I'm so grateful for this opportunity to present to this committee on the question of the modernization of the Official Languages Act.
Today I will address the specific question of whether and how an official languages tribunal should be established.
My presentation will proceed in three main parts. First, I will survey the reasons for establishing an official languages tribunal. Second, I will examine the institutional design options for the relationship between the commissioner and an official languages tribunal. Third, I will address some issues relating to the operations of an official languages tribunal.
Let me start with the reasons for establishing an official languages tribunal.
As the members of the committee are all very well aware, there are multiple avenues by which judicial remedies are available under the Official Languages Act, in particular from section 77 forward. Given that there are these options for judicial remedies, why might we think that an official languages tribunal would be a good idea? Let me suggest three possible reasons.
First is a reason relating to the separation of powers. The language of subsection 77(4) grants the Federal Court broad remedial discretion. Indeed, the language echoes the language of subsection 24(1) of the Constitution Act of 1982. However, the Federal Court has cited from the Supreme Court of Canada's reasons in the case of Doucet-Boudreau v. Nova Scotia (Minister of Education) to note that there are separation of powers limits on the extent to which a Federal Court, or indeed any court, can exercise its remedial jurisdiction.
Today I don't venture an opinion as to whether the court has in fact been reticent to use the full range of remedies available to it, although I do know that the Fédération des communautés francophones et acadienne du Canada believes it has.
My point is that separation of powers considerations act as a limit, in principle, on what remedies a court may order. By contrast, administrative tribunals are not limited by such considerations. They are therefore comparatively freer to order remedies that are, in the words of my colleague Cristie Ford, “prospective, open-ended, and subject to ongoing revision and elaboration.”
In light of this, I would agree with the FCFA's recommendation that any provision specifying the proposed official languages tribunal's remedial powers include a non-exhaustive list of possible remedies, including ones that allow for appropriate continuing oversight. That is the first rationale for establishing an official languages tribunal, a rationale grounded in concerns about the separation of powers.
Let me turn to the second rationale for establishing an official languages tribunal. Complainants contemplating a proceeding in front of the Federal Court may face issues of accessibility that they would not face in front of a well-designed and well-funded official languages tribunal. An official languages tribunal modelled on human rights tribunals in the provinces and at the federal level would have simplified procedures and would provide assistance to complainants seeking to present claims before it.
Concerns about accessibility have long justified the creation of human rights tribunals, and although there are some ongoing concerns about whether they have delivered on the promise of greater accessibility, I think it is generally accepted that they are more accessible than the courts. There is reason to believe that this would also be true of an official languages tribunal, so a second possible rationale for an official languages tribunal centres on issues of accessibility.
Third, an official languages tribunal would likely have greater expertise in resolving disputes under a revised official languages act than would the Federal Court. The source of this potential relative advantage would be twofold. First, in a revised official languages act, Parliament could specify that official language tribunal members must have specific expertise relevant to interpreting and applying the Official Languages Act. Second, once established, an official languages tribunal would, through repeated exposure to disputes under the Official Languages Act, develop expertise in the application and interpretation of its provisions.
Those are three rationales for creating an official languages tribunal, despite the fact that there are judicial remedies available under the Official Languages Act.
Let me turn now to the possible relationships between the commissioner and an official languages tribunal.
Generally speaking, there are two kinds of relationships between human rights commissions and tribunals in Canada, and these may provide templates for how to structure the relationship between the commissioner and an official languages tribunal.
In the first model, a human rights commission acts as a gatekeeper for a human rights tribunal. It investigates and attempts to settle complaints; decides whether complaints should be referred to a tribunal for adjudication; and once a claim is before a tribunal, it can offer assistance to a claimant, represent a claimant or represent the public interest.
Critics argue that a commission in this model occupies potentially contradictory roles. A perception of conflicting roles may arise because at the investigation phase the commission is intended to be neutral, but if the complaint goes before a tribunal and the commission participates in the adjudication, it will take a position.
Related to this criticism is another that charges these kinds of commissions would undertake their functions in improper ways, particularly in contexts where human rights systems are underfunded. Critics argue that commissions have, for instance, used threats of delays as a means of pushing complainants to settle. Critics charge this model with devoting disproportionate resources to addressing individual complaints and diverting commission resources and attention from systemic issues.
That is a first possible relationship between the commissioner and the official languages tribunal, one in which the commissioner would undertake the kinds of gatekeeper functions that a human rights commission does in the first model of human rights commission and human rights tribunal relationships.
In the second model, which is the one currently in operation in Ontario, complainants have direct access to a human rights tribunal and the tribunal itself processes the application, offers mediation services and adjudicates on the merits of a dispute. In this model, the commission:
would no longer receive, process, mediate, and investigate complaints and, where...appropriate, forward them to the Tribunal. Instead, the Commission's role would...focus on developing policies, providing information and promoting compliance with the Code. However, the Commission, [under the revised Ontario model, does retain] its authority to initiate and intervene in applications before the Tribunal.
This model addresses the concerns about contradictory roles discussed above, as the commission would no longer have gatekeeping, settlement and investigative functions. In addition, in some jurisdictions, the direct access model has resulted in significantly reduced wait times.
Nonetheless, the direct access model has been subject to some criticism. For instance, Dominique Clément argues that, “In British Columbia, the Human Rights Tribunal spends more time vetting complaints for dismissal than adjudicating the merits of human rights complaints.”
In addition, because tribunals do not conduct investigations or provide representation for complainants, direct access models are perceived to be less accessible.
These are two kinds of models that could be used in structuring the relationship between the commissioner and a potential official languages tribunal.
Let me turn now to some operational issues. Under the second model, obviously the commissioner would focus on systemic concerns rather than individual complaints, and would not have investigative or gatekeeping functions, although the commissioner could retain the power to participate in a tribunal hearing to advance public interest arguments.
If this model were adopted, there would have to be sufficient commitment of resources to ensure that claimants would be able to present informed and competent complaints before the tribunal. There are models for providing this kind of support, whether through clinics or through support centres.
If a tribunal were created, since a tribunal would be charged with interpreting and applying a quasi-constitutional statute, the official languages tribunal would need to be insulated from any suggestion that it is subject to partisan influence, so it would be important to have clear criteria for expertise for appointments, protections for security of tenure during a term and potentially even protections around reappointment.
Finally, I suggest that a revised official languages act should include a provision that allows for a review after three years of coming into force. A similar provision was available in the Human Rights Code of Ontario when they revised their code.
Likely, simply because there are going to be large systemic changes with the coming into force of a new OLA, it would be helpful to have stakeholders and experts able to comment on whether or not the revised OLA has achieved its legislative objectives.
These are some thoughts about the creation of an official languages tribunal, rationales for its creation, issues around institutional design, and finally some operational questions.
:
Thank you for the invitation and the opportunity to contribute to the committee’s study.
I’m going to begin with a few words about our research institute, for those who aren’t familiar with us.
The Canadian Institute for Research on Linguistic Minorities was established in 2002. From 2003 to 2012, it was headed by Rodrigue Landry, whom many of you no doubt know. I took over as executive director in 2012 but have been with the institute since its early days in 2003.
The institute was created with the support of funding from the Department of Canadian Heritage, pursuant to an agreement signed by then minister Stéphane Dion and the Université de Moncton. That’s a little bit about the institute’s history.
Now, I will just mention the institute’s mission: to promote a greater knowledge of the status of Canada’s official language minorities and a better understanding of the priority issues that concern them. To that end, the institute is committed to carrying out, in co-operation with its partners, relevant research work that can support the various stakeholders of official language minorities and the public policy-makers in language matters.
As for me, I am a sociologist, and my main area of interest is the development and vitality of communities.
The Government of Canada’s desire to modernize the Official Languages Act, in consultation with Canadians, is a golden opportunity to reflect on the ideal act tailored to the needs of official language minority communities. It is an opportunity to think creatively about how to overcome the challenges.
Being the optimist that I am, I envision at least three scenarios for the future of minority communities and official languages. First, I envision communities thriving in their language, thereby reversing the trend towards assimilation. Second, I envision greater recognition of communities and their autonomy, specifically their capacity to determine their own future. Third, I envision enhanced implementation of and compliance with the Official Languages Act.
I also see at least two potential pitfalls.
First, the government invests significant sums in official languages, through the five-year official languages action plan, without establishing tools for rigorous analysis—tools that would allow the government to identify communities’ needs clearly and adequately measure the impact of its investments on communities. The government holds extensive consultations, mainly at the organization level, but invests little in public policy research to support official languages.
The Standing Senate Committee on Official Languages, the Commissioner of Official Languages, this committee and now are currently conducting, or have recently conducted, consultations on the modernization of the Official Languages Act. I was in Moncton on March 12, for the first forum on promoting culture and bilingualism, hosted by Minister Joly. The vast majority of participants were heads of organizations who hammered messages they had previously delivered in other venues.
The government's practice of consulting on the modernization of the Official Languages Act and the development of the official languages action plan is certainly a good one, but consultations should focus more on individuals who do not necessarily belong to organizations.
Furthermore, research should guide the development of the action plan and the modernization of the Official Languages Act. That requires coming up with a research plan that can generate a relevant body of knowledge related to the objectives of the act. Not doing so makes it more likely that the process to determine language policies will essentially amount to adjudicating the various interests expressed by the organizations. For that reason, I think it’s important for the government to work more collaboratively with the research community.
The second potential pitfall has to do with the lack of leadership shown by elected officials and the heads of government institutions subject to the Official Languages Act. This leadership is crucial if the act is to be respected because it sends a strong message that language rights and government obligations matter.
At the first forum on the modernization of the Official Languages Act, held in Moncton on March 12, Michel Bastarache underscored the importance of raising the profile of the government’s official languages efforts and the symbolic importance of linguistic duality. Promoting linguistic duality hinges on symbolic gestures that improve the status of minority communities. When those gestures come from government leaders and elected officials, they send a strong signal to all Canadians because they lend legitimacy to the minority language and linguistic duality.
Now I’d like to discuss the relationship between the Canadian government and official language minority communities. Then, I will say a few words on the efficacy of the Official Languages Act, and lastly, I will comment on the need for clarity in part VII of the act.
I will now turn to my first point. The relationship between the government and official language minority communities has changed tremendously since the passage of the first iteration of the Official Languages Act. The two sides have established a collaborative relationship, a partnership even, when it comes to implementing the Official Languages Act, specifically the measures that stem from part VII. In my view, the act cannot be implemented without strong partnership between the government and the communities, and that partnership must be articulated in the act.
As I see it, the partnership extends beyond merely consulting with communities. In the draft bill to modernize the Official Languages Act submitted by the Fédération des communautés francophones et acadienne, or FCFA, on March 5, the organization included an obligation for the government to establish a five-year plan for the development of official languages. The government would do well to include that obligation in the next version of the act. The plan should be developed in co-operation with communities and their representatives. The government should endeavour to develop the plan jointly with official language minority communities because community partners and organizations play an active role in the plan's implementation. Otherwise, the organizations are likely to become nothing more than agents executing the government’s plans.
True partnership between communities and the government involves recognition of the autonomy of communities and their ability to make decisions, govern themselves and build capacity. That is the way to really integrate the service principle of by and for communities into the Official Languages Act.
My second point relates to the implementation and efficacy of the act. As many have pointed out, one of the biggest challenges of the Official Languages Act has to do with its implementation. Numerous stakeholders maintain that the act needs more teeth.
What the act's 50-year history has taught us is that some institutions struggle to respect the act. While a lack of will may be to blame, a poor understanding of the language dynamics within a minority community may also contribute to the problem.
Establishing an active offer of service in both official languages necessitates organizational change. Work dynamics, culture, perceptions, attitudes, beliefs and so forth have to change.
An enforcement-based approach has its limits. When people change their behaviour, not because they are forced to do so, but because they have internalized the standards underlying the behavioural changes, it leads to better outcomes. Although necessary, enforcement and punishment are not enough. It will not be enough to give the act more teeth without building in an understanding of sociolinguistic dynamics in the workplace and service delivery. Keeping with the corporal metaphors, I would say the act needs a brain as well. To better implement the Official Languages Act, it will be necessary to leverage management expertise on how to bring about organizational change.
The Canadian government needs to improve its know-how with regard to implementing the Official Languages Act and give departments and agencies the expertise and resources they need to better support their implementation efforts.
The challenges around compliance with the act call into question its efficacy. An act is considered effective when it produces the desired effect. It would befit the government to examine the challenges related to the act’s effectiveness and to explore the conditions that would make it more effective. The government may have underestimated the sociolinguistic dynamics that favour the use of the dominant language and thus prevent full respect of the Official Languages Act in minority communities. The financial, human and material resources required to ensure compliance with the act may have also been underestimated.
A number of factors determine how effective or ineffective an act is. I will mention some of them.
First, the legal conditions must be considered. This means relying on what the act says, knowing what its objectives are and what it prescribes and prohibits. Another important consideration is recognition of the rights set out in the act and the level of obligation it imposes. Clarity and specificity also play a role. The clearer an act is, the less room it leaves for interpretation. An act needs to be consistent in relation to not only itself, but also other acts. Case law is another important factor. In addition to improving compliance with the act, court decisions provide clarity around its meaning. The remedies provided for in the act also help determine how effective it is. Does it set out any remedies? If so, what kind? Legal remedies? Complaints to the commissioner? Complaints to the institutions concerned? What authority does the commissioner have? How binding are the available remedies?
In addition, it is important to establish the right conditions for the implementation of the act. That ties in with the leadership I mentioned earlier; the commitment must come from the top. Also necessary is an information and awareness campaign to educate people on the act so that they understand it. The regulations spelling out how the act will be implemented, on a practical level, play a big role as well, not to mention internal directives issued, the financial, human and material resources allocated, and access to any necessary language training. Consideration must also be given to the resources available to the commissioner, new administrative boards—such as the tribunal discussed earlier—designated champions and coordinators as well as those responsible for the implementation of the act. Implementation will also depend on organizational skills and capacity, in terms of factoring language into how workload and services are managed.
As well, social factors can help determine the effectiveness of the act. These factors include the social, political, economic and cultural context, people’s attitudes and perceptions, the buy-in of those responsible for applying, enforcing and respecting the act, and the support or opposition of interest groups.
Making the Official Languages Act more effective requires a holistic approach that takes account of all those dimensions.
:
I don't think that the only issues around adjudication of disputes around language acts are just questions of clarity. Obviously, we would want a law that's clearer; I think that's a good idea.
On the question about whether to create a tribunal, setting aside the issue of clarity, I don't think even the most absolutely clear law is going to eliminate the need for adjudication and for resolution of disputes. If we set that aside, then the question is which institution is better able to handle the adjudication.
[Translation]
From an accessibility standpoint, establishing an administrative tribunal is a good idea.
[English]
There are issues of complexity of procedures. There are issues of costs. If what we're concerned about is ensuring that claimants can vindicate their rights, the judicial system, with its relatively high cost, with its relatively high levels of complexity, may not be the best venue.
On the question of whether we're simply shifting the load and pushing disputes off to administrative tribunals, that may be the case, but I think we just have to weigh it against the advantages that are gained by creating a tribunal that's more accessible.
Finally, on the issue of expertise, as I said in my introductory remarks, if you have a tribunal that is specifically constituted by members who have a specific expertise in language rights—particularly people who are sensitive to this situation of linguistic communities—that might make the adjudication of those disputes a little bit more effective, rather than simply being a way of shifting responsibility.
:
Diolch yn fawr iawn. Thank you very much.
I would have loved to have been in Ottawa as well, but it couldn't be arranged this afternoon. I apologize for that.
Thank you for this opportunity to contribute to your discussion. What you're doing is really interesting. You're reviewing a piece of legislation that you've had since 1969, and I'm working with a piece of legislation that we've had in Wales for the past seven years.
I'd like to start with giving you a brief overview of our position in Wales, and some of the issues that I think may be of interest to you as a committee and some of the issues I've encountered as a commissioner.
I've been commissioner now for seven years. It's a statutory period of seven years, which comes to an end at the end of next week, so I'm really reflecting on seven years in the role. I cannot be reappointed, so at the end of next week, I will walk into the sunset and another person will take over as commissioner.
In terms of my position in Wales, I was appointed as a consequence of the Welsh Language (Wales) Measure 2011, a piece of legislation that built on previous legislation. We had Welsh language legislation in 1942 and 1967. I will just note that those pieces of legislation were introduced specifically to give people rights to use the language in the judicial system, the court system. In Wales, our first rights to use the language within a public context were granted in terms of giving evidence in court or appearing in court.
In 1993, Westminster legislation gave the Welsh language parity with the English language in Wales. It did not give it official status. We had to wait for that until the 2011 legislation, which did three specific things. It gave the Welsh language official status in Wales for the first time since 1536. It established my role as a language commissioner, and I'll talk a little about my role in a minute, because it is a hybrid role. It also established a very comprehensive regime of imposing standards on public sector organizations in Wales. We have a series of very specific legal duties that are placed on public sector bodies, and I'll talk a little about that.
First of all, in relation to standards, we have in Wales sets of standards that are imposed on various sectors within the public sector. It sounds complicated, but essentially we've gone through an exercise of imposing, in the first instance, standards on government, local authorities and our national parks. We have also imposed standards now on police forces; post-16 education, which includes universities; the health sector in Wales; and also our large national organizations, like our national museum, our environmental bodies. In the past seven years, we've gone through a series of exercises that have placed legal duties on those organizations.
The schedule of standards placed on an organization can be divided into five families of standards. We have standards in relation to service delivery, engagement with the public. We have standards in relation to internal operation of organizations, how they deal with their workforce, the rights that are given to workers within the organization. We have standards in relation to policy-making by the organization. We have standards in relation to promotion of the language by organization. We have standards that require organizations to collect evidence as to how they are operating within the standards.
A normal organization, such as the Welsh government, would have a schedule of approximately 100 standards that they are required to comply with, divided into those five families. It's part of my role as commissioner to be a statutory regulator of those standards.
Complaints of non-compliance and investigation of complaints as to non-compliance are referred to me. If I become aware, because of our monitoring activity, that an organization is not complying, I can intervene and require compliance. I have extremely robust enforcement and compliance powers.
I also have powers to establish investigations without complaints being referred to me. It's more than an ombudsman role. If I'm aware or I suspect that there are problems, I can conduct investigations. Those investigations can lead to legal steps, which can, in the worst case, include imposing fines or referring the organization to a higher court. I have very robust processes as a regulator.
Also, along with my regulatory role I have a promotional role. It's a hybrid role, the role of the commissioner—and very clearly a hybrid role. There are very definitely two sides to this coin, as regulator and as promoter of the language.
Promotion of the language entails a whole host of activities, from raising awareness to information campaigns. Also, an activity that I consider to be important and influential in the way I have worked is to conduct investigations or research into certain policy areas where I consider that steps need to be taken to improve the quality of service or the quality of experience for the service user, and to advise government on those policy areas.
Within our legislation, if I recommend to government or to a national body that they should take steps in terms of policy development, they are required to consider and respond to that in an official context. They don't have to take on board my recommendations, but certainly they need to respond to those recommendations.
I've found that promotional policy influencing role very useful, particularly in areas of health, social care and education. We've also undertaken work on the experiences of prisoners within the prison system and their capacity to use the Welsh language whilst they are interred or imprisoned. We've also worked very closely with mental health organizations in looking at services in terms of mental health. We've used those powers, as well, in terms of town and country planning.
That has been, as I said, very useful set side by side with my regulatory role. They're two sides of the same coin; I find them very useful to sit together.
There are big challenges for us moving forward. I would see our policy-making role continuing, but certainly new forms of communication and technology are proving to be both a challenge and an opportunity to ensure that we are engaging with the requirements of developing bilingual media and doing that in an effective way. We have noticed that certain organizations have.... In particular, the banking sector has lost ground as it's moved from face-to-face banking services to digital banking services. We've been working very hard with that sector as well.
I suppose that's the last note from me. Banks do not fall into my legislation but, because of my promotional role, I can engage with those organizations as well.
During the past seven years, I've welcomed having that duality of role, and I see that as working very well together.
The very last thing I should say is this. As a regulator, I have a language tribunal that sits by my side that essentially can intervene if there are complaints that I am behaving in a manner that is not legal, not reasonable or not proportional. We have a language tribunal, but it's the last point of challenge on my activity. I think that's proved useful. It's not been particularly active, thank goodness. There have not been many complaints about the way I've undertaken my duties, but it sits there as a tribunal overseeing my activity.
I hope that gives you a flavour of our position in Wales, and there may be lessons. We have a very recent piece of legislation, and there may be some lessons there that are of use to you as you consider your agent and legislation at this point.
To start with, we are a very small country. We have approximately three and a half million people and approximately 20% of them speak Welsh. So 20% of the population speaking Welsh is an interesting demographic because if you look at children from three years of age to 18 years of age, approximately 50% of that population speak Welsh because of the impact of education.
We have immersion education in some places in Wales and we have Welsh medium education as well. We have a growing young population who speak Welsh and a dying older population who would have learned the language at home. Our growth area is very definitely among young people who are learning the language as a consequence of education.
If you look at the map of Wales, traditionally the predominantly Welsh language areas are on our west coast, which is the coast facing Ireland, the coast furthest away from England. That has traditionally been the area where the Welsh language is strong.
Economically, that is a poor area. It's an agricultural area and it's suffering from outward migration. People, young people, are moving away from that area. We're losing traditional Welsh-speaking communities in that area. Our growth areas, because of the profile of Welsh speakers, are our cities, such as Cardiff where I'm sitting at the moment, and in places such as Swansea and large industrial towns in the eastern part of Wales, closest to the border with England.
We have a changing demographic of growth in areas where the language has not been spoken as a natural language, as a home language, for a century or two in some areas. We are dealing with an emerging population of new speakers. Our biggest challenge is retaining those people as Welsh language speakers as they come out of the education system. We're trying very hard to ensure they can move into employment where the Welsh language is seen as a skill and that they see value in having the Welsh language as a skill.
We are dealing with a changing demographic and education is critical for us, but also for me. Securing a Welsh or bilingual workplace is also a key driver in ensuring that those young people remain Welsh speakers.
:
Commissioner, thank you very much for joining us today by videoconference.
I see that this is still a young institution. It has been in existence for seven years. I want to begin by thanking you for your services as commissioner. I understand that the end of your term is approaching. I am sure that your services have been well appreciated. We know how difficult and important a commissioner's work is, especially in official languages. I believe that Welsh is now an official language of the United Kingdom.
I will tell you about a situation here, in Canada, to explain our thought process on the need to have an administrative tribunal whose role would differ from yours. Here is an example.
In 2014, an incident took place on Parliament Hill, and the RCMP had to respond in a more involved manner. A gunman opened fire on the Hill. Some citizens did not have services in French at the time. Complaints were made against the Royal Canadian Mounted Police, the RCMP.
We are in 2019. The commissioner agreed to examine those complaints and has made three very simple recommendations: first, assess the language skills of people working for the RCMP on the Hill; second, implement an intervention process to inform the officers on language obligations; third, have a complaint acceptance process—in other words, determine how complaints submitted directly to the RCMP are received and processed.
The commissioner's report was issued around 2015. The RCMP has taken no action on the Hill following those three recommendations. The commissioner even did a follow-up and, once again, there has been no response. We are now in 2019 and none of the three recommendations, which are fairly simple in my opinion, have been followed.
So we are dealing with uncooperative agencies. What would be your role? What could you do that the Canadian commissioner cannot do? He can make recommendations, but there are no consequences.