Senator Rose-May Poirier

Modernizing the Official Languages Act: The Views of Federal Institutions and Recommendations

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The committee makes 20 recommendations to address issues with the implementation of the act in four main themes: leadership and cooperation, compliance, enforcement principles and judicial bilingualism.

LEADERSHIP AND COOPERATION

RECOMMENDATION 1 
Treasury Board

1.1 Amend the Official Languages Act to assign responsibility for the implementation and coordination of the Act’s provisions with respect to institutions within the executive branch to the Treasury Board. In those circumstances, provide that:

• an Official Languages Secretariat be created to support the Treasury Board in the performance of its duties;
• the Official Languages Secretariat be given the necessary tools and resources to work with all these institutions and review their performance; and
• it provide a clear picture of the Act’s implementation by all these institutions on an annual basis.

1.2 Amend the Official Languages Act to state what the Treasury Board “must” do, rather than what it “may” do, in carrying out its responsibilities.

RECOMMENDATION 2 
Government plan for official languages

2.1 Amend the Official Languages Act to provide for the adoption, coordination and implementation of a government plan for official languages by the Treasury Board based on the model set out in New Brunswick’s Official Languages Act. In those circumstances, provide that:

• the priority areas supported by the government plan include, but not be limited to, the offer of services in both official languages, the promotion of linguistic duality in the workplace and support for official language minority communities in the following strategic sectors: education, health, justice, immigration, economic development, community media, and arts and culture;
• the federal institutions covered by the government plan have clear responsibilities and report to the Treasury Board on its implementation; and
• the Treasury Board adopt an accountability framework to guide it and that it be made public.

RECOMMENDATION 3
Federal–provincial/ territorial agreements

3.1 Amend the Official Languages Act to recognize federal– provincial/territorial agreements on services in the minority language, minority language education and second language instruction; to acknowledge their importance in enhancing the vitality and supporting the development of official language minority communities; and to strengthen their implementation. In those circumstances, provide that:

• the agreements and the accompanying action plans be made public; and
• language clauses be included to define specific objectives for consulting official language minority communities and for communications with and services to the public in both official languages.

RECOMMENDATION 4
Review of policies, programs, initiatives and services

4.1 Amend the Official Languages Act to provide for the adoption of a tool to apply an “official languages lens” to policies, programs, initiatives and services implemented by federal institutions that is based on the Gender-Based Analysis Plus (GBA+) model.

RECOMMENDATION 5 
Consultation with official language minority communities

5.1 Amend the Official Languages Act to specify the obligation of federal institutions to assess the impact of their decisions on official language minority communities and to ensure that the policies and programs they implement are aligned with their needs. In those circumstances, provide that:

• the obligation to consult official language minority communities applies to decisions on general program and policy direction relating to the implementation of Part IV, the implementation of Part VII, the making of regulations under these two parts and their 10-year review, the government plan for official languages, federal–provincial/territorial agreements, the 10-year review of the Act and the disposal of federal real property; and
• federal institutions take into account the results of those consultations and provide reasons for their decisions.

RECOMMENDATION 6 
Advisory board

6.1 Amend the Official Languages Act to create an advisory board to advise the federal government on measures to enhance the vitality of official language minority communities and to support their development, based on the model set out in Manitoba’s Francophone Community Enhancement and Support Act. In those circumstances, provide that:

• a majority of the board be made up of regional and sectoral representatives of official language minority communities, appointed by the federal government on the recommendation of their main representative organizations;
• the other members of the board be appointed by the federal government; and
• this amendment be made notwithstanding the requirement for public consultation under subsection 43(2) of the Act.

COMPLIANCE

RECOMMENDATION 7 
Office of the Commissioner of Official Languages and the Official Languages Tribunal

7.1 Amend the Official Languages Act to create the Official Languages Tribunal, independent of the Office of the Commissioner of Official Languages and based on the model set out in the Canadian Human Rights Act:

• made up of members appointed by the Governor in Council who have expertise in, and sensitivity to, language rights, and who have a strong interest in the field;
• whose mandate is to decide, in the first instance, proceedings brought under the Official Languages Act, including proceedings brought following a complaint filed with the Commissioner of Official Languages;
• authorized to grant any remedy it considers just and appropriate in the circumstances, including declarations, orders, damages and administrative monetary penalties, the amounts of which will be allocated to a fund supporting projects that promote the development of official language minority communities and/or the promotion of both official languages; and
• having a review mechanism before the Federal Court.

7.2 Amend the Official Languages Act to strengthen the ombudsman role of the Commissioner of Official Languages:

• by allowing the Commissioner to enter into compliance agreements with federal institutions, with such conditions as it considers necessary to ensure compliance and a recourse mechanism before the Official Languages Tribunal to review violations, based on the model set out in the Personal Information Protection and Electronic Documents Act;
• by providing for the public disclosure of its investigation reports, in the public interest, based on the model set out in New Brunswick’s Official Languages Act;
• by making the current facilitated complaint resolution process permanent; and
• by authorizing the Commissioner to act before the Official Languages Tribunal on behalf of one or more complainants to obtain a just and appropriate remedy in the circumstances, and by providing for the circumstances in which the Commissioner would be required to do so.

7.3 Amend the Official Languages Act to provide a framework for the appointment process for the position of Commissioner of Official Languages by creating an independent committee to review the appointment, based on the model set out in New Brunswick’s Official Languages Act.

ENFORCEMENT PRINCIPLES

RECOMMENDATION 8 
Federal services as drivers of vitality

8.1 Amend the Official Languages Act to explicitly recognize that the offer of communications with and services to the public in both official languages, including active offer, contributes to the vitality and development of official language minority communities. In those circumstances, provide that:

• institutional vitality be defined broadly, including all elements of the education continuum, from early childhood to post-secondary education, community centres, cultural centres and community media;
• the determination of significant demand:
  • be based on institutional vitality and a broad definition of the population to be served, including all potential users of services, not just those who have English or French as their first language or who speak either language at home;
  • not give consideration to the proportion of the official language minority population with respect to the majority; and
• the Governor in Council be required to take measures to enforce these requirements.

RECOMMENDATION 9 
Federally regulated private companies

9.1 Amend the Official Languages Act to extend the obligations regarding communications with and services to the public to federally regulated private carriers. In those circumstances, provide that:

• air, marine, rail and road transport companies be required to provide communications and services in both official languages; and
• the Governor in Council be required to take measures to enforce these requirements.

RECOMMENDATION 10 
Linguistic duality, bilingualism and communities able to develop and flourish

10.1 Amend the Official Languages Act, including its purpose, to clarify the federal government’s commitment to linguistic duality and bilingualism, which requires that measures be taken to:

• recognize the remedial nature of language rights;
• protect the survival of official language minority communities;
• encourage interest in and support for bilingualism in Canadian society; and
• promote the substantive equality of both official languages.

10.2 Amend the Official Languages Act, including its purpose, to replace references to “English and French linguistic minorities” with “official language minority communities.”

10.3 Amend the Official Languages Act to state what the Treasury Board “must” do to coordinate the implementation of Part VII, rather than “encourage” or “promote” such coordination.

10.4 Amend the Official Languages Act to state what measures the Treasury Board “must” take to advance the equality of status and use of English and French in Canadian society, rather than “take such measures as [the Treasury Board] considers appropriate.” In those circumstances, provide that:

• these measures include the following strategic sectors: health, justice, immigration, economic development, community media, and arts and culture; and
• the Governor in Council be required to take measures to enforce these requirements.

10.5 Amend the Official Languages Act to affirm that the provisions of Part VII are taken into consideration in the interpretation of the other parts of the Act.

RECOMMENDATION 11 
The federal public service

11.1 Amend the Official Languages Act to require that, on appointment, deputy ministers have a sufficient understanding of English and French to be able to perform their duties in both official languages, orally and in writing. In those circumstances, provide that:

• the required level of proficiency in both official languages be C-B-C;
• a deputy minister in office at the time of the coming into force of this amendment may remain in office even if the deputy minister does not meet this requirement; and
• the Governor in Council be required to take measures to enforce these requirements.

11.2 Amend the Official Languages Act to clarify the obligations of deputy heads and managers to foster a culture of linguistic duality in the workplace. In those circumstances, provide that:

• they ensure an active offer of services in English and French to their employees, pursuant to subsection 36(1);

• the language requirements of their positions be increased, in all cases, to the C-B-C level, and that deputy heads and managers already in these positions at the time of the coming into force of this amendment be given two years to meet the requirements;

• they adequately assess the language skills of their employees; and

• they provide their employees with language training opportunities.

RECOMMENDATION 12 
The Translation Bureau

12.1 Amend the Official Languages Act to establish the role of the Translation Bureau in the Act’s implementation. In those circumstances, provide that:

• the Translation Bureau be the exclusive provider of translation and interpretation services for federal institutions; and
• it be equipped with the tools and resources necessary to serve as a centre of expertise in quality translation and interpretation.

RECOMMENDATION 13 
Regulations to give effect to Part VII

13.1 Amend the Official Languages Act to specify that the Governor in Council is required to make regulations setting out measures to give effect to Part VII. In those circumstances, provide that:

• the Governor in Council promote a broad and liberal interpretation of these requirements;
• the Treasury Board consult with official language minority communities when developing the regulations;
• these measures achieve the following objectives:
  • raising employees’ awareness of the needs of official language minority communities and the government’s commitments under Part VII;
  • determining whether policies and programs have impacts on the development of official language minority communities and the promotion of linguistic duality, from the initial development of policies through to their implementation;
  • consulting representatives of official language minority communities as required in connection with the development or implementation of policies and programs;
  • describing the federal institution’s actions and demonstrating that it has considered the needs of these communities; and
  • if it has been determined that impacts exist, planning anticipated activities accordingly, presenting the expected outcomes and providing for results evaluation mechanisms.

13.2 Ensure, in conjunction with the modernization of the Official Languages Act, that regulations to give effect to Part VII are made by June 2021.

RECOMMENDATION 14 
Regulations to give effect to parts IV to VI

14.1 Amend the Official Languages Act to specify that the Governor in Council is required, in regulations to give effect to Part IV, to recognize that the offer of communications with and services to the public in both official languages contributes to the vitality and development of official language minority communities.

14.2 Ensure, in conjunction with the modernization of the Official Languages Act, that regulations to give effect to Part IV are amended by June 2023 and that the Treasury Board consults with official language minority communities when the regulations are amended.

14.3 Amend the Official Languages Act to specify that the Governor in Council is required to make regulations setting out measures to give effect to Part V and Part VI. In those circumstances, provide that:

• the Governor in Council promote a broad and liberal interpretation of these requirements;
• these measures achieve the following objectives:
  • creating workplaces conducive to the use of both official languages across the country;
  • clarifying the obligations of managers, chief executives and deputy ministers to encourage linguistic duality in the workplace;

  • clarifying the resources available to federal employees to ensure that their rights are respected; and

  • ensuring a more equitable representation of English-speaking and French-speaking Canadians in federal institutions located in the regions.

14.4 Ensure, in conjunction with the modernization of the Official Languages Act, that regulations to give effect to Part V and Part VI are made by June 2023.

RECOMMENDATION 15 
Regulations on active offer

15.1 Amend the Official Languages Act to provide that the Governor in Council be required to make regulations setting out measures to give effect to the active offer. In those circumstances, provide that:

• the Governor in Council promote a broad and liberal interpretation of these requirements;
• the Treasury Board consult with official language minority communities when developing the regulations;
• these measures achieve the following objectives:
  • ensuring that the public is informed of the availability of services in both official languages;
  • offering services in both official languages on first contact;
  • providing services according to the principle of linguistically and culturally appropriate services;
  • providing services of equal quality in both official languages and ensuring respect for the principle of substantive equality;
  • allocating the human and financial resources necessary for the active offer of service in both official languages; and
  • extending the obligation to third parties providing services on behalf of federal institutions.

15.2 Ensure, in conjunction with the modernization of the Official Languages Act, that regulations on the active offer are made by June 2023.

RECOMMENDATION 16 
Extension of New Brunswick’s constitutional rights

16.1 Amend the Official Languages Act to recognize the equality of status of the English linguistic community and the French linguistic community of New Brunswick, as set out in section 16.1 of the Canadian Charter of Rights and Freedoms. In those circumstances, provide that:

• the preamble to the Act be amended to refer to this equality of status;
• English-speaking and French-speaking employees in the federal public service in New Brunswick be represented in a manner that reflects this equality of status;
• all initiatives affecting the vitality and development of these two communities take into account the equality of their status and recognize their right to distinct educational and cultural institutions; and
• the Governor in Council be required to take measures to enforce these requirements.

16.2 Amend the Official Languages Act to recognize that the offer of communications with and services to the public in both official languages applies throughout New Brunswick. In those circumstances, provide that:

• the duties and obligations in Part IV apply to New Brunswick notwithstanding the criteria of significant demand and nature of the office; and
• the Governor in Council be required to take measures to enforce these requirements.

RECOMMENDATION 17 
Extension of constitutional educational rights

17.1 Amend the Official Languages Act to recognize the right to school governance and the right to equal access to quality education in the minority language, as set out in section 23 of the Canadian Charter of Rights and Freedoms. In those circumstances:

• recognize that federal–provincial/territorial agreements on minority language education enhance the vitality and support the development of official language minority communities;

• include all stages of the education continuum, from early childhood to post-secondary education, in the measures to enforce this requirement; and

• provide for mandatory consultation with minority school boards, represented by their main representative organizations, in the measures to enforce this requirement.

17.2 Amend the Official Languages Act or other federal legislation to require the enumeration of education rights-holders under section 23 of the Canadian Charter of Rights and Freedoms.

RECOMMENDATION 18 
General provisions

18.1 Amend the Official Languages Act to specify the obligation of federal institutions to implement the Act’s various parts in a consistent manner.

18.2 Amend the Official Languages Act to affirm the primacy of all parts of the Act over other federal laws. In those circumstances, provide that:

• the provisions of Part IV take precedence over those of Part V in the event of conflict; and
• this principle does not apply to the Canadian Human Rights Act nor to its regulations.

18.3 Amend the Official Languages Act to extend the right to court remedy to all parts of the Act.

18.4 Amend the Official Languages Act to require the Treasury Board to review the Act and its regulations every 10 years. In those circumstances, provide that:

• the review be carried out 10 years after the date of coming into force of the amended Act; and
• the Treasury Board consult with official language minority communities during the 10-year review of the Act and its regulations.

JUDICIAL BILINGUALISM

RECOMMENDATION 19 
Equal access to justice in both official languages

19.1 Amend the Official Languages Act or other federal legislation to ensure that the importance of ensuring equal access to justice in both official languages is taken into account when appointing judges to provincial and territorial superior courts and courts of appeal. In those circumstances, mandate the Office of the Commissioner for Federal Judicial Affairs to ensure a systematic assessment of:

• the need for bilingual judicial candidates in all regions of the country; and
• the language skills of judicial candidates.

19.2 Amend the Official Languages Act to set a maximum period of six months to publish, in the other official language, the decisions of federal courts referred to in subsection 20(2).

19.3 Amend the Official Languages Act to require the use of jurilinguists’ expertise in translating federal court decisions and establish a system for revising decisions translated into the other official language.

19.4 Amend the Official Languages Act to specify that the simultaneous publication of federal court decisions online is a communication with the public subject to the duties and obligations of Part IV.

19.5 Amend the Official Languages Act to specify that the active offer of services in both official languages applies to federal courts.

19.6 Amend the Official Languages Act to enshrine the existence of the “official language rights component” of the Court Challenges Program and its funding.

RECOMMENDATION 20 
Supreme Court judges

20.1 Amend the Official Languages Act and any necessary federal legislation to require that, on appointment, judges of the Supreme Court of Canada have a sufficient understanding of English and French to be able to read the written submissions of the parties and understand oral arguments without the assistance of translation or interpretation services. In those circumstances, provide that:

• a judge in office at the time of the coming into force of this amendment may remain in office even if the judge does not meet this requirement; and
• the Governor in Council may take measures to enforce this requirement, including compliance mechanisms.