Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill S-205, An Act to amend the Official Languages Act (communications with and services to the public) was tabled in the Senate by the Honourable Maria Chaput on 23 October 2013. It was referred to the Standing Senate Committee on Official Languages on 12 June 2014.
This is the third time that this bill has been introduced in Parliament. Earlier versions died on the Order Paper: Bill S-220, tabled during the 3rd Session of the 40th Parliament, and Bill S-211, tabled during the 1st Session of the 41st Parliament. The content changed significantly between the first and second versions, after several months of consultations with interested members of the public. The content of the current version is the same as that of the second version. The amendments moved by Senator Chaput have never been studied by a parliamentary committee.
Generally speaking, Bill S-205 brings amendments to four aspects of the Official Languages Act (OLA): regulation, supply of services, rights of the travelling public, and consultation. In particular, the bill makes a series of amendments to the OLA to clarify the duties of the federal government provided for in Part IV, which deals with communications with and services to the public, and Part XI, which deals with such areas as consultations and proposed regulations. Those parts have not been amended since being passed in 1988.
The first OLA was passed in 1969, in response to the recommendations of the Royal Commission on Bilingualism and Biculturalism. Its purpose was to give equal status to English and French, not only in Parliament and in the federal courts, but also throughout the federal government. It imposed a number of duties on federal departments and agencies in relation to communications and services in the two official languages.
In 1982, the Canadian Charter of Rights and Freedoms gave the Canadian 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.
That right also applies to federal institutions where there is significant demand
for one of the official languages or where it is justified by the “nature of the office” (Charter, s. 20(1)). Moreover, English and French 1 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
(Charter, s. 16(1)).
These new constitutional rules forced Parliament to undertake a review of the official languages legislative framework. The 1969 OLA was therefore replaced by a new Official Languages Act2, which came into force in 1988. According to section 2 of the 1988 OLA, its purpose is to:
(a) 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 parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
(b) 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; and
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
Section 82 of the OLA provides that, in the event of any inconsistency, the provisions of parts I to V – which deal with proceedings of Parliament (Part I), legislative and other instruments (Part II), administration of justice (Part III), communications with and services to the public (Part IV) and language of work (Part V) – prevail over any other Act of Parliament or regulation, except the Canadian Human Rights Act. The OLA sets out the government’s commitment to the advancement of official language minority communities and promoting linguistic duality (Part VII). It also includes a series of general provisions involving, among others, consultations and proposed regulation (Part XI).
The Official Languages (Communications with and Services to the Public) Regulations3 were made in December 1991 and came into effect in 1992. The effect of the regulations is to clarify the language duties of federal agencies and specify the circumstances in which Canadians may expect to be served in the official language of their choice.
The rules relating to significant demand
include provisions based on data from the most recent decennial census published since 1991, relating to the size of minority communities. A series of statistical formulas is used to prepare a list of offices and points of service that must offer bilingual services. The rules relating to significant demand
also include provisions based on the volume of demand in the minority language when demographic data are not relevant.
With respect to the nature of the office,
the regulations apply to specific federal services regardless of the level of demand. The provisions deal, in particular, with signage regarding health, safety and security, national parks, embassies, main federal offices located in the Northwest Territories and Yukon, and national and international events that are open to the public.
With respect to services to the travelling public, the regulations apply to airports, railway stations and federal terminals where there is significant demand.
They also set out obligations for third parties under contract for such services as those offered by restaurants, car rental agencies, foreign exchange offices and services provided by air carriers in those locations.
Every 10 years, since 1991, the federal government reviews the administration of the regulations, although no statutory time frame is provided. The purpose of the review is to determine the locations where there is a duty to provide services in both official languages under the “significant demand” criterion.
The last review of this kind took place after the release of the 2001 Census data. The review, which took six years, was completed by 31 March 2007. The Treasury Board Secretariat is currently reviewing the regulations based on the 2011 Census data, which could take until 20164.
Since 1971, censuses of the population have been taken every five years. The Official Languages (Communications with and Services to the Public) Regulations state that a review of their application is required based on data from the most recent decennial census published since 1991. Statistics Canada collects data about language, the main categories being as follows:
Since the enactment of the regulations, the demographic and sociolinguistic context in Canada has undergone numerous changes. Several official language minority communities are faced with such factors as pressures to assimilate, rural exodus, immigration, intermarriage and the presence of community institutions (e.g., schools) that demonstrate a degree of vitality within these communities. The statistical calculations provided for the application of the regulations do not allow changes in these factors to be accounted for.
Bill S-205 contains eight clauses. It essentially deals with linguistic services to be offered to the public. In fact, it is apparent that its primary objectives are to strengthen the connection between the delivery of services and the development of official language minority communities, and to modernize the OLA to reflect changes in Canadian society.
Clause 1 of the bill amends section 3 of the OLA by adding the definition of the expression metropolitan area,
an area classified by Statistics Canada, in its most recent census of Canada, as a census metropolitan area.
This new definition will be used to frame the language duties regarding services offered to the travelling public provided for in clause 2 of the bill. At present, to be considered a census metropolitan area, an area must have, according to the Statistics Canada definition, a population of at least 100,000, of which 50,000 or more live in the urban core10.
Clause 2 of the bill adds new section 23(1.1) to the OLA. This section guarantees access by members of the public to services in the official language of their choice at major transportation hubs, particularly railway stations and airports serving metropolitan areas and the federal, provincial and territorial capitals (sections 23(1.1)(a) and 23(1.1)(b)), as well as ferry terminals serving at least 100,000 passengers annually (section 23(1.1)(c)). Lastly, section 23(1.1)(d) allows for other transportation facilities to be prescribed by regulation.
At present, the regulations provide for services to be offered in airports, railway stations and ferry terminals where over a year at least 5 per cent of the demand from the public for services is in that language11.
Only sections 23(1.1)(a) and 23(1.1)(b) amend the current provisions of the regulations dealing with this subject, and they will result in a greater number of airports and railway stations being designated as bilingual. The two sections apply to 20 airports belonging to the National Airports System12 and 19 railway stations under the jurisdiction of VIA Rail Canada13 that are located in a metropolitan area or serving a capital. Of these, 15 airports and 16 stations are already designated as bilingual14. Section 23(1.1)(c) essentially maintains the same wording used for transportation terminals in section 7(4)(b) of the regulations.
Clause 3 of the bill adds to the OLA, through new section 23.1, the concepts of services to the public of equal quality
and of consultations.
The principle of substantive equality assumes that services can be offered with different content or using different delivery methods to ensure that the minority has access to services of quality equal to that enjoyed by the majority. Developing and implementing such services may necessitate consultation with the communities in question15. The objective of clause 3 is to codify, in the OLA, principles recognized in Canadian case law16.
New section 23.1(1) creates the duty for federal institutions to take every reasonable measure to ensure that English speaking and French speaking Canadians receive services of equal quality. New section 23.1(2) introduces a sort of partnership between federal institutions and official language minority communities with regard to the quality of the services offered. Under this new partnership, these communities must be consulted in order to facilitate service evaluation and to better monitor service quality. The consultation process is to be prescribed by regulation.
Clause 4 of the bill amends section 24(1) of the OLA. Currently, section 24 imposes language duties on offices of federal institutions where the nature of those offices relates to the health, safety or security of members of the public,
the location of the office or facility
or the national or international mandate of the office.
In other words, an office of a federal institution is required to provide services in both official languages with respect to, for example, emergency services or a national park or a consular post. New section 24(1)(a) specifies that those requirements apply in any circumstances that relate not only to the national or international mandate of, but also to the services of the office.
New sections 24(1)(a.1) and 24(1)(a.2) extend those language requirements to:
A regulation of the Governor in Council determines which circumstances are prescribed by the Act.
The objective of clause 4 of the bill is to strengthen the connection between the delivery of services and the development of official language minority communities. To achieve this objective, the Act establishes qualitative criteria – such as services offered to an official language minority located in a particular geographic region or in a linguistic assimilation situation – to be considered when determining the circumstances in which the public may expect to receive services in either official language.
The Governor in Council still has discretion to determine the situations in which the public may expect to receive services in both official languages. The Governor in Council may also consider “any other circumstances prescribed by regulation of the Governor in Council where, due to the nature of the office or facility, it is reasonable that communications with and services from that office or facility be available in both official languages” as set out in section 24(1)(b) of the OLA, which remains unchanged.
Section 32 of the OLA establishes the authority of the Governor in Council to make regulations in respect of Part IV of the Act. Clause 5 of the bill amends section 32 in two ways.
First, the amendments provided in clause 5(1) ensure the consistency of section 32 with other sections amended by the bill. Amended sections 32(1)(d) and 32(1)(e) reflect the new provisions introduced by clauses 2 and 3 of the bill; new section 32(1)(f) relates to the changes made in clause 4 of the bill; and new section 32(1)(g) gives to the Governor in Council the power to prescribe the manner in which the regulations are to be reviewed, as provided for in clause 6 of the bill.
Second, clause 5(2) replaces sections 32(2)(a) and 32(2)(b) of the OLA by adding two criteria that must be considered when prescribing the circumstances in which federal institutions must offer their services and communications in both official languages (in accordance with sections 32(1)(a) and 32(1)(b) of the OLA). These criteria are:
The variables currently used to calculate “significant demand” are exclusively quantitative (size of the minority population, relative size of the minority population in a given region, and percentage of demand for services in the minority language). New sections 32(2)(a) and 32(2)(b) add other qualitative variables such as institutional vitality. The bill does not provide a clear definition of this variable; however, one can understand the underpinnings by reading Senator Chaput’s speech at the second reading stage of Bill S-211:
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 government17.
The amendment to section 32(2) also redefines the concept of official language minority population
to take into account any person who can communicate in the minority language. At present, the first-official-language-spoken variable is used to calculate data associated with the administration of the regulations.
It is useful to know that the current OLA (in section 32(2)) contains a criterion on the particular characteristics of the minority population that can be used to determine the circumstances for deeming that there is significant demand
for services to be offered in one of the official languages. However, the Governor in Council has never used that criterion in making the regulations.
Clause 6 of the bill adds new section 32.1 to the OLA, under which a review of all regulations made under the OLA, including the regulations in place at the time, shall be undertaken every 10 years by the President of the Treasury Board, following publication of the census data. This duty has been in force since the 1991 Census. According to new section 32.1(1), the review shall be undertaken in the 60 days following the publication of the decennial census and completed within one year. New section 32.1(2) provides that the review shall be conducted in consultation with the official language minority communities.
The intent in adding this provision is to circumscribe the time for reviewing the regulations made under the OLA and to take into account the specific needs of anglophone and francophone minorities.
Clause 7 of the bill adds new sections 86.1 and 86.2 to the OLA. New section 86.1 follows section 86, which deals with the publication of regulations in the Canada Gazette, and proposes a definition of the expression regulation
for the purposes of sections 86.1 and 86.2. This definition introduces a reporting mechanism requiring the government to notify Parliament and the public when it intends to:
In either case, the President of the Treasury Board is required to table a draft of the proposed regulation before each House of Parliament at least 30 days before its publication in the Canada Gazette (section 86.1(2)).
New section 86.2 sets out the manner in which the proposed regulations are to be published in the Canada Gazette at least 30 days before the date on which they are to come into force. Only the days on which both Houses of Parliament sit are to be counted when calculating the 30-day period. In addition to this duty, new section 86.2(1) provides a duty to publish proposed regulations, “wherever possible”:
in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that language and in the other official language in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that other language. New section 86.2(2) exempts the government from the obligation to publish more than once a new draft regulation that has previously been published in accordance with section 86.2(1), even if the proposed regulation has been amended as a result of representation made by interested persons.
The obligations under clause 7 of the bill are designed to facilitate the evaluation of services offered by keeping Parliament, the public and official language minority communities informed about any removal or reduction of those services. English and French linguistic minorities would then have an opportunity to express their views on the provision of services and the possible effects on community vitality.
Clause 8 of the bill provides that the new Act comes into force 180 days after the day on which it receives Royal Assent.
In his 2012–2013 annual report, Commissioner of Official Languages Graham Fraser, commenting on the previous and identical version of the bill (S-211), stated that he strongly supports this bill and encourages parliamentarians to give it careful consideration18.
In June 2010, members of the Fédération des communautés francophones et acadienne du Canada (FCFA) gave unanimous support to the first version of the bill (S-220), recognizing that it captured several of their own recommendations19. In May 2012, the FCFA publicly supported the second version of the bill (S-211), particularly as regards amendments entrenching in the OLA the notions of equal quality of services and communications, obligations to consult, and new criteria for determining where services should be provided in both official languages20. In May 2014, the president of the FCFA said that she wished to appear before the parliamentary committee studying Bill S-20521.
Other francophone organizations, such as the Société franco-manitobaine, the Assemblée communautaire fransaskoise and the Fédération acadienne de la Nouvelle Écosse, also supported a previous version of the bill (S-220)22.
The Quebec Community Groups Network gave support to the first version of the bill (S-220), recognizing that funding, support and services should not be solely linked to numbers, but to the support of official language minority communities
23.
Recently, the Language Rights Support Program posted an article on its blog about the study of Bill S-20524.
An article published in the Manitoba Law Journal regarding the right of Canadians to federal services in the official language of their choice said that the first version of the bill (S-220) seemed to be the logical result of the most recent developments in case law25.
At the second reading stage in the Senate, questions were raised about the financial impacts of Bill S-211 and Bill S-205. Some senators also questioned an unexpected increase in the proportion of services to be offered to the public in both official languages. Their concerns can be summarized as follows:
Responsible management of public funds demands that federal services respond to real needs. This bill would undermine that process. By adopting amendments to this bill, we would be causing an increase in the offer of service where the numbers do not warrant it. Speaking of numbers, there is a matter of associated costs, which would likely be significant were this legislation to be adopted26.
It is interesting to note that, in 2013, a complaint was filed with the Commissioner of Official Languages on the way francophone minority communities are counted27 – a concern addressed in section 5(2) of the bill. The Société franco-manitobaine believes that the calculation method under the current regulations:
The Commissioner’s investigation is still under way.
137 kB, 1 page, News release, Saint-Boniface, Manitoba, 14 June 2010;Assemblée communautaire fransaskoise, "L’Assemblée communautaire fransaskoise appui [sic.] le projet de loi S-220" 154 kB, 1 page, News release, Regina, 16 June 2010; and Fédération acadienne de la Nouvelle Écosse, "La FANE appuie le projet de loi S-220 de la sénatrice Maria Chaput et invite les parlementaires à voter en faveur de cette loi" 44 kB, 1 page, News release, Dartmouth, Nova Scotia, 15 June 2010. [ Return to text ] 4.2 MB, 24 pages, Montréal, 2010, p. 7. [ Return to text ] 679 kB, 35 pages, Manitoba Law Journal, Vol. 35, No. 1, 2011. [ Return to text ]© Library of Parliament