Section 20 of the Charter alone does not fully capture the scope of the obligations institutions of Parliament and of the Government of Canada have the duty to ensure in terms of services and communications.
Two tools are available to define the obligations set out in section 20 of the Charter: the Official Languages Act and the Official Languages Regulations.
The Official Languages Regulations specify in which circumstances federal institutions must offer services and communications in both official languages.
Summaries of the Regulations:
For example, Federal government emergency services and telephone numbers beginning with 1-800, because of their nature must offer services in both official languages.
Are the Official Languages Regulations a source of law that cannot be called into question? To find out, complete the following case study on the Regulations:
The Official Languages Act, adopted in 1988, takes Section 20 of the Charter and describes in more practical terms several obligations of the federal institutions and Government regarding services and communications.
To know when the Official Languages Act specifies the enforcement of constitutional language rights, refer to the last column of the following tables summarizing language rights :
Significant demand to obtain the right
Federal institutions must offer services and communications in places where, depending on the situation:
a) There is a significant demand for communications and services in English or French;
b) The nature (purpose) of the office justifies the use of English and French.
The “significant demand” is based upon the number of right-holders (or "ayant droits" in French) and is defined in Part I of the Official Languages Regulations.
The “nature of the office” is defined in Part II of the Official Languages Regulations.
A right-holder is a Francophone or an Anglophone according to the following definition:
Definition of an “Anglophone”:
- Must know the English language;
- Must have English as a mother tongue;
- Must speak English at home.
Definition of a “Francophone”:
- Must know the French language;
- Must have French as a mother tongue;
- Must speak French at home.
When all three criteria do not allow the Government to determine the individual’s language, the number of individuals who correspond neither to the Anglophone nor the Francophone definition are equally divided between the English and French population for statistical purposes.
Which federal institutions are subject to obligations in terms of constitutional language rights?
Can you recognize them? Let's see how well you do with these quizzes!
To summarize, section 3 of the Official Languages Act defines federal institutions as:
- Parliament and Government of Canada institutions;
- Office, commission, council, etc., responsible for administrative functions under federal law;
- Federal departments;
- Government corporations and all their subsidiaries created under federal law.
IMPORTANT: This includes third parties (organizations and other) acting on behalf of a federal institution.
What does “acting on behalf of a federal institution” mean?
Under section 25 of the Official Languages Act, federal institutions must ensure that:
- Third parties (people, organizations, associations, etc., other than the Government) that work for them offer services in both official languages, according to section 20 of the Charter;
- These third parties do so in Canada as well as abroad.
In the Desrochers case, which went before court from 2005 to 2009 and the Federal Court in 2006, the Federal Court of Appeal established criteria to help determine if a third acting on behalf of a federal institution, and added that other criteria could also apply.
Criteria established by the Federal Court of Appeal in the Desrochers v. Canada, 2006 CAF 374 case are:
- General control by the Government over the third party offering the services (par. 53 and the following);
- More than mere financial contribution (par. 54);
- Obligation to account for funding (par. 57);
- Departmental control over the way in which the services are provided (par. 62);
- Minister’s supervisory authority (par. 69);
- The third party is an integral component of a program established by the Government (par. 70).
This concept of a "third party acting on behalf of a federal institution" is important because, if the third party meets these criteria, you have the right to services and communications in both official languages from this third party.
The terminology “acting on behalf of” can be replaced by “being appointed by.” No matter which terminology is used in a contract signed by the Government and the third party, it is these criteria (like those mentioned earlier) that matter, even if "acting on behalf of" and “being appointed by” are not used in the contract.
For more details regarding particular situations where the third party meets the said criteria, contact a lawyer.
