Francophones losing language champion

Commissioner does not have independence, François Larocque writes.

Just over a year ago, on Dec. 14, 2017, the Ontario legislature passed Bill 177, which, among other things, amended the City of Ottawa Act. The legislation strengthened minority language rights by clarifying the city’s obligations under the French Language Services Act (FLSA) and by confirming the jurisdiction of the French Language Services Commissioner (the commissioner) to investigate complaints with respect to the city.

Fast forward to a year later. On Dec. 6, the Doug Ford government passed Bill 57, ironically titled the Restoring Trust, Transparency and Accountability Act, 2018. It is a misleading title because the statute strips the FLSA of key protections and undermines the trust of Franco-Ontarians in the security of their language rights. To wit, Bill 57 abolishes the old office of the commissioner, assigns the task of enforcing the FLSA to Ontario’s Ombudsman, and requires him or her to appoint “a deputy Ombudsman called the French Language Services Commissioner.”

The new Commissioner of French Language Services is no longer an independent officer of the legislature, like the integrity commissioner or the auditor general, but rather an employee of the ombudsman’s office who is hired and fired by the ombudsman. The new commissioner’s role is correspondingly diminished. Under the newly amended FLSA, it is primarily the ombudsman’s job to urge compliance with the act through investigations and reports to the legislative assembly. While the former commissioner was able to launch investigations on his own initiative and directly report to Queen’s Park, the new weaker commissioner may only do so “subject to the direction of the Ombudsman.”

The amended FLSA requires the ombudsman (not the commissioner) to submit an annual report on French services to the legislative assembly and to the minister of Francophone Affairs. Presumably to maintain the appearance of that office’s former independence, the new commissioner also has the ability to submit a copy of the annual report to the minister of Francophone Affairs.

It is unclear whether this extravagance is the result of a drafting oversight, but it has the benefit of leaving the minister with two copies of the report!

Circling back to the City of Ottawa’s compliance with the FLSA, there is reason to doubt that the new commissioner is properly equipped to promote and protect the language rights of Franco-Ottawans. At first blush, since the ombudsman’s office has jurisdiction over Ontario’s 444 municipalities, it might seem like a good idea to make the new commissioner a “deputy Ombudsman.” However, the concentrating of municipal oversight powers within the ombudsman’s office might lead to internal conflicts that could end up hurting minority language rights.

It is not inconceivable that the ombudsman would oppose a commissioner’s plan to investigate complaints relating to French services in Ottawa if, in his opinion, that investigation might run the risk of impeding the ombudsman’s own investigation of the city on questions of maladministration, or of hindering the settlement of another matter.

It might be objected that this is an unlikely scenario, and that the ombudsman’s office will likely co-ordinate its internal business in order to respond to every complaint from the citizenry, whether or not they relate to French services. One can hope, but the fact remains that under the amendments made by Bill 57, nothing prevents an ombudsman from prioritizing his investigation over that of his deputy, or even from dismissing an activist commissioner and replacing him with a more compliant employee.

In short, while they were equals in the past, the French Language Services Commissioner is now the Ombudsman’s subordinate. Accordingly, that office has lost the prestige and institutional influence that the other officers of the legislature wield. But more importantly, the new office of French Language Services Commissioner has lost the qualities that used to ensure its effectiveness: independence and immovability. For their part, French-speaking Ottawans and Ontarians have lost a powerful champion that used to advocate proactively for the protection of their language rights in the provincial halls of power.

François Larocque is a law professor and lawyer. He holds the Canadian Francophonie Research Chair in Language Rights at the University of Ottawa Faculty of Law, Common Law Section.