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Fixing the flaws of the Official Languages Act

As the act turns 50, it’s time for it is brought into the 21st century so that it can uphold legislative and judicial bilingualism.

Department of Justice Canada

This year marks the 50th anniversary of the Official Languages Act, which purports to ensure French and English are equal in the parliamentary context and in the administration of justice. These rights have been guaranteed by the federal government since 1867. Unfortunately, witnesses have made it clear that the act has yet to fully achieve its initial goal—an issue that wasn’t fixed during the last major revision more than 30 years ago. If Canada is to fully embody the principles of bilingualism and linguistic duality, we must modernize the act so that all Canadians adhere to it.

Its shortcomings are readily apparent in the justice sector, where federal court decisions made in one language aren’t always as authoritative as they are in the other. Nor are rulings available in both official languages in every case. Of those that are, the English and French versions are often released at different times. This leads to unequal access to justice.

There can be serious consequences if pleadings and procedures are available in only one official language. Consider, for example, a native French speaker who is going through a divorce and trying to understand a child custody settlement that was written in English only.

As the committee heard from Michael Bergman, the president and co-founder of the Association of English Speaking Jurists of Quebec, the same holds true in Quebec where an Anglophone can experience the opposite scenario.

“This is the most emotional time in your life,” Mr. Bergman explained, and yet these individuals are left clueless about the results of the hearing—all because the act hasn’t been updated to meet their linguistic needs.

Parliament introduced Bill C-78 to amend the Divorce Act, which, after being amended, now provides for language requirements. It is currently at second reading in the Senate. The federal budget tabled in March 2019 also provides additional funding to support this legislative change and ensure Canadians can choose which official language to use during divorce proceedings.

While improvements are being made in this area, many other issues raised by justice sector experts are not being addressed, such as cases where people are self-represented in civil cases or don’t have a bilingual lawyer who can explain the result of the hearing for them.

Under the current act, the justice system does not seem to focus on the interests of the litigants. In an ideal world, all Canadians would have access to lawyers and other justice system officials who could provide services in the language of their choice.

Changes must be made.

Mr. Bergman’s testimony was part of our committee’s consultation with justice sector experts on their views about amendments to update the act. We put our findings into an interim report entitled Modernizing the Official Languages Act: The views of the justice sector.

The evidence we heard and the briefs we received showed a need for an in-depth review of the act in order to ensure legislative and judicial bilingualism.

There are three key messages from the report:

First, witnesses told the committee that consistency is needed between the provisions of the act that deal with legislative and judicial bilingualism. Witnesses said that, for example, court decisions should bear the same weight in English and in French, and the practice of co-drafting laws in both official languages should be included in the act. Most importantly, a greater number of court decisions should be translated, and they should be published in both official languages at the same time.

Second, witnesses shared that the act must guarantee equal access to justice for all Canadians. This can be achieved in part by requiring Supreme Court of Canada judges to be fluent in English and French at the time of their appointment. This change, among others, would signal that equal access to justice is a priority.

Third, the committee heard that the mechanisms for implementing the act must be reviewed. For example, Part IV of the act requires the government to communicate with members of the public in either official language, but the scope of this obligation remains vague. Furthermore, Part VII of the act, as written, means that rights of official language minority communities are not always being respected.

The act’s 50th anniversary is the perfect time to make sure that it is brought into the 21st century and that it upholds legislative and judicial bilingualism, to the betterment of all Canadians.

We would hate to wait another 50 years to see these changes made. They are already 50 years overdue.