Bill C-13: An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts
Tabled in the House of Commons, April 5, 2022
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a “Charter Statement” for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-13 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill. This Statement deals mainly with the provisions of the bill that could have potential effects on Charter rights and freedoms. It is not intended to be a comprehensive overview of all the provisions of the bill.
Bill C-13 amends the Official Languages Act (OLA) and makes a number of important changes to modernize and strengthen it, in particular to protect and promote the French language by recognizing its status as a minority language in Canada and North America. Several provisions of the bill refer to this recognition.
Other provisions of the bill are intended to strengthen Part VII of the OLA, which sets out the Government of Canada’s commitment to support the development of English and French linguistic minority communities in Canada and to foster the full recognition and use of both English and French in Canadian society. The amendments address, among other things, the importance of supporting sectors that are essential for the vitality of official language minority communities (e.g. immigration, education – from early childhood to post-secondary education – health, culture and justice), protecting and promoting the presence of strong institutions serving these communities, and strengthening measures to encourage the learning, acceptance and appreciation of both official languages in Canada.
The bill also gives the Treasury Board new responsibilities to strengthen the monitoring and coordination of Parts IV (Communications with and Services to the Public), V (Language of Work) and VI (Participation of English-speaking and French-speaking Canadians), and subsection 41(2) of Part VII (Advancement of English and French) of the OLA within federal institutions.
Similarly, the amendments concerning the Commissioner of Official Languages are intended to better equip the Commissioner by granting new powers to ensure greater compliance with the OLA, including the power to enter into compliance agreements with federal institutions and to issue orders against them in certain instances.
The modification to part IX of the OLA also create a new administrative monetary penalties regime to promote compliance with Part IV of the OLA. The regime would apply to Crown corporations and the other corporations that are subject to Part IV of the OLA under another Act of Parliament, who will be identified in regulations, who operate in the transportation sector, and engage in communications with and provide or make available services to the travelling public.
With respect to the administration of justice, the bill removes the exception in subsection 16(1) of the OLA in respect of the Supreme Court of Canada. The highest court in the country would therefore be required, like all other federal courts, to ensure that judges hearing a given case can understand the parties directly without the assistance of an interpreter, regardless of the official language chosen by the parties.
The bill also creates an obligation to conduct a periodic review of the OLA.
Finally, the bill includes the enactment of a new act, the Use of French in Federally Regulated Private Businesses Act. This new act would create new duties with respect to language of work and service for federally regulated private businesses in Quebec and in regions with a strong francophone presence outside Quebec that are not subject to the OLA or the Charter of the French Language of Quebec.
Advancement of the equality of both official languages
Subsection 16(1) of the Charter provides that English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. Subsection 16(3) of the Charter provides that nothing in the constitutional language provisions limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
The bill introduces a series of proposals that promote this progression towardsthe equality of status and use of English and French. Several provisions of the bill are therefore concrete illustrations of the constitutional principle set out in subsection 16(3) of the Charter. For instance, the bill sets out new commitments on the part of the Government of Canada, including the commitment to contribute to a better estimate of the number of children whose parents have the right to have them receive instruction in the minority official language of their province or territory and in their facilities under section 23 of the Charter, to adopt a policy to promote francophone immigration, to support the creation and dissemination of scientific information in French, to support bilingualism within Canadian diplomacy, to advance the use of English and French in the conduct of Canada’s external affairs and to promote French as part of Canada’s diplomatic relations. The enactment of the Use of French in Federally Regulated Private Businesses Act, which would create new rights and promote the use of French as a language of work and service in certain federally regulated private businesses in Quebec, as well as in other regions of the country with a strong francophone presence, is another concrete example of this principle of advancement of the equality of status and use of English and French.
Official Languages of Canada (subsection 16(1) of the Charter)
Certain amendments to the preamble, purpose clause and Part VII of the OLA set out in the bill could engage subsection 16(1) of the Charter because they recognize the unique situation of the French language in Canada and North America and the need to protect and promote it.
The following considerations support the consistency of these provisions with the Charter. The provisions in question are consistent with the principle of advancement of the equality of status and use of English and French set out in subsection 16(3) of the Charter (also reflected in the purpose clause of the OLA) and with case law that has recognized the vulnerability of the French language and the need to protect it. The provisions also reflect the unwritten constitutional principle of the protection of minorities (which is also reflected in the amended purpose clause of the bill). The provisions in question are not intended to take away rights from Canada’s English-speaking communities, including the English-speaking minority community in Quebec. Rather, they are intended to recognize the vulnerable status of the French language in Canada and to act to halt its decline.
Bilingualism at the Supreme Court of Canada
The bill amends subsection 16(1) of the OLA, which is found in Part III regarding the administration of justice in federal courts, to remove the exception in respect of the Supreme Court of Canada. Accordingly, the Supreme Court, like all other federal courts, would from now on have the duty to ensure that every judge who hears a proceeding is able to understand the official language or languages chosen by the parties, without the assistance of an interpreter.
The proposed amendment could engage subsection 15(1) of the Charter, as it could have an impact on individuals who, because of a disability, are unable to learn another language. Subsection 15(1) of the Charter protects the right to equality. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on disability.
The following considerations support the consistency of the proposed amendment with the Charter. The bilingualism requirement for Supreme Court judges is designed to fulfil the legislative objective of ensuring that francophone and anglophone litigants have equal access to Canada’s highest court; its purpose is to guarantee substantive equality. The potential impact of the proposed amendment on certain persons with disabilities is not based on an assumption that they are less able or qualified. Rather, the bilingualism requirement reflects the importance of Supreme Court judges hearing a case to be able to understand the parties in the official language of their choice, without the assistance of an interpreter.. Subsection 16(3) of the Charter also provides that nothing in the Charter limits the authority of Parliament to advance the equality of status or use of English and French.
Use of French in Federally Regulated Private Businesses Act: language of work and language of service in federally regulated private businesses
The bill adds a new act, the Use of French in Federally Regulated Private Businesses Act, which enshrines new rights for employees of federally regulated private businesses and the consumers they serve. The goal of the new act is to protect the use of French as a language of work and a language of service.
The new act would apply to businesses of a size to be determined by regulation that carry on business or have a workplace in Quebec or in a region with a strong francophone presence outside Quebec and that are not currently subject to the OLA or the Charter of the French Language of Quebec. Businesses in Quebec could in fact elect to be subject to the obligations set out in Quebec’s Charter of the French Language with respect to language of work and language of service.
The act would not apply in relation to federally regulated private businesses in respect of activities or workplaces related to the broadcasting sector.
The new act would come into force in Quebec at a later date to be fixed by order in council, and two years after that date in regions with a strong francophone presence, to give the businesses concerned time to prepare for the new requirements. The bill provides recourse mechanisms with the Commissioner of Official Languages for violations of the new rights set out in it. For example, the Commissioner’s new power to make orders, created under Part IX of the OLA, would apply to the duties of federally regulated private businesses in respect of communications with and services to consumers, as well as language of work. Finally, the bill authorizes the making of regulations necessary to implement the new provisions.
Regarding language of service, the bill guarantees consumers in Quebec or a region with a strong francophone presence the right to communicate in French with and obtain available services in French from a federally regulated private business that carries on business in Quebec or the region. The bill specifies, however, that this right does not prevent the use of another language at the consumer’s request, if the business is able to provide services in that other language. This duty would apply to both written and spoken communication.
Regarding language of work, the bill guarantees the following new rights for employees who occupy or are assigned to positions in a workplace in Quebec or a region with a strong francophone presence: (i) the right to carry out their work and be supervised in French; (ii) the right to receive all communications and documents from the business in French; and (iii) the right to use regularly and widely used work instruments and computer systems in French. The bill specifies, however, that the business may communicate with employees or provide documents in both official languages, so long as the use of French is at least equivalent to the use of English.
The bill also prohibits treating an employee adversely for the sole reason that the employee does not have a sufficient knowledge of a language other than French, has exercised a right under this new act or has made a complaint to the Commissioner of Official Languages. The bill specifies, however, that requiring knowledge of a language other than French does not constitute adverse treatment if the business is able to demonstrate that a knowledge of that language is objectively required by reason of the nature of the work to be performed by the employee.
Adverse treatment is also prohibited against an employee for the sole reason that the employee does not have a sufficient knowledge of French, if the employee occupies a position on or before the day on which this provision comes into force.
Finally, the bill requires federally regulated private businesses that have workplaces in Quebec or a region with a strong francophone presence to take measures to foster the use of French within their businesses. In developing such measures, the business must consider the needs of employees who are close to retirement, have many years of service or have conditions that could impede the learning of French.
Freedom of expression (paragraph 2(b) of the Charter)
The new requirements for federally regulated private businesses to offer services in French and communicate with their employees in French could engage paragraph 2(b) of the Charter, as they impose the use of a particular language. Paragraph 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Paragraph 2(b) protects activities or communications that convey or attempt to convey a meaning, except for violence or threats of violence. It has been interpreted as including the freedom to express oneself in the language of one’s choice, so long as the medium of expression itself is not excluded from protection under paragraph 2(b).
The following considerations support the consistency of the proposed amendments with the Charter. The purpose of the measures is to strengthen the presence and use of French in the workplaces and activities of the businesses concerned, with a view to advancing the equality of status and use of French and English in Canadian society and halting the decline of the French language in North America, including in Quebec. The evidence shows that French has been declining, both in the public sphere and in private homes and businesses, including in Quebec. In addition to governments, private businesses have an important role to play in preserving the French language. In Quebec, the proposed measures also aim to harmonize language rights in federally regulated private businesses with the language rights of businesses under provincial jurisdiction protected by the Charter of the French Language. Further, the use of French would not be exclusive. Businesses could continue to offer services in a language other than French and communicate with their employees in English. Moreover, the expressive value, if any, of private communications between an employer and its employees is diminished. Such private communications are less likely to bring into play the underlying values of paragraph 2(b) of the Charter, such as the search for truth, participation in social and political decision-making, and individual self-fulfillment. On balance, the beneficial effects of the proposed measures outweigh any limits on freedom of expression.
Right to equality (section 15 of the Charter)
The provision requiring federally regulated private businesses that develop measures to foster the French language to consider the needs of employees who are close to retirement, have many years of service or have conditions that could impede the learning of French could engage subsection 15(1) of the Charter, as it could allow more flexibility for older employees and employees with disabilities.
The following considerations support the consistency of the proposed amendment with section 15 of the Charter. Younger people are not a particularly disadvantaged group in the workplace and generally have an easier time learning another language. Further, the provision takes into account that learning French could be a barrier for persons who, because of a disability, cannot learn another language. To achieve substantive equality, it is sometimes necessary to make distinctions. Subsection 15(2) of the Charter allows a government to adopt special measures to improve the conditions of disadvantaged individuals or groups, including those who are disadvantaged because of age or a mental or physical disability.
Right to be secure against unreasonable search or seizure (section 8 of the Charter)
Regarding recourse mechanisms, the bill provides, among other things, that the Commissioner of Official Languages may, in some specific circumstances, refer a complaint to the Canada Industrial Relations Board (CIRB) if the complaint alleges a violation of language rights in the workplace. The bill grants the CIRB certain powers in this regard, including the power to enter the premises of a business and obtain information relevant to the complaint.
The powers granted to the CIRB could engage section 8 of the Charter, as the CIRB could have access to information bringing privacy interests into play. Section 8 of the Charter protects everyone against “unreasonable” searches and seizures. A search or seizure is considered reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and the search or seizure is carried out in a reasonable manner.
The following considerations support the consistency of the provisions in question with the Charter. The CIRB needs to be able to access premises and records considered to be relevant to the complaints referred to it. The powers granted to the CIRB would be used only for regulatory purposes, not for penal purposes. The proposed powers are broadly similar to the powers granted to other bodies in similar contexts, in particular those granted to the Commissioner of Official Languages.
New administrative monetary penalty regime (section 11 of the Charter)
New sections to Part IX of the OLA would create an administrative monetary penalty regime which would aim to promote compliance with Part IV of the OLA. The regime would apply to Crown corporations and corporations that are already subject to the OLA under another Act of Parliament and that operate in the transportation sector and engage in communications with and provide or make available services to the travelling public. Moreover, these corporations would need to be designated by a future regulation. The purpose of a penalty would be to promote compliance with Part IV of the OLA and not to punish.
Under the new regime, the Commissioner of Official Languages could, after carrying out an investigation, issue a notice of violation and cause it to be served on the designated body named in the notice of violation. The OLA would set out all the elements to be included in a notice of violation. It would also provide for the option of making compliance agreements, and the designated body named in a notice of violation could have the penalty reviewed by the Federal Court. Part IX of the OLA would also establish the factors to be taken into account by the Commissioner of Official Languages in determining the amount of a penalty. Finally, the terms of the new regime would be clarified through the enactment of regulations made by the Governor in Council.
Under section 11 of the Charter, people accused of an offence are guaranteed certain procedural rights that protect them in proceedings that are “penal in nature” or that can result in “true penal consequences”. True penal consequences include imprisonment and fines with a punitive purpose or effect, as may be the case where the fine or penalty is disproportionate to the amount required to achieve the regulatory objectives. Paragraph 11(d) guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
The penalty regime established by Part IX of the OLA would be administrative in nature, and its penalties would not have “true penal consequences.” The following considerations support the consistency of the regime with section 11 of the Charter. The purpose of the penalties would be to promote compliance with Part IV of the OLA and not to “punish” in the sense used for the purposes of section 11 of the Charter. Penalties would be determined taking into account the factors set out in Part IX of the OLA and the regulations made by the Governor in Council. Properly construed and enforced, this new regime would not allow penalties with “true penal consequences.” Finally, penalties could be civilly enforced before the Federal Court but could not lead to a sentence of imprisonment in the event of a failure to pay a penalty.
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