The following opinion letter was submitted to New Brunswick’s daily newspapers on June 8, 2023 by the Commissioner of Official Languages for New Brunswick, Shirley C. MacLean, K.C.
I was able to listen to the debate before the Standing Committee on Economic Policy when Premier Higgs introduced amendments to Bill 37 – An Act Respecting the Official Languages Act. I was gratified to see that the government has decided to bring back the 10-year review of the Official Languages Act which they had repealed in the original Bill. However, the amendments pertaining to the Annual Report of the Commissioner of Official Languages leave me perplexed and concerned.
The existing Official Languages Act required the Commissioner to prepare and submit an annual report to the Legislative Assembly “concerning the activities of the Office of the Commissioner.”
The amendments to section 43(21) of the Act, will now require that the following specific information be contained in our annual report: the nature of the complaints, the type of complaints, whether an investigation was conducted pursuant to a complaint or by the initiative of the Commissioner and “the number of instances a particular complaint was made by the same complainant.”
I am uncertain what concerns the government is seeking to rectify by including these requirements. Currently, our annual report contains detailed information about the type of complaints that are filed, including the government institution that is the subject of the complaint. We also provide detailed statistics as to types of complaints by service type, such as whether the incident related to in-person services, online services, etc. We include information on admissible complaints filed by region of the province. In addition, we also advise whether the investigation is one that is initiated by the Commissioner.
Let me also clarify that section 43(10) of the Official Languages Act permits and requires the Commissioner to conduct and carry out investigations on “…his or her own initiative.”
The provision requiring our office to disclose additional details about particular complainants is of concern to me. Individuals who file complaints have the right to remain anonymous. Our office does not disclose their names and will maintain their privacy. The right of complainants to remain anonymous and to have their identity protected exists in many contexts such as workplace investigations, in the context of whistleblowing, human rights investigations and so on. This ensures in part that complainants will not be subject to retaliation or harassment. When complainants are not required to reveal their identity, they may feel able to reveal more information about a situation than they otherwise would so that the situation may be more readily resolved. The intent behind this amendment is unclear.
I think of the situation of patients who have chronic illnesses who attend hospitals or clinics on a regular basis for treatment and do not receive services in their official language of choice. They do not want to reveal their identity so as not to be “singled out” or to be seen as a troublemaker. But they do want us to help them obtain the service in their language of choice. Just because the same individual complains that their language rights have not been respected on numerous occasions does not make their complaint less valid.
The decision of the government to include this amendment causes me grave concern. What are they seeking to find out? Other Legislative Officers who also conduct investigations, such as the Ombud, the Child Youth and Seniors Advocate do not have the same requirement in their legislation to include this additional and potentially revealing information in their annual reports.
Every year I file my annual report with the Premier and meet with the Standing Committee of Procedure, Privileges and Legislative Officers in the Legislative Assembly to present it.
We have not received a formal response from the Premier or the government to my annual reports and I was not consulted about any proposed changes to the Official Languages Act so I am not certain as to what “vice” this amendment is attempting to remedy. Is it an attempt to diminish the perceived importance of complaints or to discredit certain complainants? I am uncertain.
It is unfortunate that the opportunities offered by the revision of the Official Languages Act to adopt many of the recommendations of Commissioners Finn and McLaughlin has not come to fruition. In these last days prior to the adoption of the amendments to the Official Languages Act I am left with a sense that we have missed an opportunity to demonstrate progress toward true equality for both linguistic communities.
However, I must assure all New Brunswickers that our office will not reveal the identities of complainants who wish to remain anonymous, and their confidentiality will be maintained. My Office and I will continue to examine each complaint and continue to work with government institutions and others with obligations under the Act to remedy issues as they arise. In fact, this is what we have been doing for many years with great cooperation and success. We will continue to celebrate the good work that is being done by many in this wonderful province to ensure that the rights of our two official linguistic communities are protected!