that need to be addressed in the context of a modernization of the Official Languages Act.
We were all glad when the announced that he was committed to modernizing the act. Your colleagues from the other place have already started their study, and your work here will be a great complement.
The Official Languages Act can and must be a beacon in the field of co-operation between the federal government and the provinces and territories, but to do this it must be modernized in many ways. The actors haven't changed in 50 years, but their roles and responsibilities in official languages have significantly evolved, as have the official language minority communities.
Ontario is grappling with the same debate: two years ago, I recommended to the Government to modernize the French Language Services Act, because like the Official Languages Act, it no longer answers to the realities of our society. I was heard, but perhaps not in the right way.
First, I will review the new Official Languages (Communications with and Services to the Public) Regulations. Having said that, I am satisfied that my federal colleagues will be making much more specific comments.
Secondly, I will recommend that you strengthen the sections on the active offer of services.
Thirdly, I will highlight the importance of mandating the application of Official Languages Act to a central agency.
Finally, I will take the final minutes of my speech to explain my vision of the role of a language commissioner.
The Canada of today is not the same as that of the 1980s. The French-speaking population is rich in its diversity through immigration as well as youth resulting from exogamous families and from francophiles.
In my very first annual report, I recommended to the minister delegated to francophone affairs of Ontario, as it was known then, to review the definition of the French-speaking population to ensure that it adequately reflected the new reality of this population. The method used at the time took into account only the mother tongue, which excluded more than 50,000 Franco-Ontarians.
For example, an immigrant family having Arabic as a first language, but who often communicated amongst themselves in the house either in Arabic or French, was not considered by the government to be part of the Francophone population of Ontario. And yet they lived in French. The moment they set foot outside, the family lived in French. They sent their children to French-language schools, took part in activities in the Francophone community, going to Francophone theatres, reading Francophone newspapers and consuming Francophone media, but were not considered Francophone.
Consequently, I am pleased and proud that the Government of Ontario adopted in 2009 the Inclusive Definition of Francophone, or what we in Ontario call the IDF.
This new method now captures those whose mother-tongue is neither French nor English, but who have good knowledge of French and use it at home, like our family who has Arabic as their mother-tongue.
I also expressed the wish that a more inclusive definition of Francophones be proliferated in other provinces and within the Federal government. I sincerely believe that a more inclusive definition of the Francophonie ought to be a component of a renewed cooperative federalism, focused on the specific interests and needs of the official language minority communities.
On October 25, ministers Joly and Brison unveiled a plan to modify the Regulations. The new method of calculating significant demand in the Regulations is more inclusive and allows more Canadians to receive services. Significant demand will grow, and so too will the number of government offices that will have to serve people in the language of their choice.
Although the regulations are still not quite user-friendly, I'm pleased to see that, under the new regulation, the community's vitality will be considered in the planning of services. It's not quite clear how it will be integrated fully. That's something that remains to be worked out, preferably with your help and with the help of my federal colleague, but still, it's there.
As I recommended, elementary and secondary schools will be important vitality indicators and will have an impact on the calculation of “significant demand”. You must now ensure that the modernized Official Languages Act reflects the same vision evoked in the regulations and is based on an inclusive and qualitative definition of “significant demand”.
I want to add a comment on the Regulations. They still have some grey areas. The travelling public issue has not really been resolved in the new Regulations. I think the Treasury Board made a good effort preparing these Regulations, but further work on them is required, and your committee should take time to examine them in detail.
Like the Inclusive Definition of Francophone, the Active Offer was one of my priorities for my vision of French-language service delivery in Ontario. In fact, in 2016, I filed a Special report with the Legislative Assembly of Ontario on the Active Offer and its importance in achieving the objectives of the French Language Services Act.
Active offer is particularly essential when the public in question is vulnerable. I received several testimonials about the importance of the Active Offer, notably in the health sector.
I remember an example when I was in a government office located in a space belonging to a French-language college in northern Ontario. The employees were speaking in French. The customers were conversing in French as well. The display was in both languages. However, when the employee spoke only in English to the client, the whole thing happened in the language of Shakespeare.
The Active Offer is essential for the delivery of services in the language of the minority. You will agree, it's probably not in the midst of a medical procedure that a Francophone will demand to have their linguistic rights respected...nor will a teenager, overwhelmed by addiction, having just given birth and with the Children's Aid Society knocking at her door, will she then ask to get a psychosocial assessment in French. It's impossible. Consequently, we must create an environment that makes these people feel safe enough to request services in French. For that to happen, we must actively offer those services.
I recommend that Parliament amend the Official Languages Act in order to provide for an obligation to adopt an Active Offer regulation.
Parliament may include in this regulation an explicit definition of the Active Offer in addition to clear criteria to be met, which could include the following elements: culturally appropriate measures to be taken on first contact; the citizen's choice of language; the citizen's comfort; and quality of service equal or equivalent to that of the service offered in English.
All that's in our brief as well.
As regards the central agency, the Official Languages Act mandates the Treasury Board and Heritage Canada to implement it, but doesn’t impose any specific obligations in terms of coordinating obligations devolved to federal institutions.
This causes many problems because if the Treasury Board doesn’t prioritize the implementation of the Official Languages Act, the task falls to Heritage Canada. Heritage Canada doesn’t, and never will, have either the necessary authority or the influence over the other departments to discharge its mandate.
At the time when the Honorable Stéphane Dion was President of the Privy Council, this central agency was able to play a more determinative role. For example, all submissions to cabinet had to go through an Official Languages Lens.
However, since that time, the council’s role and engagement have considerably diminished.
Over the years, I put forward different recommendations in this sense in Ontario to improve the analysis of all files sent to Cabinet, by a filter that considers their impact on the application of the French Language Services Act, but without great success.
I therefore highlight that, as a central agency specifically named in the Official Languages Act, the Treasury Board will be able to ensure that departments and other federal institutions will be able to respect their obligations pursuant to the Act.
In my opinion, the real work involved in implementing the Official Languages Act therefore falls to the Treasury Board, and the act should be amended accordingly.
Now let's talk about the role of the Commissioner of Official Languages. Other groups will come before you and call for powers that are more coercive for the commissioner, or the creation of a language rights tribunal. All these ideas deserve your attention. But my role here is to shed light on an aspect of our job that seems to be misunderstood—that a language commissioner is an advisor.
Language commissioners are ombudsmen. They receive complaints and work to find solutions acceptable to both parties. In that sense, they are also mediators.
Being a commissioner also requires one to be proactive. An admissible and founded complaint is in fact a violation of the French Language Services Act. This might mean that there isn't a bilingual employee when a person is attempting to buy a fishing licence. It might mean there isn't a single hospital in the GTA that has a mandate to offer health services in French.
An admissible and founded complaint may arise from the fact that a Francophone child, Noémie, might be taken by a children's aid society and placed with an Anglophone family, jeopardizing her cultural and linguistic identity. In all of these potential complaints, we see failure. Damage is done. But as commissioners, we aim to prevent these failures by putting forward recommendations following investigations or on our own initiative. In other words, this is the work of an ombudsman. Commissioners become important actors and useful advisors for ministers. Followed advice might prevent numerous problems and complaints.
If you invited me today, it is because you require my expertise and experience and our advice on how to best plan for the best interests of official language minority communities.
To advise, as a mandate, is essential to the role of commissioner. We must be able to directly interact with ministers and public servants to recommend strategies for the development and implementation of public policy that respect both statutory obligations and the needs of the communities.
The government, of whichever stripe, received a mandate to govern. It often comes down to commissioners to remind governments that they have obligations to understand the needs of official language minority communities and that they must adapt their policies in consequence.
Which brings me to my second point, consultation and promotion. Ever since the beginning of my mandate, I worked tirelessly to understand the communities to whom the French Language Services Act gave rights. It is only by going to speak to people that we can understand their realities, their challenges and their aspirations. In addition to consultation, I promote the act and the obligations it imposes on government agencies and service providers.
Please think back to Noémie, the young girl that was placed with an Anglophone family. These are evidently situations we want to avoid and stop, so I tried to meet all children aid societies, like I met with service providers working in health, justice and immigration, to explain to them the importance of understanding the Francophone communities. I highlighted for them that although the French Language Services Act gives them obligations, acting in the best interest of individuals supersedes the Act—it’s a question of doing the right thing for the individual, their family and their community.
Consultation and promotion work are part of being proactive. If, at the outset of policy development, the government receives and follows a commissioner’s judicious advice, it might mean avoiding wasting resources and time, and consequently strengthening its efficiency.
I would like to add that consulting official language minority communities, mobilizing knowledge and offering advice could take many forms.
In my last annual report, I projected the francophone community of Ontario over the next 10 years. The diagnostic is not encouraging. Even though the number of francophones will grow, their proportion will fall dangerously to less than 4%.
My recommendation to the Minister for Francophone Affairs, which she accepted, is to provide the government with an action plan on the development of francophone communities and the promotion of the French language in Ontario.
To crystalize this annual report’s recommendations, the OFLSC organized this past Monday a symposium, Looking Ahead, Getting Ready. More than 230 experts, members of government and community representatives met to discuss the issues raised in the report concerning health, digitization of public services, aging population, immigration, restructuring of in-person services, and production and dissemination of French digital content, including in media. That's proactive work that was done based on the interests of the Francophone community, not in reaction to complaints, as the ombudsman's work might suggest.
In conclusion, and I'll be very brief, I'd like to talk to you about cooperative federalism. We have a duty to establish real mechanisms, and we talk about that in our brief.
We are ombudsmen, mediators, advisors, protectors, promoters and convenors. Those are the roles of an official languages commissioner or a French-language services commissioner in Ontario. We play all those roles.
In closing, I would like to emphasize that we have produced and will distribute to all members of the committee an infographic on Francophones in Ontario, which was just released last Monday. We have several copies. This infographic really talks about the Francophone community.
We have begun to organize a major conference. As you know, our organization is a member of the International Association of Language Commissioners, which meets every year and will do so in Toronto in June 2019.
Now we'll be pleased to answer your questions.
We have some specific wording in our brief, but I'm going to take this opportunity to move away from the brief.
I think it's time for a little more imagination. There's a lot of confusion between part IV, which concerns communications and services, and the objectives of part VII.
For example, there are 14 sections in our Ontario act, but nothing about active offer, and we obviously don't have an equivalent to part VII.
I took up my position on September 4, 2007, and I met all the deputy ministers together 10 days later, on September 14. I told them that the speech was still relevant today. There was the communications issue, which we hoped to resolve, and we ultimately resolved it by means of a mandatory directive on French-language communications. However, there was also the services issue. We wanted to ensure that services would be adapted to the needs of the francophone communities in certain key sectors.
When we proposed that as part of the revision of the French Language Services Act two years ago, we wondered who could help determine what those key sectors were. Well, it was Minister Mulroney's Provincial Advisory Committee on Francophone Affairs, the PACFA, that helped determine which key sectors had priority.
In other words, if the Ministry of the Environment has a used tire recycling policy, that's fine if it's in both languages and is communicated efficiently on government websites, but, if we're talking about policies that affect women victims of family violence, policies that concern children's aid societies or access to justice...
The largest number of complaints came from the national capital and were filed at the Ottawa courthouse. In accordance with one of my recommendations, we established a pilot project on access to justice in French, which has been permanent since 2015. Do you know how many complaints we've received since that project was put in place? Zero. We've received no complaints. The people of Ottawa complain a bit. I shouldn't say that, but they're quite vehement. We have to think about services to the community that must be adapted to health and other needs.
We have French-language health service planning organizations. I'm happy to talk about that for a few minutes because they play a fundamental role in determining where needs are and who are the suppliers who can provide French-language health services.
All that involves proactive work on the ground, and that's the very essence of the commissioner's role, which is to promote this emergence.
Justice, immigration and community social services are all key issues. That's where we should show some imagination and adjust and adapt the idea of serving the needs of the community. As we saw in his judgment, Judge Gascon didn't really know what to make of part VII.