Toronto- 02/02/2010

François BoileauCommissioner

International Conference on Language Rights

Overview – French Language Services Act – Ontario, Canada

Dublin, Ireland – May 24, 2013

Map of Canada: Provinces and Territories

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Map of Ontario

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Presence of Francophones in Ontario

Dates back 400 years in Ontario

More than 600 000 Francophones (4.8% of the province’s total population)

By far the largest Francophone community in Canada (Quebec excepted)

New Inclusive Definition of Francophone to better reflect the changing face and diversity of Ontario's Francophone community The proportion of exogamous couples — where one parent is a Francophone and the other one is not — was 68.3% in 2011.

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New Inclusive DefinitionSince 2009, the Government adopted an Inclusive definition of Francophone (IDF) that is based on new criteria for calculating the size of Ontario’s Francophone population.

The Government has done more than engage in a statistical exercise; it has broken new ground and become a leader in inclusiveness.

In addition to individuals whose mother tongue is French, those whose mother tongue is neither French nor English, but who know French and speak it in the home are considered Francophones.

IDF is a symbolic recognition. It reinforces the sense of belonging and takes into account the newcomers’ contribution to the Francophone community of Ontario.

E.g..: An Algerian or a Moroccan family who most often speak Arabic at home but who also speak French at home is now considered Francophone.

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Place of birth of Franco-Ontarians*

14,0%

60%

5,0%

21,1% Outside Canada

Ontario

Québec

Other provinces

60% of Ontario’s Francophones were born in this province.

14% were born outside of Canada (mainly from Europe, Africa).

Almost half of Francophones in Toronto were born outside of the country.

*Profile of Ontario’s Francophone Community, 2009

Is French an Official language in Ontario?

Both the Federal Government and the Provincial Government have competence over language

Ontario is not an officially bilingual province, even if:• All laws are enacted in both French and English and has

equal value under the law• Most regulation are translated into French• Under the Courts of Justice Act, French and English are

the official languages of the courts in Ontario• Citizen can receive services and communicate in French

with provincial Government almost everywhere in Ontario

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It wasn’t (and often still isn’t…) always prettyFrancophones in Canada have had to fight

• 1912 Regulation XVII that prohibited French in schools throughout the province

• Montfort Court Case in 1997 where Government wanted to close down the only University Hospital West of Québec

When not arguing in Courts, policy of taking things one small step at a time by different Governments

FLSA in 1986 was the culmination of a long struggle by Ontario’s French-language community to have its rights officially recognized

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General Support for BilingualismThere is more and more support for bilingualism in Canada, and in Ontario, especially with Canadians

http://www.ocol-clo.gc.ca/html/evolution_opinion_section_1_e.php

In 2011, 11.3% (1,438,785) of the population of Ontario were able to conduct a conversation in French.

Immersion programs: to increase the number of Anglophones proficient in French as a second language

But…

The question of costs for FLS is recurring

Difficult to separate Francophones in Ontario than the political situation in Québec

Canadians espouse Charter values, but it seems Language Rights are often seen as “political compromise”, therefore, not as important than, say, right to vote or right to receive fair trial

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Interpretation of Language rightsIn Beaulac, the Supreme Court of Canada said:

“ Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.  To the extent that SAANB stands for a restrictive interpretation of language rights, it is to be rejected.  The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply.  It is also useful to re-affirm here that language rights are a particular kind of right, distinct from the principles of fundamental justice.  They have a different purpose and a different origin.”

R. v. Beaulac, [1999] 1 S.C.R. 768

Interpretation of Language rights (cont’d)In Beaulac:

“I wish to emphasize that mere administrative inconvenience is not a relevant factor. ”

“As mentioned earlier, in the context of institutional bilingualism, an application for service in the language of the official minority language group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language.  The governing principle is that of the equality of both official languages.”

R. v. Beaulac, [1999] 1 S.C.R. 768

Interpretation of Language rights (cont’d)

Since Beaulac, the Courts, including the SCC, have been consistent with the purposive and liberal approach to interpretation of Language Rights (taking into account the historical and social context, past injustices, and the importance of the rights and institutions to the minority language community affected).

Confer positive obligations on Government: “It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State” (Beaulac)

Language Rights are also remedial in nature.

Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3

Doucet‑Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3

R. v. Beaulac, [1999] 1 S.C.R. 768

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Goal of the French Language Services ActThe Act’s preamble states that “…the French language is an historic and honoured language in Ontario and recognized by the Constitution as an official language of Canada” and that “… the Legislative Assembly recognizes the contribution of the cultural heritage of the French speaking population and wishes to preserve it for future generations”.

This means that all ministries and agencies of the government must play an important role into the preservation and enhancement of the Francophone communities throughout Ontario.

A community’s development depends upon the services that it is offered. A community is much more likely to develop and grow if it has access to services that are adapted to its needs.

Interpretation of FLSA

“The Bill was the result of years of successive steps toward the goal of providing services to francophones in their own language.  The Bill received the unanimous support of all three political parties represented in the Legislative Assembly, and amendments were proposed with a view to ensuring its protections would be met.”

“One of the underlying purposes and objectives of the Act was the protection of the minority francophone population in Ontario;”

“another was the advancement of the French language and promotion of its equality with English.  These purposes coincide with the underlying unwritten principles of the Constitution of Canada.”

Lalonde v. Ontario(Commission de restructuration des services de santé), (2001), 56 O.R. (3d) 577

Interpretation of « services »

Offering French-Language services is more than a matter of translation; it means developing services responsive to the needs of Ontario’s Francophone community so that it can grow and prosper.

Equivalent services are those that meet the needs of the communities served.

Services must be equal in quality, though differently offered, in respect of substantive equality, which is the norm.

“Depending on the nature of the service in question, it is possible that substantive equality will not result from the development and implementation of identical services for each language community.  The content of the principle of linguistic equality in government services is not necessarily uniform.  It must be defined in light of the nature and purpose of the service in question.”

DesRochers v. Canada (Industry), 2009 SCC 8

FLSA Application

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Ministries and government agencies

Governmental service providers and third parties

Designated organizations under the FLSA (215)

Commissioner’s role: To ensure that they actively offer French-language services in accordance with the Act

Key Elements to FLS

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Planning and integrating services in French as soon as a governmental initiative arises

Adapt French-language services to the specific needs of the Francophone population (health, immigration, education, employment, etc)

Active offer and substantive equality of quality services delivered to the population

It is very important to reach out to ordinary citizens who do not realize that they have the possibility of obtaining better services for themselves, and for their community, in French

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Active offer

Requires the creation of an environment that is conducive to demand for services and that anticipates the specific needs of Francophones, in their community.

When dealing with intimate and sensitive issues, even fluently bilingual Francophones revert to their mother tongue.

Translations are not a reflection of cultural environment and differences.

Training is especially hard for bilingual professionals since there is a misconception that every thing they’ve learned will be automatically transferred into French.

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Conducting independent investigations under the French Language Services Act in response to complaints or on its own initiative.

Preparing reports on investigations, including recommendations aimed at improving the provision of French-language services.

Monitoring the progress made by government agencies in providing French-language services.

The Commissioner may at any time make a special report to the The Commissioner may at any time make a special report to the Minister on any matter related to this Minister on any matter related to this ActAct that, in the opinion of that, in the opinion of the Commissioner, should not deferred until the annual report. the Commissioner, should not deferred until the annual report.

OFLSC’s Mandate and Responsibilities

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Commissioner’s VisionIdeally, we want to motivate people, encourage Francophones to request services in French, and service providers to actively offer these services.

The Government and its institutions must take every reasonable and necessary measures to ensure services are:

• designed and adapted to the needs of the Francophone community

• delivered in a useful and effective manner.

We need to build trust with the community that French will be treated with equality and dignity by public institutions.

Questions, Comments, suggestions ?Office of the French Language Services Commissioner

700 Bay Street, Suite 2401

Toronto, ON M7A 2H8

Toll-free 1 866 246-5262

Toronto Area 416 314-8013

Fax 416 314-8331

TTY 416 314-0760

flsc-csf@ontario.ca

www.flsc.gov.on.ca