On June 20, 2023, amendments to the Official Languages Act, RSC 1985, c 31 (4th Supp) (the “Act”) received Royal Assent as part of Bill C-13. The amendments came into force immediately upon receipt of Royal Assent, except for the new obligations under the new Act respecting the Use of French in private enterprises under federal jurisdiction, which will come into force on a date to be set by Order-in-Council (these new obligations are outside the scope of this article). In a previous article, the OBA’s Official Languages Committee provided an overview of the amendments as initially proposed in Bill C-13 on March 1, 2022. Additional amendments were brought forward and adopted in committee. Below is a high-level overview of some of the new provisions that may be of interest to our readers. This information is provided for educational purposes only.
The modifications to the preamble introduce a few general principles that express the legislator’s intent, most notably: (i) the recognition that French is in a minority situation in Canada and North America due to the predominant use of English; (ii) the importance of using, reclaiming, revitalizing and strengthening indigenous languages; (iii) the importance of providing opportunities for everyone in Canada to learn a second official language; (iv) the key role of the Canadian Broadcasting Corporation’s contribution to enhancing the vitality of the English and French linguistic minority communities; (v) the importance of francophone immigration in enhancing the vitality of French linguistic minority communities; and (vi) the recognition that all legal obligations related to official languages apply at all times, including during emergencies.
The Purpose of the Act
Section 2.1 of the Act provides that the President of the Treasury Board is now responsible for exercising leadership within the Government of Canada in relation to the implementation of the Act and the coordination of its implementation. Previously, no entity had such an obligation.
The Interpretation Section
The new section 3.1 of the Act codifies the fundamental rules of interpretation adopted in Canada in respect of language rights which provide that such rights are to be given a large, liberal and purposive interpretation, and construed in light of their remedial character, according to the substantive equality norm, and by taking into account the declining state of French in North America due to the predominant use of English as well as the varying needs of linguistic minority communities (i.e., the English linguistic minority communities in Québec and the French linguistic minority communities in the other provinces and territories).
Part III of the Act entitled “Administration of Justice”
The amendments to Part III of the Act expand the obligation under subsection 16(1) of the Act such that the duty to ensure the understanding of the language chosen by the parties without an interpreter now applies to the Supreme Court. Section 16(1) of the Act now requires every federal court or tribunal, including the Supreme Court, to ensure that every judge or other officer hearing a proceeding is able to understand both official languages without the assistance of an interpreter. Relatedly, section 20 of the Act requires that final decisions, orders or judgements issued by any federal court or tribunal that have precedential value be made available to the public simultaneously in both official languages.
Part IV of the Act entitled “Communications with and Services to the Public”
The new presumption set out at subsection 25(2) of the Act indicates the circumstances in which a person or organization is presumed to provide or make available services on behalf of a federal institution, namely, if the federal institution exercises sufficient control over such person or organization, or if such person or organization implements a program or legislative regime for which the federal institution is responsible.
Part VII of the Act entitled “Advancement of Equality of Status and Use of English and French”
The amendments expand the federal government’s commitment to protecting and promoting the French language (subsection 41(2)), and to advancing quality learning opportunities for members of English and French linguistic minority communities, in their own language, throughout their lives, including from early childhood to post-secondary education (subsection 41(3)). The latter is an interesting clause as it seems to expand the minority language educational rights set out at subsection 23(1) of the Charter. Other amendments worth mentioning include the provisions that clarify and provide a framework in respect of the duty to take positive measures in implementing the commitments set out in Part VII of the Act. For example, the federal government now has obligations to carry out dialogue and consultation activities pursuant to subsections 41(8) to 41(10) of the Act.
It is also worth mentioning that the amendments under Part VII now require the Minister of Citizenship and Immigration adopt a policy on francophone immigration with the intent to restore and increase the francophone minorities’ demographic weight.
Part IX of the Act entitled “Commissioner of Official Languages”
The commissioner now has broader enforcement powers to ensure compliance with the Act, most notably, per subsection 64.1(1) which stipulates that the commissioner may enter into compliance agreements with contravening federal institutions, and section 64.5 which provides that the commissioner may make orders to rectify any infringements of the Act.
About the author
Kenza Salah is a lawyer and chair of the Ontario Bar Association’s Official Languages Committee.