On March 1, 2022, the federal government tabled Bill C-13 (short title: An Act for the Substantive Equality of Canada’s Official Languages) to modernize the Official Languages Act (the “OLA”), whose review in committee is ongoing. The purpose of this article is to provide an overview of some of the proposed amendments that we consider important in this proposed reform to the language regime that was initiated in 2018 by the former Minister of Official Languages, the Honorable Mélanie Joly, and suspended during the 2021 federal election. However, it is important to note that Bill C-13 proposes many other amendments to the OLA.
Part 1 of Bill C-13 brings several amendments to the OLA. These are significant changes with respect to access to justice, education, immigration, culture and official bilingualism. In accordance with the vision identified in the “white paper” (2019) of the former Minister of Official Languages, Bill C-13 codifies, inter alia, several interpretative rules and puts in place administrative measures to ensure compliance.
Part 2 of Bill C-13 also enacts the Use of French in Federally Regulated Private Businesses Act, which notably provides for rights and duties respecting the use of French as a language of service and a language of work with respect to federally regulated private businesses in Quebec and, at a later date, in regions with a strong francophone presence. However, this article will focus on Part 1: the proposed amendments to the OLA.
In a previous article, we had hoped that the language reform would have introduced the recognition of a bilingual national capital; unfortunately no reference to this effect exists in the proposed legislative text. Nevertheless, we hope that Bill C-13 in its current version will be passed without delay and that the regulations necessary for its implementation will follow.
Interpretative rules in accordance with jurisprudential principles
For the purposes of the OLA, language rights: (i) are to be given a large, liberal and purposive interpretation; (ii) are to be interpreted in light of their remedial character; and (iii) the norm for the interpretation of language rights is substantive equality. This proposed amendment codifies important jurisprudential principles.
The concept of « positive measures » is clarified
Bill C-13 strengthens and clarifies the concept of “positive measures” in section 41 of Part VII of the OLA on the advancement of the official languages.
Bill C-13 proposes various amendments to section 41 of the OLA concerning the federal government’s commitments aimed at (inter alia): (i) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development, including fostering the full recognition and use of both English and French in Canadian society; (ii) protecting and promoting the French language; and (iii) advancing opportunities for members of English and French linguistic minority communities to pursue quality learning in their own language throughout their lives, including from early childhood to post-secondary education.
More specifically, Bill C-13 proposes to clarify that positive measures shall: (i) be concrete and taken with the intention of having a beneficial effect on the implementation of the above-noted commitments; and (ii) respect the necessity of protecting and promoting the French language in each province and territory, and considering the specific needs of each of the two official language communities.
Bill C-13 also proposes to clarify that positive measures may include measures to:
- promote and support the learning of English and French in Canada;
- foster an acceptance and appreciation of both English and French by members of the public;
- induce and assist organizations and institutions to project and promote the bilingual character of Canada in their activities in Canada or elsewhere;
- support the creation and dissemination of information in French that contributes to the advancement of scientific knowledge in any discipline; and
- support sectors that are essential to enhancing the vitality of English and French linguistic minority communities, including the culture, education – from early childhood to post-secondary education – health, justice, employment and immigration sectors, and protect and promote the presence of strong institutions serving those communities.
Justices of the Supreme Court of Canada must be bilingual
Bill C-13 proposes that section 16 of the OLA be amended to ensure that the right to be heard by a judge in the official language of one’s choice, without an interpreter, extends to the Supreme Court of Canada (Bill C-13 removes the exception found in subsection 16(1) of the OLA regarding the Supreme Court of Canada). This proposed amendment reflects the federal government’s commitment to appoint bilingual justices to the Supreme Court of Canada to promote access to justice and recognize the bilingualism of the justice system at the national level.
The powers of the Commissioner of Official Languages are expanded
Bill C-13 confers enforcement powers on the Commissioner of Official Languages to ensure better compliance with the OLA by enabling the Commissioner to: (i) enter into compliance agreements and, in certain cases, to make orders; and (ii) impose administrative monetary penalties on certain entities for non-compliance with certain provisions of Part IV of the OLA.
In a report published in June 2019, the Standing Committee on Official Languages of the House of Commons had recommended that the federal government explore the possibility of creating an official languages administrative tribunal modelled on human rights tribunals, which would have, according to many expert testimony, inter alia, facilitated the process for presenting evidence, and promoted and accelerated access to justice, however, the creation of such a tribunal is not envisaged in Bill C-13.
The importance of education in the minority language is reaffirmed
Bill C-13 proposes several amendments to the OLA to provide a framework for the federal role in supporting minority-language education. These changes had been claimed by several organizations as being essential to ensure substantive equality.
In the proposed version, the federal government is committed to advancing opportunities for members of English and French linguistic minority communities to pursue quality learning in their own language throughout their lives, including from early childhood to post-secondary education. As mentioned above, according to Bill C-13, federal institutions must take positive measures to implement the commitment concerning learning in the minority language.
In addition, Bill C-13 proposes that the federal government is committed to contributing periodically to an estimate of the number of children whose parents have, under section 23 of the Canadian Charter of Rights and Freedoms (the “Charter”), the right to have their children receive their instruction in the language of the English or French linguistic minority population of a province or territory, including the right to have them receive that instruction in minority language educational facilities.
These proposed amendments are critical given the constitutional status of education under section 23 of the Charter and the challenges posed by long-term education. The proposed amendments reaffirm this constitutional guarantee and will undoubtedly be the subject of several vigorous debates before the courts.
ABOUT THE AUTHORS
Jean-Michel Richardson is a research lawyer with Emond Harnden LLP in Ottawa and a member of the Ontario Bar Association’s Official Languages Committee.
Kenza Salah is an associate, intellectual property with Osler, Hoskin & Harcourt LLP in Ottawa and the Chair of the Ontario Bar Association’s Official Languages Committee.
ABOUT THE OFFICIAL LANGUAGES COMMITTEE
The Ontario Bar Association (OBA) Official Languages Committee was established in the 1980s with the following mandate: (i) promote, through the OBA’s advocacy process, professional development programming and other OBA initiatives, equal access to justice in French within the justice system and the legal community in Ontario; (ii) contribute to the advancement of language rights of Francophones in Ontario; (iii) advise the OBA Board on collaboration with organizations advocating for language rights and equal access to justice in French and lead the OBA collaboration efforts; (iv) inform the public of their language rights in accordance with applicable legislative regimes; (v) represent the interests of French-speaking lawyers within the OBA; and (vi) support the OBA Board on major language rights issues. For more information, visit our website.