Commissioner’s Blog

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François Boileau
French Language Services Commissioner

Let’s Talk Designated Agencies

As I emphasize in my 2011-2012 Annual Report, the designation of an agency means a commitment and formal recognition of its ability to provide French-language services. It is not a goal in and of itself, but rather a means of guaranteeing the active and ongoing provision of French-language services in the field, in order to meet the specific needs of the population being served.

A designated agency or program provides its supplier with legal immunity that protects it from changes in the economic and political climate. Montfort Hospital is the most eloquent example of this advantage: it was able to avoid being shut down and broken up precisely because of its designated status. That is the reason why the designation of agencies is excessively important.

Hence, that brought me to take the decision to post a blog relating to the designation of government agencies every week this month of December. I am starting today with a blog post on the representation of Francophones on boards of directors and post-designation assessment. I will then continue in the following weeks with posts on how to address complaints and on the merger of a designated agency with a non-designated agency. I will conclude this series of blog posts by giving the opportunity to some agencies to share with you why they have chosen to ask for designation and also by letting you know the government’s response to my recommendation.

Firstly, many agencies have not been subject to any post-designation assessment to ensure their compliance with the conditions arising from their status as providers of French-language services.

It is certainly true that the government encourages designated agencies to submit tri-annual self-evaluation reports to the Office of Francophone Affairs, in order to ensure that they are still meeting their designation criteria and integrating French-language services in the development of their programs and services. However, very few agencies actually submit these reports on their own initiative and such reports are seldom requested by ministries.

This task also may be difficult, given the fact that the ministries do not always use the same evaluation chart or criteria for designation, as has been mentioned previously. This lack of a shared interpretation should also be addressed.

The criterion for the representation of Francophones on the board of directors and executive committees of designated agencies is a perfect illustration of this situation.

Indeed, once they have their designation certificate, agencies will sometimes use the excuse of flexibility in order to avoid their obligation to provide Francophone representation. Unfortunately, this can result in an underrepresentation of Francophones on the boards of directors of agencies that are located in regions with a high concentration of Francophones.

Such a situation was in fact brought to my attention in the case of a designated hospital located in the Eastern region, following a significant change in the administrative bylaws governing its board of directors. The hospital in question was not complying with the Ministry of Health and Long-Term Care’s criterion for Francophone representation that specified that the number of Francophones on its board of directors should be proportional to their demographic weight in that region.

Yet, the ministry had informed the Commissioner’s Office that the hospital had been assessed in 2005, and that, at the time, the Ministry was satisfied that it met the criteria for Francophone representation on its board of directors. This particular case is more than a simple anecdote. In fact, it highlights the lack of an ongoing and mandatory process for assessing designated agencies. This clearly illustrates why it is important to make this process and these criteria formal and consistent.

This is what brought me to recommend to the Minister Responsible for Francophone Affairs that a mandatory directive on the designation process for agencies be established in compliance with the French Language Services Act. I recommended that this directive be implemented by 2013-2014 and include consistent designation criteria that, in particular, provide for a minimum representation of Francophones on boards of directors and executives.

As part of this recommendation, I also highlighted the importance of a mandatory and independent assessment, every three years, based on all of the designation criteria, including criteria dealing with governance. This assessment should also include corrective measures, when necessary.

I will come back to you next week to cover another aspect of my recommendation to the Minister relating to the designated agencies.

Delegated Administrative Authorities Raise Concerns

I am greatly concerned about the recourse to delegated administrative authorities – i.e., self-funded non-profit organizations which operate at arm’s length from the government.

Indeed, in the past, this model did not lead to the adequate provision of French-language services.

In my 2008-2009 Annual Report, I shared that the government had created many independent organizations operating at arm’s length from the government. Over the years, the government failed to meet its obligation under the French Language Services Act (FLSA) to transfer its legal obligations to these newly created organizations.

In the process of creating them, compliance with the letter and the spirit of the FLSA has been eroded. And yet, as is true for government agencies, ministry powers and responsibilities have been delegated to these authorities. They are governed by framework agreements between the ministry and a private not-for-profit corporation.

Pursuant to aspects prescribed by the act that created them and its regulations, the organizations assume responsibility for the regulatory, financial, and administrative aspects of service delivery. They are therefore accountable to the government although the ministry remains liable and retains control over what is prescribed by the act.

However, these delegated administrative authorities are not government agencies within the meaning of the FLSA and are therefore not subject to the obligations provided under the FLSA. This is a convenient way for the government to circumvent its obligations to provide French-language services, at least directly!

We have handled several complaints related to this issue, as I reported in previous annual reports. Due to the vigilance of the complainants, it appears that our submissions have yielded results – at least to some extent.

For example, within the context of the Retirement Homes Act, 2010, lawmakers created the Retirement Homes Regulatory Authority. In the future, this organization will undoubtedly play a major role for Francophones, due to the aging population. Section 110 of this Act ensures that citizens will always have access to French-language services.

However, officially and from a legal point of view, the Retirement Homes Regulatory Authority is not subject to the French Language Services Act. Indeed, Section 110 demonstrates good intentions even though it ultimately offers reduced protection. It does not offer all the guarantees of the FLSA, including the ability to file a complaint with the Commissioner’s Office in the event of a problem.

I believe that lawmakers could very well have taken completely legal measures to ensure that this agency was subject to the FLSA right from the beginning. This would have been an efficient and effective solution that reflects a government which is mindful of making thoughtful choices.

Bill 55, which proposed the adoption of the measures found in the 2012 Budget, specifically states that delegated administrative authorities are not Crown agencies. If this is so, why not include a provision to ensure that all newly-created delegated administrative authorities, or other similar entities, are fully subject to the provisions of the French Language Services Act?

After all, the purpose is to provide for the efficient and effective delivery of delegated government programs and services by independent not-for-profit corporations operating within a strong accountability and governance framework. I could not agree more with this laudable objective, as long as French-language services are an integral part of what is considered to be an “efficient and effective delivery of delegated government programs and services.” Otherwise, the result would be a violation of the spirit of the FLSA.

In my 2011-2012 Annual Report, this has brought me to recommend that the Minister of Consumer Services take all the necessary measures to ensure that all newly-created delegated administrative authorities, or other similar entities, are fully subject to the provisions of the French Language Services Act. I commit to keep you in the loop as far as progress is concerned.

World Day Against Aids: Let’s not Forget Ontario’s Francophonie

Journée mondiale de lutte contre le sida | World Day Against Aids

In the past year, my Office has received a number of complaints from residents of the Greater Toronto Area and Ottawa concerning the lack of French-language services for people living with HIV or AIDS. On the occasion of World Day Against Aids taking place tomorrow, December 1st, 2012, I wish to highlight the extent to which these services are crucial for Francophones affected by the pandemic.

As I mention in my 2011-2012 Annual Report, the complainants who contacted my Office alleged that when they approached community support organizations – largely funded by the Ontario government – they did not receive adequate, equivalent service in French.

Not all the complainants were necessarily decrying a total absence of service. A number of them were greeted or provided with guidance in French. But the linguistic duality seldom went beyond the reception desk. And when it came to actually supporting the person living with HIV or AIDS, the services were available only in English (counselling, help finding a residence, etc.).

People living with HIV or AIDS are literally fighting for their lives, and they have to both share and understand complex, sensitive information. They have to be able to describe physical and mental conditions, symptoms and side effects in precise terms. They have to receive and understand critical advice regarding lifestyle, the legal and health consequences of certain practices, how to obtain long-term and emergency assistance, and how to take medication.

Clearly, explaining or understanding such nuances in one’s second language requires intellectual gymnastics, and Francophones living with HIV or AIDS are sick of being linguistic acrobats when they are already dealing with all sorts of challenges. They therefore sought the assistance of my Office to exercise their right to a continuum of social and therapeutic guidance in French.

I naturally wanted to shed light on this apparent inequality and we therefore conducted an investigation. Our findings were not very flattering.

On one hand, the Ministry of Health and Long-Term Care stated that, although organizations operating in the HIV/AIDS sector were in fact supported with public funds, they have no legal obligation to provide service in French because they are not government agencies and do not provide services on the government’s behalf.

On the other hand, the Ministry pointed to the many actions it had taken to improve services for Francophones living with HIV, even though those actions amounted to nothing more than having provincial awareness campaigns translated and funding some information, testing and training events.

Though commendable, those efforts do not solve the fundamental problem raised by the complainants, which is the lack of tailored support services in French to help Francophones deal with their illness and the wide-ranging medical, personal and social repercussions that it has in the long term.

The Ministry advised us that it was working on a provincial HIV/AIDS strategy and in the same breath hinted that the matter was outside our purview. I obviously do not claim to be an expert in health policy. However, I am an expert in the language rights of Ontario’s Francophones, and I intend to make sure that people who every day deal with a disease that brings them face to face with abandonment, stigmatization, pain and even the end of their lives can count on an organization partly paid out of their pockets through the government, to meet their needs.

I therefore hope that the strategy being developed by the Ministry will fully integrate French-language services from the start and will include not only comprehensive obligations in that regard for government-funded partners but also the incorporation and adequate funding of Francophone organizations that are fully empowered to provide services to people living with HIV or AIDS.

A Clear Service Objective and Active Offer: The Prerequisites for Equal Access to Justice in French

Report on Access to Justice in French

As you know, the question of access to justice in French is so important to Ontario’s Francophone and Francophile citizens that I consider it essential for everyone to understand the significance and scope of the French Language Services Bench and Bar Advisory Committee’s report entitled Access to Justice in French. The steps necessary to ensure that French speakers have meaningful and effective access to justice in French in Ontario are of great concern to me, and you can count on me to continue monitoring this issue closely in conjunction with the Ministry of the Attorney General.

Today, therefore, I want to draw your attention to the first conclusion in the Advisory Committee’s report: equal access to justice in French requires (1) a clear service objective and (2) active offer of service in French.

In Ontario, the right of access to justice in French is defined by the legal and regulatory framework formed by the French Language Services Act, the Courts of Justice Act and the Criminal Code. However, how to facilitate the exercise of that right is not clearly defined. There is currently no concrete way of measuring the success of that facilitation effort by the various actors in the court system. Consequently, as a starting point, the Advisory Committee recommends that the Ministry of the Attorney General adopt a clear and coherent service objective to support the delivery of French-language services in the justice system in a manner that has no impact on the timeliness, cost and quality of service to the Francophone community.

The Advisory Committee also recommends that the Attorney General renew his commitment to delivering French-language services based on the concept of “active offer”, which means that French language services must be clearly visible, readily available, easily accessible, publicized, and of a quality equivalent to services offered in English. I am delighted with this recommendation, since deficiencies in active offer are at the root of many complaints received by the Commissioner’s Office. It is not unusual for my team to be called on to assist Francophone citizens for whom a judicial process was initiated in English simply because they were never informed of their right to a bilingual proceeding despite contacts with justice system stakeholders. There’s no simple way of resolving such situations, let me tell you!

The introduction of a clear service objective combined with active offer of service should ensure that French-language services are actively made available to litigants at the first opportunity. Simply implementing these recommendations would have countless advantages, including the following: Francophone citizens will be able to be heard in the courts in their preferred language; justice system stakeholders will be able to plan proceedings more easily and efficiently; and the handling of cases will no longer run afoul of linguistic pitfalls.

In short, these recommendations promise savings of time and money in addition to greater satisfaction for litigants, justice system stakeholders and the judiciary. No wonder I can’t wait to see them implemented!

I’m planning a second posting next week on another key conclusion of the important report Access to Justice in French, by the French Language Services Bench and Bar Advisory Committee.

Independence of the Commissioner: for Administrative Independence

Today, I am concluding my series of blogs on the independence of the Commissioner by addressing this question from an administrative point of view.

The majority of the population is not aware that on an administrative level, the Office and its Commissioner, like the Office of Francophone Affairs, are required to change ministry, based on the other responsibilities of the Minister Responsible for Francophone Affairs.

As a result, when the Minister Responsible for Francophone Affairs was also serving as Minister of Community and Social Services, the Office and the Commissioner were administratively linked to this ministry for matters related to human resources, IT services, support for the Freedom of Information and Protection of Privacy Act, and numerous other requirements related to the daily operations of an office. Over the years, it has therefore developed connections, contacts and operating methods which facilitate the management of day-to-day activities, especially for an office as small as the Office of the French Language Services Commissioner, which is often somewhat forgotten within the large ministries.

In December 2011, when the new cabinet was sworn in after the election, the Minister Responsible for Francophone Affairs remained the same but also became the Minister of Community Safety and Correctional Services, dropping her responsibilities as the Minister of Community and Social Services.

Consequently, with just one move, both the Office of Francophone Affairs and the Office of the French Language Services Commissioner were required to change their line Ministry… and once again start everything from zero. This was simply a repetition of a previous situation when the minister responsible was also serving as the Minister of Culture.

Over the last weeks, I have been addressing the importance of the independence of the Commissioner for reasons of political non-interference, involvement of members of Parliament, independence in legal terms, financial accountability and ability to act and administrative independence.

Well, for all of these reasons, I have recommended to the Minister Responsible for Francophone Affairs that an amendment to the French Language Services Act be introduced by March 31, 2013, specifying that the Commissioner will report directly to the Legislative Assembly. You can refer to this recommendation in my 2011-2012 Annual Report.

I obviously wish to get back to you as soon as possible with good news relating to this matter. However, I am still waiting for the government’s response to this recommendation.

In the meantime, if you would like to know more about this recommendation, the interview I recently gave to Gisèle Quenneville for TFO’s Carte de visite has been uploaded to Youtube.

In conclusion of this series of blog posts, I wish to share this quote taken from the Office of the Commissioner of Official Languages for New Brunswick’s 2011-2012 Annual Report entitled From words to actions officially released on October 11, 2012: “The Commissioner [of Official Languages for New-Brunswick] is an officer of the Legislative Assembly and is independent of the government.” I have nothing more to say!

Independence of the Commissioner: for Financial Accountability and Ability to Act

This week, I am addressing the Office of the Commissioner’s financial accountability and ability to act as part of my series of blogs relating to the independence of the Commissioner.

As I mention in my 2011-2012 Annual Report, whenever public administration is subjected to across-the-board cuts, the budget of the Office of the French Language Services Commissioner is not spared: the Commissioner’s Office is treated like any other provincial agency without any regard for the unique nature of its mandate or the modest size of its team (only six individuals, including the Commissioner).

Moreover, the Commissioner’s Office is financially dependent on the Office of Francophone Affairs. It may perhaps be a well-kept secret, but basically, the funds allocated to the Office of the French Language Services Commissioner constitute no more than a line item in the budget of the Office of Francophone Affairs.

In addition, the funding provided to the Commissioner’s Office is far from extravagant at slightly less than $900,000 annually. In concrete terms, this means that any reduction in expenses – no matter how small – has a very real impact. This may mean cancelling one or more investigative reports or eliminating a special investigation which the Commissioner’s Office would no longer have the means to undertake.

However, even more worrisome is the fact that the Commissioner’s Office is not protected from the will of a government which, for example, may want to cut off its financial lifeline and undermine its ability to carry out its mandate.

If the Commissioner’s Office were to report to the Legislative Assembly, it could plead its own case during periods of austerity measures and its funding would be protected from ill-timed and partisan decisions. Moreover, the Office would not have to obtain funding through another government agency, which could only facilitate its ability to act and to be accountable for management of public funds.

I will be concluding my series of blogs relating to the independence of the Commissioner next week. Don’t miss the last blog!