Windsor, February 27, 2012
Notes for an address at a meeting of the Language Rights Support Program
Graham Fraser – Commissioner of Official Languages
Check against delivery
Ladies and gentlemen, friends and colleagues,
A few weeks ago, I saw a sticker for sale in an Ottawa store that said, “Ignore your rights and they’ll go away.” I don’t know which rights the author was referring to, but I think that this applies particularly well to today’s theme. Not many people jump out of bed in the morning, all eager to go to court—expect for lawyers, maybe—but if we do not exercise our rights, and defend them when necessary, they may indeed disappear.
When I was appointed Commissioner in October 2006, the government had already announced the elimination of the Court Challenges Program. Official language communities reacted very strongly to the news, and it wasn’t just the lawyers. Soon after I arrived, I received some 40 complaints about this issue, from across the country. This number would increase to 109 before our investigation was complete.
This was the first real test of Part VII of the Official Languages Act, at least of the version amended by Parliament in 2005. Many of you know the rest of the story: our investigation supported the complainants, and serious shortcomings were found in the process that led to the decision. The Fédération des communautés francophones et acadienne du Canada (FCFA) brought the matter before the Federal Court 2008, with my support as an intervener. In spring 2009, just as the Court was about to render judgment, an out-of-court settlement was reached between the government and the FCFA: the linguistic component of the Court Challenges Program would be replaced by the new Language Rights Support Program.
We will never know what the Federal Court’s ultimate decision was, so highly anticipated at the time. What we do know, however, is that official language communities were undaunted in seeking a court remedy, and this got results.
Language rights are protected through a variety of legislative and constitutional texts. However, we also need mechanisms to enable Canadians to claim and exercise these rights. One of these mechanisms is the right of redress.
On this 30th anniversary of the Canadian Charter of Rights and Freedoms, we need to remember how important this document is for official language communities. The right to communicate with and receive services from federal institutions in either official language and the right to education and school governance in either official language are just two examples of the rights that ensure that linguistic duality is respected and maintained. The Official Languages Act further defines some of the rights guaranteed in the Charter.
The scope of the rights set out in the Charter and the Act has been solidly supported by successive Supreme Court rulings. This proves how important access to justice is in maintaining and advancing language rights.
The Language Rights Support Program, like its predecessor, is an important tool for official language communities. It ensures better access to many important legal services for people with language-related disputes. It is not a magic wand, however. It is accessible only to those who are filing a claim under the Charter. Legal proceedings initiated under the Official Languages Act are not eligible for funding.
Even with access to funding, seeking mediation or a legal remedy against the government requires time and energy. And those who choose to take the government to court are well aware that this kind of battle takes over your life for a long period of time. If you think that it is easy to take legal action against a government or large corporation, just talk to the people who spearheaded the SOS CBEF fight here in Windsor.
Since 2009, these individuals and their local community have been fighting to ensure that their language rights are recognized. Hundreds of people have filed complaints with my office, many have made statements under oath as part of the legal proceedings, and some have even been cross-examined on their statements by CBC/Radio-Canada lawyers. This case is still before the Federal Court. Although we have come a long way thanks to the community’s tireless efforts, there are still a number of important legal hurdles to clear. This kind of undertaking is a long, drawn-out process, and the community’s energy and support is essential to remind the people who are fighting of the ultimate objective and how important it is. I was pleased to learn that the Support Program had approved funding for some of the earlier legal hurdles, but this kind of funding cannot make up for all the time and energy invested by members of the community. My office and SOS CBEF are standing shoulder to shoulder before the courts to seek a decision that will benefit this community.
The DesRochers case is another example of the positive results that can come from pursuing a legal remedy for language issues. It also highlights the problems that can arise when funding for this kind of legal action is not available. The DesRochers case led to a landmark Supreme Court decision on federal institutions’ obligation to provide services of equal quality in both official languages, and in some cases, depending on the nature of the services, their obligation to take the minority communities’ specific needs into account. Here again, this was a fight initiated and led by passionate individuals determined to ensure that their language rights were upheld. After the Court Challenges Program was eliminated, there was no funding available to the applicant to file his case before the Supreme Court, and so it became necessary for me to assume the role of co-appellant to ensure that major legal issues were addressed.
These and many other cases remind us of the collective nature of language rights. Often, the people at the forefront are acting to protect their own rights as well as those of their community. The public engagement that then develops strengthens ties between the members of the community. Another example of this is the Montfort Hospital case. Since we are in Windsor, home of the new École Michel-Gratton, I would like to take the opportunity to tell you about the role of my former colleague in this battle and the reasons that drove him to dedicate himself to it, body and soul. The people who worked so hard to mobilize public opinion and the courts to save the hospital did so for their families, for their community, for Franco-Ontarians and for all French Canadians. As Michel so eloquently put it, “The cause was greater than any of us, greater than all of us.” He understood that “it was possible to achieve a victory that would not only save Montfort, but would also have an enormous impact on the entire French-Canadian community.” Michel’s passing was much too soon, but he left a lasting legacy for the Franco-Ontarian community.