Canada (Commissioner of Official Languages) v. CBC

Canada (Commissioner of Official Languages) v. CBC
Court (s) Database
Federal Court Decisions
Date
2014-09-08
Neutral citation
2014 FC 849
File numbers
T-1288-10
Notes
A correction was made on June 10, 2015.
Reported Decision
Decision Content
Date: 20140908
Docket: T-1288-10
Citation: 2014 FC 849
Ottawa, Ontario, September 8, 2014
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA AND
DR KARIM AMELLAL
Applicants
and
CBC/RADIO-CANADA
Respondent
JUDGMENT AND REASONS
[1] This judgment follows a stay of proceedings by interim order of the Court dated May 29, 2012: Canada (Commissioner of Official Languages) v CBC/Radio-Canada, 2012 FC 650, [2014] 1 FCR 142 [interlocutory decision].
[2] The Court, in the exercise of its discretion, is faced with two issues to determine today:
1. Should the Court issue a final judgment on enforcement and jurisdictional issues addressed in the interlocutory decision?
2. Would it be appropriate to lift the stay and resume proceedings in light of recent developments since the interlocutory decision?
[3] For the reasons that follow, the Court has decided to render final judgment on issues of enforcement and jurisdiction dealt with in the interlocutory decision. However, being of the view that it would not be appropriate, in light of recent developments since the interlocutory decision, to lift the stay and resume proceedings, the Court declares a permanent stay of proceedings.
Background [4] The facts underlying this proceeding, commenced in 2010 by the Commissioner of Official Languages of Canada [Commissioner] under Part X of the Official Languages Act, RSC 1985, c 31 (4th Supp) [OLA], have already been thoroughly reviewed in the interlocutory decision. For the purposes herein, I will only review certain general elements.
[5] In 2009, the Canadian Broadcasting Corporation/Société Radio-Canada [Corporation] made substantial nationwide budget cuts. In the case at bar, Francophones in the southwestern region of Ontario, including Dr. Karim Amellal, complained to both the Commissioner and the Canadian Radio-Television and Telecommunications Commission [CRTC], about the negative impact of the reduction in local or regional content in programming at radio station CBEF 540 in Windsor [CBEF Windsor], the only French-language radio station in southwestern Ontario. But the issue does not end with CBEF Windsor. Thousands of the national public broadcaster’s radio listeners and television viewers throughout the country are asking themselves the same question: where is the Corporation headed? In particular, Official Language Minority Communities [OLMCs] feel threatened. Each new wave of cuts at the Corporation – the ones in 2009 were not the first, nor are they the last – leaves a bitter taste. To many, it is an unacceptable withdrawal on the part of a federal institution that has over the years acquired an iconic status in terms of the promotion of linguistic duality and the development of official language groups.
[6] In order to stay afloat, the Corporation needed to reduce its operating expenses following a shortfall of $171 million for the 2009-2010 fiscal year alone. The Corporation adopted a Recovery Plan which would eventually eliminate some 800 positions, including 336 employees in the French Services. Among other things, CBEF Windsor would lose seven of its ten employees and three programs that were still produced locally. The net result in southwestern Ontario: a reduction of local or regional content in programming, from approximately 36.5 hours (before the cuts) to about 5 hours per week in July 2009. This is far too little, too little for the thousands of loyal listeners who mobilized to save the local station and created the Comité SOS CBEF.
[7] When the CRTC was slow to act and the Ontario Superior Court held that it did not have jurisdiction in the matter, the Commissioner began an investigation pursuant to section 56 of the OLA. But the Commissioner came up against a wall. The Corporation refused all cooperation with him in this regard: it was of the view that is was not accountable to the Commissioner, nor did it have any language obligations under the OLA with respect to its programming activities,
which were already regulated by the CRTC. Nevertheless, in his final report, the Commissioner noted that the Corporation had not held prior consultations or conducted an impact analysis of its decision. The negative impacts of the cuts on the development of Windsor’s tiny Francophone community were vigorously denounced by the Commissioner. In that case the Commissioner found that there had been a failure to comply with subsection 41(2) of the OLA, which requires that federal institutions take “positive measures” to enhance the vitality of Canada’s English and French linguistic minority communities and assist their development. The Commissioner urged the Corporation to act and review its decision. The Corporation ignored his recommendations. In 2010, the Commissioner commenced this proceeding.
[8] In short, in his amended notice of application, the Commissioner asked the Court to make various declarations under section 77 of the OLA – and section 18 of the Federal Courts Act, SCR 1985 c F-7 [FCA], if necessary – to the effect that: the respondent is subject to the OLA, particularly Part VII; the Commissioner had jurisdiction to investigate the complaints regarding the budget cuts; the respondent failed to comply with section 41 of the OLA; it must review its decision concerning CBEF Windsor and make the necessary arrangements to compensate for the negative impact of its budget cuts on the OLMC of southwestern Ontario. For his part, Doctor Amellal, as additional relief, sought a permanent injunction forcing the respondent to return to the previous number of local and regional production hours, if it did not return to broadcasting the programs previously aired by CBEF Windsor that were cancelled following the budget cuts.
[9] In the winter of 2012, the Court agreed to hear the motion for summary dismissal of the present proceeding made by the respondent. On either side, the parties disputed the exclusivity of jurisdiction attributed to the Commissioner and the Federal Court on one hand, and to the CRTC, on the other. Although the respondent acknowledges that its “non-programming” activities are subject to the OLA , it argues that its programming services – radio and television – are subject to the Broadcasting Act, SC 1991, c 11 [BA], and that under sections 3, 12, 18, 19, 23 to 25 of the BA, the CRTC has exclusive jurisdiction in those matters. For their part, the applicants object to the motion to dismiss and in turn argue that there is no conflict between the BA and the OLA, that the Commissioner has exclusive jurisdiction under section 56 of the OLA to investigate any violation of the OLA, while the Federal Court has exclusive jurisdiction under section 77 of the OLA to grant such remedy as it considers appropriate and just in the event of noncompliance with the duty set out at subsection 41(2) of the OLA.
[10] On May 29, 2012, being of the opinion that the Corporation was subject to the OLA in all of its activities and having opted for the concurrent jurisdiction model, the Court ordered an interim stay of proceedings in this case. The reasons for which the Court decided to exercise its judicial discretion in this way stem primarily from the Court’s view, at that stage, that the CRTC was an appropriate forum, and that it was “in a better position than the Federal Court to determine the dispute on the merits and to grant the applicants appropriate relief, if applicable” (interlocutory decision, para 92).
[11] At paragraphs 99 to 103 of its interlocutory decision, the Court notes:
99 Given the current climate of uncertainty and the Court’s wish to spare the parties additional or unnecessary costs by forcing them to engage in long and costly legal proceedings having outcomes that are necessarily unknown, and rather than summarily dismissing this application today, I am exercising my judicial discretion. It seems to me that the fairest and most equitable course is to order a stay of proceedings in this file while safeguarding the rights of the parties.
100 As Madam Justice Abella of the Supreme Court of Canada (writing on behalf of Justices LeBel, Deschamps, Charron and Rothstein) emphasized in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 (Figliola), at paragraph 1:
[l]itigants hope to have their legal issues resolved as equitably and expeditiously as possible by an authoritative adjudicator. Subject only to rights of review or appeal, they expect, in the interests of fairness, to be able to rely on the outcome as final and binding. What they do not expert is to have those same issues relitigated by a different adjudicator in a different forum at the request of a losing party seeking a different result. On the other hand, it may sometimes be the case that justice demands fresh litigation. [Emphasis added.]
101 Let us simply recall that final decisions and orders of the CRTC are subject to appeal, on an issue of law or a question of jurisdiction, to the Federal Court of Appeal – that is, on leave (subsection 31(2) of the BA), such that the "fairness" of the CRTC’s eventual decision on the merits "is not meant to be bait for another tribunal with a concurrent mandate" (Figliola, above, at paragraph 38).
102 Although the Federal Court is not a "tribunal", it is nonetheless the "Court" [page183] designated by Parliament to hear a complaint made under Part X of the OLA. However, the CRTC has made no decision as yet. To be prudent, jurisdiction should therefore be reserved in the interim.
103 Consequently, the interests of justice here require that the Court order a stay of proceedings under subsection 50(1) [mod. par L.C. 2002, ch. 8, art. 46] of the FCA during the time for the CRTC to make a decision, as part of the process to renew the Corporation’s licences, on any complaint or intervention made in respect of the decrease in the number of hours of local and/or regional programming broadcast by CBEF Windsor.
[12] By its order dated May 29, 2012, the Court also suspended the continuation of examinations of the respondent’s representatives and adjourned sine die the hearing on the merits of this case – which was set to begin on October 15, 2012. The Court ordered that once the CRTC made its decision regarding the applications for renewal of the Corporation’s licences, it would be open to any of the parties to ask the Court to extend or put an end to the stay of proceedings, to resume examining the record or to dismiss the application, having consideration for the applicable laws and all of the legal principles applicable in this case.
[13] In the meantime, public hearings regarding the renewal of the Corporation’s licences began in November 2012. Among those who actively participated were: the Commissioner, Doctor Amellal, members of the OLMC of southwestern Ontario, Francophone advocacy associations and the SOS CBEF Windsor committee. On May 28, 2013, the CRTC issued its final decision renewing the Corporation’s broadcasting licences for programming services for a period of five years, from September 1, 2013, until August 31, 2018, including CBEF Windsor and its transmitters: Broadcasting Decision CRTC 2013-263 and Broadcasting Orders CRTC 2013-264 and 2013-265 [2013 CRTC decision]. There is no application for judicial review or appeal before the Federal Court of Appeal against the 2013 CRTC decision.
Respective applications for summary dismissal and for recommencement of proceedings [14] The probationary period provided to the parties to resolve their dispute and voluntarily put an end to these proceedings has expired. In August 2013, following a case management conference, the Court invited the parties to make written submissions regarding the continuance or dismissal of proceedings, including any request for final judgment (directions, August 12, 2013). Relevant excerpts from the CRTC file were filed with the parties’ consent in September 2013 (Volumes 1 to 24). The Commissioner and the Corporation filed their respective written submissions in October, then in November 2013 (in response). A public hearing was held on June 19 and 20, 2014. On that occasion, the parties agreed to have the Report of the Standing Senate Committee on Official Languages, CBC/Radio-Canada’s Language Obligations, tabled in April 2014 [Senate report], filed in the Court record.
[15] The Corporation is reiterating its previous objections and is asking that I, as trial judge, declare that the CRTC has exclusive jurisdiction over such matters, summarily dismiss this legal proceeding and issue any further order that the Court deems just and appropriate. This, in addition to stating that, alternatively, there is no need to hear the matter on the merits, given that the CRTC has already considered the language obligations of the national public broadcaster and prescribed the appropriate remedies in terms of both the hours of local programming on CBEF Windsor, and consultation with OLMC representatives (in the form of conditions of licence, expectations or wishes).
[16] The applicants, being rather of the opposite view that the response and prescribed remedies in the CRTC’s 2013 decision do not resolve the matter or go far enough, object to the summary dismissal of the case and to a ruling by the Court declaring that the CRTC has exclusive jurisdiction. They are instead asking that the Court lift the order to stay the proceedings, allow them to resume examination of the respondent’s representatives, establish a timetable for continuing the examinations and the filing of memoranda, and hold a hearing on the merits as soon as possible on the outstanding issues, namely, those involving the breach of the OLA and appropriate remedy in the circumstances.
Should the Court issue a final judgment on enforcement and jurisdictional issues addressed in the interlocutory decision? [17] The parties agree that issues of enforcement of the Acts (OLA and BA) and jurisdiction essentially constitute questions of law and that these have already been dealt with by the Court in the interlocutory decision. However, spurred on by the fact that the decision handed down by the Court in May 2012 was only “interlocutory”, the respondent today is asking that I render final judgment concluding that the BA applies to the Corporation’s broadcasting activities and that the CRTC has exclusive jurisdiction to rule on any complaint by the Commissioner or by members of an OLMC that the Corporation is not in compliance with its language obligations. The respondent is inviting me to revise my earlier reasoning in light of an argument that is concisely centered on the overall intent of Parliament and on the completeness of the 2013 CRTC decision.
[18] First, the respondent, relying on Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (Attorney General), [2004] 2 SCR 185, 2004 SCC 39 [Morin], reiterates that Parliament wanted issues regarding the regulation and oversight of the public broadcaster’s program offering, to be subject to the exclusive jurisdiction of the CRTC, which would include compliance with the language obligations set out in the BA and in the OLA, in an implicit manner. In particular, paragraphs 3(1)(i) and (m), subsections 3(2) and 5(1) of the BA are cited. As for whether subparagraph 3(1)(m)(iv) of the BA incorporates the obligations found in section 41 of the OLA with regard to programming, the respondent’s learned counsel suggested at the hearing that this provision showed Parliament’s “concern” about OLMCs. However, the needs of OLMCs constitute criteria that are enshrined in the BA, whereas CRTC practice is to integrate the objectives of the OLA in the implementation of its programming activities. This can be seen in the way quasi-constitutional values of the protection of minorities are reflected in the BA and the 2013 CRTC decision.
[19] Second, the respondent argues that the quasi-constitutional status of an act such as the OLA is not a factor that ought to be used to determine the choice of jurisdiction model between two different tribunals that could potentially be seized with the same matter (Charrette v R, [1980] 1 SCR 785). Moreover, subsection 41(2) of the OLA is not referred to at section 82, which grants precedence to certain parts of the statute. It is clear that Parliament did not wish for the Commissioner or the Federal Court to interfere, under Parts VII and X of the OLA, in areas that were already regulated by other federal authorities. Lastly, the respondent is of the view that adopting the concurrent jurisdiction model would lead to uncertainty as to the determination of the appropriate forum and risks of contradictory decisions.
[20] For his part, the Commissioner is categorical: the Court has already ruled in its interlocutory decision on enforcement and jurisdictional issues. It would therefore be contrary to the interests of justice to revisit the reasons underlying the concurrent jurisdiction model accepted by the Court in May 2012. On the contrary, the resumption of proceedings must rather serve to definitively resolve the two outstanding issues: (i) the violation of Part VII of the OLA; (ii) the remedy the Court may grant pursuant to section 77 of the OLA. In the final judgment, which will dispose of the issues related to the merits, the Court will have an opportunity to insert declarations on enforcement and jurisdictional issues.
[21] It is in the best interests of justice and of the parties to render a final judgment today on the enforcement and jurisdictional issues. The bond of trust between the Commissioner and the Corporation – federal institutions of paramount importance which are both renowned for their integrity and respected by the Canadian people as a whole – has been broken. This is regrettable. However, there is no avoiding the brutal choices that have been put to the Court by parties who have hitherto refused to budge from their positions.
[22] In its April 2014 report, the Senate Committee noted that the Court was to determine the issue in the near future (page 100) and
[r]ight now, stakeholders do not agree on the scope of CBC/Radio-Canada’s obligations under Part VII of the Official Languages Act. Does the Corporation’s programming fall within the scope of these obligations? So far, this issue has been left to the Federal Court, which is re-examining the issue. A ruling may be handed down in the coming months. (Page 89)
[23] I am also taking into consideration the guidance provided by Justice Gauthier of the Federal Court of Appeal to the effect that the decision dated May 29, 2012, was “interlocutory” and that [translation] “these jurisdictional issues will be subject to a final judgment when the proceeding resumes” (Federal Court of Appeal Order, 12-A-33, July 31, 2012, page 2). By the same logic, I must do so having regard to all of the representations that have been made to me until this point, which of course includes the written submissions made by the parties in the fall of 2013 and the oral submissions by counsel in June of 2014.
[24] In proceeding with this review, I took a fresh look at the record in its entirety and the case law. I will not engage in any sophistry by noting that the essential questions were posed in May 2012 in the Court’s interlocutory decision. Nor do I believe that the respondent’s new submissions – so many variations on an already familiar theme – seriously challenge the inherent logic of the overall reasoning found in the Court’s interlocutory decision. By ordering an interim stay of proceedings, while at the same time opting for a concurrent jurisdiction model, the Court had already addressed the issues of enforcement, jurisdiction and appropriate forum. For the sake of brevity, I would suggest referring to the relevant paragraphs of the interlocutory decision. Furthermore, rather than repeat myself, it would be useful to make certain general or additional observations that would clarify the Court’s earlier reasoning or that are directly related to assertions and arguments reprised by both parties in their new submissions.
CBC/Radio-Canada and official language minorities [25] I will begin by making a rather general observation: the State is at the service of the populace and its institutions are nothing if they cannot connect with the various communities that make up the nation’s social fabric. The Corporation is not an ordinary federal institution: the national public broadcaster has an obligation to broadcast radio and television programming across the country and in both official languages. This amazing potential for discourse makes it a formidable national vehicle for communication and information.
[26] Having said that, the Corporation is not an organization that exists to serve government; it exists exclusively to serve Canadians. Its unique place is due to the fact that under Canada’s broadcasting policy, the Corporation’s role is to inform and entertain, often in areas where private broadcasters would not dare to venture. In that regard, public policy dictates that that the regulation of the Corporation’s broadcasting activities, under the BA, falls within the CRTC’s jurisdiction. But is that sufficient to exempt from the enforcement of the OLA a federal institution whose continued existence in the radio and television landscape is largely dependent on its ability to respond to the specific needs of the two principal linguistic communities it serves in each region of the country?
[27] How do we reassure Canadians, not only by the Canadian government’s discourse and the assurances of the Corporation’s management, but in actual fact, on the ground, far from the major production centres, that the public broadcaster offers – and above all will have the financial means to continue to offer – radio and television programming that reflects its language obligations, while responding to the vital needs of OLMCs, who should be able to recognize themselves in the programs broadcast across the country? How do we reconcile the Corporation’s statutory language obligations as a federal institution and national public broadcaster, with its mandate and the financial and operational choices it is called upon to make, when year after year – since at least 1973, while costs have increased everywhere – it sees its budget continue to melt away?
[28] If we set aside the revenue the Corporation can take in from television advertising, the quality of its radio and television programming depends largely on the yearly appropriations of funds by Parliament. This is because in practice, under the financial provisions of the BA, the Corporation has to submit its corporate plan, including capital and operating budgets, to the Minister of Canadian Heritage and Official Languages. In principle, this form of government paternalism should not diminish the autonomy enjoyed by the Corporation with regard to its programming. However, from a practical perspective, this fails to take into account the extraordinary power and influence conferred upon the government by its control over the Corporation’s finances. After all, it falls upon the Minister of Finance and even the President of the Treasury Board and Minister of Canadian Heritage and Official Languages, to justify before Parliament, any increase or reduction in appropriations to the Corporation. One may even wonder as to whether the proceeding commenced by the Commissioner has been directed at the party that is truly responsible for the loss of quality programming as a result of budget cuts that has been decried by several stakeholders during the CRTC hearings.
[29] As we are all aware, the logic of accounting is implacable. If cuts to programming budgets are required, it is those devoted to internal productions, where labour costs are high, that will be first to be cut, especially if cheaper alternatives can be found. In television, one can broadcast purchased programming, and on radio, one can always just broadcast the same network programs produced in the major production centres on all regional stations. Yet it has always been a point of pride for the Corporation that it was able to produce its own programs not only in the major production centres, but also in the regions where OLMCs live.
[30] Since it was created in 1936, modelled on the BBC [British Broadcasting Corporation], the Corporation has become a national symbol and standard bearer for Canada’s linguistic duality and equality of status of both languages throughout the country. In May 2013, the CRTC, when renewing the Corporation’s licences, used the opportunity to note that the national public broadcaster: “… plays an important role in the lives of Canadians [and] [a]s a national public broadcaster, the CBC should be a pan-Canadian service that reflects and serves the needs of all Canadians in both official languages regardless of where they live” (para 15). In its April 2014 report, the Senate Committee emphasized that “[w]itnesses were unanimous in recognizing that CBC/Radio-Canada plays a key role in enhancing the vitality of (OLMCs)” (page 19). In addition, in its 2009 Report to the Governor in Council on English- and French-language broadcasting services in English and French linguistic minority communities in Canada, the CRTC concluded that “it is important that the CBC have the means to continue serving these communities” and encouraged the Canadian government “to consider solutions that would enable it to provide the best possible service to official-language minority communities”.
[31] In the Office of the Commissioner of Official Languages 2010-2011Report on Plans and Priorities, Commissioner Graham Fraser stated that “[a]s an officer of Parliament, I provide parliamentarians with unbiased advice based on objective and factual information to help them fulfill one of their important roles—that of holding the federal government accountable for its stewardship of the equal status of English and French in Canada”, while reaffirming that “the Office of the Commissioner of Official Languages must maintain its independence to be able to provide unbiased advice and information to Parliament”. The composite aspect of broadcasting activities should not cause us to lose sight of the national public broadcaster’s raison d’être and its indissociable linguistic component. The national public broadcaster’s language obligations, in particular with respect to OLMCs, constitute a fundamental issue for Canada and for the survival of the federation. The Commissioner may rightly pose the question: Do the lack of appropriations from Parliament and budget cuts prevent the Corporation from fully carrying out its original mandate and fulfilling its statutory language obligations?
[32] In keeping with the line of reasoning used in my interlocutory decision, I reject any assertion by the respondent to the effect that the regulator of broadcasting undertakings exercises exclusive control over the content of programming produced or broadcast by the national public broadcaster. That is to confuse the medium with the message. What we have, organically speaking, is the same fractal object whose essence remains unalterable. Because, whether it is radio or television programming, we are still referring to a service that is linguistic in nature. The listener or viewer can only decipher what he or she hears on the radio, or hears and sees on television, if the broadcasting service (the medium) is provided to them in a language they themselves can speak or understand. But there is more. Language has a strong identity aspect to it, which is intimately connected to the place in which it is spoken – country, province, region, city or village – as much as vocabulary, the way we express ourselves, our various accents are infinitely variable from one place to another, a language may find itself in competition with another language. Such is the case with Canada’s two official languages: French competes with English (in Quebec) and English competes with French (in the other provinces). The Corporation maintains that it complies with the LLO in its off-air communications with the public, but it claims to be exempt from the obligations of the OLA, in particular those under Part VII, in its broadcasting services. I firmly believe that this obstinate quest to create, at all costs, a scission between “broadcaster” and “institution” is misguided and wrong from the point of view of enforcing a constitutional, quasi-constitutional or statutory linguistic obligation. This is especially true when the language programming service is broadcast nationally and regionally by a public institution which is funded in large part by all Canadian taxpayers and which is regarded as a paragon of political rectitude.
Obligation to take positive measures to support Anglophone and Francophone minorities [33] In the final judgment that follows, the Court declares that the Corporation is subject to the OLA, in particular Part VII (sections 41 to 45). It has an obligation to take positive measures to enhance the vitality and support and assist the development of OLMCs under Part VII of the OLA, specifically 41, which imposes an obligation to act in a manner that does not hinder the development and vitality of Canada’s Anglophone and Francophone minorities.
[34] Respect for minorities is an unwritten constitutional principle: Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 79-82; Vriend v Alberta, [1998] 1 SCR 493 at para 176; Lalonde v Ontario (Commission de restructuration des services de santé), 56 OR (3d) 505 at paras 111-125 [Lalonde]. This explicit legal recognition by the Supreme Court of Canada goes far beyond any sort of apophatic discourse offering only a faint and glimmering hope to the country’s Anglophone and Francophone minorities. We are speaking here of an indispensable constitutional principle, itself the creator of positive obligations. And, as independent branches of government tasked with upholding the Constitution, the courts are in the best position to ensure that language obligations are respected. Moreover, so is the Federal Court, when a proceeding is commenced under Part X of the OLA.
[35] As the Supreme Court clearly stated in Reference re Secession of Quebec:
80 … We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. This principle is clearly reflected in the Charter provisions for the protection of minority rights. See, e.g., le Reference re Public Schools Act (Man.), art. 79(3), (4) and (7), [1993] 1 S.C.R. 839, and Mahe v. Alberta, [1990] 1 S.C.R. 342.
81 The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada’s record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without success. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.
[36] In R v Beaulac, [1999] 1 RCS 768 at para 25 [Beaulac], the Supreme Court further states that “[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada”. More recently, the Supreme Court reaffirmed, in Reference re Senate Reform, 2014 SCC 32 at para 25, that “… constitutional interpretation must be informed by the foundational principles of the Constitution, which include principles such as federalism, democracy, the protection of minorities, as well as constitutionalism and the rule of law”. [Emphasis added.]
[37] In this regard, the Supreme Court highlighted the importance in our legal system of the OLA, which “is not an ordinary statute” (Beaulac at para 21). Part VII is entitled “Advancement of English and French”. The provisions in Part VII are therefore geared towards long-term objectives whose achievement is dependent on political will. It cannot be otherwise and, as long as these provisions are not repealed by Parliament, the government must respect the commitment set out at section 41 of the OLA. Because, in a singular manner, Part VII of the OLA expresses the will of Parliament to place the federal apparatus at the service of a larger societal project that will encompass and surpass it, namely, the advent of a Canada that fully recognizes the equality of English and French, and in which official language minorities flourish. Bringing such an ambitious project to fruition will require a comprehensive, coordinated and a necessarily polycentric approach, as explained below.
[38] Under subsection 41(1) of the OLA, “[t]he government of Canada is committed to enhancing the vitality of the English and French linguistic minorities in Canada and supporting and assisting their development; and fostering the full recognition and use of both English and French in Canadian society” (government’s commitment). In the French version, Parliament uses the verb “s’engage”. It is therefore through the government’s commitment that one must understand the correlative obligation placed on federal institutions subject to the OLA. This of course includes the Corporation, which is not above the law, and which has not convinced me in this case that there exists any conflict between the BA and the OLA.
[39] In its interlocutory decision, the Court emphasized that “Parliament adopted and, over time, has amended the broadcasting policy for Canada set out at subsection 3(1) of the BA. The elements of this policy have been chosen by Parliament with great care, following profound consideration and extensive consultation and then a public debate, both as regards the 1968 statute (SC 1967-68, c 25) and the new 1991statute” (para 57). For this reason, “[t]oday, the policy contains a set of political, social, economic and cultural objectives that reflect the linguistic duality and the multicultural and multiracial nature of Canadian society” (para 57). Thus, the Court observed that “[t]here is no conflict between the purposes of the OLA and those of the BA. In both statutes, the general will of Parliament is to foster the development and enhance the vitality of OLMCs, while leaving the choice of means in the hands of the federal institutions concerned and the broadcasters, including the national public broadcaster” (para 58).
[40] In any event, with regard to the Corporation’s specific linguistic obligations, the OLA takes precedence over the BA and any decision or order of the CRTC. To be even clearer, the obligation to take positive measures and not to hinder the development of linguistic minorities is not rescinded by the BA. According to the new subsection 41(2) of the OLA, added in 2005, “[e]very federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments [duty of federal institutions]…while respecting the jurisdiction and powers of the provinces”. In the French iteration, the term “il incombe aux” is used to convey the same idea. This wording is more restrictive than that employed at subsection 41(1). According to the Federal Court of Appeal’s reasoning in Forum des maires de la Péninsule acadienne v Canada (Canadian Food Inspection Agency), 2004 FCA 263, [2004] 4 FCR 276 [Forum des maires], subsection 41(2) imposes a “legal obligation” on federal institutions, which is enforceable by the courts. This is also a positive legal duty of the Corporation as a “federal institution”.
[41] That said, the expression “positive measures” is not defined in the OLA. The choice of which positive measures would be best to carry out the government’s commitment is, in principle, left up to each institution, subject, of course, to applicable regulations and to any powers of supervision or coordination that the Minister of Canadian Heritage and Official Languages and the President of the Treasury Board may have over the matter. The cutbacks decreed by the Corporation in 2009 gave rise to a fierce debate among Canadians and Parliamentarians. And that was just the beginning; other, more significant cuts were announced by the Corporation when this proceeding was commenced in 2010. The debate about reductions to the Corporation’s budget and cuts to regional service extended beyond the hearing rooms. One would be quite correct to characterize the whole affair as “political”. Is it any surprise that, at about the same time, the Standing Senate Committee on Official Languages was studying the national public broadcaster’s linguistic obligations?
[42] Maintaining the equality of English and French, as well as the development of linguistic communities, are products of the will of a courageous Parliament which had the wherewithal, when it enacted the OLA and the amendments in 2005, to rise above partisan strategies or electoral consideration. There were howls of protest from the Commissioner when he saw the Corporation being stretched further by cuts to radio in the regions this federal institution was originally designed to serve. No one is above the law; it goes without saying that this includes any agent of the Crown. Moreover, the Senate Committee stated that it “wishes to remind the Corporation that it has obligations under Part VII of the Official Languages Act to enhance the vitality of official-language minority communities” (page 88). This is a categorical, non-negotiable imperative, and as such would thwart any initiative that was not reasonably justifiable and that would adversely affect an obligation or right under the OLA.
[43] At the risk of repeating myself, it is clear that the Corporation has positive obligations under Part VII of the OLA with regard to broadcasting and programming activities that arise, in particular, from the principle of respect for and protection of minority language rights. Although the respondent argues that the quasi-constitutional character of the OLA does not apply to Part VII, the protection of minorities is, in and of itself, and unwritten or quasi-constitutional principle that does not arise solely from the OLA. As the Supreme Court noted in Lavigne v Canada (Office of the Commissioner of Official Languages), [2002] 2 SCR 773 [Lavigne], the OLA and the Privacy Act, RSC 1985, c P-21, “are closely linked to the values and rights set out in the Constitution, and this explains their quasi-constitutional status that this Court has recognized them as having” (para 25).
[44] According to the respondent, these obligations are embedded in the BA itself, and because Parliament conferred upon the CRTC the regulatory authority to monitor all aspects of the broadcasting systems, the CRTC must be recognized as having exclusive jurisdiction. Such reasoning is sophistry: the fact that the BA is compatible with the Constitution, the OLA and the constitutional principle of protecting minorities does not confer upon the CRTC exclusive jurisdiction with respect to the regulation of the Corporation’s linguistic obl