Official languages: Time to prepare for 2012

The province's new Official Languages Act was adopted in 2002. The previous act, adopted in 1969, was outdated and, in many respects, did not meet the province's constitutional obligations enshrined in the Canadian Charter of Rights and Freedoms.

Sixth in a series of expert analysis articles on major issues in the 2010 N.B. election

Michel Doucet is a law professor at the University of Moncton. He served as the dean of the university's law school from 1995 to 2000.

The Moncton lawyer also keeps an active law practice essentially in linguistic matters, he has appeared before the Supreme Court of Canada on several occasions.

Doucet is the director of the International Observatory of Language.

Along with his university activities, Doucet was a member of the Canadian Human Rights Tribunal from 2001 to 2009.

The province's new Official Languages Act was adopted in 2002. The previous act, adopted in 1969, was outdated and, in many respects, did not meet the province's constitutional obligations enshrined in the Canadian Charter of Rights and Freedoms.

In the past, several attempts had been made to substantially change the 1969 act, but to no avail. Provincial politicians of all allegiances were not ready to take on a general makeover of the official languages law.

They feared that engaging on this path would wake the sleeping dragon, which once aroused could turn the province into a battleground where emotions and misguided beliefs would have the upper hand. 

They preferred the vision of a bilingual province where everything is perfect, at least on paper, and where nobody is worried about that nebulous concept of language equality.

However, in 2001, a decision of the Court of Appeal of New Brunswick placed the provincial government before the inevitable: the act had to be modified in order for the province to meet the linguistic obligations of the province as stated in the Canadian Charter of Rights and Freedom.

During the 2002 modification phase many would have liked an open review procedure that it would have allowed the public to express its opinion on the matter. The government opted for another approach: the new legislation would be drafted by an internal committee, with minimal input from the citizens of the province.

Finally, in June 2002, in the presence of Louis J. Robichaud, the father of the first Official Language Act, a new act was adopted without debate and with the unanimous approval of the legislature.

The 2002 act covers various areas such as official languages in the legislature and in legislation, language of the courts and of the judicial system, services rendered by public institutions, municipalities, police and health authorities. The act also created the position of commissioner of official languages.

Mandatory review

Finally, it imposed the obligation of a review of the act every 10 years.  Therefore, even if our provincial political parties wanted to stay clear of language issues during this election campaign, it will not be possible.

They will have to prepare for the unavoidable timeline of 2012 set down by the act and, if only for that reason, they will not be able to avoid letting the electorate know what their intentions are regarding this impending review.

The Official Languages Act specifically provides that the review process has to be initiated no later than Dec. 31 2012. It also states that it will be carried out in the form and manner prescribed by regulation. This procedural requirement will be the first challenge facing our political leaders: there is, as of today, no regulation prescribing the procedure for such a review.

So how will the next government proceed? Will the review be an in-house matter only like in 2002 or will there be public consultations? 

A word of caution for those who expect that this review will be an opportunity to do away with the Official Languages Act: do not waste your time and energy. It is practically impossible for the province, without an important constitutional amendment to the Canadian constitution, to get rid of the Official Languages Act. 

However, the opponents to any changes to the act may be able to persuade our political leaders to opt for the status quo and do nothing. This minimalist and timid approach, although it might be consistent with the attitude most politicians want to adopt on the matter, would be unacceptable and strong evidence of a lack of leadership on such an important subject.

Improvements needed

The Official Languages Act of 2002 was in many regards an improvement. But, even though it has some positive elements, it is far from being perfect and free of ambiguity. 

For example, Section 2 assigns the responsibility for the act to the premier. Although this is positive in theory, the reality is quite different. 

Since 2002, both Premier Bernard Lord and Premier Shawn Graham have delegated this responsibility to the minister responsible for the Francophonie, as if, official languages are only matters of interest for the francophone community. 

It would be interesting to know the intentions of the next premier regarding his role and the leadership he intends to demonstrate on this matter. 

It is obvious that in matters of official languages provincial institutions have not fully understood their obligations under the act. They still have a penchant to consider language as being exclusively a matter of accommodation and communication.

After more than 40 years, they still have not been able to grasp the intricacies of what official bilingualism really means. However, it would be too easy to cast the blame solely on these institutions when evidently the political leaders of the province do not themselves understand the concept of an officially bilingual province.

Debate needed

This campaign, with the upcoming review looming at the horizon, is the perfect occasion for our political parties to give us their point of view on the issue.

When discussing the review of the Official Language Act it will be impossible to avoid the thorny issue of language and commercial signs. This issue is certain to raise passion in both linguistic communities. 

Many in the anglophone community sees this issue as an affront to individual freedom of expression, while the francophone community considers it a necessary step for the protection of their language and culture in a society which is visually dominated by the English language.

Should the province get involved in the fray and legislate on the matter to ensure that both our official languages are present in the visual landscape of our province?  If the answer is no, then they will have to explain why?

If the answer is yes, then how will they go about doing this?  Will they choose the easy way out and leave the decision to individual municipalities or will they have the courage to address it dead-on?

Commissioner's powers

Another part of the act that needs to be revisited is the one pertaining to the powers of the commissioner of official languages. At present, the commissioner's main tool of persuasion is to investigate complaints and to submit reports.

Unfortunately, the government and the provincial institutions are not bound by his recommendations. If the commissioner is to perform adequately his mandate, he must be provided with the legal, financial and human resources needed to exercise appropriate pressure when needed. 

Other matters could also be included in this review. As its federal counterpart, should the New Brunswick act cover language of work in the public service?  Should there be a consolidation of the Official Languages Act and the act recognizing the Equality of the Official Linguistic Communities in New Brunswick in one act? The list could go on and on.  

The next premier and his government have a legal obligation as defined in section 42 of the Official Languages Act to embark in good faith and with clear objectives in this review.

The election campaign gives all political parties, who aspire to form the next government, an excellent opportunity to define and explain their point of views regarding official languages.

Let's take official languages out of the closet and bring it in the main arena. If we truly believe in it, we should not be scared or shy to talk about it.

We should never forget that language rights are rooted in the Canadian Charter of Rights and Freedom, which defines the fundamental constitutional values of our country and our province, values that we have democratically chosen.