Perspective of the Commissioner of Official Languages for New Brunswick

Much has been written about the lawsuit initiated by the committee Égalité santé en français against the provincial government, and that may well continue. Especially since this type of case usually goes all the way to the Supreme Court. This debate is generating a great deal of interest, and rightly so. It has to do with constitutional rights, the equality of the two linguistic communities, and the interpretation of fundamental statutes. For my part, I have two observations to make: first, the ambiguity that exists in this debate does not serve the public's interests, and second, a timid attitude in relation to fundamental legislation is detrimental to harmonious advancement toward real equality.

The facts

On March 11, 2008, the New Brunswick government announced a major reform of its health care system. One of the key elements of that reform involved reducing the number of regional health authorities from eight to two. Regional Health Authority A takes in the facilities serving a predominantly French-speaking clientele, whereas Regional Health Authority B takes in those serving a predominantly English-speaking clientele.

The establishment of two health authorities by the provincial government seems to have been aimed at giving the francophone community a say in the management of health care facilities. In fact, in an interview published in an anglophone daily newspaper on February 2, 2009, Premier Shawn Graham said that “our Acadian population would never accept a single bilingual health authority.” It should be noted that the two new health authorities are not officially designated on a linguistic basis.

I studied the health reform in detail, and, on March 31, 2008, I sent my comments and recommendations to the Minister of Health. In my letter, I supported the recommendation of the Société de l’Acadie du Nouveau-Brunswick that Health Authority A be designated as francophone and Health Authority B as anglophone. Furthermore, I recommended a number of measures intended to enhance the provision of services of equal quality in both official languages throughout the province. The government elected to proceed otherwise.

When ambiguity hinders the debate

The Official Languages Act and the Act Recognizing the Equality of the Two Official Linguistic Communities are fundamental legislation; they define us and are therefore at the heart of our collective identity. That is why elements of those two statutes were enshrined in the Canadian Charter of Rights and Freedoms.

When the government’s Statement of Defence in the case opposing it to Égalité santé en français was presented, there were strong reactions on a number of fronts: some aspects of that document were interpreted as a negation of the principle of equality between the two linguistic communities. Although, in reading the entire document, one finds statements that seem to recognize the equality of the two communities and constitutional rights, the provincial government chose not to respond to the other party’s allegations. A normal tactic in legal proceedings? Perhaps. But that silence fueled a level of confusion that certainly does not help citizens to understand the issues in this debate.

Our legal framework with respect to language rights

The system of language rights protection in Canada falls within a framework of international law that protects ethnic, religious, and linguistic minorities. That legal system reflects and confirms the deep belief of Canadians that a true democracy must ensure equality of opportunity for all of its citizens, including those belonging to minority groups. That belief has been the impetus for the changes to the law with respect to linguistic equality that have occurred over the last 40 years. Furthermore, we have long recognized that real equality requires more than simply treating people the same way. In fact, specialized or different services will often be necessary in order to ensure real equality between the two linguistic groups.

The consequences of a timid attitude in interpreting rights

Despite their importance, the Act Recognizing the Equality of the Two Official Linguistic Communities and the Official Languages Act are not always applied rigorously. Each year, my annual report details significant incidents and areas of non-compliance with the obligations imposed by the Official Languages Act. Moreover, no department has adopted a comprehensive plan for implementing that statute. Yet, for five years now, I have been recommending such a measure in order to achieve greater progress toward real equality of our two languages. How do we account for such a situation? I see it as a lack of government commitment as regards the obligation to apply, concretely and proactively, not only the content but also the spirit of these two fundamental statutes.

Certainly, there has been progress in terms of language rights in recent years. However, the government too often interprets these rights in a timid or even limited fashion. It is therefore not surprising that its actions in this area often take the form of half-measures that lead, naturally enough, to half-results. Such an attitude sows doubt in the minds of people regarding the government’s commitment and the possibility of attaining real equality.

From my perspective, the ambiguity and the debate generated by the health reform are a consequence of the provincial government’s timid attitude when it comes to the interpretation of its legal obligations. The provincial government should therefore not be surprised that people are turning to the courts to obtain the full range of their rights. That is what happens when there is a failure to assume rightful leadership.

Debates, including legal debates, are at the heart of our democratic system. Often, they have resulted in changes in the law, particularly with respect to official languages. The courts should be turned to only when all of the discussions have taken place and there no longer seems to be any room for agreement. Is that the case in the health field? Perhaps. What matters now is that, throughout the legal debate, the public be adequately informed. That requires an effort at clarity on the part of all stakeholders.

— 30 —

CONTACT PERSON: Hugues Beaulieu, Director of Public Affairs and Research, Office of the Commissioner of Official Languages for New Brunswick, (506) 444-4229, 1-888-651-6444 (toll-free), e-mail