Official languages: modernizing the regulatory framework

(Disponible en français : Les langues officielles : vers une modernisation du cadre réglementaire)

Renewed focus on the offer of services in French across Canada

Clearly the past 15 months saw an unprecedented renewal of focus on the offer of French-language services across Canada.

The present HillNote focuses on the implementation of federal official languages regulations and their possible modernization.

Toward a modernization of the Official Languages Regulations

The Regulations were adopted in December 1991 and came into force in 1992. They define the criteria for identifying the offices and points of service that are required to offer services in both official languages. To that end, the Regulations give due consideration to what constitutes “significant demand”, as well as to the “nature of the office.” The Regulations also focus on services to the travelling public.

Ten-year review of the Regulations’ application

The federal government reviews the application of the Regulations every ten years. This exercise determines the locations where services must be provided in both official languages in accordance with the “significant demand” criterion. The Regulations describe nearly twenty circumstances establishing the numeric thresholds required to obtain such services. Federal institutions rely on decennial census data concerning first official language spoken to calculate whether these threshold levels have been reached.

First official language spoken
This variable is used to calculate data associated with the application of the Regulations. It gives consideration, firstly, to knowledge of the official languages, secondly, to mother tongue, and thirdly, to language spoken in the home. It is used to establish the linguistic obligations of federal offices in each region of the country.

The Annual Report on Official Languages 2014–15 published by the Treasury Board Secretariat indicated that the final results of the current review exercise should be made public in early 2017. In the meantime, the government announced a review of the Regulations and imposed a moratorium on bilingual designation losses for offices that do not meet the numerical thresholds established in the Regulations.

The Regulations have been amended only once since their adoption. In 2006, a Federal Court order in Doucet v. Canada made it necessary for the government to revise a portion of the Regulations to take into account the needs of the travelling public on the Trans-Canada Highway.

Inconsistencies in the existing Regulations

Changes in the substance of the Regulations have been sought for some time. During the last review of the application of the Regulations, following the 2001 Census, the organizations representing official language minority communities, the then Commissioner of Official Languages Dyane Adam, and the Standing Senate Committee on Official Languages took turns calling for the Regulations to be updated.

Over the years, a number of criticisms have been levelled at the regulatory framework.

  • A first criticism condemns the Regulations for focusing on only one aspect of the application of the Official Languages Act (specifically Part IV, which concerns communications with and services to the public) and consequently failing to provide for the consistent implementation of the various parts of the Act.
  • Another criticism concerns the complexity of the Regulations. The claim is that the Regulations do not take into account certain qualitative factors, such as the particular characteristics of the minority community, to determine actual needs with respect to the offer of services in either official language. It is argued that the Regulations do not consider the new variables (such as factors associated with immigration or exogamy) affecting daily life in official language minority communities. Moreover, it is noted that the Regulations do not give members of the public who have knowledge of both languages, and wish to be served in the language of the minority, recognition of their right to such service.
  • A third criticism is that the Regulations date back to a time when case law concerning official languages was less developed. Some of the principles recognized by the courts, such as substantive equality or the remedial nature of language rights, are currently being ignored.

It is clear that, in some cases, the offer of federal services does not seem consistent with the apparently bilingual environment of a given region, suggesting inconsistency in the application of the Regulations. While a Francophone citizen may be entitled to provincial or municipal services in French and have access to a French-language school or community centre, for example, he or she may be deprived of federal services in French owing to the insufficient demographic weight of his or her community.

infographic-sudbury_e-2

1                     A range of community organizations providing services in French: childcare centres, health services, employment services, group of businesspeople, caisses populaires, proposal for a future francophone cultural centre.
2                      French Language Services Policy.
3                      French Language Services Act.
4                     Official Languages (Communications with and Services to the Public) Regulations.

 

infographic-moncton_e-2

1                     A range of community organizations providing services in French: childcare centres, regional healthcare networks, youth organization, cultural centre.
2                      City of Moncton Policy on Official Languages.
3                      An Act Respecting Official Languages.
4                      Official Languages (Communications with and Services to the Public) Regulations.

 

Similarly, a member of the travelling public may or may not have language rights along two similar air routes, depending on whether he or she is in an airport or in the air.

infographic-voyageurs_e-2

 

Bill S-209

To address criticisms levelled by key stakeholders, Senator Maria Chaput has on four occasions tabled a bill in the Senate that would better frame the government’s duties when it comes to communications with and services to the public. The latest incarnation of this bill, Bill S-209, An Act to amend the Official Languages Act (communications with and services to the public) was tabled in the Senate on 8 December 2015, and then referred to the Standing Senate Committee on Official Languages on 17 November 2016.

This same committee studied the previous version of Senator Chaput’s bill (S-205) during the second session of the forty-first Parliament. Most of the 35 witnesses who appeared before the Committee were in favour of modernizing the Regulations and changing the criteria used to calculate “significant demand.” Nevertheless, some of the institutions subject to the Official Languages Act expressed concerns about the implementation of this bill in regions where there are fewer bilingual workers.

In parallel with the measures announced by the government in November 2016, the Standing Senate Committee on Official Languages, in the coming weeks, will launch public hearings on the study of Bill S-209.

Related resources

Office of the Commissioner of Official Languages. Annual Report 2005–2006. Ottawa, 2006, pp. 25–31.

Government of Canada. “Government of Canada to review Official Languages Regulations.” News Release. Ottawa, 17 November 2016.

Government of Canada. Official Languages (Communications with and Services to the Public) Regulations Review. Backgrounder. Ottawa, 17 November 2016.

Hudon, Marie-Ève. Legislative Summary of Bill S-209: An Act to amend the Official Languages Act (communications with and services to the public). Publication Number 42-1-S209-E, Parliamentary Information and Research Service, Library of Parliament, 21 November 2016.

Hudon, Marie-Ève. “Official Languages in the Federal Public Service.” In Brief. Publication No. 2011-69-E, Parliamentary Information and Research Service, Library of Parliament, 21 November 2016.

Treasury Board of Canada Secretariat, Burolis.

Senate, Standing Committee on Official Languages. Interim Report on the proposed Regulations introduced in response to the Federal Court decision in Doucet v. Canada. Fourth Report, 22 February 2007.

Author: Marie-Ève Hudon, Library of Parliament