PART XII - NB OLA REVIEW: CONCLUSION AND LIST OF RECOMMENDATIONS

New Brunswick has made tremendous progress with language rights over the past 50 years. Some other provinces recognize some language rights and have legislative or constitutional obligations, but New Brunswick remains the only officially bilingual province in Canada.

New Brunswick is bilingual because the Constitution and the legislation give official language status to both English and French. The province also recognizes the principle of the equality of these two languages as well as that of their respective community. These legislative and constitutional provisions impose particular obligations on the province.

In 1969, the Official Languages Act of New Brunswick[2] recognized, for the first time, that English and French have equal status in law and privilege and provided for the exercise of certain language rights. In 1981, the provincial government passed the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick[3], which officially recognized the existence and the equality of the two official language communities and their right to distinct educational, cultural and social institutions. The following year, the federal government repatriated the Canadian Constitution and adopted the Canadian Charter of Rights and Freedoms.[4] The New Brunswick government decided to include language rights in the Charter, which apply exclusively to New Brunswick. These language rights are guaranteed in sections 16(2) to 20(2) of the Charter. In 1993, the provincial government constitutionalized the principles of the Act Recognizing the Equality of the Two Linguistic Communities by including section 16.1 in the Charter. This section provides for the equality of the two linguistic communities, English-speaking and French-speaking, and defines the role of the legislature and of the government of New Brunswick in protecting and promoting the equal status of the official linguistic communities. In 2002, after many years of dithering, the provincial government finally adopted a new Official Languages Act[5], which would better respect the province's constitutional obligations.

The bilingualism framework adopted by New Brunswick is not based on personal bilingualism - it does not require individuals to acquire both official languages. Rather, it is institutional bilingualism, which refers to the use of two languages by the province and some of its institutions in the delivery of public services. Under such a plan, individuals have the choice of using English or French in their dealings with government institutions.

To understand the nature of these rights, it is necessary to revisit a few basic principles. The first is the rule of interpretation applicable to these rights. According to the Supreme Court of Canada, "language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada”.[6] Moreover, the interpretation of language rights must take full account of the relevant social context.[7]

The second principle is that language rights impose positive obligations on the state: "[t]his is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees”.[8]

Moreover, the Supreme Court of Canada has reiterated that the applicable standard in Canada with respect to language rights is substantive equality - not formal equality.[9]The principle of substantive equality is in fact the common thread running through all constitutional and statutory language guarantees. This principle is essential, since the courts thereby reject the notion that the right to service in an official language is merely a right to be accommodated.[10] Moreover, the courts recognize that the right to receive services of equal quality is not only the right to receive identical service but includes the right to receive service that takes into account and responds to the particular needs of the minority community.[11]

The principle of linguistic duality, or the collective nature of these rights, is another essential component of language rights whose wording, at first reading, often reveals only an individual dimension. Many rights are exercised as a member of a community or because of the existence of the community. Indeed, one of the purposes of language rights is to prevent linguistic and cultural assimilation, if only because assimilation threatens not only the individual, but also the linguistic community to which that individual belongs. Two approaches have been favoured to counter pressures to assimilate: the development and maintenance of a network of institutions, and the exercise, by the representatives of an official language community, of the authority to manage and control these institutions, thus enabling them to exert a real influence on the protection and development of the community.

The protection and development of minority language communities are intricately linked to the control and management they exercise over their institutional network. The principle of duality provides political and legal justification not only for French-language school boards managed by the province's French-language community, but also for French-language universities, French-language community colleges, municipalities that identify themselves as Francophone, and health care institutions managed by the minority language community for the benefit of the minority language community.

Whether language rights are expressed as individual rights or as collective rights, the fact remains that what justifies their existence is not necessarily the protection of the individual, but rather the preservation of a cultural heritage and of the cultural security of the group. To the extent that they are exercised in common with other members of the community, these rights, by their very nature and purpose, are linked to collective activities. Their purpose is to give the minority community the opportunity to participate fully in public life on an equal footing with the majority group. They are also intended to avoid the arbitrariness of certain government decisions made without considering the reality of the minority community.

Language rights serve to enhance the vitality and development of a community, which includes all speakers of the same language. If this was not the case, we might very well question the need to recognize these rights, since individual members of a minority community can generally express themselves in the language of the majority. Language rights must therefore necessarily serve first and foremost to enhance the vitality and development of official language minority communities and to advance real equality.

However, the heart of the issue of linguistic equality, and probably the most delicate and difficult to address, is the commitment of New Brunswick's Acadian community to language rights. In fact, a linguistic community exists when its members feel the need to commit to a common identity. Language rights seek to formalize the existence of this community, but they are only effective if the members of this community adhere to and believe in them.

Since the 1960s, New Brunswick's linguistic minority has been gradually integrated into the operation of government. This integration has undoubtedly led to the enactment of language rights as we know them today. However, these rights require vigilance and courage on the part of members of the minority community, since the risks of assimilation and non-respect of language rights are pervasive. Language rights are certainly an essential tool in balancing the balance of power between the majority language and the minority language groups. The state grants rights to individuals and, in turn, is charged with corresponding obligations, but perhaps the most important is the duty of everyone in the minority language group to live their culture, to speak their language proudly, and to not hesitate to demand, on a daily basis, that their rights be respected.

Beyond the indifference of politicians to our rights, what may hurt us the most is our complacency and tolerance of the status quo. If we still believe in linguistic equality, we must say so loud and clear and demand that our rights be respected. But perhaps it is too late. I have often wondered whether the Acadian community in New Brunswick still believes in the principle of equality of official languages and equality of official linguistic communities, and whether the English-speaking community in the province, given its lack of interest in these issues, really wanted this equality.

I often get the impression that Acadians behave not as equals, but rather as tenants who do not dare hang a picture or paint the living room wall without the permission of the landlord, which in this case is the majority community. We have yet to understand as a community that this province is as much ours as it is theirs, and that we have the right to demand that the government respect our constitutional and legislative rights, without first having to ask permission from anyone or apologize for exercising our rights.

With respect to the majority community, it has never had a real culture of official languages. There does not seem to be much belief in linguistic equality. There is little interest in official language issues, much as if they had nothing to do with them. Many members of this community believe in myths about official languages that are untrue. Some politicians, including Premier Higgs, perpetuate these myths.

But is it not true that the backbone of the relationship between our official linguistic communities is the Canadian Charter of Rights and Freedoms’ sections 16 to 20 and 23, the Official Languages Act and the Act Recognizing the Equality of the Two Official Linguistic Communities? Do these not constitute our social contract? These texts were adopted by our legislators, most often unanimously. They define our rights and the government's obligations towards us. They are not heresies or fabrications. They are not divisive but unifying. Asking for the respect of these provisions is not a shameful thing.

If New Brunswick believes in the principle of substantive equality as laid out in these texts, then it must stop giving the impression that the linguistic majority is vested with priority rights, exclusive rights; it must stop acting as if one language is more official than the other; it must accept the fact that in this province the two official language communities are equal in rights, privileges and status with all that this entails.

I often feel like I am preaching in the wilderness. I have the impression that Acadie in New Brunswick is on a path of self-destruction. There is so little going on in Acadie in the pursuit of linguistic equality that one might think that the community is sleeping soundly. Of course, there are the cultural activities, the World Congress and other festivals. Those looking for entertainment take to the streets on August 15 to prove that they are still alive. But when it comes to political issues that could have a significant impact on the community, Acadians seem to be absent. We need to make sure that our language and culture are alive and well every day of the year and everywhere, and not just a historical curiosity that is displayed once a year on August 15.

If we seem to sleep so well these days, it is perhaps because hypnotists have worked well. Indeed, there are many of them and they have never hesitated to combine their efforts to keep us in a sweet lethargy. As I said, the progress of New Brunswick's Acadian community since 1960 is certainly remarkable. No other minority community in Canada, with the possible exception of the English-speaking community in Quebec, has as many institutions and legal protections. However, we must remember that simply because we affirm our desire to be considered equal partners does not mean that equality exists. Equality does not magically appear because we decide it should. Equality is built, and since the government recognizes its importance by enshrining it in the supreme law of the land, it must not make it a meaningless political gesture, but a goal to be achieved. It must take positive measures to ensure the development and growth of the Acadian community, its language and its culture.

However, in listening to political speeches, I realize that they do not have equality as an objective. For the proponents of these addresses, there is no linguistic inequality in the province and should we witness an example of inequality, it would only have happened by chance and regardless of whether one is a francophone or an anglophone.

Yet when we legislate on the issue of equality, it is usually because we recognize, at least in principle, that inequality exists, otherwise why do it? When we talk about equal pay for men and women or gender equality, it is because we recognize that for too long women have not been treated equally. It is certainly not to allow men to perpetuate inequality. The change sought is clear: to ensure that every citizen, whether male or female, is treated equally. The mere recognition of this objective does not in itself ensure that real equality exists. It takes positive action on the part of our governments to make this equality happen.

Comfortable with the official political discourse, Acadians seem to forget the principle of substantive equality. More and more of them are losing interest in the linguistic dimension. They bathe in a false sense of linguistic and cultural security. They feel comfortable in the debate of bilingualism presented to them by a misleadingly and unifying discourse. In their eyes, there is no longer any difference between a New Brunswicker from Caraquet and one from Sussex. They are both equal in rights, status and privilege. Yet we know that the reality is different.

What is very peculiar is that it is the courts that seem to have played the dominant role in developing the basic philosophy behind language rights. It is the courts that have defined the community of values to which we adhere. It is the courts that have defined the cultural realities and the heritage that we want preserved. The courts have established the philosophical underpinnings of language guarantees. But shouldn't that be the role of government? But for that to happen, the government must believe in these values. I am not convinced that it does.

What we need now are politicians who are prepared to act in accordance with the constitutional and legislative rights that have been recognized. I am convinced that if the province's linguistic obligations were fully respected, if our governments stopped acting illegally towards us, then we could start building towards substantive equality.

In fact, all our demands are expressed in this one phrase: substantive equality, no more, no less. We must, as a community, demonstrate a firm, unwavering and united will to achieve, against all odds, this equality. Otherwise, we will have to look back in the not-too-distant future with sadness at what we could have been...

I have no choice but to address the issue of second-language learning for young Anglophones. I repeat that this issue has nothing to do with the review of the Official Languages Act. It is an issue that must be addressed by the English-speaking community. The community must ask itself why, more than 50 years after the adoption of the first Act, French-language learning has not improved. I will add that if I were a young Anglophone, I would feel no pressure to learn French. Indeed, with a unilingual anglophone lieutenant governor, premier, ministers and senior public servants, what is the point of learning French, a language that, furthermore, is completely absent from the linguistic landscape and the media in many region of the province? If we want to make learning French attractive to these young people, we must start by changing the culture of unilingualism that dominates our province. We must cease to perceive French as a simple language of translation and consider it to be on an equal footing with English.

I hope that the thoughts I have shared will have convinced some of the importance of language rights as well as the importance of the current process of reviewing the Official Languages Act. This opportunity to revise the Act only arises every ten years and we must not miss the boat, although in the current process it could be said that the boat is about to drop its moorings and we don’t yet have the vessel’s registration. The law is only revised every ten years. In 2031, who knows where our community will be?

Before summarizing the recommendations that I have made in the previous eleven parts, allow me, perhaps for one last time, to express my love of my language, my culture, my acadienneté and to say that during my 65 years, I have done all I could to ensure its sustainability. Everything else is beyond my control...

LIST OF RECOMMENDATIONS FOR AMENDMENTS TO THE OFFICIAL LANGUAGES ACT

Introductory statements

- Acknowledgement that the French language is vulnerable in the province and commitment by the government and its institutions to protect and support the French language and the institutions of the Francophone community.

- Commitment by the provincial government to support key sectors for the vitality of the Francophone community (e.g., education, post-secondary, health, nursing homes, culture, justice, etc.) and to protect and promote strong institutions for the Francophone community in these sectors.

- Adoption by the provincial government of a policy on francophone immigration in collaboration with representatives of the francophone community in the province.

Merging the Act Recognizing the Equality of the Two Linguistic Communities and the Official Languages Act

- Recognizing the unique character of New Brunswick, the French linguistic community and the English linguistic community are officially recognized as one province, for all purposes to which the authority of the Legislature of New Brunswick extends; the equality of status and the equal rights and privileges of the two communities are affirmed.

- The Government of New Brunswick is committed to ensuring the protection of the equality of status and the equality of rights and privileges of the official linguistic communities and in particular their rights to distinct institutions where cultural, educational, and social activities can take place.

- The Government of New Brunswick will, in its proposed legislation, in its allocation of public resources and its policies and programs, take positive measures to ensure the cultural, economic, educational and social development of the official language communities.

Implementation of the Official Languages Act

- Revision of section 5.1 of the Official Languages Act to ensure compliance and full implementation.

- That for the years 2022 to 2025, all competitions and staffing processes for deputy ministers, assistant deputy ministers and senior managers include as a prerequisite the ability to speak and understand both official languages, or a commitment to acquire this ability within three years of the date of appointment, failing which the appointment will be revoked.

- That, as of 2025, the ability to speak and understand both official languages be a prerequisite for appointment to any of these positions.

- That the minimum language proficiency for these positions be set at 3.

Parliamentary Bilingualism

- That during Government of New Brunswick announcements and press conferences, a balanced use of the province's two official languages be ensured.

- That the ability to speak and understand both official languages be a prerequisite to the appointment of a person to any of the legislative officer positions listed above.

Legislative Bilingualism

- That sections 9 and 10 of the Official Languages Act be reviewed to remove any ambiguity and to ensure that the intent is clearly to encompass all legislation, including statutes and regulations.

- That section 11 of the Official Languages Act be reviewed to ensure that in interpreting an official document, bill, statute, by-law, writing, minute, report, motion, notice, advertisement, exhibit, collective agreement or other writing referred to in this Act, both official language versions shall be equally authoritative.

- That a Standing Committee on Official Languages be established. The Committee will be composed of representatives of the political parties represented in the Legislative Assembly.

Judicial Bilingualism

- That the Official Languages Act state that a test must be developed to assess the language skills of persons wishing to be appointed to the judiciary in New Brunswick.

- That in a civil case before a court to which Her Majesty in right of New Brunswick, an institution or a municipality designated under section 35[23] of the Act is a party, Her Majesty, the institution or the municipality shall use the official language chosen by the civil party in oral and written pleadings and in any pleadings arising from it.

- That the necessary corrections be made to sections 24, 25 and 26 of the Official Languages Act.

- That The Official Languages Act be amended to recognize that both language versions of court decisions or orders have equal force of law and equal standing.

Communication with the Public

- 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.

- 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.

- 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.

- 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”.

- 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.

- 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.

- 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.

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

- That subsection 31 (4)[35] be repealed.

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

Language of Work

- That the provincial government's policy on language proficiency requirements for its employees be reviewed to ensure equal quality of service in both official languages, and to ensure compliance with legislative and constitutional obligations.

- That the Official Languages Act be amended to recognize:

o English and French are the languages of work in provincial institutions and public servants have the right to use either official language in the performance of their duties

o it is the responsibility of institutions to ensure that the work environment is conducive to the effective use of both official languages

o it is incumbent upon institutions:

§ to provide their staff with work tools and documentation that respect the official language chosen by the employee;

§ to ensure that computer systems can be used in either official language;

§ to ensure that supervisors are able to communicate with their subordinates in the official language chosen by the latter and that senior management is able to function in both languages;

§ to ensure that all other possible measures are taken to create and maintain a work environment conducive to the effective use of both official languages and that employees are able to use either official language in the performance of their duties.

- That the government commit to ensuring that English-speaking and French-speaking New Brunswickers have equal opportunities for employment and advancement in provincial institutions while respecting the rights of citizens to receive services in the official language of their choice.

- That the Government commit to ensuring that the workforce of provincial institutions tends to reflect the presence in New Brunswick of both official language communities.

- That the Government commit to ensuring that the language skills of its employees are regularly assessed through objective proficiency testing.

- That the Government commit to ensuring that language proficiency for a position is determined in advance based on objective criteria and not on the proficiency of the work team.

- That the right of the public to be served in the language of their choice take precedence over the right of the public servant to work in the official language of their choice.

Health Care and Nursing Homes

-That subsection 33(1) be replaced by a provision that provides that, for the purpose of providing health care in the province, all health facilities, institutions and programs under the jurisdiction of the Department of Health or regional health authorities established under the Regional Health Authorities Act shall ensure that they are able to provide all services to the public in both official languages at all times.

- That third parties, including Ambulance New Brunswick, Extra-Mural Services or any other organization providing services to the public on behalf of the Department of Health or Regional Health Authorities established under the Regional Health Authorities Act, ensure that such services are available in both official languages without delay.

- That subsection 19(3), which provides that the two regional health authorities are responsible for improving the delivery of health services in French, be incorporated into the Official Languages Act.

- That the Act provide that the province has an obligation to ensure that nursing homes provide services in either official language in all health regions of the province to meet the needs of both official language communities.

- That the government adopt the necessary measures to clearly define the linguistic obligations of nursing homes that wish to define themselves as bilingual and that these obligations ensure equal treatment of the two official languages and that the government ensure that the designated bilingual facility has separate space where cultural, recreational or educational activities can take place in either official language

- That where possible, the government promote the establishment of linguistically homogeneous nursing homes.

- That in placing a person in a nursing home, consideration be given to the person's language preferences.

Professional Associations

- That professional associations be required to file an annual report with the Premier and the Office of the Commissioner of Official Languages listing the means by which they have ensured compliance with their language obligations.

- That a professional association that fails to comply with its linguistic obligations may have its activities suspended until the necessary corrections are made.

Office of the Commission of Official Languages and Remedies

- That any deviations from the selection process for the Commissioner of Official Languages be justified and approved by the Legislative Assembly.

- That if the selection committee must terminate its work, that it provide reasons for this decision and that a new committee be appointed within ten (10) days.

- That the term of office of an Acting Commissioner of Official Languages shall not exceed one year, except for exceptional reasons which shall be tabled in the Legislative Assembly.

- That, within thirty (30) days of receiving the results of the investigation, the deputy head or other administrative head of the institution concerned send the Commissioner of Official Languages a written response specifying the measures taken or to be taken to comply with the recommendations of the investigation report or, if no measures have been taken or are contemplated, the reasons for not acting on the recommendations.

- That any failure to comply with this requirement may be subject to a monetary penalty to be established by regulation or that the Commissioner may apply to the Court of Queen's Bench for an order directing the institution to provide the response.

- That the Premier, being the minister responsible for the administration of the Act, shall, within thirty (30) days after the tabling of the annual report, table in the Legislative Assembly a written response explaining what the government intends to do in response to the annual report or, if applicable, explaining why it does not intend to do so.

- That institutions and organizations that are in recurring breach of their obligations under the Act may be required to enter into compliance agreements with the Office of the Commissioner of Official Languages in the manner proposed in the Canadian government's bill.

- That an action for a violation of a right under the Official Languages Act may be brought by notice of motion as provided in the New Brunswick Rules of Court.

- That costs may not be awarded against the government, its institutions, municipalities, or third parties acting on behalf of the government in a case involving a violation of the Official Languages Act unless it is shown that the action is frivolous or vexatious.

- That when the court is of the opinion that the subject matter of the action has raised an important and novel principle in relation to this Act, the court shall award costs to the applicant, notwithstanding that the applicant is unsuccessful.

- That the Commissioner's report and record of investigation, once filed in court, shall be prima facie evidence of a violation of the Act and the onus shall then be on the institution to establish that it did not violate the Act.

- That the Commissioner may seek recourse before the courts to enforce the Official Languages Act

- That no person shall retaliate against, discriminate against, or threaten a complainant or any other person on the basis that they made a complaint in good faith to the Commissioner or that the complainant or any other person has cooperated in an investigation under this Act.

- That any person or institution that violates the preceding subsection is liable on summary conviction under the procedure set out in the Provincial Offences Procedure Act, SNB 1987, c. P-22.1, to a fine of not less than $5,000 nor more than $25,000.

- That no civil or criminal proceeding or judicial review shall be instituted against the Commissioner, or any person holding an office or performing duties under the Commissioner, for anything done, reported or said by the Commissioner in the course of the performance or purported performance of any duty or function under this Act, whether or not that duty or function was within the jurisdiction of the Commissioner, unless there is evidence that the Commissioner acted in bad faith.

Concerning the Next Review of the OLA

- That the Premier initiate a review of this Act and table a bill with revisions no later than December 31, 2031.

[1] Charlebois v. Moncton (City), 2001 NBCA 117, 242 RNB (2) 259, para 8 [Charlebois v. Moncton].

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

[3] An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, RSNB 1981, c O-1.1.

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

[5] Official Languages Act, RSNB 2002, c O-0.5.

[6] R v. Beaulac, [1999] 1 RCS 768, para 25, 173 DLR (4th) 193 [Beaulac].

[7] Charlebois v. Moncton, supra.

[8] Beaulac, supra, para 20.

[9] Ibid., para 22.

[10] See, generally, Beaulac, ibid.

[11] See for example Arsenault-Cameron v. Prince Edward Island, 2000 1 SCR 3; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194.