Ottawa, May 1st, 2002
Presentation to the Senate Committee on Legal and Constitutional Affairs
on Bill S-41
Dr. Dyane Adam – Commissioner of Official Languages
Check against delivery
Honourable Members,
Thank you for inviting me to present my point of view on Bill S-41, an Act to re-enact legislative instruments enacted in only one official language.
I have followed the progress of your proceedings closely and I want to congratulate you for the attention you are giving to this important question. Like me, you are asking serious questions about the practical effects of this bill, which has actually resulted in the creation of a new French word, "réédiction".
As Canada's language ombudsman, I must emphasize the fact that language rights are at issue here. More specifically, we are talking about the fundamental right of Canadian citizens to have equal access to the laws of this country in either of the two official languages of Canada. Such equality of access to Canada's laws means that the English and French language versions of our legislative instruments must enjoy the same status: they must be equally authoritative in law.
Moreover, these are rights that were recognized at Confederation by section 133 of the Constitution Act, 1867 and confirmed and clarified in the Official Languages Acts of 1969 and 1988 and in the Canadian Charter of Rights and Freedoms. Any infringement of this principle of legislative bilingualism is therefore highly significant, since this official bilingualism is the very framework of our historical and current language rights. We have built our entire edifice of linguistic duality on these embryonic and fundamental guarantees of genuine equality between English and French.
Fortified by these guarantees and the two Blaikie judgments [1979 and 1981] rendered more than twenty years ago, we now learn, with some astonishment, that there are still a number of pre-1980 regulatory instruments -- no one knows exactly how many -- that were not re-enacted in both official languages.
The Department of Justice has stated that the bill now under consideration constitutes "an efficient and cost-effective way" to resolve the doubts that the Standing Joint Committee for the Scrutiny of Regulations had expressed about the constitutional validity of certain legislative instruments that had originally been enacted in only one official language, most often English. Although I am disappointed at the lack of diligence in this matter, I fully endorse the Department of Justice's initiative. The situation must indeed be remedied at the earliest possible opportunity so that the constitutional obligation of legislative bilingualism is respected and the validity of our laws ensured.
I know that the Minister of Justice has shown great sensitivity to the concerns expressed by this Committee. I have no doubt that he will give due attention to the proposals you submit to him to clarify and define the implementation of the proposed steps.
I share the concerns expressed by some of you about this bill. As presently drafted, the bill applies to all legislative instruments that were enacted in only one language since 1867. It would appear that the provisions of section 7 of the Official Languages Act, in force since 1988, have effectively guaranteed complete bilingualism in the legislative instruments. However, it would be wise to include any legislative instruments adopted after 1988 in the bill, in order to cover any possible oversights.
Let us now have a look at the mechanisms chosen by the Minister of Justice for the re enactment of legislative or statutory instruments. This bill provides two methods of re-enactment:
- Clause 3 provides for automatic re-enactment in both official languages of a legislative instrument originally enacted in only one language, but published in both official languages at the time of the original enactment.
- Secondly, Clause 4 gives the Governor in Council the discretionary authority to re enact a legislative instrument in both official languages, by regulation, where the legislative instrument was enacted in only one language and never published, or published in only one language, or published in both official languages sometime after the original enactment.
In either case, whether re-enactment is automatic or on a case-by-case basis, it will apply retroactively.
In its presentation before the Committee, the Department of Justice assured us that these mechanisms are based upon those used in the legislation enacted by Quebec in 1979 in response to the Supreme Court decision in Blaikie 1. That said, I share the concerns expressed by several Members of this Committee with respect to the breadth of the application of clause 4 and the inability of the Department of Justice to tell us precisely the number, the nature and the scope of the "defective" legislative instruments that will be encompassed by this clause.
This issue appears to be more critical, I might add, in relation to the instruments published in one language only. Clause 4 of the bill proposes a piece-work remedy. It fails to address the substantive underlying problem, which is that we have an unknown number of unilingual legislative instruments.
So the question is whether it would be possible, following the adoption of the bill, for the Department of Justice to address this uncertainty, at minimum by preparing an inventory of legislative instruments according to their fields of application. This inventory would enable the Governor in Council to exercise its power of re-enacting or repealing the instruments, in compliance with the obligations of section 133 of the Constitution Act, 1867.
Finally, Senator Fraser asked whether the text of clause 4(3)(b) meant that publishing a legislative instrument in one official language only would be sufficient -in and of itself- to prove that "reasonable steps were taken" to bring the substance of that instrument to the attention of "that person" before the contravention occurred. The Department of Justice, while acknowledging that such a situation would implicate both official language rights and fundamental justice rights, said that it would argue nonetheless that publication in one language would likely be sufficient. It seems to me that such an interpretation of clause 4(3)(b) flies in the face of the very spirit of the bill, namely the equality of status of English and French. I sincerely doubt that such an interpretation would be accepted by our courts; and it seems to me that clarification from the Department is in order.
Given your expertise in regard to all issues related to constitutional and language law, I am confident that you will propose amendments that will serve to improve this bill. With your sound advice, the Department of Justice should be in a position to re-enact the regulatory instruments that may have escaped the bilingual requirements. This will ensure that we no longer need to resort to this type of legislation to correct non-compliance with the very foundations of our linguistic duality.
I am eager to hear your comments, and I hope I can respond satisfactorily to your questions.
Thank you.
