Part VII- OLA Review: Communication and Services (Proposed Amendments)

To counter the phenomenon of assimilation, government must be able to communicate with the public and offer its services in both official languages. On that subject, the Laurendeau-Dunton Commission wrote in 1967:

“When it becomes usual for the language of the minority to receive little or no recognition in a given region, the minority reluctantly falls into line. It is especially in these situations that governments exert an influence on language: they bring all their weight to bear on the side of the majority language; thereby hastening the linguistic assimilation of the minority.”[1]

More than 50 years after New Brunswick’s adoption of our first Official Languages Act, can we, the only officially bilingual province in Canada, say that our government communicates with French-speaking citizens in their own language, without delay, everywhere in the province? Asking the question almost amounts to answering it, and some will call me naive for doing so.

Yet, the right for New Brunswick citizens to receive public services in either official language is law since 1969, with the adoption of the Official Languages Act of New Brunswick[2].

In 1982, this right was recognized in the Constitution, at subsection 20(2) of the Canadian Charter of Rights and Freedoms.[3]

In 2002, a new Official Languages Act further clarified this right.[4]

In its language framework, New Brunswick chose a person-based approach, rather than a territory-based one thus recognizing that citizens have a right to use a minority language in a territory where the other language is the majority.

Under the "territory" concept, use of a language is linked to the number of its speakers in a geographic area. Thus, services are provided in the citizens’ language only in defined regions, and nowhere else. The territorial approach favours unilingualism within a territory and is based on the phenomenon whereby speakers of the same language tend to be grouped together geographically, which should result in state borders and linguistic borders coinciding. And so, people living in the same area usually speak the same language and those who settle there would be required to use the dominant language in the public space, with any other language being restricted to the private space.

The “person-based” approach is more concerned with the ability to use a minority language in a territory where another language is the majority. Thus, the speaker is no longer limited in the use of their language by a territory, but can exercise the right anywhere, without territorial restriction. This is the option adopted by New Brunswick.

However, things are not always so simple. Territoriality does not necessarily lead to unilingualism, and often the State still has to take into account the interests of the other language spoken within that territory. Moreover, the person-based approach is often limited by regional and demographic issues: there are too few speakers of the minority language in some regions to make its use possible in practice, although it is recognized in theory. This is the case in a number of regions of New Brunswick, even in some where there is a high proportion of minority language speakers.

A. The Official Languages Act and Delivery of Government Services in Both Official Languages

1. Delivery of public services

Sections 27 to 30 of the Official Languages Act pertain to the provision of services to the public in both official languages.

(a) The right to receive services

Section 27 of the Official Languages Act repeats the wording of subsection 20(2) of the Charter and provides that members of the public have the right to communicate with and receive available services from any institution in the province in the official language of their choice. This applies without limitation throughout New Brunswick and to all institutions that fall within the definition of that word in section 1 of the Act. The obligation therefore applies not only to the head offices of these institutions, but also to all their offices, councils or boards. Thus, a Francophone is entitled, at least in theory, to expect that an office of one of these institutions located in Sussex will be able to offer them service in their language, and the same goes for an Anglophone in an office located in Caraquet.

To provide departments, organizations and Crown corporations with an idea of how the government planned to provide services in both languages, the government adopted an Official Languages Policy and Guidelines - Language of Service in 2009.[5] But what does "policy" mean? Can a policy have a legal effect? In French, the word "politique" has many meanings, but in this case, policy is intended to provide the public service with guidelines on how to proceed with respect to a specific subject. Understood in this way, a policy does not confer rights on individuals. Rather, it is a document that is intended to provide guidance about what to do in a specific context. That being said, to the extent that it is contrary to the constitution, the law or a regulation, it may be subject to legal sanction.

The Language of Service Policy aims to assist and guide departments, institutions and agencies of the province in fulfilling their obligations under the Official Languages Act. It is also intended to ensure that services of equal quality are offered and delivered in both official languages. The Language of Service Policy applies to government departments, agencies, the health sector, Crown corporations, as well as institutions and private businesses that provide government services. However, given the duality of the school system, it does not apply to divisions of the Department of Education, which are organized based on either official language. Nor does it apply to schools and school district offices. It does apply to the Department of Post-Secondary Education, Training and Labour, but not to community colleges or universities.

As surprising as it may seem, it is the Department of Finance and Treasury Board who is responsible for the Language of Service Policy. One can doubt that this is high on this department’s priority list. Even so, they have the responsibility to implement that policy and provide advice on its interpretation and administration. This situation appears to be contrary to the Official Languages Act, which grants this responsibility to the Premier.

The Language of Service Policy defines “equal quality service" as "service which is actively offered in both official languages and which is available in the language chosen by the member of the public without undue delay". It doesn’t define what is meant by undue delay. The notion that services must be offered without undue delay suggests that a delay would be acceptable, as long as it is not “undue”.

But the term “delay” does not appear in the Charter, nor the Official Languages Act, nor anywhere. In fact, the Charter (ss.20(2)) and the Official Languages Act (s.27) provide for the contrary - that the public has the right to communicate with and receive available services in their chosen official language without any time limit. It is not a question of delay, undue or otherwise. I want to make it clear and remind everyone that the Language of Service Policy cannot have the effect of limiting or changing the rights recognized by the Charter and the Official Languages Act.

It should be noted that the concept of substantive equality does not appear in the policy. Yet, the Supreme Court of Canada stated that substantive equality is the norm in language rights. Substantive equality is achieved when differences in the characteristics and circumstances of the minority community are taken into account by offering services with distinct content or through a different delivery method in order to ensure that the minority receives the same quality of services as the majority.

The standard that seems to be retained by the Language of Service Policy is that of formal equality, which means treating members of the minority and majority community identically, by offering them identical services, without taking into account the possible differences between the two communities.

The Language of Service Policy also states "where services are offered to the public by government, there is a legal obligation to offer and provide such services in the official language of choice of the public.” There are no exceptions based on the existence of a minimum number of members of either linguistic community in an area. The public should therefore expect to receive services from a government institution in the official language of their choice, regardless of where they are provided in the province.

Service to the public includes, but is not limited to, "oral communication; correspondence; electronic service delivery channels (e-mail, internet, voice-mail); staffing interviews; public forms and public documents; information material; signage; judicial and administrative tribunals; and public services provided by third parties”. It was deemed appropriate to clarify: "This includes regular and specialized services normally provided to the public under government legislation and programs. This includes all government services offered to the public as well as technical, advisory and professional services. It also includes requests or inquiries to the government from individuals, groups or organizations seeking solutions to unusual problems relating to the provision of government services or the need for such services”.

The policy specifically states that public servants should not normally use interpretation services to deliver the service. However, in cases where interpretation services are required, they must be immediately available.

In light of the above, I recommend:

- That any amendment to the Official Languages Act that would impose the notion of "reasonable time" or "without undue delay" to obtain government services in the official language of one's choice be rejected and that this reference also be removed from the Language of Service Policy;

- That the Language of Service Policy be reviewed and corrected to bring it into line with the obligations assigned under the Charter and the Official Languages Act.

I also note that the Language of Service Policy makes no provision for the use of social media or other technological means by provincial institutions. The provincial government must consider setting standards for their use. It is clear that, when using social media and other such technology, New Brunswick institutions must respect the Official Languages Act and must ensure that the services provided and the information given are of equal quality, in French and English. They may have two separate accounts, one in English and one in French, to present content, terms of use and messages in both official languages that are of equal quality. The public may of course interact on these social media in the official language of their choice, and the institution must respond in the official language of the citizen’s choice, if they have a question or comment.

Due to the nature of social media, the content of English and French accounts may vary, particularly when it comes to the messages and comments posted by users. In addition, when the institution posts links to non-government Web sites, some of these links may lead to sites of organizations that are not subject to the Official Languages Actand whose sites are available in one language only.

The use of social media by provincial ministers and the Premier also raises questions. If they use it for personal or partisan purposes, it appears clear to me that they are not subject to the obligations of the Official Languages Act. However, when they use social media for departmental purposes, they must then comply with the Official Languages Act and provide information of equal quality in both official languages. It can sometimes be difficult to draw a line between the use of these tools for political purposes and for official purposes. In such cases, they should exercise caution and provide information in both official languages.

- That the government adopt a policy on language of service that is consistent with its obligations under the Charter and the Official Languages Act with respect to the use of social media and new technologies.

b) Obligation of government institutions

Section 28 states that institutions must ensure that the public can communicate with and receive services from them in the official language of their choice. The provincial government must establish a mode of operation that will enable institutions to meet this obligation. This requires focusing on identifying needs, setting objectives, training employees and developing implementation and monitoring mechanisms. The provincial government must therefore adopt an official languages master plan for the entire government in order to fully meet its official languages obligations.

I will add that new technologies must not become a means of providing service in both official languages, except in exceptional cases that will have to be specified, and that they cannot replace service of equal quality, particularly in certain sectors such as health.

I therefore propose:

- That the Official Languages Act provide for the development by the government of a strategy based on planning needs, setting objectives, training employees, and putting in place implementation and monitoring mechanisms to ensure the provision of services of equal quality in both official languages.

c) Active offer

In 1967, the Royal Commission on Bilingualism and Biculturalism referred to the concept of active offer in its report:

“We begin by rejecting a proposition that in our eyes is unacceptable - that is, the provision of services in the minority language only to the extent that the minority requests. A system of that kind would constitute no real guarantee; it would be at the mercy of more or less arbitrary interpretation by the authorities of the day. Moreover, we have noted earlier that in a province where services have never or rarely been offered in the official language of the minority, the minority may by force of habit have resigned themselves to the situation even when they considered it unjust. We need more objective criteria than this, criteria founded on something more tangible.”[6]

We too often forget that the government is a reflection of all its citizens. As a speaker of one of the country's two official languages, citizens should not feel that they are interfering with the functioning of the government apparatus when they wish to address it and receive its services in their own language. As the Royal Commission on Bilingualism and Biculturalism so aptly pointed out:

“When it becomes usual for the language of the minority to receive little or no recognition in a given region, the minority reluctantly falls into line. It is especially in these situations that governments exert an influence on language: they bring all their weight to bear on the side of the majority language; thereby hastening the linguistic assimilation of the minority.”[7]

Hence the importance of the right to service in one's language and the active offer of service, because the damage caused by a violation of the right and the obligation to actively offer services is real and of great importance to the minority community:

“It is not easy to measure this influence; in fact, it can seem minimal, if each contact is considered separately. For a Francophone to be forced to exchange a few words in English, if he can, with a postal clerk or a railway employee may seem of no great concrete importance. But if we 'add up the number of times a citizen must use language when dealing with the various agencies of government - if we consider the decisive role language plays in the schools, if we think of the influence of the mass media controlled by the state - then we must conclude that the influence of public authorities on the use of language is deep and strong.”[8]

The government plays a crucial role in maintaining the linguistic vitality of a minority community, which is why it is important for it to ensure the promotion of language rights at all times and in all places.

Section 28.1 of the Official Languages Act sets out the obligation of institutions to make an "active offer" of service in both official languages. Under this provision, government institutions must take measures to inform the public that their services are available in the official language of their choice. The active offer of service is the first step that must be taken by a representative of a provincial government institution.[9] It is no longer a matter of waiting for a member of the public to demand service in the official language of their choice, as was the case with the 1969 Official Languages Act. Whether or not someone understands English or French is irrelevant. In all cases, the public's choice of language of service must be respected after they have been given the opportunity to choose either official language. Once the choice of language has been made, the institution must ensure that it has the necessary mechanisms in place to ensure that the member of the public can immediately receive service in the language of their choice, and this service must be of equal quality, regardless of the official language chosen.[10] This concept of active offer, however, seems to be both frightening and very poorly understood by provincial institutions. According to the reports of the Office of the Commissioner of Official Languages, from the first to the last, the majority of complaints deplore the lack of "active offer”. Yet, as Chief Justice Richard of the Court of Queen's Bench pointed out in Gautreau v. New Brunswick, this concept is very important:

(Translation) “If languages have equal status, one must therefore conclude that an active offer is necessary. It is a matter of dignity, pride and mutual respect of individuals in society. It cannot be accepted to encourage and justify different standards from one language to another.”[11]

Justice Lavigne of the Court of Queen's Bench added in R. v. Gaudet:

“Linguistic minorities will not always ask for the services to which they are entitled. (…) The notion of “active offer” is of the utmost importance in terms of progression towards the equality of status of the two official languages. This coincides well with the notion that Charter language rights are remedial in nature having regard to past injustices.”[12]

In the foreword to its 2014-2015 annual report, the Office of the Commissioner of Official Languages of New Brunswick had this to say about the dynamics of active offer: "Institutions bound by the OLA have an obligation to inform citizens that their services are available in both official languages. As a result, it is not up to citizens to request services in their language, it is the institution’s obligation to make that offer. Examples of active offer include answering the telephone or greeting someone in both official languages”.[13]

The Language of Service Policy requires government employees to make an active offer of service in both official languages. In some situations, the institution believes that it is sufficient to use a sign to inform members of the public that, if they wish to communicate in French, they must notify the employee in charge and wait for an employee to come and serve them[14]. Clearly, such a practice does not comply with the obligations set out in the Official Languages Act. The institution cannot claim that it wants to respect its linguistic obligations by offering immediate service to English-speaking clients, while French-speaking clients must wait for a bilingual staff member to be available to offer service in their language.

In its 2015-2016 Annual Report, the Office of the Commissioner of Official Languages of New Brunswick reports on the results of a study that sought to verify the compliance of departments and agencies with the obligations of the Official Languages Act.[15] The study compared service delivery in English and French at the provincial and regional levels. The results of this study demonstrated the low rate of active offer during in-person audits. "On average, auditors were greeted in both official languages by employees fewer than one in five times."[16] However, as the Commissioner points out, active offer of service is, for the citizen, “the first step in obtaining quality services in one’s official language of choice."[17]

I propose:

- That an information and education campaign be undertaken with employees of the province's institutions to make them aware of the importance of the concept of "active offer" and the obligations that flow from it.

- That the necessary changes be made to the Language of Service Policy to ensure that it complies with the government's obligations regarding "active offer. "

d) Public signage

According to section 29 of the Official Languages Act, "Institutions shall publish all postings, publications and documents intended for the general public in both official languages”. Examples of government public signs are road signs (including tourist signs), signs in front of government buildings, and signs in government offices.[18]

One of the issues generally raised with respect to government public signage is that the order of presentation of the two official languages generally favours English, even in predominantly French-speaking regions: English is on the left or above; French is on the right or below. As the Commissioner of Official Languages pointed out, "given that we read from left to right and top to bottom, the current order of presentation does not help to promote the French language”.[19] Such an order of presentation in majority Francophone regions appears "inappropriate, because it does not reflect the linguistic reality”[20].

In 2010, the Commissioner of Official Languages recommended to the Premier that the province adopt a balanced government signage policy that would fully respect the principle of equality of the two official languages and take into account the linguistic reality of the regions. The province has not acted on this recommendation.

I propose:

- That the Official Languages Act include an obligation for the province to adopt a balanced policy on government signage that fully respects the principle of equality of the two official languages and takes into account the linguistic reality of the regions.

e) Third-party services

Section 30 of the Official Languages Act requires the province and its institutions to ensure that services provided to the public by third parties on behalf of the province or its institutions are available in either official language. This section is obviously intended to apply to entities carrying on an activity that can be identified with the government.[21] The section specifies that the public must be able to communicate with and obtain services from the third party in the official language of their choice.

In this way, the Official Languages Act responds to concerns that certain government functions or activities may be privatized. While no New Brunswick decision has dealt with this section, this is not the case with respect to section 25, a similar provision found in Canada's Official Languages Act.[22] These decisions may eventually serve as a precedent for New Brunswick.

I note, however, that the Commissioner of Official Languages, Katherine d'Entremont, examined this issue in one of her investigation reports.[23] A truly relevant report, but one that was unfortunately misunderstood and misinterpreted by a portion of the population, certain media and the government of the day.

In this report, the Commissioner reiterated the fact that, under section 30 of the OLA, the provincial government is responsible for ensuring that third parties that provide a service on its behalf respect linguistic obligations in the same way as provincial institutions themselves.[24] Specifically, she analyzed the relationship between the Department of Transportation and Infrastructure and the Canadian Corps of Commissionaires, a third party within the meaning of section 30, and found that the contract governing this relationship did not contain a clause concerning the third party’s responsibilities and obligations to provide services in both official languages in accordance with section 30.[25] She added that "the fact that the Department of Transportation and Infrastructure did not ensure its obligations were met by including such a provision in the contract has as a direct consequence to concede to the Canadian Corps of Commissionaires whether or not to conform to the obligations prescribed by the OLA.”[26] A provincial government institution cannot fail to carry out its statutory obligations by simply transferring its own responsibilities to a third party. It must ensure compliance with the Official Languages Act at all times.

With specific reference to the situation between the Department of Transportation and Infrastructure and the Canadian Corps of Commissionaires, the Commissioner's report makes the following observation:

“The situation as it exists today makes it impossible to ensure uniformity among the services offered on behalf of the institution. For example, after reviewing the instructions between the Department and the third party for Chancery Place [a government building in Fredericton], the Victoria Health Centre, the Centennial Building, and Government House, we noted that only one of these buildings has developed orders for the delivery of service in both official languages. The second page of the document entitled Commissionaires Post Orders (“the instructions”) for Chancery Place provides a vague guideline for commissionaires, and does not address service delivery, but is limited to the greeting only:

‘When clients come in, greet them in a bilingual manner.’

This situation therefore illustrates why it is not an option to rely on the good faith of the third party to offer a service that meets the requirements of the OLA. Instructions do not have the same legitimacy as a contract provision. Without specific provisions set out in a contract and imposed by the institution, it is unrealistic to assume the language obligations will be met by the third party.”[27]

We, like the Commissioner, must ask how the public can expect to receive service in the official language of their choice when the government institution itself does not require the third party to comply with the Act:

“The Office of the Commissioner cannot overemphasize the fact that it is the responsibility of institutions to ensure the availability at all times of services in both official languages. A detailed contract clause would ensure that the third party meets its obligations to actively offer and provide the public with services of equal quality in both official languages at all times.”[28] [emphasis added].

Contrary to what some argued at the time, this report was not directed at the Commissionaire in question, but rather at the government's failure to ensure compliance with the Act. Any consequences that the Commissionaire may have suffered are due to decisions made by his employer or by the department that entered into the contract with his employer and not due to Commissioner d’Entremont. I consider that she was thus treated unfairly, when she was merely doing the job that a quasi-constitutional law mandated her to do.

The "active offer" requirement is also addressed in the Language of Service Policy, which states:

“Where the initiative will result in government services being delivered to the public or to public service employees by a service provider external to government, the contract must include a compliance clause spelling out the parties’ responsibilities and obligations under the Language of Service Policy to deliver service in both official languages. This extends to the third-party service provider the service requirements for government institutions as per the Official Languages Act.” [emphasis added].

However, the Policy later adds a qualification: "This does not mean that all individual third-party service providers must have bilingual service capacity. It does mean that the responsible government institution must ensure that the service is available to clients in the official language they choose. The service can be provided by either one service provider that has the bilingual capacity or from a number of service providers who function in one official language or the other.”

This explanation does not seem to me to be consistent with section 30 of the Official Languages Act, which states that if a province or an institution engages a third party to provide services on its behalf, it is responsible for ensuring that the third party meets its obligations under the Official Languages Act. Instead, the policy seems to indicate that it is not necessary for the provider or a third party to comply with these obligations, as long as the services are available elsewhere. The Official Languages Act is clear that the provincial government or institution must ensure that the third party has this capacity, and in the event of an inconsistency between the law and the policy, the law prevails.

As the Commissioner's Report states

“It is up to the institution to take positive measures...and to ensure that linguistic requirements are met in the delivery of services under contracts it concludes with third parties. This is the only conceivable approach to ensure that linguistic guarantees are no longer considered optional or symbolic by third parties.”[29]

I therefore propose:

- That the Official Languages Act be amended to include a provision requiring the government institution to ensure that contracts with third parties include detailed clauses clearly setting out the responsibilities and obligations of the parties under the Official Languages Act.

If memory serves, I have not disagreed with an investigation report by Commissioner d’Entremont except in the following case. In one investigation report, the Commissioner concluded that the New Brunswick Liquor Corporation (NB Liquor) franchise stores did not have the same linguistic obligations as NB Liquor, a provincial Crown corporation that is responsible for the purchase, importation, distribution and retailing of all alcoholic beverages in the province[30].

Yet, according to the NB Liquor website[31], it is clearly stated that the Agency Store Program was established to provide better service to the public in communities where NB Liquor has decided not to establish a liquor store, to serve customers, to generate additional sales for NB Liquor and to assist in the development of the liquor sales industry in New Brunswick. Franchisees are permitted to sell beer, wine, spirits and other alcoholic beverages normally found in NB Liquor stores.

In addition, the Franchise Store Program Policy details the terms and conditions for obtaining a franchise license and the obligations of franchise stores. The policy states, among other things, that franchisees are free to choose the business configuration they prefer, subject to NB Liquor's approval, but a space must still be designated for the sale and storage of NB Liquor products. The Program also provides that NB Liquor will provide training to participants on the requirements of the Liquor Control Act[32] and any other relevant social responsibility issues. In addition, ongoing product training and portfolio management assistance will be provided to franchisees. NB Liquor is also committed to providing free indoor and outdoor signage. In accordance with the Liquor Control Act, all employees of Agency Stores who handle alcoholic beverages must be at least 19 years of age. However, the Policy does not contain any language of service provisions.

The Office of the Commissioner of Official Languages had received two complaints about the lack of bilingual services in franchise stores. With respect to the first complaint about the lack of French services at the franchise store in Saint-Antoine, Kent County, the Office of the Commissioner concluded that the franchise store had linguistic obligations: the franchise program presented these stores as agents of NB Liquor, providing service on their behalf, thereby demonstrating that they were operating as third parties to NB Liquor within the meaning of the Official Languages Act.

With respect to the second complaint, which again concerned the lack of French language services in the Memramcook franchise store, the Office of the Commissioner of Official Languages took a diametrically opposed position, refusing to accept the complaint. According to the Commissioner, in light of (Translation) "the fact that the franchise store program had evolved rapidly and that large surface grocery stores could now sell alcohol, the Office of the Commissioner then conducted a thorough review of the contractual relationship between [NB Liquor] and the franchise stores"[33]. This "analysis" led the Office of the Commissioner to conclude that the franchise stores were not third parties, but only outlets where NB Liquor products could be purchased. However, the Office does not report on the changes that it became aware of in its "comprehensive review" and how these changes differ from the Franchise Store Program.

The change in interpretation by the Office of the Commissioner of Official Languages is difficult to understand and follow, especially when one considers that the store that was the subject of the complaint is located in the francophone municipality of Memramcook, which is not serviced by any other NB Liquor store. Yet this store is operating under the NB Liquor banner (the sign outside the store reads "agent") and in accordance with the obligations set out in the Franchisee Store Program Policy. Based on these facts, there is no doubt that this store and others like it are third parties acting on behalf of NB Liquor.

With respect to "large surface grocery stores", I fail to see how this fact alone justifies a change in interpretation with respect to the language obligations of third parties providing services on behalf of the province or any of its institutions. Moreover, the Memramcook franchise store cannot be characterized as a "big box grocery store", and in any event, the question of the linguistic obligations of such large surface grocery stores will have to be addressed only if a complaint is filed against them. Moreover, I see no reason why certain language obligations, such as signage in both official languages and the availability of bilingual staff trained on NB Liquor products sold by the franchisee, could not be included in the contract with these "outlets".

The interpretation of the Office of the Commissioner of Official Languages seems to indicate that the statutory and constitutional language obligations could be circumvented by the adoption of a Policy or by a contract that would qualify the third party not as an "agent" but as an "outlet". However, what is important is not how the third party describes itself in the contract, but whether it is acting on behalf of a provincial institution.

NB Liquor cannot deprive citizens living in communities, which do not have a retail outlet for alcoholic beverages, of their language rights simply by designating a franchisee as an "outlet"; section 30 of the OLA was enacted to deal with just such a situation.

I therefore propose:

- That business franchises, whether agents or outlets, acting on behalf of a provincial institution be subject to the obligations set out in the Official Languages Act, and that this obligation be clearly defined in the franchise or outlet agreement.

(f) Policing

Sections 31 and 32 of the Official Languages Act deal with police services. Subsection 31(1) provides that every member of the public has the right, when communicating with a peace officer, to be served in the official language of their choice and to be informed of that choice. The term "peace officer" is defined in section 1 as follows:

“"peace officer" means a peace officer as defined under section 1 of the Provincial Offences Procedure Act who serves the public, whether on behalf of the Province, a municipality or under a contract for the delivery of policing services with the Province or its institutions and includes a police officer as defined under that Act”.

Thus, sections 31 and 32 apply to the Royal Canadian Mounted Police, who, under contract with the province, provide policing services on behalf of the province,[34] and to municipal police forces.

Subsection 31(2) provides that if a peace officer is unable to provide services in the official language chosen under subsection (1), they shall, within a reasonable time, take the necessary steps to communicate in the chosen language. It should be noted that this concept of reasonable time undermines the substantive equality test imposed by section 20 of the Charter. Moreover, it is difficult to define what constitutes a "reasonable time. "

I therefore propose:

- That subsection 31(2) of the Official Languages Act be amended to remove the phrase within a reasonable time.

- Subsection 31 (4)[35] be repealed.

I recognize that some people believe that only peace officers have language obligations under the Official Languages Act, though I do not agree with that interpretation. According to this interpretation, non-peace officers who work in police stations would not be subject to the Act. It is difficult for me to imagine that these people who are part of the police service would not have language obligations while police officers do. However, in order to avoid any ambiguity in the interpretation of the language obligations of police and peace officers, I recommend:

- that the wording of subsection 31(1) be amended to refer specifically to police services and include services provided by non-police officers

In the next section, I will address the issue of language of work.

[1] Davidson Dunton and André Laurendeau, Report of the Royal Commission on Bilingualism and Biculturalism, Ottawa, Queen’s Printer, 1967-1970, p 89 [Royal Commission Report].

[2] Official Languages Act of New Brunswick, RSNB 1973, c O-1.

[3] Part 1, The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[4] Official Languages Act, SNB 2002, c O-0.5 [OLA].

[5] Official Languages - Language of Service Policy, online: https://www2.gnb.ca/content/gnb/en/departments/finance/human_resources/content/policies_and_guidelines/language_service.html.

[6] Royal Commission Report, supra, pp 97-98.

[7] Ibid. p 91.

[8] Ibid. p 92.

[9] Office of the Commissioner of Official Languages for New Brunswick, Investigation Report: Ambulance New Brunswick, File no. 2013-1992, March 2014, p 6.

[10] See DesRochers, supra.

[11] Gautreau v. New Brunswick (1989), 101 NBR (2) 1, p 28, [1998] NBJ 1005 (QL), overturned by the Court of Appeal on another issue (1990), 109 NBR (2) 54, [1990] NBJ 860 (QL), and leave to appeal to the Supreme Court of Canada denied, [1991] 3 SCR viii [Gautreau].

[12] R v. Gaudet, 2010 NBQB 27, 355 NBR (2) 277, para 42 [Gaudet].

[13] Office of the Commissioner of Official Languages for New Brunswick, Annual Report 2014-2015, p 9.

[14] Office of the Commissioner of Official Languages for New Brunswick, Systemic Investigation: Investigation into the delivery of security and reception services in both official languages in government buildings, File no. 2015-2377; 2015-2586, March 2016, p 12 [Investigation into the delivery of security…].

[15] Annual Report 2015-2016, supra, pp 16-36.

[16] Ibid. p 12.

[17] Ibid.

[18] Office of the Commissioner of Official Languages for New Brunswick, Annual Report 2009-2010, p 17, online: < https://officiallanguages.nb.ca/wp-content/uploads/2012/02/2009-2010_annual_report4.pdf >.

[19] Ibid.

[20] Ibid.

[21] These services include some that are privatized or contracted between the provincial government and a private service. See, for example, the services provided by Ambulance New Brunswick or the privatization of extramuralmedical services.

[22] Section 25 of the federal legislation: “Every federal institution has the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those services from that person or organization in either official language in any case where those services, if provided by the institution, would be required under this Part to be provided in either official language”. For an analysis of the case law on this provision, see Klinck, «Le droit à la prestation des services publics», Les droits linguistiques au Canada, 3e éd, sous la direction de M. Bastarache et M. Doucet, les Éditions Yvon Blais pp 535-37.

[23] Investigation into the delivery of security…, supra.

[24] Ibid. p 9.

[25] Ibid.

[26] Ibid. p 10.

[27] Ibid.

[28] Ibid. p 11.

[29] Investigation into the delivery of security, supra, p 14.

[30] See New Brunswick Liquor Corporation Act, RSNB 1974, c N-6.1.

[31] New Brunswick Liquor Corporation, online: < https://www.anbl.com/corporate >.

[32] RSNB 1973, c L-10.

[33] Email message from K. d’Entremont, Commissioner of Official Languages, July 18, 2016.

[34] See Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. et Paulin v. Canada, 2008 SCC 15, [2008] 1 SCR 383.

[35] Subsection 31 (4) states: “When determining if a peace officer has taken the measures necessary under subsection (2) within a reasonable time, a court shall consider the efforts made by the police force or agency to fulfil its obligations under subsection (3)”.