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  Home - Reports - The Government Response THE GOVERNMENT'S RESPONSE TO THE REPORT The government has a firm commitment towards Canadian language duality. Its commitment in this respect has been reaffirmed in the 2002 Speech from the Throne whereby the government indicated it will produce and implement an action plan on official languages. Reaffirming its support to the development of official languages minority communities, the government commits to expand access to services in their languages for those communities. The action plan on official languages will likely be released at the beginning of 2003. The government studied with great care the recommendations of the Standing Joint Committee on Official Languages and is working at implementing them. Recommendation no 1: The Committee recommends that the Department of Justice build upon the implementation of Part VII of the Official Languages Act by instituting a regulatory framework governing the administrative actions of federal institutions. The Committee calls upon the Department to work with official language communities on this question. Measures will be taken to better carry out the objectives set out in Part VII of the Official Languages Act (OLA). The Minister responsible for coordinating the official languages matters, the Honourable Stéphane Dion, recognizes the importance of reinforcing the application framework of Part VII and the implementation of the whole of the OLA. As part of the government's official languages action plan, the Minister is working to develop an accountability framework designed to strengthen the government's commitment to the official language minority communities. In a speech he delivered in Whitehorse, at the annual general meeting of the Fédération des communautés francophones et acadienne du Canada, the Honourable Stéphane Dion confirmed, moreover, that the government's action plan would in fact contain an accountability framework. He indicated that discussions were ongoing on the various ways of improving the accountability of departments and senior publics servants in this regard. The accountability framework would have the following objectives:
During the last year, the Honourable Stéphane Dion consulted with the official language minority communities (the Fédération des communautés francophones et acadienne du Canada, the Quebec Community Group Network) as well as with the Commissioner of Official Languages. Recommendation no 2: The Committee recommends a renewed commitment by the Department of Justice so that the judgment in Beaulac may be implemented diligently and effectively. Concrete initiatives must be included in the Department of Justice action plan. It is imperative that Crown Counsel and Crown agents who conduct prosecutions on behalf of the Attorney General of Canada act in accordance with the principles stated in the Beaulac judgment. There is no doubt that R. v. Beaulac, a 1999 decision of the Supreme Court of Canada, is a turning point in the interpretation of language rights in Canada. In its judgment, the majority of the Court dismisses the restrictive interpretation of language rights for a large and liberal rule of interpretation based on a purposive approach. The Supreme Court rules that language rights must in all cases be given a large and liberal interpretation based on a purposive approach, in a manner consistent with the preservation and development of official language communities in Canada. It points out that the overall objective of all language rights is to ensure the preservation and development of official language communities in Canada and assist official language minorities in preserving their cultural identity. The Department of Justice is in agreement with the Committee that Beaulac constitutes a milestone in the progress of language rights in Canada. The Department has taken note of this decision and takes into account this new case law in its workings and in its role of legal adviser. A detailed analysis of the repercussions the decision might have on the Department's operations was carried out shortly after the judgment was delivered. A joint meeting of the Policy Committee and the Committee on Bilingualism and Bijuralism was held. The Deputy Minister of Justice and members of senior management were in attendance to that meeting. Moreover, training sessions in the departmental legal services of various departments, to the members of the Departmental Advisory Committee on Official Languages, the official languages champions and the members of the Committee of Deputy Ministers on Official Languages provided the opportunity to convey the highlights and the impacts of the judgment. Nevertheless, it is important to emphasize that in this case the Supreme Court of Canada was asked for the very first time to rule on sections 530 and 530.1 of the Criminal Code (Code), which deals with the language of the accused. Section 530 provides that, on application by an accused whose language is one of the official languages of Canada, the judge shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages. As for section 530.1, it lists the specific rights that may be exercised when an order is granted pursuant to section 530. These sections, adopted by Parliament in exercising its jurisdiction over criminal law and criminal proceedings, are illustrative of the principle of legislative advancement of language rights enshrined in subsection 16(3) of the Canadian Charter of Rights and Freedoms. They have been in force throughout the country since January 1, 1990. Thus, the primary and immediate impact of Beaulac involves the conduct of criminal proceedings. Following the judgment, the Department of Justice took a number of measures to make the representatives of the Attorney General of Canada aware of this decision. At first, all Federal Prosecution Service Group Heads from each of the Department's regional offices and all Crown agent supervisors were informed of this landmark decision and of the principles established by the Court. The decision was also discussed at the meeting of the Federal Prosecution Service Group Heads from each of the Department's regional offices shortly after the ruling in September 1999. Furthermore, a summary of the highlights of the decision was sent to all of the Crown agent supervisors at the Department of Justice's regional offices in mid-January 2000. Also in response to Beaulac and more importantly, new guidelines aimed at assisting Federal Crown counsel in ensuring a full implementation of the language provisions of the Criminal Code have been established and included in the Federal Prosecution Service Deskbook. This deskbook deals with full-time Crown counsel and agents. The Agent Affairs Unit also began revising the Terms and Conditions of Appointments of Crown Agents following Beaulac. New Guidelines for Crown Counsel As mentioned above, new guidelines for Federal Crown counsel were developed in response to Beaulac. They were developed by the Department of Justice's Official Languages Law Group and the Federal Prosecution Service following extensive consultations with all of the Department's regional offices. The Minister of Justice, the Honourable Martin Cauchon, approved the new guidelines this past May. They were discussed and given out during the last conference of the Department of Justice's Federal Prosecution Service. Other ways to publicize them amongst the Crown Agents, the Commissioner of Official Languages, the Fédération des juristes d'expression française de common law and the seven associations of French-speaking lawyers are being developed. These guidelines specifically deal with sections 530, 530.1 and 841(3) of the Code. The purpose of these guidelines is to help counsel who represent or act on behalf of the Attorney General of Canada ensure that the implementation of these provisions is respectful of their scope and their intent and that it is in keeping with Beaulac. Therefore, they describe the legislative provisions and relevant case law and they establish the guidelines that the representatives of the Attorney General of Canada must follow. For example, they prescribe, amongst other things, that Crown counsel must never challenge the official language chosen by the accused, unless it is clear that the accused does not have the language ability required to instruct counsel and follow the proceedings in the chosen language. This guideline ensues directly from Beaulac, in which the Supreme Court of Canada ruled that the "language of the accused," for the purposes of section 530, is the language chosen by the accused to which that person has a sufficient connection. It does not have to be the accused's dominant language. The guidelines also prescribe that Crown counsel must make sure they submit specific parts of information or indictments to the accused in the official language chosen for the conduct of the trial. When an order is issued pursuant to section 530 that requires that the accused be tried before a judge and jury who speak the official language of the accused, the counsel must also use the official language of the accused in oral and written legal communications. Thus, written pleadings prepared by Crown counsel must be filed in the official language of the accused. Moreover, although sections 530 and 530.1 of the Code are applied only at the preliminary inquiry and trial stages, the guidelines encourage counsel to use the official language of the accused in all other proceedings related to the trial and in appeal procedures. The guidelines also include the new policy on the language of factums that was adopted by the Department of Justice's Litigation Committee. The Department's policy is to prepare the Attorney General of Canada's factum in both official languages in all large-scale cases that are brought before any court of appeal or to the Supreme Court of Canada and that generate great interest amongst the public and the media, whether or not they involve language issues. Apart from this policy, lawyers should note that a translation is required before any factum is posted on the Department of Justice's Internet site. In many respects, therefore, the guidelines go above and beyond the language obligations that are set out in the Code. The guidelines also respond to a certain number of recommendations made by the Commissioner of Official Languages in three distinct studies dealing with the administration of justice in both official languages and represent a substantial measure aimed at improving access to justice in both official languages within the Department of Justice's sphere of activity. New Terms and Conditions of Appointment of Crown Agents Still in response to Beaulac, the Department of Justice revised its terms and conditions of appointment of Crown agents. As in the case of the new guidelines, the Minister of Justice approved the new Terms and Conditions of Appointments. The new document entitled Terms and Conditions of Appointment of Crown Agents Working on Federal Prosecutions should take effect soon. In carrying out this revision, the Department of Justice took into account recommendations made by the Commissioner of Official Languages in her report published in December 2000 entitled Study of the Official Language Obligations of Federal Crown Agents in the Province of New Brunswick. It should also be noted that the Department of Justice is currently reviewing the terms and conditions of appointment of Crown agents involved in civil matters. The provisions that will be adopted in the area of official languages will be similar to those adopted for counsel involved in prosecutions. Through these new policies, the Department of Justice has thus reaffirmed its commitment to respect the language rights of parties involved in legal proceedings and provide legal services in both official languages. These policies are concrete examples of measures taken by the Department in response to Beaulac. As mentioned above, Beaulac has also had an impact on the interpretation of language rights in a more general way. In fact, it is a landmark decision in the evolution of language rights. It represented a major shift on the part of the Supreme Court of Canada, which, in 1986, in three cases involving language rights, introduced an approach that was described by some as "restrictive" or "prudent." It stands to reason that Beaulac has had serious repercussions on the workings of the Department of Justice, particularly in its role of legal adviser. The Department takes into consideration the principles developed by the Supreme Court in drafting all of its legal advice. It also takes into account this new case law in establishing the position of the Attorney General of Canada in cases involving the issue of language. Recent factums filed by the Attorney General of Canada in cases involving language rights (for example, the Montfort case) perfectly reflect this fact. Recommendation no 3: The Committee recommends
Access to Justice in both official languages is an issue of first importance to the Department of Justice. Equal access to justice for all Canadians in their official language is a fundamental feature of the Canadian society. The Department wishes to work in cooperation with the provinces and territories to improve access to the justice system in both official languages. It is with this in mind that the Department commissioned the Environmental Scan: Access to Justice in Both Official Languages (Environmental Scan). The study was carried out to help create a picture of the situation concerning access to justice in both official languages in Canada. By undertaking this study, the Department of Justice wanted to have as precise an idea as possible of the difficulties inherent to obtaining legal and judicial services in the minority official language in each of the provinces and territories. Apart from the obstacles, the Department also deemed it useful to make an inventory of the innovative practices that are in use throughout the country to guarantee Canadians equal access to the justice system whatever their official language. In accordance with its commitment, the Department of Justice released the Environmental Scan making sure that the main stakeholders involved in access to justice in both official languages receive a copy. Furthermore, the Environmental Scan is available on the Department's Internet site. In addition, a federal-provincial-territorial working group on access to justice in both official languages was created, which ensued from the Deputy Ministers of Justice forum. New Brunswick, Ontario, Manitoba, Alberta, Yukon, and British Columbia are part of the working group that will focus specifically on the findings of the Environmental Scan so as to determine practices that are not exclusive to the Department of Justice and that are adapted to situations in the provinces and territories that are covered in the study. The Department of Justice wants to fully play its leadership role with respect to the issue of access to justice in both official languages. To that effect, the Department is currently reviewing possible solutions taking into account the findings of the Environmental Scan and the results of the consultations undertaken by the Department. These solutions offer various possibilities, including agreements with the provinces and the territories, the creation of an access to justice in both official languages support fund and the development of an awareness and information campaign on language rights. Recommendation no 4: The Committee recommends that all institutions subject to the Official Languages Act:
Department of Canadian Heritage Recommendation no. 4 is directed at the body of institutions subject to the Official Languages Act (OLA). In fact, all federal institutions are subject to this Act. However, in 1994, the Federal Government established an accountability framework and designated 27 federal institutions whose participation is particularly important for minority communities. The number of these designated federal institutions is now 29. The Minister of Canadian Heritage is responsible for coordinating activities pursuant to section 42 of the Act. Since 1995, these federal institutions have been developing annual or multi-year action plans, as well as annual status reports and they submit them to the Department of Canadian Heritage. The Minister of Canadian Heritage communicates them to Parliament every year in the Minister's report on official languages. The Department of Canadian Heritage carries out an analysis of these action plans and proposes avenues for action that are communicated to the deputy ministers, or their equivalent, of the institutions concerned through a letter that is sent annually by the Deputy Minister of Canadian Heritage. In 1999, in consultation with community and federal parties, the Interdepartmental Coordination Directorate of the Department of Canadian Heritage developed an evaluation framework for the implementation of sections 41 and 42 of Part VII of the OLA; this framework, and the Interactive User's Guide that accompanied it, help designated institutions assess their contribution towards the implementation of section 41. In addition, federal institutions are strongly encouraged to include the concrete results sought in their action plan. In 2002, the Official Languages Support Programs Branch of the Department of Canadian Heritage will carry out an assessment of the Official Languages Support Program. The assessment will seek opinions and information from communities regarding the implementation of this program. In 2003, the Interdepartmental Coordination Directorate of the Department of Canadian Heritage will carry out an assessment of the implementation of Part VII of the OLA within federal institutions. This assessment comes within the scope of a comprehensive evaluation and audit plan of Official Languages Support Program Branch programs at the Department of Canadian Heritage. The assessment model with performance indicators was developed to report on how the implementation of Part VII of the OLA is progressing on a continuous basis and will also make it possible to carry out ad hoc evaluations, as may be required, in order to take remedial action, if necessary. As for designated federal institutions, they will have to carry out their own assessments and provide data for the assessment that will be carried out by the Department of Canadian Heritage. Department of Justice In the winter of 2002, the Department of Justice took an important step towards the implementation of a results-based action plan. In fact, the Department held consultation meetings with six focus groups representing official language minority communities. These meetings took place in Ontario (Sudbury and Ottawa), Manitoba (Winnipeg), New Brunswick (Moncton) and Quebec (Cowansville and Québec). The Department wanted to find out what official language minority communities knew about the Department of Justice and what they thought about the Department's services and programs. The results of these consultations are part of the strategic planning process to help the Department adopt an action plan into which a results-based evaluation framework will be integrated. The management of the action plan for the implementation of section 41 of the OLA will be results-oriented, thus ensuring a follow-up to the measures included in the action plan. This also means that the department's action plan will reflect the main priorities of the official languages minority communities, which will be taken into account in the Department of Justice's priorities in all of its spheres of activity. The management of a results-based action plan is premised on the establishment of performance indicators. These performance indicators will be developed in consultation with official language minority communities. To this end, a two-day workshop will take place in the Fall of 2002 with community and Department of Justice's representatives. The Department of Justice's new action plan for the application of section 41
of the OLA will take effect on April 1, 2004. The Department will not stop
contributing towards the Federal Government's commitment during this transition
period. In fact, the Department developed a transitional action plan and will
continue its efforts to support the development of official language minority
communities and the full recognition of English and French as the official
languages of Canadian society. |
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| Last Updated: 2005-12-05 |  |
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