{Please note that this was originally published in French}

To judge by Prime Minister Stephen Harper and his praiseworthy effort to master French, Canada’s francophone community is doing fine, especially in this year when we celebrate the 400th anniversary of the founding of Quebec City by Samuel de Champlain:

The 400th anniversary of the founding of Quebec City reminds us that French is Canada’s founding language.  Since that date, we truly began to become what we are today, as the founding of Quebec City also marks the founding of the Canadian state.  So the year 2008 is an opportunity for us to let the rest of the world discover the vitality and vibrancy of all of Canada’s francophone communities, in every region, and to highlight how much the contribution of the nine million French-speaking Canadians has marked both our country’s history and its future.

In this declaration made on the Journée internationale de la Francophonie, March 19, 2008, Stephen Harper reaffirmed his commitment to the French fact and to linguistic duality.  This could suggest that dawn is finally breaking in the relationship between Canada’s francophones and anglophones.  But behind these symbolic gestures, the sky is a little darker.  In his most recent report, released in May 2008, Official Languages Commissioner Graham Fraser observed that implementation of the Official Languages Act had plateau’d, and said he wondered about the future of official languages in this country.  For Mr Fraser and a number of stakeholders active in Canada’s French-language community, one fact is obvious:  application of the Official Languages Act is being done in an increasingly minimalist fashion, and the language rights of francophones, far from being firmly anchored, are slowly slipping away.  We can only echo these concerns.

Language rights in Canada are tied to equal and predominant status for the official languages, English and French.  These rights are designed to ensure the preservation and vitality of both official-language communities.  Already defined in the Canadian Charter of Rights and Freedoms and in the Official Languages Act, language rights were recently strengthened, in 2005, by amendments to Part VII of the Act.  Part VII now provides that federal institutions have a legal obligation to take “positive measures” to ensure the vitality and development of Canada’s minority francophones and anglophones.

Despite this recent recognition of the equality of the two official-language communities, the battle for the French fact is far from over.  The situation of francophones living outside Quebec remains precarious, as can be seen from the mother tongue figures in the 2006 census.  According to the census and to data produced by Statistics Canada, the number of francophones in Canada is increasing but their demographic weight is still declining.  People whose mother tongue is French represented 22.1% of the Canadian population in 2006, compared to 22.9% in 2001.  Between 2001 and 2006, the French-speaking population increased by almost 110,000 people, but its growth rate is the weakest:  1.6%, compared with 3% for anglophones and 18% for allophones.  Of Canadians outside Quebec, 4.1% have French as their mother tongue, a decrease of 0.3% since 2001.  This decrease reflects a trend that has been going on for over half a century, although been slowed by measures for the protection and promotion of language rights.

A steadily more minimalist application of the Official Languages Act is starting to erode the gains of recent years.  For example, the Commissioner of Official Languages noted in his 2008 report that only 23% of the institutions he looked at actively offer bilingual services.  Air Canada is a case in point.  Despite the scrutiny given to it year after year not only by the Commissioner’s Office but also by the country’s French-language media, the airline’s linguistic performance continues to be as dismal as ever.

The same minimalism is observable in the offer of language training tools and mechanisms within federal institutions, which are often inadequate to meet the need.  The Canadian Forces are a striking example.  French training within the Forces is seriously lacking, and the closure of the Collège militaire de Saint-Jean in 1995 has certainly contributed to this.  The reopening of the Collège in 2008 is part of a new wave of efforts to francize.   But francophone military personnel still have restricted access to training in their own language, despite repeated demands by the Ombudsman that this be changed.  The new “functional approach” adopted by the Forces with regard to language training for its officers is troubling.  By limiting bilingualism requirements to officers serving with bilingual or French-speaking units, the functional approach consecrates the predominance of English, since communication between officers with such units and officers with unilingual English units will most likely take place in English.

To the minimalism described above may be added a case-by-case approach to respect for language rights generally and for public servants’ language of work rights in particular.  One good illustration of this case-by-case approach involves the relocation of federal agency head offices to non-bilingual regions.  Take for example the recent move by the Canadian Tourism Commission from Ottawa to Vancouver, a unilingual region.  The Commission made an exception to the rule and has allowed its employees to work in the official language of their choice.  However, this one-time concession to francophone and bilingual employees in Vancouver was just that, an exception to the rule in unilingual regions and not the recognition of an acquired right for all Canadians.

The renewal of the federal Public Service poses further challenges to bilingualism.  As the Commissioner of Official Languages has noted, more than half of current federal public servants are between 45 and 64.  This means that large numbers of new employees will have to be brought in to fill the gaps left by retirements.  Not only does the Public Service have to find all these new people, it must also make sure that its ranks represent the diversity of the Canadian population as well as meeting the federal government’s language obligations.  The Public Service will thus have to provide language training to many more employees or recruit people who are already bilingual.  But language skills are not the whole story.

As Mr Fraser said in his most recent report, it appears that, despite a growing number of bilingual managers, not only does English only still predominate in the Public Service but also that bilingualism is seen solely as a communication tool, without being recognized for its intrinsic value.  The Commissioner noted that this approach is not wrong in itself, but pointed out that if it is not based on the more fundamental values that give it legitimacy, the cultural values associated with a second official language, this approach will not be enough to achieve the goals the government has set.

Governance of official languages in Canada has experienced major changes since 2006.  The official languages coordination centre, the Official Languages Secretariat, has been moved from the oversight of the Privy Council Office to that of the Department of Canadian Heritage.  A single minister is now responsible both on the one hand for coordination of all official-language-related activities by federal institutions and overall implementation of the Act (in particular seeing to it that the government’s partners fulfill their responsibilities under the Act), and on the other hand for directing the activities of the Department.  This double ministerial load sends a signal to the public that the government does not set much store by the coordination role that was until recently at the heart of the official languages governance structure.

Because of the changes made to official languages governance, Canadian Heritage has a limited role to play.  Its sectoral mandate means that it lacks the authority and influence exerted by its predecessor, the Privy Council Office, which as a central agency could issue directives to the whole government administration.  In addition, the federal government has abolished the Ministerial Committee on Official Languages.  The Minister of Official Languages’ coordination role is now exercised at bilateral meetings with colleagues whose portfolios include responsibilities in this area.  This means that the official languages ship now no longer has a rudder strong enough to turn it and that its captain has been replaced by someone with an oar.  The crew no longer has any way to work together on the direction in which the ship should be steered.  How much longer before it begins to take on water?

These setbacks, any one of which would be a matter for concern, cannot be compared to the impact on official languages in Canada of the elimination of the Court Challenges Program.  Francophones outside Quebec remain the group most often dependent on court rulings, which sometimes force the federal and provincial governments to offer better services in French to official-language minorities.  But before judges can rule on language rights issues, francophones must be able to get their cases into court for a hearing.

From 1978 to 1992 and from 1994 to 2006, the Court Challenges Program helped minorities get access to the courts so that their Charter rights could be enforced.  In its last annual report, the Program’s administrators noted that it had been functioning since 1994 with an annual budget of $2.75 million, of which a quarter went to fund language rights cases and the remainder to fund equality cases.  From 1994 to 2006, 403 applications for funding for language rights cases (including appeals of cases already heard once) were submitted, and 304 of them were approved.  Of these 304 language rights applications funded, 151 dealt with education rights, 35 with judicial rights and 63 with language of work and service rights.

The Program helped restore a balance between the government responsible for applying laws and the citizens affected by them.  Canadian courts recognized that it was too much to expect that governments would simultaneously enforce and contest laws, whence the importance of supporting access to the legal system for public interest cases.  The abolition of the Program undermines language rights, because without funding individuals and groups who feel their rights have been violated, or who would like to appeal a ruling, have more difficulty getting into court.  This allows problematic practices to continue and case law to build up that may be less favourable to language rights.

In 2003, the Action Plan for Official Languages was introduced to breathe renewed vitality into official languages and the federal government’s commitment to them.  The Roadmap for Canada’s Linguistic Duality, released in June 2008, adds some new elements to the old 2003-2008 Action Plan, such as support for francophone immigration, arts and culture programs and university scholarships in translation.  However, a number of shortcomings remain.  First of all, the Roadmap seems to suggest that budgets are larger now than under the old Action Plan.  This is not the case, since the Roadmap takes 2003 as its point of comparison, without allowing for the annual budget increases between 2003 and 2008.  Certainly there has been an increase over the 2003 Action Plan budget, but there is no such increase in a number of areas over 2008, the Plan’s final year.

Moreover, the Roadmap contains nothing about the Public Service, while the most recent report by the Commissioner of Official Languages stressed the importance of strengthening the Service’s linguistic duality.  Although over 85% of managers are bilingual, according to the Commissioner, employees and managers are still hesitant to work in the official language of their choice, which gives the impression that “the Public Service does not truly embody the values of linguistic duality”, as Commissioner Fraser observed.

The budget for support for official language minority communities is remarkable only because it is so small:  $22.5 million is not nearly enough to meet the demand, and communities may be unable to reach their full potential as a result.  The amounts for economic development also seem to have been allocated arbitrarily, since at first sight they appear to be unequally distributed given the provinces’ needs.

The new Program to Support Linguistic Rights, which partially replaces the Court Challenges Program, will not make it possible to fund all official-languages-related complaints.  Complaints are not eligible if they involve rights guaranteed by the Official Languages Act or by provincial or territorial legislation, which narrows the Program’s scope significantly.  Its eligibility criteria are in fact quite murky.  Applicants will have to demonstrate that their case is likely to lead to new developments in language law and that they have tried mediation.  This condition, which inserts a mediation step into the legal process, lacks rigorous evaluation criteria.  What is more, mediation can make the judicial process still more difficult for ordinary Canadians; it may even penalize them.  So this new requirement is more of a barrier to the promotion of language rights than a helping hand.  The Roadmap seems promising, but it will not be enough for the optimal development of the official-language communities.

The major shortcomings observed since 2006 mean that, to rectify the situation and bring about a positive change of direction, the government will have to get actively involved.  With a renewed mandate, strengthened following the recent election, it now has the opportunity to play a leadership role, support a revitalization of the French fact in Canada and reverse the minimalist trend that has increasingly been eroding respect for language rights.  The government will have to come up with an overall vision of its policies and those of the Public Service in this regard, instead of proposing project funding on a case-by-case basis.  Since Part VII of the Official Languages Act was amended, the official-language communities have been calling for, and expecting, far-reaching initiatives and grants proportionate to their needs.  The two new ministers responsible, Francophonie Minister Josée Verner, and Canadian Heritage and Official Languages Minister James Moore, must work with public servants and language communities throughout the country to enhance and reinvigorate Part VII.  Here are some recommendations that should be considered:

·        The promotion of linguistic duality as a key structural element of the Canadian identity (and not simply as a framework for providing services in two official languages) must be made an integral part of an overall vision of linguistic duality and official languages in Canada.

·        The meaning of “positive measures” must be defined to clarify the new obligations arising from Part VII of the Act, and all new policies, agreements, decisions and programs must be systematically reviewed In light of these obligations.

·        Targets for the extension of bilingualism and linguistic duality in the federal Public Service must be established, to provide benchmarks for positive measures.  Means of evaluating and improving Part VII programs and policies must be systematically integrated into the new policies introduced to meet these targets.

·        Agreements between the federal government, the provincial and territorial governments and the communities, in particular with regard to instruction in the language of the minority and to services assisting with the integration of immigrants into the official-language communities, must be strengthened, with a view to making the provincial governments aware of the advantages that vital official-language communities represent.  In addition, language clauses must be included in the economic and community development contribution agreements targeting official-language communities.

·        A more generous application of the official languages regulations, in particular those regulating communication with the public and provision of services, must be adopted.  The existing regulations could be amended, or new regulations made, to define “significant demand” more plainly, in order to determine when there is an obligation to serve and communicate with the public in both official languages.  Instead of looking solely at numerical criteria, the government must expand the criteria to allow for the unique features of the francophone or anglophone minority community.

But before these suggestions can be implemented, one thing must be clearly understood:  the outlook for official languages is not bright.  Increasing minimalism in the application of the Official Languages Act, the federal government’s withdrawal from its commitments in this area and the weakened governance structures for official languages have undermined the official-language communities’ gains.  As the late Senator Simard used to say, “It takes 15 years to win recognition of a right, but it takes only 15 minutes to lose it.”  Restricted access to the courts combined with vacillating leadership on the federal government’s part could mean that some devolution of language issues to the provinces is in the offing.  But the necessary legislative and administrative frameworks in the provinces are at worst absent, at best very new and not yet integrated into their political culture.  The official-language minority communities are right to be worried.

The approach of the 40th anniversary of the Official Languages Act in 2009 is a strong for the federal government to develop a renewed vision of the whole concept of linguistic duality and official languages in Canada.  The government should take advantage of the anniversary to do something striking that will not only stop the erosion of language rights but also give more backbone to bilingualism and linguistic duality, those fundamental characteristics of the Canadian identity.

 

 

Claudette Tardif is a member of the Senate of Canada, where she sits on the Standing Senate Committee on Official Languages.  Marie-Joie Brady is a doctoral student at the University of Ottawa, a Trudeau Foundation Scholar and an independent language policy advisor.  (Reproduction permitted.)

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