Interventions in Committee
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View François Choquette Profile
There has been a little debate—and you slipped in a word or two about it to our colleagues—about the famous powers for the commissioner, whether the commissioner should be given more powers, and so on.
Mr. Fraser, could you tell me whether, during your mandate as commissioner, you had occasion to use the coercive powers you had? Let me explain: if an agency or a department refused to provide you with documents, you had the power to demand them. If someone refused to testify or to answer your questions, you had the power to require that person to come and testify before you.
You had coercive powers. Did you have occasion to use them? Did you use them?
People talk about giving the commissioner more powers, but the commission already has some. To my knowledge, however, it is as if the powers are not used.
If you did not use them, why not?
Graham Fraser
View Graham Fraser Profile
Graham Fraser
2019-05-02 12:04
There was the power to compel testimony under oath, for example, that a commissioner, unlike other officers of Parliament, has never used. In the special report on Air Canada in 2016, we recognized the range of the powers of other officers of Parliament.
I do not know whether this is mentioned in the report, but we learned through the grapevine that some officers of Parliament who often use the power to compel sworn testimony, do so automatically at the request, or the preference, of the institutions. Some of them say that it is better for them that testimony is compelled. Then they just have to say that they had no choice. My impression, with the departments I dealt with, was that they were people of good will.
One organization was an exception, That was clear when people from Air Canada testified before your committee. Air Canada's position is that they are competing with other airlines that do not have the same obligations, and that it is not fair. Air Canada has the obligation; Westjet, as an example, does not. There is some resistance with Air Canada, which was sometimes reflected in our reports.
When I think about it, I am not sure whether fining Air Canada $25,000, for example, for this or that incident would be worth it. It is the cost of two business class tickets to Beijing. It is peanuts for Air Canada. It would make the news, but I don't know whether it is an effective way to change behaviour.
The FCFA suggested that all the penalties could be used to set up a fund for language training. But a fund of that kind could be set up without imposing fines. The idea of fining Public Services and Procurement Canada because a construction site does not have a bilingual sign is not very useful. What use is it for one federal institution to fine another federal institution? Is it really going to change behaviour?
I am not sure.
View François Choquette Profile
That's why it's important to have and support vibrant communities across the country.
Ms. Chouinard, you talked about the Commissioner's power to appeal to the Federal Court. You said that it rarely did so and that it mainly joined appeals filed by citizens. This is an important point, but one thing worries me, even before that, and that is the Commissioner's power to investigate. Let me explain. The Commissioner has very elaborate investigative powers. He has the power to demand documents, appearances and explanations. However, to my knowledge, he very rarely does. For my part, I have filed several complaints with the Office of the Commissioner and I see that, despite the scope of his investigative powers, the Commissioner requests things that are denied him or for which he does not receive a response. Why, in these cases, did he not use his investigative powers?
I wonder, even before considering going to the Federal Court, whether the Commissioner's investigative powers should not be strengthened. In fact, it isn't a matter of strengthening this power, since it already exists, but of strengthening the Commissioner's obligation to investigate properly.
Stéphanie Chouinard
View Stéphanie Chouinard Profile
Stéphanie Chouinard
2019-04-02 12:49
Thank you for the question.
I think that you're absolutely right. I think that your question is along the same lines as Mr. Clarke's question earlier regarding the commissioner's powers. One issue may be the lack of resources at the Office of the Commissioner. In particular, I know that the Office of the Commissioner has been conducting very little research recently, and that there used to be an entire unit responsible for research. It has reached a point where the commissioner calls on people like us on a fairly regular basis when he wants to take stock of research. I think that this shows a need within the organization.
On the other hand—and Mr. Clarke also raised this issue—at this time, many things depend on the commissioner's personality. The most recent commissioners weren't legal experts. The Office of the Commissioner may not have learned how to use these powers. The powers are set out in the act, but they aren't applied to the fullest extent possible.
View Darrell Samson Profile
Lib. (NS)
Thank you for your presentations, Mr. Jedwab and Ms. Chouinard. It's always good to hear different points of view.
Ms. Chouinard, I want to congratulate you on your good research work. I think that research is key because it helps pave the way forward by highlighting the issues and suggesting solutions.
You just mentioned the commissioner's reports. The commissioner informed us earlier that federal institutions have been implementing his recommendations very easily in 30% of cases and have been taking a little longer in 50% of cases. However, 20% of complaints remain difficult to resolve, and you just referred to them.
I asked for more information regarding these complaints and the relevant institutions. Do you have any comments?
View François Choquette Profile
Good afternoon, Dr. Larocque.
Thank you very much for your presentation.
I would like to come back to the commissioner's powers. You mentioned that in your opinion, the commissioner currently has enough powers, and there is no need to give him more. I have a question about the commissioner's powers.
You are probably aware that the commissioner has the power to investigate, among others, and the power to obtain information upon request. For example, any department or organization may need documents and request that they be sent over.
I'm giving you that example because in the Netflix case, which concerns me a great deal, there was an agreement between Canadian Heritage and Netflix. Under this agreement $25 million would be added for francophone-related investments. We do not really know what those investments will be. There were complaints. I made such a complaint, to find out what would be the approach taken in terms of the positive measures cited in part VII.
To my knowledge, the commissioner did not exercise his investigative power to demand the documents that would enable him to properly conclude his report. To my knowledge, the power to demand documentation has never been used by the commissioners. Am I mistaken? Why don't the commissioners exercise that power? They have gone to court several times on a few files.
When they do request documents, however, they are told those are confidential and they make no further efforts. They don't demand the documents, even if they would keep them confidential afterward. I understand that these documents would probably not be made public because they are confidential, but they could at least be properly used to inform investigations.
As you said, the commissioner does have certain powers, but it seems that he never uses them. Why is that, in your view?
François Larocque
View François Larocque Profile
François Larocque
2019-02-28 12:41
I can't really explain it, either.
I've just completed a comparative study of Canada's various language laws and I looked precisely at the issue of the commissioners' powers to secure evidence, compel certain witnesses to appear, force them to appear when they refuse or are reluctant to do so, and to demand that documents be produced. All commissioners have these powers.
They have the power to do this. Why don't they use it? My take is that perhaps the individuals who occupy these positions see their role in a certain way. On an idiosyncratic level, it may be that they just behave that way. They prefer to act more strategically and they tell themselves that they will not insist too much on one thing because they will ask for more on something else. Maybe that's the kind of calculation that goes on. We would need to ask the people who have served in these positions either at the federal level, in Ontario or elsewhere in Canada.
Also, one thing is interesting. Under the New Brunswick Official Languages Act, the Commissioner of Official Languages for New Brunswick has all the powers of a public investigator, in accordance with the New Brunswick Inquiries Act. When we look at this law, we can see that the powers of the public investigator include summoning people to appear and, if they refuse, send them to jail until they change their minds. The commissioner then has the power to temporarily imprison someone. The federal commissioner has no such power. To my knowledge, the Commissioner of Official Languages for New Brunswick is the only one that has that power—which has never been used.
That is the point you have made, Mr. Choquette. They have the powers, but they do not use them. I think this can be explained by a lot of strategic factors at play that may vary from one file to another. It could be a matter of not being bold enough or of not being certain of their right to exercise those powers. This has not been tested yet. One thing is certain, and the law is clear on this: they do have the powers.
View François Choquette Profile
The commissioner recently concluded its investigation of the RCMP and bilingual services on the Hill. That took five or six years.
The recommendations that came out of that are quite simple. They include making an inventory of bilingual staff, a biennial reminder of linguistic obligations and an action plan when complaints are received. There is nothing hard about that. In my opinion, it's inexplicable that the RCMP has not even followed up on these three recommendations. Faced with that fact, the commissioner issued a report indicating that no action was taken and that there is nothing more that can be done.
That is the problem we are facing. The same applies to the National Energy Board, which has once again trampled on language rights by publishing the Trans Mountain report in English only. I will file a complaint with the Office of the Commissioner of Official Languages, but unfortunately I fear there will be no consequences.
Would the administrative tribunal you talked about be able to resolve these problems that keep coming up in organizations reluctant to apply the Official Languages Act?
François Larocque
View François Larocque Profile
François Larocque
2019-02-28 12:45
First, we have to understand that in the federal and New Brunswick official languages laws, as well as in the language legislation of other Canadian provinces and territories, for instance the Northwest Territories or Nunavut, there are certain mechanisms that enable the respective language commissioners to exert more pressure as cases progress and move forward.
The work of the Commissioner of Official Languages of Canada culminates in the tabling of a report to Parliament, drawing the attention of the public and issuing public comments on the recalcitrance of the federal institution concerned. At the end of the day, that does not carry much weight. Very often it can work, but it's still soft power, and the results can be less than convincing.
This is where an administrative tribunal, which would have the power to issue interim orders and orders following a proper and full process, could order the issuance of those reports as well as a remedy. It could even impose administrative or monetary penalties.
View Alupa Clarke Profile
Does the act specifically state that the commissioner has the discretion to choose for himself?
View Alupa Clarke Profile
Thank you, Mr. Chair.
Good morning, everyone.
Mr. Carrier and Mr. Boileau, I'm very pleased that you're with us this morning.
Mr. Boileau, I believe the last two weeks have been very busy for you, but I'm pleased you seem to be in good form, cheery and ready for a fight.
I wanted to tell you that language rights are very important for us in the Conservative Party of Canada. We're very happy that there was a meeting at the summit that ourleader and the Prime Minister attended and that what emerged was a will to work together on language rights in Ontario.
That being said, this morning we are focusing on the modernization of the Official Languages Act. I have a few direct questions for you, and you have, in a way, addressed them this morning.
Would you be more in favour of establishing an administrative tribunal or giving coercive powers to the federal government's Commissioner of Official Languages?
Michel Carrier
View Michel Carrier Profile
Michel Carrier
2018-11-29 9:14
I'm not in favour of coercive powers being granted to the Office of the Commissioner. That was reflected in my colleague's last comments: a commissioner's work is that of a diplomat, advisor and convenor. It's up to the political wing to act on recommendations and to the public to react as well if recommendations are not followed.
It would really be hard to engage and, especially, appeal to the majority community if we had those kinds of powers. I think we can manage to do this work in accordance with the mandate given us without having more power.
View François Choquette Profile
Thank you, Mr. Chair.
Thanks to you, Commissioner, and the people who have accompanied you.
Before discussing the modernization of the Official Languages Act, I would like to explain the circumstances in which we now find ourselves. The Commissioner of Official Languages of Canada recently wrote, in a letter dated November 23, 2018, that we were witnessing an "erosion of rights [that] goes beyond Ontario's borders." Here are some excerpts from that letter: As we’ve seen, the shock wave created by this announcement has sparked outrage not only among Ontario Francophones,...We’re starting to see examples of this well beyond Ontario’s borders, like the decision to move Saskatchewan’s Francophone Affairs Branch from the province’s Executive Council to the Ministry of Parks, Culture and Sport; the uncertainty surrounding the future of linguistic duality in New Brunswick following the most recent provincial election;...
He also wrote, obviously, about the dissolution of the Office of the French Language Services Commissioner of Ontario and the Université de l'Ontario français.
Do you agree with the vision of the Commissioner of Official Languages, who feels that something is happening now? You're having a difficult time, and there appear to be attacks and infringements of rights to French-language services across the country.
View Alupa Clarke Profile
Thank you, Mr. Chair.
Mr. Chambers and Mr. Thompson, thank you for being here.
Last spring, I read your memoir concerning your proposal for the modernization of the law. I thought it was very good and very comprehensive. You touch upon every aspect of the law.
I would like to know precisely this morning, in terms of making sure that people respect the law—we need to be able to enforce it sometimes—whether you would prefer to do an administrative tribunal or whether you would prefer that the commissioner have coercive powers.
Which option would you prefer?
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