Wednesday, 30 May 2012 09:31

                               

Debates of the Senate  - Official Languages Act

Bill to Amend—Second Reading—Debate Suspended

 

Hon. Maria Chaput moved the second reading of Bill S-211, An Act to amend the Official Languages Act (communications with and services to the public).

 

She said: Honourable senators, I am proud to rise today to speak to Bill S-211, An Act to amend the Official Languages Act, Part IV, communications with and services to the public. This bill is truly the result of many years of work.

 

I previously introduced Bill S-220, which, after being debated in the Senate several times, died on the Order Paper when the May 2011 federal election was called.

 

During the debates on this bill, I listened carefully to my colleagues' comments and questions. Today, I present to you a well thought-out bill that maintains the essential sections of Bill S-220.

 

At our office we conducted quite a bit of research and analysis that confirm the merits of this bill for all official language minority communities.

 

The Fédération des communautés francophones et acadienne and the Quebec Community Groups Network support this bill.  The content of this bill was in fact greatly enhanced by contributions from the many local and national organizations that I consulted and have had direct contact with over the past few years. Since last May, I have also maintained regular contact with the office of the President of the Treasury Board, which is of the opinion that this bill addresses a serious problem and a number of its own concerns.

 

I know that this bill, despite its importance and the urgency of the situation, is subject to the political process. All I can say today is that I have been open and honest, my discussions have been respectful and I am presenting to you today a document that has been worked and reworked in good faith with a view to making a much-needed amendment to Part IV of the Official Languages Act.

 

Before I go over the main points of Bill S-211, I would like to pay tribute to the late Senator Jean-Robert Gauthier. Thanks to his hard work, Part VII of the Official Languages Act was amended in 2005 in order to give communities an indispensable tool for their development.

Part VII of the Act is recognized by official language minority communities as having played a major role in the recognition of their vitality. The communities have become major players in the development and implementation of these positive measures.

 

Bill S-211, which I am speaking to today, is the natural next step in the evolution of the Official Languages Act because it updates Part IV of the Act, which governs the provision of services in both official languages by federal institutions. This update is needed because the context in which official language minority communities exist has changed since the regulations that give effect to Part IV were made in 1991. It is high time the Act reflected the new demographic, social, legislative and legal context in order to protect what official language communities have achieved and ensure their long-term viability. This is urgent because of the looming threat of assimilation.

 

The current Part IV of the Official Languages Act states that federal institutions must ensure that the public can communicate with their head offices and receive services where the use of the language creates significant demand. This is the basic mechanism under which official language communities have the right to receive services in their language. They must demonstrate that a significant demand exists. The regulations made under Part IV list 18 different circumstances under which significant demand is deemed to exist in a given region. Under each circumstance, either the linguistic minority population must reach a certain numeric threshold or a certain percentage of the demand for services must be in the minority official language. No other possibility is contemplated.

 

This regulation is out of date and, as I will explain shortly, hurts official language minority communities. Following the 2001 census, this method of calculation resulted in a reduction in French-language services in 100 federal offices across Canada. In Manitoba, for example, the francophone community lost seven federal offices after the last decennial census, while Saskatchewan lost three offices and Newfoundland and Labrador lost four.

 

Many of the affected communities were thriving. They had well-attended schools, active associations and a vibrant culture. The closure of offices and the elimination or reduction of services in the language of the francophone or anglophone minority are not necessarily indicative of the region's demographic trends. Rather, this is a sign that the government's method for determining significant demand is not working.

 

Despite its good intentions, the government is undermining official language communities instead of enhancing their vitality.

 

It is not difficult to understand why the legislation is inadequate. The current Part IV does not address the main factors that have redefined the image of official language communities in the past 30 years. The legislation does not take into account exogamy, immigration, or even the vitality of communities. Federal institutions decide whether or not to provide services in the minority official language without taking into consideration the main factors that characterize the region and the communities.

 

Bill S-211 proposes two changes in that regard. First, the bill seeks to broaden the criteria definition used to determine the size of the francophone or anglophone minority in a given region. At present, the calculation of population figures is based primarily on the criterion of "first official language spoken" by the inhabitants of the region. This bill proposes that it be based instead on the number of people capable of communicating in the official language in this same region.

 

The current definition is restrictive because it does not take into account the vast majority of children of exogamous marriages who have the majority language as their first official language spoken. For example, if a child speaks both official languages, but uses English more often at home because one parent does not speak French, the child will be considered an anglophone even if he or she attends French school and regularly speaks French. Exogamous marriages are part of the reality of official language communities. We must ensure that the legislation reflects this reality.

 

The Supreme Court understood this reality in Beaulac, in which it explained, and I quote:

 

A simple approach, such as maternal language or language used in the home, is inappropriate inter alia because it does not provide a solution for many situations encountered in a multicultural society and does not respond to the fact that language is not a static characteristic.

 

If the federal government refuses to understand this reality and adapt its regulations accordingly, I am convinced that this will have a devastating effect on those communities.

 

In my province of Manitoba, 105,450 people speak French, but in the government's calculations to determine significant demand, it recognizes only 43,120.

 

Not everyone who speaks the minority official language will demand services in that language. I would argue, however, that the real demand lies somewhere between those two poles and that some flexibility is needed in order to leave the choice up to the members of a community. The legislation and regulations, as they are currently worded, do not allow for any consideration under any circumstances of whether part of the population can communicate in the minority official language, even though that is not their first official language.

 

Basically, this bill suggests that where an official language minority community exists, many people might belong to it, but they do not necessarily meet the very restrictive and outdated criteria of the current system. The current Act and regulations paint an unclear and inaccurate picture of the real size of the community. The legislation needs to recognize this reality so that the government can then make regulations that take this into account.

 

Secondly, under the current regulations, the government is not required to take into account the particular characteristics of the francophone or anglophone minority in a given region before determining whether services should be offered in that community's language. This bill makes this consideration mandatory by stipulating that the government is to take into account the particular characteristics, including the institutional vitality, of the linguistic minority of the area served.

 

This change is necessary because the current calculation method, based largely on the relative size of the francophone or anglophone population, places an unfair burden on official language communities.

 

It should be noted that many members of these communities leave rural regions to go to larger urban areas. This urbanization phenomenon is observed in the general population of Canada, but it has a different and very significant impact on official language communities. In fact, in the rural municipalities where they are traditionally found, official language communities usually form a significant portion of the total population. Through urbanization, these communities lose the advantage of their relative weight.

 

We also know that immigration reduces the relative weight of the official language minority population. For example, if the francophone population of a mostly anglophone province like mine is 10 per cent, then 10 per cent of the immigrants welcomed by that province would need to have French as their first official language in order to maintain the balance. But that is not the case. Not only does the community have to deal with other assimilative pressures, but it also has to grow at a higher than average rate in order to offset the effects of immigration and simply keep its relative size in a given region. As the Commissioner of Official Languages explained, we use the vitality of the majority to qualify the vitality of the minority. This is totally unfair, and that is why the bill makes it mandatory to consider the particular characteristics and institutional vitality of affected communities. That is much more important than a relative percentage over which communities have no control.

 

In addition, the omission of the principle of the community's particular characteristics does not respect the spirit of the Official Languages Act. According to section 32 of the Official Languages Act, aside from statistics, the government can take into account the particular characteristics of the communities when making regulations to give effect to Part IV. For reasons that we do not know, the government chose not to include this criterion. The result is that decisions are made based purely on statistics with no consideration of the context. I am telling you today that we know from 20 years of experience that this omission was a mistake that we can and must correct. Bill S-211 takes this shortcoming into account.

 

Honourable senators, the amendment of Part IV of the Official Languages Act is also a matter of common sense. The communities have worked hard to build institutions that ensure their vitality and that of their language. It is impossible to describe official language communities without mentioning the vitality of these institutions, and it is therefore impossible to determine whether they are in need of services.

 

By recognizing the importance of institutional vitality in Canadian communities, the Official Languages Act will make it possible to reconcile the existing approach, which is purely statistical, with the reality of official language communities.

 

I have come to learn through my years at the Senate, and particularly as a member of the Standing Senate Committee on Official Languages, that the anglophone communities in Quebec have their own set of challenges. I have aimed to propose a bill that addresses the preoccupations of all official language minority groups in Canada.

 

In Quebec, the anglophone community does not face the same linguistic threat that francophone communities face, yet the same regulations, with the same statistical formulae devoid of context, is expected to apply to both official language communities. Bill S-211 introduces a more flexible vocabulary. By focusing on communities and their needs instead of statistics that are arbitrarily analyzed, the government would be able to truly assess the needs of each community and to deliver adequate services.

 

Finally, these two amendments are necessary because Part IV's current approach is incompatible with and contradicts Part VII of the Act. Under Part VII, federal institutions have an obligation to take positive measures to support the development and enhance the vitality of official language minority communities. However the implementing regulations for Part IV of the Act require the government to stop providing services to an official language minority community in its language if that community falls below the 5 per cent threshold for reasons beyond its control. This can happen even if the community has grown but at a slower pace than the majority. It is difficult to reconcile this approach with the obligation to take positive measures to support the development of these communities.

 

We need an act and regulations that recognize the role of institutional vitality and the fact that the communities affected are often larger than how they have been defined.

 

Such legislation is consistent with the spirit of the law.

 

I will now go over some of what is involved in implementing these two amendments. Again, implementation will be done through the adoption and subsequent application of regulations. The bill lists two criteria that the government will have to take into account in drafting new implementing regulations or amendments to the current regulations.

 

First, institutional vitality has to be defined. This definition will have to be made in consultation with the official language communities. I personally believe that education has a significant place in the assessment of the institutional vitality of a community, because the presence of a school is the most important indicator that a community is vital and viable in the long term. I also believe that culture, health, social services and economic development are important factors. The different indicators will have to be weighed in committee and in consultation with the affected communities.

 

It should be noted that the concept of institutional vitality is not entirely new and its definition is far from abstract. In addition to being recognized as an important factor in Canadian jurisprudence, it has already been the subject of various regulations within the government.

 

We know, for example, that Canadian Heritage is developing its own definition of this principle and a list of indicators. This initiative is at the validation stage.

 

Even more concretely, the implementation of the last Roadmap for Canada's Linguistic Duality required active collaboration with many community organizations working in a number of fields. These same organizations are now being invited by the federal government to take part in consultations in preparation for the next roadmap.

 

In addition, federal institutions have had to develop criteria to identify positive measures to take under Part VII of the Act. To fulfill their obligations under Part VII, and there are many examples of this being done successfully, federal institutions need to have a good knowledge of the official language communities they serve. This knowledge should be put to good use in terms of Part IV of the Act as well. This would enable the government to make better, more informed choices, not only about the communities it serves, but also about services that would be more useful in one region than in another. All of this goes to show that developing regulations that define and establish criteria for institutional vitality is not only highly desirable, but also quite feasible.

Official language minority communities can be effective and important partners for the federal government in implementing such regulations.

 

I would like to quote from the Commissioner of Official Languages' report, A Sharper View, on this subject:

 

Federal institutions have supported the organizations created by these minority communities and, more recently, they have begun to be receptive to shared governance in concert with the communities. The OLMCs have gradually organized themselves and asserted their legitimacy within the framework of linguistic duality. For more than 30 years, the communities in every geographical region have been represented in every sphere of activity by associations that stand guard over their rights and attempt to find ways and means of enhancing their vitality.

 

Within the communities themselves, all of the necessary information about institutional vitality is available to us. Why not work with these organizations to understand the need for and usefulness of federal services in a given region? These communities need a true partnership with federal institutions. The federal government also needs this partnership to make more informed decisions that, in many cases, will be less costly.

 

The bill also proposes consideration of the population that can communicate in the minority language instead of the population with this language as the first official language spoken. Implementing this definition would not be problematic because the pertinent data are compiled by Statistics Canada and are already available.

 

In addition, the new definition of the minority official language population proposed in Bill S-211 will increase the number of these populations, but much of the increase will be felt in regions that already have services in the minority official language, and the risk of creating artificial demand is therefore greatly tempered.

 

It is up to the government, and also the Senate committee that I hope will be tasked with studying this bill, to present an appropriate regulatory framework that will properly target the regions where services are truly needed. In the meantime, claims that this bill will result in artificial demand are premature and baseless. Until new implementing regulations are adopted, the demand cannot be quantified.

 

Therefore, I do not believe that the premise that the criteria will be difficult to apply is a valid argument against this bill. The current regulations are notoriously difficult to apply and do not even achieve satisfactory results. We have been told by Treasury Board officials that they start preparing for new decennial census data two years in advance and that it takes an additional year to apply them. We believe that this three-year period provides ample time for consulting official language minority communities in order to chart the institutional vitality of these communities in each of our provinces and territories.

 

Not only is this rule harmful to communities, but it is also difficult to enforce. It is time for this government to come up with flexible, simple regulations that will really benefit the communities that the Act is supposed to protect.

 

In addition to those two points, Bill S-211 contains four other supplementary points. The first states that all federal institutions have a duty to take every reasonable measure to ensure that the communications and services they provide to the public are of equal quality in both official languages. This duty to ensure the equality of services is only natural, in accordance with the Charter and the Official Languages Act, and it is recognized in Supreme Court case law.

 

In Desrochers, in fact, the Supreme Court explained the need for substantive equality, as opposed to formal equality, in the provision of services. To my way of thinking, this means active offer, regular consultation, an integrated approach and adapted services. This amendment does not introduce any new obligations for the government; it merely confirms those recognized by the Supreme Court.

 

In order to facilitate the assessment of quality, under this bill, federal institutions are required to consult communities on the quality of the communications and services they provide to the public. This partnership between federal institutions and communities can only improve service delivery and reduce the costs associated with quality control.

 

The second point provides that the government has a duty to inform Parliament and the communities in question before it can relieve a federal institution of its duty to communicate with or offer services to the public in either official language. This provision truly reflects the essence of Bill S-211, which is to protect the gains that have been made by official language minority communities.

 

The communities depend on these institutions and deserve to be officially informed. A mechanism must be implemented to ensure that reasons are given for the decision and that there is a review process. This will replace the existing model wherein communities are informed that a service has been cut only after the fact and the government often has to reverse its decisions.

 

Why not open the channels of communication and come to a compromise with the communities affected? The government could make more informed decisions by listening to the testimony and presentations given by official language minority communities. Advance notice would allow these communities to assess their own situations and help make the decisions that affect them.

 

The third point stipulates that the regulations be reviewed every 10 years. By ensuring a decennial review, this bill will prevent future generations from finding themselves in a situation like the one we are in now with antiquated regulations that do not take major demographic, social and legal changes into account.

 

Finally, one last aspect of Bill S-211 is designed to ensure that members of the public have access to services in the official language of their choice in major transportation centres. This includes federal railway stations and airports serving metropolitan regions and federal, provincial and territorial capitals.

 

Canada's main transit points must reflect the country's linguistic duality. When I discuss the importance of this aspect of the bill with members of my community, I cannot help but think of the appearance of the Honourable James Moore, Minister of Canadian Heritage, before the Standing Senate Committee on Official Languages last fall. The Minister testified about the experience he had at the Vancouver airport just before the 2010 Olympics.

 

He decided to come to Vancouver as a unilingual francophone and noticed that it was important to receive the required services in French.

 

The situation was corrected in time for the Olympic Games. Should we not be able to travel to our largest hubs in both official languages?

 

I also want to note that in that regard, this bill creates nothing new but underscores and solidifies a positive trend we are seeing in Canada.

 

The relevant information is available on the Treasury Board website on the 20 of the 24 airports that would be affected by this bill. Fifteen of those 24 airports already provide services to the public in both official languages. This is far from a major restructuring of Canada's airports.

Imagine for a moment the message that such a change sends about linguistic duality from coast to coast.

 

Honourable senators, this bill, first and foremost, is born of my own experiences and the experience of my community. As many of you know, I come from a small francophone village in Manitoba. My ancestors have lived in Manitoba for over 125 years and have transmitted to me the same values of identity and community that have sustained them through adversity. It is these values that I have brought with me to the Senate and that have guided my actions in this chamber.

 

Of course, our communities have changed over the years. I was raised in what was then a typical francophone family as the eldest of eleven children. I went to school in a convent run by the Soeurs Grises, the Grey Nuns, in a French community called Sainte-Anne-des-Chênes in southwestern Manitoba. When the provincial inspector would arrive, we had to hide our French manuals. French schools had been abolished in 1916, and French education was thus forbidden by law in Manitoba.

 

Such policies were inspired by the same irrational beliefs that led, 200 years earlier, to the deportation of the Acadians who were told that they could never return to their country. It was thought, indeed, that a federation like Canada could have only one culture and one language.

We have come a long way since. I have transmitted my forefathers' values of identity and community to my three daughters and four granddaughters who live in a francophone reality that is entirely different from the one that I have known. They live in a francophonie that is modern and dynamic, where "native" French-Canadians live side by side with the Metis, recently arrived francophone Canadians, bilingual Canadians and francophiles. It is a francophonie that is increasingly open to the anglophone majority, which, in turn, is increasingly open to and accepting of it.

 

However, these tremendous advancements and achievements were no accident and certainly no gift from above. They were earned through hard work and through important efforts to affirm and defend our communities' rights.

 

Let us make no mistake about it. Had French-Canadian communities in anglophone-majority provinces not maintained, through thick and thin, the will to preserve their language and identity, they would not be around today.

 

Government efforts to support our communities, when they took place, often arrived as concessions after prolonged community efforts or as a way of complying with various judicial decisions — including many from the highest Court of the country — affirming our rights.

Even when relevant and useful legislation has been passed, its afferent regulations and application have often been incomplete and necessitated further judicial action. Part IV of the Official Languages Act, I believe, is one such example. For all the reasons I have listed above, its wording and application do not reflect the current challenges facing official language communities living in minority settings. While its stated objective is undoubtedly to promote the use of both official languages, its actual application often plays against this very objective.

 

This is the problem that Bill S-211 addresses. I am not, as some would like to claim, attempting to fundamentally redefine language relations in Canada. It must be noted here that many provinces and territories have, in fact, introduced legislation that is far more progressive than Part IV of the Official Languages Act.

 

As honourable senators can see, Bill S-211 does not call upon the federal government to become a trailblazer in redefining services to the official language communities in minority settings. In fact, it actually calls upon the federal government to catch up to the reality and to the efforts of community groups and provincial and territorial governments.

 

I also question how some have already expressed concerns that this bill would create what they call an "artificial demand" in certain regions. As the relevant regulation can only be drafted after the bill has passed, such claims have absolutely no evidentiary basis and are a way of misleading the discussion.

 

Honourable senators, the real question is the following: In light of the government's obligation and stated desire to encourage the development of official language communities in minority settings and to promote the use of both official languages, should federal institutions consider the vitality and specificity of these communities before deciding whether they shall deliver appropriate services for the next 10 years?

 

This is the question that Bill S-211 addresses. It proposes rethinking the application — and not the intention — of a section of the Official Languages Act that, for 20 years now, has not adequately fulfilled its obligations towards Canada's official language minority communities. It proposes a forward-looking, flexible and effective solution to address the problem.

 

Bill S-211 is admittedly not the most newsworthy piece of legislation that you will see this year, but it is one that addresses a serious concern for minority groups in Canada and will require careful scrutiny in committee prior to its passage. For all these reasons, I believe that tabling this specific bill for your consideration is fully in line with my responsibilities as a French-speaking senator from Manitoba and the traditions of the Senate.

 

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

 

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