Canada’s Official Languages Act turns 30 next year, and is beginning to show its age.
CBA President Kerry Simmons wrote to the Ministers of Treasury, Canadian Heritage and Justice, the three portfolios that play the biggest role in the implementation of the Act, calling on them to bring the legislation – initially adopted in 1969 and consolidated in 1988 – into the 21st century.
While the reality of official languages in the country is continually changing, the Act is frozen in time, she said.
“In the last three decades, Canadian society has been significantly transformed and the expectations of minority official language communities have also evolved,” she wrote. “The Act was adopted before the advent of the Internet, before the increase in Francophone immigration throughout the country, and prior to a number of important Supreme Court of Canada decisions on the interpretation of the Canadian Charter of Rights and Freedoms, including the official language guarantees.”
Of particular concern to the CBA is the access to justice issue created by the lack of bilingual judges in superior courts and courts of appeal – whose appointments are made by the federal government.
The letter notes that the Commissioner of Official Languages has been drawing attention to this problem since 1995.
“The federal government should exercise its power to make appointments to the judiciary such that the judicial system meets the demand for judges who are able to perform their duties in both official languages,” the CBA President wrote.
“The most efficient way to remedy this problem would be 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 action plan to enhance the bilingual capacity of superior court judges, recently announced by the Justice Minister, is a positive step forward, she wrote, but those measures need to be legislated in order to make them effective and enforceable.
Problems with the Act don’t stop there. It fails to define “official language communities,” meaning federal institutions often take decisions that affect those communities without considering their impact. As well, the federal government is not required to take into account the vitality of a minority language community when assessing a demand for services, so those services are often lost.
President Simmons also notes that 30 years ago the Commissioner of Official Languages was expected to “assume a leading role before the courts, notably as a plaintiff.” Over the past three decades, however, the Commissioner has appeared in court only sporadically, mostly as an intervener, leaving litigants to fight on their own – and with their own resources.
“It is worth emphasizing that access to justice in the two official languages and the effective implementation of the other language rights stipulated in the Charter is a priority for the CBA,” she concludes. “However, we note that, notwithstanding the good intentions of those who, in the 1980s, drafted the current Act, it is a struggle for those rights to be respected. Modernization is necessary. The future of linguistic duality and the vitality of minority official language communities depend on it.”