The Action Plan for Official Languages Coordination Program Summative Evaluation
4. Key Findings
4. Key Findings
This section presents key findings from the document review and key informant interviews, beginning with those on the rationale of the Justice Canada coordination component. The findings on the success of the key activities undertaken by the Department of Justice in support of the Coordination Program are then presented.
4.1 Relevance of Justice Canada's component
The relevance of the Department of Justice Canada's component of the Coordination Program is intrinsically linked to the department's new responsibilities included in the Accountability and Coordination Framework, which are unfolding in an evolving legislative context. The component is also aligned with the current service delivery approach within the Department of Justice Canada. This sub-section further explores these findings.
4.1.1 New responsibilities
The Accountability and Coordination Framework, included in the Action Plan for Official Languages, assigns specific responsibilities to the Department of Justice's Official Languages Law Group:
“(…) the Justice Department's Official Languages Law Group will identify files with a potential impact on the Government's constitutional and legal obligations on official languages, monitor potentially controversial files, ensure that policies, programmes, initiatives and government documents are compliant with the Official Languages Act and the Constitution, and review government documents from the viewpoint of risk management and legal implications.”
This set of activities modifies the mandate of the Official Languages Law Group by creating an expectation that it will proactively monitor actions and decisions of federal departments to assess their potential impact on official languages. Before the Action Plan for Official Languages, in accordance with the general mandate of the Department of Justice Canada, the Official Languages Law Group had been providing a wide range of advice and support relating to official languages. These services were largely delivered in response to requests from within the Department of Justice Canada or other federal departments. Following the tabling of the Action Plan for Official Languages, the Official Languages Law Group needed to maintain its capacity to respond to these requests for support and advice, in addition to building its capacity to proactively monitor and respond to significant issues relating to official languages.
As stated in the Accountability and Coordination Framework, the Official Languages Law Group's expanded mandate directly supports the Department of Justice's efforts in the area of legal risk management. By proactively monitoring issues relating to official languages and by offering avenues to avoid conflicts or litigation, the Official Languages Law Group is in a position to enhance the ability of the federal government to effectively advance its overall policy gaols and objectives.
4.1.2 Evolving legislative context
Less than a year after the federal government tabled its Action Plan for Official Languages, the Senate initiated the process of modifying the Official Languages Act by introducing significant changes to Part VII on the Advancement of English and French. As a result of these amendments, which came into effect in November 2005,
“every federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments under subsection (1),” which relate to
“enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and fostering the full recognition and use of both English and French in Canadian society.” These amendments to the Official Languages Act also expanded the range of issues that may be the object of a court
remedy to include those relating to the implementation of Part VII of the Act.
These amendments to the Official Languages Act greatly expanded the requirement for monitoring and support to ensure that proper legal risk management be applied. Consultations held as part of this evaluation indicate that federal departments need to enhance their understanding of the scope and nature of these legislative amendments, and they require ongoing support as they take initiative to fulfill their obligations under the Official Languages Act. At the time of the evaluation, many issues remained as to the meaning of “positive measures” and the circumstances under which a court remedy may be successfully sought. A first test in that regard will come from the court remedy currently sought in relation to the federal government's decision to abolish the Court Challenges Program.
The evolving legislative context applicable to official languages also expands the need for departmental legal services units to build their expertise on official languages issues. Some federal departments, such as Canadian Heritage, have historically been involved in official language programs and policies, and their respective legal service units have built strong expertise in that area. Other federal departments have had a more limited involvement in official languages and have not required the same level of expertise on official languages within their legal services units. In this context, the expanded role of the Official Languages Law Group requires that it provide support to legal counsel and ensure consistency in the nature of the legal advice that various legal services units provide to their client departments.
4.1.3 Service delivery structure
The Coordination Program component relating to the Department of Justice Canada allows the Official Languages Law Group to initiate activities that cannot be covered through a cost-recovery service delivery structure. Increasingly, services that the Department of Justice Canada offers are delivered on a cost-recovery basis, meaning that federal departments who require legal advice from legal counsel must cover these expenditures. This service delivery logic hardly applies to an environment where the Official Languages Law Group proactively monitors and responds to emerging issues, creating a need for other sources of funding.
Through a combination of the enhanced mandate assigned by the Accountability and Coordination Framework and additional resources provided by the Coordination Program, the Official Languages Law Group has initiated a number of new activities to support other federal departments. These activities are provided in addition to the legal advice and support that the Official Languages Law Group has been traditionally providing. Because of the nature of activities undertaken, it is important to recognize that a distinction between activities provided as a result of the new mandate and those provided in accordance with the traditional role of the Official Languages Law Group cannot always be perfectly established. This sub-section presents the findings relating to the support that the Official Languages Law Group has been offering to other federal departments.
4.2.1 Ongoing scanning of official languages issues
During the first year of implementation of the Coordination Program, the Official Languages Law Group established a monitoring system to scan media for emerging issues on official languages that may have an impact on the federal government and court decisions relating to official languages. To date, this system has proven to be efficient in identifying a range of issues relating to official languages and language rights. As a result, the Official Languages Law Group has sent relevant information to departmental legal services units and has followed-up with them on strategies to mitigate legal risks. In this context, the primary responsibility for developing the appropriate strategy to respond to a potential legal risk relating to official languages rests with legal services units, which are in direct contact with client departments. Typically, the Official Languages Law Group does not communicate directly with client departments. Instead, it acts through legal services units within each department, either by drafting legal opinions itself or by supporting the departmental legal counsel in their efforts to support their client departments.
4.2.2 Training initiatives
One area in which the Official Languages Law Group has been particularly active is the provision of training and information sessions and activities, which have reached a wide audience. The Official Languages Law Group has been particularly active in this area over the past two years.
- In 2005–2006, the Group delivered 41 training and information sessions to approximately 1,250 participants. These sessions were offered in all regions, and the list of participants included senior officials, program managers, legal counsel, Official Languages Champions, and Official Languages Coordinators. Topics covered included new responsibilities under the Official Languages Act, the impact of recent court decisions, and other specific topics relating to official languages.
- In 2006–2007, the Group delivered 57 such training and information sessions, reaching more than 1,600 participants.
Other training and information activities that the Official Language Law Group has undertaken include a conference held in March 2007 on the impacts of the changes made to Part VII of the Official Languages Act. Close to 90 participants attended this conference, and the list of participants included legal counsel, program managers, the Office of the Commissioner of Official Languages, and official languages community organizations.
These activities have contributed to raising awareness on official languages within federal institutions. Interviews conducted as part of this evaluation indicate that the work of the Official Languages Law Group in this area is widely supported. Also, feedback from individuals who participated in these activities confirmed this opinion.
The range of issues addressed through training activities conducted to date is still relatively limited. Many issues relating to Part VII of the Official Languages Act or other parts of the Act, such as services to the public (Part IV), have yet to be clarified by the courts. As a result, the need for training and awareness activities is expected to remain in the future.
4.2.3 Legal advice and litigation activities
The implementation of training and information activities has triggered a greater need for legal advice. During the period covered by the Coordination Program's current funding cycle, the Official Languages Law Group has been providing between 170 and 225 pieces of legal advice each year. The majority of these (125 to 170 per year) were provided informally, and the remaining (35 to 65 each year) were provided formally. These instances of legal advice related to multiple dimensions of official languages and reached many federal departments.
The Official Languages Law Group has also supported several departments and agencies in their responses to parliamentary committees, to reports of the Commissioner of Official Languages, or to other reports relating to enforcement of the Official Languages Act.
Another area where the Official Languages Law Group provides support relates to litigation. In accordance with a departmental directive, all
“litigation counsel must consult the Official Languages Law Group in the conduct of all language rights or language-related litigation and any matter involving the interpretation and application of the Official Languages Act, the Criminal Code or the Constitution and Charter's language guarantees.” During the period covered by the Coordination Program's current funding cycle, the level of support in this area has steadily increased.
A key result from these activities is the consistency in the advice that legal counsel provide. Legal counsel operating within legal services units who were consulted as part of this evaluation emphasized the challenging role that the Official Languages Law Group must play in this area. When a department is elaborating a new program or policy, it may require legal advice from its legal service unit on the potential impact of this new program or policy on official languages. Later on, a central agency reviewing this proposed initiative may also require legal advice from its legal services unit on the potential impact on official languages. In this context, it is critical to ensure consistency in the legal advice provided. All legal counsel consulted as part of this evaluation indicated that the Official Languages Law Group has largely succeeded in ensuring consistency. This is achieved mainly by monitoring, reviewing, and commenting on the advice provided by various legal services units.
The Department of Justice Canada is one of the lead departments responsible for the effective implementation of the Action Plan for Official Languages and its Accountability and Coordination Framework. As such, the Official Languages Law Group has been actively involved in a number of key activities:
- The Official Languages Law Group has participated in all meetings of the Committee of Deputy Ministers on Official Languages (CDMOL) and now the Committee of Assistant Deputy Ministers on Official Languages (CADMOL).
- As needed, the Official Languages Law Group has supported the work of the Support Committee to the CDMOL and the CADMOL, the Steering Committee, working groups, and the Interdepartmental Coordination Committee on Official Languages Research.
- The Official Languages Law Group has reviewed a number of Memorandums to Cabinet (MC) and Treasury Board (TB) submissions to determine their potential impacts on official languages. The Group monitors the agendas of Cabinet meetings to determine which MC or TB submissions may raise official languages issues. As a result, the Group reviews and comments on only a fraction of all MC and TB submissions. Legal services units within central agencies have also been required to comment on MC and TB submissions and, as such, have requested and received the assistance of the Official Languages Law Group.
- The Official Languages Law Group has contributed to the reporting activities relating to the Action Plan on Official Languages, including the development of the Horizontal Results-based Management and Accountability Framework and the Mid-term Report for Official Languages.
The Coordination Program has been providing $500,000 annually to the Official Languages Law Group. As indicated in Section 2.4, all these resources are Vote 1 resources, applicable to salary, operating, and other related expenditures.
To implement its expanded mandate, the Official Languages Law Group opted for the creation of three new positions, including two legal counsel (LA-01 and LA-02B) and one legal assistant (CR-5). As a result of budgetary allocation delays, hiring procedures, and fluctuations in staffing, the Official Languages Law Group was not able to fill these three positions until the current fiscal year (2007–2008). As a result, actual expenditures associated with the Department of Justice Canada's component of the Coordination Program have been lower than expected during the first four years of program implementation.
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