For an effective reform

Although Bill C-32 died on the Order Paper after being tabled in the House of Commons in 2021, it continues to raise concerns among members of the Canadian Bar Association’s French Speaking Common Law Members Section. 

Anticipating a new bill to modernize the Official Languages Act (tabled after the letter was sent), the Section shared its concerns (available in French only; all quotations used here are translations) regarding this reform with Ginette Petitpas Taylor, Minister of Official Languages, David Lametti, Minister of Justice and Attorney General of Canada, and Mona Fortier, President of the Treasury Board. 

The Section believes that the required modernization of the Official Languages Act should reflect the present-day reality of Canada’s linguistic duality.

In a brief submitted to the Senate Standing Committee on Official Languages in October 2018, the CBA put forward a number of recommendations, including amending subsection 16(1) of the Official Languages Act to require the Supreme Court of Canada to hear cases in both official languages without the assistance of an interpreter. 

Today, the Section recommends that the government maintain its commitment to reinforce and expand the Treasury Board’s powers, in particular the power to coordinate the implementation of the Official Languages Act. The CBA also recommends that a single minister be entrusted with the strategic role of horizontal coordination. 

As mentioned in the CBA’s letter, “although these commitments seemed promising at first, Bill C-32 proposed a linguistic framework where Canadian Heritage and the Treasury Board would still share responsibility for coordinating the Official Languages Act’s implementation.” The Section is of the view that this structure is unsustainable.  

Part VII of the Official Languages Act

Bill C-32 does not solve the problems stemming from Part VII of the Act, which the Federal Court covered in detail in its decision Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development). 

The vocabulary used in subsection 41(2) is a problem, as it suggests a general obligation to take “positive measures” without setting their minimum threshold.

The Section noted that “the unclear wording in Part VII of the Official Languages Act hinders its implementation. We urge you to revise the wording in order to prevent Part VII from remaining inactive and without any tangible legal effects.” 

Bankruptcy, judiciary, Constitution, bilingual judgments

The Section is concerned about the absence of legislative guarantees ensuring judicial bilingualism in the area of bankruptcy and insolvency. The letter notes how strange it seems “not to have taken advantage of your promised significant official language reform to finally solve the problem of unilingualism in the area of bankruptcy and insolvency.”  

The Section is also disappointed that the proposed Official Languages Act remains silent on evaluating the language abilities of judiciary candidates. We would have preferred “that your government commit to legislate a new mandatory and rigorous assessment of the linguistic abilities of candidates who identified the level of their language skills on their application form to ensure an appropriate bilingual capacity within the judiciary. The CBA has long reiterated this need.”

The French version of the Constitution was also notably left out of the reform. “Although Canada’s Constitution guarantees the equal status of English and French and provides that all Acts of Parliament must be enacted in both official languages, the clear majority of Constitutional texts in Canada, including its founding text (i.e., the Constitution Act, 1867), are official in English only. The authors adopted section 55 of the Constitution Act, 1982 to remove this incongruity by creating the obligation to draft and table for adoption the French version of the parts of Canada’s Constitution that are official in English only. This solemn promise by the authors remains unfulfilled.”  

While the Section is aware that translating judicial decisions is a labour-intensive process, it issued a warning regarding section 12 of Bill C-32, which would limit the scope of the general obligation to publish the final decisions of federal courts in both official languages. 

“This dilution or regression would be at odds with the general sense of progress and advancement that underpins the Bill. In our view, this measure must be carefully reviewed and viewed with caution.”  

The Section stands behind the recommendation by Canada’s Commissioner of Official Languages to put a system in place to review decisions and translate only those that represent a valuable precedent or are important to the public.