LANG Committee Report

THE JUSTICE SYSTEM AND OFFICIAL LANGUAGE COMMUNITIES

INTRODUCTION

The Standing Joint Committee on Official Languages is submitting a progress report to Parliament on its examination of the implementation of Part VII of the Official Languages Act. This report deals specifically with the justice system and its impact on section 41, which provides that the federal government is committed to “enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development, and fostering the full recognition and use of both English and French in Canadian society.” The Committee believes that it is important to point out, at this point in its hearings, that sections 16 et seq. of the Canadian Charter of Rights and Freedoms very clearly entrenches the principle of the equality of both official languages in Canada. The only reason Part VII of the Official Languages Act exists is to fulfil a constitutional duty that is specifically set out in subsection 16(3) of the Canadian Charter of Rights and Freedoms: “to advance the equality of status or use of English and French.” We cannot overemphasize the importance of Parliament taking appropriate measures to actively advance the equality of the two official languages.

The Department of Justice was responsible for preparing the Official Languages Act in 1988. Responsibility for that Act remains with that Department which advises the government on legal issues relating to the status and use of the official languages, and articulates the government’s position in litigation involving language rights. The Department also has specific responsibilities in relation to the administration of justice in both official languages, and works with Treasury Board and the Department of Canadian Heritage to carry them out. Therefore, the institutional responsibility of the Department of Justice under Part VII is very high.

The Committee heard testimony in relation to this question from community groups, the academic community and the public service. The scope and interpretation of Part VII of the Official Languages Act was central to the discussions, although other issues were also raised by witnesses. We shall first present a brief report of the testimony we heard. The Committee will then comment on that testimony and submit its recommendations to the government.

B.     OVERVIEW OF TESTIMONY

1.         Panel of Experts

On March 12, 2002, the Committee heard two witnesses from the Fédération des associations de juristes d’expression française de common law (FAJEFCL) and two professors from the University of Ottawa Faculty of Law. The FAJEFCL described problems associated with the administration of justice in French in minority communities. While the Canadian Charter of Rights and Freedoms and the Official Languages Act provide for the right to use French or English, orally or in writing, in courts under federal jurisdiction, the day to day reality is quite different. Tory Colvin, President of the FAJEFCL, explained that the administration of federal law by the courts established by the provinces is problematic since holding a trial in French involves additional delays that may be as long as two months, to find a French-speaking judge. Difficulty in accessing associated French services, such as court reporting, also increases the waiting time. Mr. Colvin supported his opinion by referring to proceedings involving the Bankruptcy Act and the Divorce Act, which unavoidably lead to additional delays when they are conducted in French, because of the shortage of French-speaking judges.

On the question of the scope of section 41 of the Official Languages Act, the FAJEFCL submitted that the interpretation given until now has been minimalist.

André Braën, law professor at the University of Ottawa, explained that the decision to include Part VII in the Official Languages Act in 1988 was a way of adding to and acting on the guarantees in the Canadian Charter of Rights and Freedoms. While there are still two interpretations of the scope of section 41, the recent judgments in Beaulac and Arsenault-Cameron have confirmed the need to interpret language rights liberally and generously. In his opinion, it is plausible that the present wording of section 41 implies that federal authorities are obliged to promote and ensure the development of minority language communities. Given that the government of Canada has complete discretion in choosing the means, it would perhaps be appropriate to specify them, either by strengthening section 41 or by adding a regulatory framework.

Joseph Eliot Magnet, also a law professor at the University of Ottawa, provided a historical review of section 2 of the first Official Languages Act of 1969. He explained how that section led to the incorporation of section 16 in the Canadian Charter of Rights and Freedoms. It is important to note that all of the witnesses who spoke at the March 12, 2002, meeting of the Standing Joint Committee on Official Languages stressed the executory nature of section 41 of the Official Languages Act.

2.         The Department of Justice

            (a)       Francophonie, Justice in Official Languages and Bijuralism

On April 15, 2002, the Committee heard the testimony of Andrée Duchesne and Sylvie Doire, legal counsels with Francophonie, Justice in Official Languages and Bijuralism at the Department of Justice. That Office is responsible for coordinating the Department’s action plan for the implementation of section 41.

The Department conducted public consultations to identify how it can enhance the vitality of official language communities. Four key messages were identified: increase officials’ awareness of the need for an active offer of service, hire more bilingual personnel, educate the official language majority on minority rights, and publicize Department of Justice programs. As a result of these consultations, the Department is currently preparing a new action plan which will be available in April 2004. Both witnesses mentioned that the Department is currently conducting a study, “l’État des lieux”, that will provide it with quantitative and qualitative data on legal and judicial services currently available in both official languages. The final report will be available in June 2002.

(b)       Minister of Justice, the Hon. Martin Cauchon

On April 30, 2002, the Committee heard the Minister of Justice’s testimony. Most of his presentation dealt with his Department’s position on the scope of Part VII of the Official Languages Act. On that point, the Minister maintained that it is necessary to look to Parliament’s original intentions. While Parts I to V create rights and obligations of results, Parliament quite deliberately did not intend to make Part VII subject to the possibility of a remedy being sought from the court as is the case for Parts I, II, IV and V. The idea was to leave the government complete latitude in terms of the means to use to achieve French and English equality of status. As well, Part VII must not be thought of as an “empty shell,” as some people suggest. In its present wording, section 41 and Part VII as a whole comprise a political declaration that is binding on the government and places it under a duty to act. Part VII calls upon the government to work in partnership with other sectors of society, including provincial governments. Proposing that section 41 be amended and made executory limits its scope and restricts its application solely to the federal government. As well, greater judicialization of the system could be anticipated.

C.     OBSERVATIONS AND RECOMMENDATIONS

At present, there is a certain controversy regarding whether section 41 of the Official Languages Act is declaratory or executory. During these hearings, the Standing Joint Committee on Official Languages heard a variety of views on this topic, making note that a majority of the witnesses acknowledge that section 41 is or should be executory. The Committee does not intend to address all aspects of the question and put an end to the discussion. However, it believes that at this point in its hearings, it is necessary to make a number of comments in this respect. There must be an acknowledgement that section 41 is of fundamental importance for official language communities. This results from the very substance of the government of Canada’s commitment to supporting those communities.

It cannot be denied that, to date, some work has been done by the government to promote French and English within the Canadian society, and to promote the development of the English and French minority language communities. Despite these efforts, there are certain disturbing demographic and language-related indicators on the status of official language communities, and they force us to ask some necessary questions on the real impact of government actions taken to date to promote the development of official language communities. To answer these questions, it is essential that the legislative foundations on which those actions were based is reviewed. At present, section 41 gives the government of Canada a great deal of discretion respecting the actions to be taken.

To date, the interpretation of section 41 has been vague. That ambiguity has contributed to a stagnating federal response in its implementation. We believe that administrators need to be given a clear message. Part VII must lead to an obligation for the government of Canada to act.

Among the available means, the Committee believes that the government should regulate concrete procedures to ensure that federal institutions implement an appropriate implementation plan. By exercising its regulatory authority, the government of Canada could better define and delimit concrete procedures for implementing the Official Languages Act that federal institutions and agencies must follow.

RECOMMENDATION 1

We recommend that the Department of Justice build upon the implementation of Part VII of the Official Languages Act by instituting a regulatory framework governing the administrative actions of federal institutions. We call upon the Department to work with official language communities on this question.

The legislative route, by amending Part VII of the Official Languages Act, is another option that should not be discarded. In fact, the Committee is closely following the legislative progress of Bill S-32 which proposes an amendment to section 41 in Part VII of the Official Languages Act. Indeed, an amendment to the wording of section 41 would clarify its scope and be a valuable addition to the creation of a regulatory framework.

On the other hand, the question of the language used in criminal trials was also raised several times. In that context, the judgment of the Supreme Court in Beaulac on May 20, 1999, laid down principles that the courts should be guided by in interpreting language rights. The language used in the judgment posits the need to adopt a liberal approach based on the principle of equality and the need to protect official language minorities, which must, in all cases, prevail in the interpretation of the language provisions in the Canadian Constitution. As well as being an important milestone in the progress of language rights in Canada, that judgment represents a significant gain for the francophone and Acadian communities of Canada.

However, the Committee is dissatisfied with the proposed measures in the Department’s 1999-2002 action plans to follow up on that judgment. We recommend that the Department of Justice include concrete measures in its action plan which lay down clear principles that must guide the courts in language rights cases.

RECOMMENDATION 2

We recommend a renewed commitment by the Department of Justice so that the judgment in Beaulac may be implemented diligently and effectively. Concrete initiatives to achieve this must be included in the Department of Justice action plan. It is imperative that Crown Counsel and Crown agents who conduct prosecutions on behalf of the Attorney General of Canada act in accordance with the principles stated in the Beaulac judgement.

In its testimony, the FAJEFCL referred to the problem in initiating divorce or bankruptcy procedures in French in a number of provinces of Canada. The Divorce Act and the Bankruptcy Act, which are supposed to be symmetrical and apply in the same way throughout Canada, do not achieve this goal in day to day reality. There are often problems with the availability of French-speaking judges, and access to services such as court reporting. In addition, access to legal services in French involves additional delays that deter some accused from requesting those services. The Committee finds this situation unacceptable.

RECOMMENDATION 3

We recommend that the Department of Justice:

During these recent hearings, members of the Committee have had an opportunity to examine various model action plans submitted by federal departments and agencies in relation to their obligation to prepare a document describing their activities to support official language communities. Several times during those hearings, the Committee observed that the action plans showed a number of weaknesses that should be pointed out here. For example, activities already completed are still being listed in the action plan, year after year, which creates confusion in the reader. In other cases, the wording used to describe activities and results is so vague that it is difficult to evaluate what is being proposed. In addition, it is important that the annual status report provide a snapshot of the positive and negative aspects of the activities carried out, so that parliamentarians and the general public are able to assess the progress objectively.

RECOMMENDATION 4

We recommend that all institutions subject to the Official Languages Act: