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Joseph Day

The Hon. Joseph A. Day, B.Eng., LL.B., LL.M., P.Eng. A well-known New Brunswick lawyer and engineer, Senator Joseph A. Day was appointed to the Senate by the Rt. Honourable Jean Chrétien on October 4, 2001. He represents the province of New Brunswick and the Senatorial Division of Saint John-Kennebecasis.

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Official Languages Act — Bill to Amend

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Statement made on 15 June 2010 by Senator Maria Chaput

Hon. Maria Chaput:

Honourable senators, it is a privilege to tell you about Bill S-220, an act to amend Part IV of the Official Languages Act, the law that contributes to the development and vitality of the francophone community so dear to me.

My heritage was passed on to me by my great-grandparents. The Chaput family came from France, first to Quebec and then to Manitoba, where they have lived for 125 years. My mother's family, the Charrières, left Switzerland for Manitoba in 1903.

I, in turn, have passed on this heritage to my descendants, my three daughters and my four granddaughters, in the hope that they will do the same. However, the francophone reality in which they live is completely different from the one I grew up in. Today's Francophonie is modern and dynamic and, for my granddaughters, an open Francophonie that brings together francophones of all ethnic origins, Metis, new immigrants, bilingual individuals and francophiles.

We have just celebrated the 40th anniversary of the Official Languages Act. Canada has made much progress since the Official Languages Act was passed in 1969. It is time to take stock of the current state of this fundamental law, to reflect on future challenges, and to take the action required to ensure, among other things, respect for English and French as official languages, their equality of status and the equal rights and privileges as to their use in federal institutions.

According to the Supreme Court of Canada:

The importance of these objectives and of the constitutional values embodied in the Official Languages Act gives the latter a special status in the Canadian legal framework. Its quasi-constitutional status has been recognized by the Canadian courts.

It is not an ordinary law.

Since its beginnings, Canada's political system has reflected the coexistence of the country's two large linguistic communities. Respecting linguistic minority rights is one of our fundamental constitutional principles.

The Official Languages Act is the fruit of bipartisan work that began when the first act was adopted in 1969 under a Liberal government.

The 1969 legislation extended the constitutional guarantee given to the use of French and English in Parliament and in federal courts to federal institutions in general.

In 1988, the Conservative government of the day, with support from the Liberals, carried out a thorough review of the Official Languages Act to ensure the full implementation of the linguistic rights guaranteed under the Canadian Charter of Rights and Freedoms.

Throughout our history, Canada's two major political parties have been able to work together to ensure respect and protection for both our founding languages.

In the past 40 years, considerable progress has been made in communications with the public, provision of federal services, and support for the official language communities. In terms of equality between French and English, Canada has come a long way since the Official Languages Act was adopted in 1969.

Nevertheless, as we go over our record of accomplishments, we must also note that official language communities continue to be threatened by crushing and very worrisome pressures to assimilate.

Despite the best intentions of the legislator, some provisions of the Official Languages Act relating to communications with and services to the public have to be improved in order to fight assimilation of those it was intended to protect.

For example, look at the lack of federal services in the minority official language in regions where the province offers them — that is the case in New Brunswick, the only officially bilingual province, and in Ontario, where Ontario's law ensures that government services are provided in French in 25 regions across the province.

While the provincial government offers all of its services in both official languages in the greater Toronto area, almost a quarter of federal offices are not designated bilingual. In Brampton, where the province offers all its services in French and English, the federal government only offers bilingual service in one office out of six. There is no shortage of examples in Ontario.

In New Brunswick — the only officially bilingual province — the public cannot obtain services in the language of their choice in one-third of the federal government offices.

It is time to recognize immediately that we must amend the act in order to adapt to current needs.

In so doing, we cannot lose sight of the purpose of the Official Languages Act, which is to:

  • ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use . . . in communicating with or providing services to the public . . .; [and]
  • support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society.

It is important to note that section 16 of the Canadian Charter of Rights and Freedoms provides that language rights can be broadened in scope and that one role of Parliament or a legislature is to advance the equality of status or use of English and French.

There has been a significant evolution in legal thinking, in the way the public thinks, and in the values that constitute the very basis of language rights, such as the restorative nature of language rights and the real and substantive equality of the official languages.

In the late 1960s, people talked about the equality of the languages themselves. Then came the concept of the equality of the speakers. During the 1980s, the courts gave interpretations that indicated that the purpose of language guarantees was to preserve and develop official language communities and that a community-based approach was needed.

The conclusion was that institutional support was vital to achieving real equality. The case of the Montfort Hospital in Ottawa is a good example of how important institutions are to the vitality and development of minority official language communities.

These institutions, be they schools, cultural or government institutions or other bodies, very often act as lifesavers for these minority official language communities, which use them to preserve their language and culture and pass them on to future generations. It is important to note that section 20 of the Canadian Charter of Rights and Freedoms guarantees the public:

The right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French.

Moreover, the public has that same right with respect to any other office of these institutions, where there is a significant demand for the use of the official language or where the nature of the office warrants. Part IV of the Official Languages Act covers the constitutional obligations of the federal government and its institutions.

In 2009, in DesRochers, the Supreme Court of Canada ruled that federal officials' obligations under Part IV of the Official Languages Act consist not only in communicating with the public and providing services equally in both official languages, but also in providing services of equal quality. To my way of thinking, equal quality means active offer, regular consultation, an integrated approach and adapted services.

The sociolinguistic context has also changed a great deal since 1969 and even since 1988. Many people from French-language minority populations, which were largely located in rural areas, have moved to urban centres, where they make up a relatively small segment of the overall population. This has reduced the size of francophone core groups and made it difficult for francophones who have moved to urban areas to get services in French.

For example, the 79,000 French speakers in Edmonton, spread throughout an area of over 600 square kilometres, have access to services in French at only one post office.

As a result of this migration towards urban areas, we have also seen an increase in exogamy, which has often meant that francophones identify themselves as belonging to a household where English is the language most often spoken.

Lastly, among all these changes, we must note the remarkable emergence of networks of institutions — educational, community, cultural, sports and others — managed by and for the official language communities. They help stabilize and even increase demand for services in the minority official language.

The existing linguistic regime, which results from Part IV of the Official Languages Act, has not adapted to all of these changes. It is about time that it did adapt. This is particularly true when it comes to the obligation to provide services in both official languages, without exception, "where there is significant demand." The Official Languages Act offers only a few optional factors for determining demand, and leaves it up to the regulations to define the rights and how they should be implemented. The regulations are very technical and mathematical and based on the needs of the administration, and do not take into account the impact on the communities served — which goes against the very objective of that same act — and they have not been revised since they were adopted in 1991.

We seem to have lost sight of the very objective of the act, which is to encourage the use of both official languages and to promote the development of official language minority communities, thus recognizing linguistic duality as an important component of Canadian identity.

But in enforcing the current system, public servants look only at statistical data when determining sufficient numbers, numbers that do not take into account exogamous families, Canadians who went to immersion schools and who choose to identify, occasionally or permanently, with the minority language community, or even members of the public who have a knowledge of French and would like to use it from time to time.

This, honourable senators, is incompatible with the text of the legislation, particularly with section 20 of the Canadian Charter of Rights and Freedoms, which provides for access to services to the public in both official languages, and not just for members of minority language communities. In 1969, 1982 and 1988, the legislator sought to facilitate the use of the other official language, be it by members of an official language minority community, newcomers or bilingual members of the majority language community. The goal was to include, not exclude.

These days, people tend to think that only francophones, as defined by Statistics Canada, request service in a minority language. That is a very static perception of the francophone community. Canada's Francophonie includes people of French Canadian origin, Metis, newcomers, and bilingual and francophile individuals. People love being part of our francophone community, which encourages them to be the best they can be.

Application of the current regime also ignores the particular characteristics of the minority community criterion in the Official Languages Act. During the 1988 debates on amending the Official Languages Act, the Honourable Ramon Hnatyshyn, Mr. Mulroney's justice minister, emphasized the importance of the minority community characteristics criterion when he said:

Based on qualitative criteria, it may be that a minority language community's situation and specific needs can be considered significant enough to justify providing bilingual services even when quantitative criteria suggest otherwise.

According to leading sociologist Raymond Breton, a francophone community's vitality depends on the strength of the institutions that support and nourish it. The current system dismisses the legislator's intent by brushing aside the criterion relating to particular characteristics of the minority community.

Only the mathematical criteria seem to matter.

It is crucial that Canada's linguistic regime fully take into account the remedial purposes of linguistic rights, the real and substantive equality of our two official languages, Canada's sociolinguistic reality right now, as well as the assimilative pressures that threaten our official language minority communities.

The main problem we face is the one Bill S-220 is intended to correct, that is, access to general services provided by the federal government has been restricted, with a few exceptions, in places where there is considerable demand, despite the absence from Part IV of the Official Languages Act of any logical, mandatory, clear, inclusive parameters that are compatible with the purpose of the act.

Above all, we must not forget that the purpose of this part of the act is to ensure equal access to services of equal quality to both official language communities, in short, to the public, and to encourage the use of the minority language to promote the development and vitality of official language minority communities.

The criteria to be established must reflect the values behind the act and must take the actual situation into account. In that regard, it is important to bear in mind that psychological factors are very important when it comes to how the members of a minority behave. The active offer of federal services, as required by the act, is vitally important to official language minority communities.

Francophone individuals in minority communities who are charged with a crime and summoned to appear before a unilingual anglophone judge are not likely to ask to be heard in French if they are bilingual, even if only partially, because they will feel like they are annoying the very people before whom they are most vulnerable.

Francophone individuals in minority communities who suffer from cultural insecurity, even if they are bilingual, will not always ask to be served in French in a formally bilingual institution, where it is clear that service in French is simply a concession.

In minority communities, there must be an offer for there to be a demand. Official language minority communities should not be burdened with having to mathematically prove the existence of a demand for services in their official language in order to exercise their fundamental rights.

On the contrary, it is up to the federal government to promote the full recognition and use of French and English in Canadian society.

. . . in all the provinces. . .the right to communicate with the government and public officials in the official language of their choice . . .

The late Jean-Robert Gauthier called this the "minimum objective." Bill S-220, much humbler in scope, is a small step towards that ideal.

Bill S-220 proposes some minor adjustments: first, it will ensure that the criteria for calculating significant demand are logical, mandatory, clear, inclusive and compatible with the purpose of the law; second, it will clarify the role of the federal government as leader in the area of official languages by ensuring that federal institutions are required to do at least as much as the provinces; third, it will establish a mechanism for reviewing communications and provision of services after each decennial census; fourth, it will guarantee services of equal quality to users in either official language, by including in the law the principle recognized by the Supreme Court of Canada; fifth, it will make decision makers accountable by ensuring that the public is informed and consulted before exempting a service or an institution from application of the law; and sixth, it will improve understanding of the rights of the travelling public.

Let me quote the first subsection of section 16 of the Canadian Charter of Rights and Freedoms:

English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

And the third subsection states:

Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

Therefore, Parliament retains extensive authority to legislate in the area of official languages, particularly for the purpose of defining what constitutes "significant demand."

With respect to the provision of services where warranted by demand, the federal system established when the 1988 Official Languages Act came into force is incompatible with the approach of the Supreme Court of Canada.

To rely on a purely objective assessment is disturbing because it forces the government to move away from the legislation's fundamental goal, which is to support official language minority communities.

Here is an overview of the results of this purely objective assessment. The 2001 census data used by public officials led to a reduction of French services in 100 federal offices across Canada. For example, in my home province of Manitoba, the francophone community suffered a net loss of seven federal offices following the most recent decennial census, while there was a net loss of three offices in Saskatchewan and four offices in Newfoundland and Labrador. These closures made communities that were already threatened with assimilation even more vulnerable.

The mathematical approach also led to some totally illogical situations, such as providing services to a community of 500 people accounting for 5 per cent of a municipality's total population, while refusing to do the same for a community of 500 which accounts for 4 per cent of another municipality's overall population.

In this example, there are as many members in the second official language community as there are in the first one, but because they are spread out in a larger centre, they are likely more at risk of being assimilated. They are more vulnerable and, consequently, more likely to need government services in French to ensure their protection and development.

The fact that there is no binding obligation in certain provincial capitals, and that, in some cases, the federal government provides fewer services than the provincial government, as is the case in New Brunswick and in Ontario, also seems to make little sense.

As I already mentioned, it is rather peculiar that the demand must precede the offer of services when calculating the numbers that may lead to a requirement on the part of the government. Instead, the demand should be determined by taking into consideration all those who would like to be served in the minority language. It should not be based on the category of people that the government feels it must take into consideration, based on the census figures.

Furthermore, in his 2008 report, the honourable Bernard Lord recommended that the new government strategy for official languages be focused on improving access to services in French that are provided directly to citizens.

In short, under the current system, determining significant demand is a function of administrative requirements at whatever the cost to the preservation of the official language minority community. It would be more in keeping with the intent of the act to recognize a community in need of service on the basis of other criteria, such as its particular characteristics and its institutional vitality.

Other phenomena must be taken into account as well: urbanization and its impact on francophone communities; immigrants who have neither French nor English as their mother tongue or the predominant language in the home; and francophones living in exogamous family settings. Above all, we must not presume that only francophones, as defined by Statistics Canada, will make use of services in French.

Over the past months, I have consulted many groups and individuals. I share their belief that the government should allow the greatest possible number of its citizens the freedom to choose. In other words, let Canadians request services in either official language or even choose the official language community with which they want to be associated. We must avoid putting the emphasis on the "official-language minorities" and instead focus our attention on the "official-language communities," a broader concept that brings together members of the minority, people with links to them and people who speak the language although it is not their mother tongue.

It is remarkable that what seems so novel today was already understood in the remarks by the then Minister of Justice, the Honourable Ramon Hnatyshyn on March 22, 1988, when he told the legislative committee considering the proposed Official Languages Act that:

[The] particular characteristics of that [official-language] minority population . . . such as the existence of educational, religious, social or cultural institutions . . . may attest, perhaps better than numbers alone, to that population's vitality and potential as a community.

Federal services should at the very least strengthen communities that, since the adoption of the Charter, have obtained their own schools and been revitalized by them. The federal government should adapt to the situation in provinces and territories that allows for broader access than provided for under federal legislation. This would also be a good indication that the federal government is taking positive measures to meet its commitments under Part VII of the Official Languages Act.

Were you aware, honourable senators, that in Newfoundland and Labrador there is a minister responsible for francophone affairs; that in Nova Scotia, a French-language Services Act was adopted in 2004; that Prince Edward Island adopted a French Language Services Act in 1999; that New Brunswick is Canada's only officially bilingual province; that Ontario's French Language Services Act dates back to 1986, while the francophone presence in that province dates back 350 years; that Manitoba has had a policy on French-language services since 1989; that Saskatchewan adopted a policy regarding French-language services in 2003; that Alberta has had a Francophone Secretariat since 1999; that British Columbia has a Francophone Affairs Program and signed, in 2009, the Canada-B.C. Co-operation Agreement on Official Languages with the federal government, to increase the province's capacity to offer services to the province's 290,000 French speakers; that the Northwest Territories' Official Languages Act, adopted in 1984, recognizes French as an official language; that the Yukon's Languages Act, enacted in 1988, makes French one of the territory's official languages; and that in 2008 Nunavut adopted its Official Languages Act and, in doing so, made French one of its official languages?

. . . Official language minority communities are not demanding something that is a universal right, or in fact, an essentially moral right.

— wrote former Supreme Court of Canada Justice Michel Bastarache recently, and continued:

They are demanding something that is their constitutional right. . . . They need not periodically justify their right in light of demographic or political changes, nor need they compare themselves to speakers of other languages.

In 1969, when Senator De Bané was a member of Parliament examining the bill on official languages, he asked whether it would be appropriate for this legislation to take priority over other federal laws — today, this question has been answered and the quasi-constitutional nature of the Official Languages Act is well established.

In March 1988, when the Senate was sitting in committee of the whole, the Right Honourable Pierre Elliott Trudeau reminded us of the importance of the hundreds of thousands of French Canadians who had settled in the rest of Canada and tried to preserve their identity, the Acadians who fought for years against the indifference and often the hostility of their fellow citizens as well, the generations of male and female politicians in Quebec who fought to establish the French fact, not just for Quebec, but also for Maillardville, for the Peace River, which we call Rivière de la Paix, and for French Canada as a whole.

Today as never before, members of the great French-Canadian community travel across the country for business and pleasure. The legislation has to reflect this increased movement of the people and be adjusted accordingly.

On April 15, 2010, when the Minister of Transport, Infrastructure and Communities, the Honourable John Baird, appeared before the Standing Committee on Official Languages of the other place, he said he was aware of the problems of Air Canada and its subsidiaries with regard to their official language requirements, and I quote:

I agree with the fact that we need a new bill. . . . I think, and obviously I've said, in some shape there needs to be strengthening of the law by amending the legislation.

As honourable senators may know, I come from a small francophone rural community in Manitoba. That community's values were passed on to me through many generations, values centered on being proud of who you are and where you come from, and about having faith in the people around you.

I grew up in a typical francophone family of that time, the oldest of 11 children. I learned from my mother the secret of how to call forth from each and every person the very best they had to offer, the potential of each and every one of us.

In my early years, I attended school in a convent run by the Grey Nuns in a French-speaking community called Sainte-Anne-des-Chênes, in southeast Manitoba. Those were the years when teaching French in Manitoba schools was forbidden by law. When the provincial school inspector was in the neighbourhood, we had to hide our French books. Remember that French-language instruction in Manitoba was forced underground after the final abolition of French schools, in 1916.

Honourable senators, less than 200 years earlier, Acadians had been deported and told that they could not come back to their country. French in North America was threatened from all sides. This was, of course, based on the irrational idea that in a federation like Canada there could only be one language and one culture.

All honourable senators in this chamber know very well that this is not the case, and accept that our federation has two official languages and is home to a multitude of cultures.

Our story is one of anxiety and loss, but it is also a tale of resilience and, ultimately, survival and restoration. Over time and with great effort, by people of various linguistic backgrounds, things have improved for Canada's French speakers. However, we must never forget what happened, or why, so that it never happens again.

While we have come a long way, there is still work to be done. Bill S-220 is another small step in the right direction. Canadians should feel a sense of ownership of the other official language, even if they do not speak it, because this is Canada.

"I would like to extend language rights to all Canadians as much as possible," said the Honourable Eymard Corbin, then a member of Parliament, during the 1969 study of the official languages bill. Like many other Canadians, I share our former colleague's desire and I believe that Bill S-220 is a small step in that direction.

The future of the official language communities, in particular francophone and Acadian communities, will always rely on the unconditional support and attentiveness of their country's government.

The French fact is present in Canada, from one ocean to the other, and those who believe in it are increasing in number.

Official language minority communities are not asking to be left alone, but rather to be supported by government action.

I believe, as do many others, that Canada's federal government has the responsibility to play a leadership role with respect to official language minority communities: it must promote the use of the official languages and ensure that our communities' accomplishments are safeguarded.

As the Commissioner of Official Languages pointed out, we would make great progress as a country if we recognized the other language for the huge asset that it is — not as an obligation, an imposition or a concession, but as a central part of Canadian identity.

As you all know, honourable senators, the Senate has a constitutional mandate to protect, defend and promote minority rights on a case-by-case basis and to represent the regions.

I am asking you to support this bill and allow a Senate committee to study it.


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