Time for Action: The FCFA Proposes a new Wording of the Official Languages Act 5 March 2019 i Jean Johnson, President Justin Johnson, Vice Chair Alain Dupuis, Executive Director Diane Côté, Director of Government and Community Relations Brief prepared for the FCFA by: Mark Power, Darius Bossé and Perri Ravon – Power Law, and Lionel Levert Ottawa/Vancouver/Montreal The French version of this brief is the original; the English version is a translation Time for Action! A new Wording of the Official Languages Act 5 March 2019 ii Table of Contents Executive Summary ..................................................................................................................... iv Introduction ....................................................................................................................................1 1. Modernizing the implementation of the OLA: a central agency, an obligation to consult, and oversight and sanction mechanism ..............................................................12 A. The OLA must charge the Treasury Board with coordinating its implementation .......12 The Treasury Board ...............................................................................................12 The Minister of Canadian Heritage ........................................................................14 The Privy Council Office and the implementation of the OLA: a political responsibility ......................................................................................20 The Treasury Board and the implementation of the OLA: a legal responsibility ...........................................................................................23 B. “By and for” official language minority communities: enable official language communities to participate in the implementation of the OLA by creating an obligation to consult and robust consultation mechanisms .......................................32 Creating a general obligation to consult official language minority communities in the OLA .....................................................................................33 The obligation to hold consultations must include an obligation to take into account their results and provide feedback .........................................................34 Creating an Official Language Minority Communities Advisory Council ...........36 C. Oversight and sanction mechanisms: modernize the role and powers of the Commissioner of Official Languages and establish the Official Languages Tribunal ...................................................................................................43 2. Modernizing the rights and obligations in the OLA and its underlying principles ......87 Preamble, purpose clause, new interpretative section, and definitions ..................87 Part I: Proceedings of Parliament ..........................................................................97 Part II: Legislative and Other Instruments .............................................................98 Part III: Administration of Justice ........................................................................103 Part IV: Communications with and Services to the Public ..................................111 Part V: Language of Work ...................................................................................124 Part VI: Participation of English-speaking and French-speaking Canadians ......132 Part VII: Advancement of English and French ....................................................134 Part VIII: Responsibilities and Duties of the Treasury Board in Relation to the Official Languages of Canada ................................................................158 Part IX: Commissioner of Official Languages ....................................................158 Part X: Court Remedy ..........................................................................................158 Part XI: General ...................................................................................................158 Part XII: Related Amendments ............................................................................163 Part XIII: Consequential Amendments ................................................................174 Part XIV: Transitional Provisions, Repeal and Coming into Force.....................174 Time for Action! A new Wording of the Official Languages Act 5 March 2019 iii Schedules A. A Modernized Official Languages Act Highlighting Modifications B. A Modernized Official Languages Act C. Coordination of the Implementation of the Official Languages Act, 1969 (Chart) D. Coordination of the Implementation of the Official Languages Act, 1988 (Chart) E. Coordination of the Implementation of the Modernized Official Languages Act (Chart) F. Investigations into Complaints and Applications for Remedies to the Official Languages Tribunal (Chart) G. Systemic Investigations at the Initiative of the Commissioner of Official Languages (Chart) Time for Action! A new Wording of the Official Languages Act 5 March 2019 iv Executive Summary The modernized Official Languages Act makes the Treasury Board responsible for applying the Act and coordinating its implementation In order to ensure that the Official Languages Act is finally implemented by federal institutions, it is essential to consolidate the responsibility for its application and the coordination of its implementation within a central agency, namely the Treasury Board. Among other things, the Treasury Board must take on the responsibility the Minister of Canadian Heritage currently has to coordinate the implementation of Part VII, as that Minister has none of the necessary tools to compel other ministers to act in accordance with the Official Languages Act. The Treasury Board is ideally placed and fully empowered to oversee and enforce the strict application of the Official Languages Act, for a number of reasons. Specifically, 1) its enabling legislation grants it broad and binding horizontal powers of development and oversight, which are precisely the kind of levers required for the implementation of the Official Languages Act; 2) as the agency responsible for the budgets of all departments and agencies, the Treasury Board is well placed to promote the full implementation of the Official Languages Act and identify possible collective initiatives needed in order to give effect to the Official Languages Act and enforce the obligations it contains; 3) as the only statutory committee of the Privy Council, the Treasury Board has the benefit of a transparent legislative framework, and additional responsibilities can be added to this framework; and 4) the Treasury Board already has a certain amount of experience in the area of official languages as it has played a role in the implementation of some parts of the Official Languages Act, although to date, due to a lack of obligations and enforcement powers, it has not done so in a satisfactory way. Thus, the modernized Official Languages Act makes the following changes: 5) it designates the President of the Treasury Board as the person responsible for its application; 6) it charges the Treasury Board with coordinating the implementation of the Act by federal institutions; 7) it replaces the permissive language of subsection 46(2) (“may”), authorizing the Treasury Board to carry out certain functions, with an obligation to do so; 8) it transforms the list of functions in subsection 46(2) into a non-exhaustive list of obligations and broadens its scope; 9) it prohibits the Treasury Board, in paragraph 46(2)(g), from delegating its responsibilities to the deputy heads or other administrative heads of other federal institutions; and Time for Action! A new Wording of the Official Languages Act 5 March 2019 v 10) it sets up the Official Languages Secretariat, which supports the Treasury Board in carrying out its responsibilities. The modernized Official Languages Act requires federal institutions to consult official language minority communities in the performance of their obligations In 1980, the FCFA showed leadership by signing an agreement with the federal government to establish a commission that would have given French-language minority communities a role in the implementation of the federal government’s public policies relating to official languages, and would have ensured that they were consulted in this regard. The government of the day was defeated and the agreement was terminated. The time has clearly come to enshrine a structure playing such a role in the Official Languages Act. Furthermore, since 1988, the Supreme Court has set out principles that apply to consultation in the area of minority rights law. According to the Supreme Court of Canada, “meaningful consultation” in the context of the Crown’s duty to consult with aboriginal peoples involves: listening with an open mind to what the people and the parties consulted have to say; being prepared to modify the policy proposals that are the subject of the consultation; and providing feedback both during the consultation process and after the decision has been made. The modernized Official Languages Act incorporates these developments in order to empower official language minority communities to participate in its implementation. Thus, the modernized Official Languages Act makes the following changes: 1) it creates a new Part setting out a framework for the consultation of official language communities; 2) it requires federal institutions to consult with official language minority communities when