Federal Court

Cour fédérale

 

Date: 20101006

Docket: T-1220-10

Citation: 2010 FC 999

[UNREVISED CERTIFIED ENGLISH TRANSLATION]

Ottawa, Ontario, October 6, 2010

PRESENT: The Honourable Mr. Justice Boivin 

 

BETWEEN:

THE FÉDÉRATION DES COMMUNAUTÉS FRANCOPHONES

ET ACADIENNE DU CANADA and EDMOND RICHARD

 

Applicants

and

 

THE ATTORNEY GENERAL OF CANADA

Respondent

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review under sections 18 and 18.1 of the Federal Courts Act, RSC1985, c F-7. The applicants, the Fédération des communautés francophones et acadienne du Canada and Edmond Richard (FCFA), are seeking to quash the Order in Council of August 12, 2010 (P.C. 2010-1077), which sets at ten (10) the number of questions that will be part of the 2011 census.

 

[2]               By reason of the August 12, 2010 Order in Council, the data that had previously been collected through the mandatory long-form census questionnaire will be collected as part of the new National Household Survey (NHS) on a voluntary basis. The NHS will be conducted during the weeks following the census of population of Canada in May 2011.

 

[3]               The FCFA is of the opinion that the August 12, 2010 Order in Council infringes Part VII of the Official Languages Act, RSC 1985, c 31 (the Act), since it will have the effect of depriving the Government of Canada and the linguistic minority communities (minority communities) of reliable statistical data, given the now voluntary nature of the long-form questionnaire. The FCFA considers that these data are essential for the federal government to be able to meet its commitments and also for federal institutions to discharge their statutory duties with regard to official languages under section 41 of the Act.

 

[4]               The following remedies are sought by the FCFA under subsections 18(3) and 18.1(3) of the Federal Courts Act:

(a)  A declaration that the Government of Canada’s decision in Order in Council P.C. 2010-1077 made on August 12 and published on August 21, 2010, in the Canada Gazette Part 1 is invalid;

 

(b)  A declaration that the elimination of the mandatory long-form questionnaire from the 2011 census violates the Government of Canada’s duty under Part VII of the Official Languages Act, R.S.C. 1985, c. 31;

 

(c)  A writ of mandamus directing the Government of Canada to administer, on a mandatory basis, the questions from the 2006 long form, or the equivalent contained in the 2010 National Household Survey, in the 2011 census.

 

[5]               For his part, the Attorney General of Canada is contesting the FCFA’s application. Specifically, the Attorney General contends that the Court is not authorized to order that the questions from the 2006 long-form questionnaire be administered on a mandatory basis for the 2011 census. Instead, the Attorney General argues that the only remedy the Court may grant is to quash the impugned Order in Council and refer the matter back to the Governor in Council under paragraph 18.1(3)(b) of the Federal Courts Act. According to the Attorney General, an order in the nature of a mandamus would be inconsistent with the Governor in Council’s discretion with regard to the content of the orders in council that may be issued under the Statistics Act, RSC 1985, c S-19.

 

The Census of Canada

[6]               Since June 1971, the mandatory census has been a virtual fixture in the Canadian five-year data collection landscape. The Government of Canada, through Statistics Canada, takes a census of population of Canada every five (5) years. Under subsection 19(2) of the Statistics Act, the purpose of the census is to ensure that counts of the population are provided for each federal electoral district of Canada. According to sections 19 and 21 of the Statistics Act, it is the responsibility of the Governor in Council to fix the month in which the census will be taken and to prescribe, by Order in Council, the questions to be asked therein.

 

[7]               The Governor in Council, pursuant to its delegated powers under the Statistics Act, published two Orders in Council on the 2011 census. The first Order in Council of June 17, 2010 (published on June 26) was repealed and replaced by the second Order in Council of August 12, 2010 (published on August 21). The August 12, 2010 Order in Council confirms that the next census of population will be taken in May 2011. The August 12, 2010 Order in Council adds to the eight (8) questions that had been prescribed by the June 17, 2010 Order in Council two (2) questions on language that had been absent from the repealed Order in Council of June 17, 2010, for a total of ten (10) questions.

 

[8]               During the 2006 census, the mandatory long-form questionnaire contained a total of sixty-one (61) questions. The 2006 questionnaire touched on a wide range of topics, such as the mobility of Canadians, their education, their household activities, their labour market activities, their income and the payment of their personal expenses such as mortgages, property taxes or electricity. Five (5) of the questions in the 2006 questionnaire dealt more specifically with language:

-         Sufficient knowledge of English or French to conduct a conversation [Q. 13]

 

-         Sufficient knowledge of a language(s), other than English or French, to conduct a conversation [Q. 14]

 

-         The language spoken most often at home and the language(s), other than English or French, spoken on a regular basis at home [Q. 15]

 

-         The language first learned at home in childhood and still understood and, if that language is no longer understood, the second language learned [Q. 16]

 

-         The language used most often at work and, where applicable, any other languages used on a regular basis [Q. 48]

 

[9]               During the 2006 census, the mandatory long-form questionnaire was sent to 20% of Canadian households; the remaining households (80%) had to complete a short form, which contained eight (8) of the sixty-one (61) questions on the mandatory long-form questionnaire.

 

[10]           By contrast, the 2011 census questionnaire will be distributed to all Canadian households and will contain, as mentioned above, a total of ten (10) questions. Of these ten (10) questions, three (3) will deal with Canada’s official languages. They are questions 13, 15 and 16 (mentioned above) from the mandatory long-form questionnaire for the 2006 census. These questions are now questions 7, 8 and 9 of the 2011 census.

 

[11]           As for the voluntary NHS questionnaire, it will include, in addition to the three (3) questions on language prescribed by the new Order in Council of August 2010, questions 14 and 48 (mentioned above), as well as all the questions not relating to language that were included in the mandatory long-form questionnaire for 2006. The NHS questionnaire will be distributed to 30% of households on a voluntary basis.

 

The Official Languages Act

[12]           The Official Languages Act was enacted in 1969 to ensure respect for Canada’s two official languages and their equality of status. This Act sets out the responsibilities of federal institutions with respect to the offer of services and the use of English and French in Canadian society. The Act includes Part IV (Communications With and Services to the Public), Part V (Language of Work), Part VI (Participation of English-Speaking and French-Speaking Canadians), Part VII (Advancement of English and French) and Part VIII (Responsibilities and Duties of Treasury Board in Relation to the Official Languages of Canada).

 

 

[13]           Section 41 of the Official Languages Act, which is central to the issue, reads as follows:

 

[14]           The Court notes that the quasi-constitutional status of the Official Languages Act has been recognized by the Canadian courts (Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 SCR 773; Canada (Attorney General) v Viola [1991] 1 FC 373). The purpose of the Act is to implement the sections of the Charter that pertain to language rights in Canada, specifically, sections 16 to 20.

 

[15]          This case began with a very broad range of legal claims concerning, in particular, Parts IV, V, VI and VII of the Official Languages Act and sections 16 to 20 and 23 of the Canadian Charter of Rights and Freedoms (RSC 1985, Appendix II, No. 44). The arguments that preceded the judicial review hearing before this Court were clarified and narrowed, to the point where only the issue of the violation of section 41 (Part VII) of the Official Languages Act is before this Court.

 

Issue

[16]           The issues raised in this application for judicial review are therefore as follows:

1.   Does the Order in Council of August 12, 2010 (P.C. 2010-1077), made by the Governor in Council under the Statistics Act, constitute a violation of Part VII of the Official Languages Act and, more specifically, subsection 41(2) of that Act?

 

2.   If yes, what are the fair and appropriate remedies in view of the circumstances?

 

Standard of review

[17]           The Supreme Court of Canada, in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, stated that there are two standards of review: correctness and reasonableness (para 34). The Supreme Court also specified that the correctness standard applied to questions of law, while the reasonableness standard applied to questions of mixed fact and law and questions of fact. In addition, among the many examples the Supreme Court gave to demonstrate the application of the appropriate standard, it ruled that Charter or constitutional issues are necessarily subject to correctness review (para 58).

 

[18]           In Canada (Canadian Wheat Board) v Canada (Attorney General), 2009 FCA 214, [2009] FCJ No 695, the Federal Court of Appeal affirmed, at paragraph 36, that this same standard must be used when assessing the validity of an Order in Council made by the Governor in Council:

[36]  Turning first to the vires issue, the Court must determine on a standard of correctness whether the Direction/Order was authorized by the power delegated to the Governor in Council pursuant to subsection 18(1) of the Act (Dunsmuir v. New Brunswick, 2008 SCC 9, para. 59).

 

 

 

[19]           The Federal Court of Appeal went on to explain, at paragraph 37, the circumstances in which a court must intervene when the Governor in Council exercises a power given to it by statute:

[37]   It is well settled law that when exercising a legislative power given to it by statute, the Governor in Council must stay within the boundary of the enabling statute, both as to empowerment and purpose. The Governor in Council is otherwise free to exercise its statutory power without interference by the Court, except in an egregious case or where there is proof of an absence of good faith (Thorne’s Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106, p. 111; Attorney General of Canada v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735, p. 752).

 

[20]           In the case at bar, the issue concerns government administrative action with regard to a statute that has a quasi-constitutional status. Having been called upon to determine whether the August 12, 2010 Order in Council violates Part VII of the Official Languages Act, the Court must interpret the Act, and specifically section 41. Since the Court is called upon to interpret a legislative provision, it must therefore do so on the correctness standard.

 

Preliminary remarks

[21]           Before proceeding with its analysis of the issues, the Court must make a few preliminary remarks regarding one motion in particular brought prior to the hearing of this matter. The FCFA brought a motion under Rule 369 of the Federal Courts Rules, SOR/98-106, to obtain an order under Rule 312 to introduce additional affidavits and new evidence.

 

[22]           In this regard, the parties agreed that the FCFA would withdraw its motion to file an affidavit and refrain from making new Charter arguments. The parties also agreed that the FCFA would file one affidavit from Nicole Garner, one article from the Globe & Mail and one Statistics Canada internal study. In exchange, it was agreed that the Attorney General would file one additional affidavit from Marc Hamel.

 

[23]           In addition, the Court agreed to the filing by the FCFA of three scientific articles published in the journal Canadian Public Policy of September 14, 2010 – which were not available when the FCFA filed its memorandum – because of their relevance and the insight they could give this Court in this proceeding.

[24]           The FCFA also sought leave from this Court to file a document entitled “Certified Record (Rule 318)”, - a document created by Rosemary Bender, Assistant Chief Statistician at Statistics Canada, - which had previously been filed by the Attorney General of Canada in another matter before the Federal Court (T-1375-10). The document in question deals with the census and NHS issue. The Attorney General objected to its filing. On the basis of the representations made by the parties at the start of the hearing, the Court accepted this document, but under advisement.

 

[25]           Having had the opportunity to hear the parties at the hearing and read the said document, the Court is of the opinion that this document is relevant in the case at bar. The Court further notes that the document in question was discovered in the afternoon of September 22, 2010, following the case management conference. Consequently, and on the basis of the requirements set out in Atlantic Engraving Ltd. v Lapointe Rosenstein, 2002 FCA 503, [2002] FCJ No 1782, the Court accepts the document and adduces it as evidence in the record.

 

Analysis

[26]           As mentioned above, the main issue in this case is to determine whether the August 12, 2010 Order in Council constitutes a violation of Part VII of the Official Languages Act and, more specifically, subsection 41(2) of that Act. At the outset, the Court notes that the parties acknowledge that language rights, whether constitutional or statutory, must be given a broad and liberal interpretation that is consistent with the preservation and development of the official language communities in Canada (see R. v Beaulac, [1999] 1 SCR 768, [1999] SCJ No 25, at para 25; DesRochers v Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194).

[27]           The Court also notes that the August 12, 2010 Order in Council replaces the June 17, 2010 Order in Council. While the June 17, 2010 Order in Council contained only one question on language, the August 12, 2010 Order in Council added two (2) more, for a total of three (3) questions on language for the purposes of the 2011 census. The FCFA believes that, despite the changes made as a result of the August 12, 2010 Order in Council, only the reinstatement of the mandatory long-form questionnaire, that is, the sixty-one (61) questions from the 2006 census, will yield reliable data that will enable the Government of Canada to discharge its duties under section 41 of the Act. According to the FCFA, without a return to the mandatory long-form census and its sixty-one (61) questions, the implementation of Part VII of the Act would be, to all intents and purposes, impossible.

 

[28]           More specifically, the FCFA argues that section 41 of the Act is enforceable (DesRochers) and remedial in nature. According to the FCFA, by using the expression “positive measures” in subsection 41(2), Parliament intended to target measures that have a tangible impact on the minority communities and that the data from the mandatory long-form questionnaire are essential to enable federal institutions to take such positive measures. The FCFA also argues that the adoption of the August 12, 2010 Order in Council is a negative measure and is consequently a violation of subsection 41(2) of the Act.

 

[29]           The premise underlying the FCFA’s position is that the voluntary nature of the long-form questionnaire for the 2011 census adversely affects the reliability of the data that can be obtained from this questionnaire. Based on that premise, the census will not yield the necessary data used for the purposes of decision-making affecting the minority communities. According to the FCFA, the data affecting Francophone communities not only are language-related, but also include all other data required to determine the needs of the various minority communities located in the different regions of Canada.

 

[30]           In short, according to the FCFA, the detailed statistical data that can be obtained from the mandatory long-form questionnaire constitute an indispensable source of information for the purposes of making cross-tabulations between language-related data and other data such as income and education. These tabulations enable minority communities to identify the needs, challenges and priorities specific to them. In this regard, the FCFA referred to a number of studies, including: (i) Office of the Commissioner of Official Languages: Vitality Indicators for Official Language Minority Communities 1: Francophones in Urban Settings; The Sudbury Francophone Community, October 2007; (ii) Office of the Commissioner of Official Languages: A Sharper View: Evaluating the Vitality of Official Language Minority Communities; (iii) Association francophone des municipalités du Nouveau-Brunswick: Strengthening Local Governance in New Brunswick, final report submitted to Infrastructure Canada, August (incomplete year). The FCFA is thus arguing that by eliminating the mandatory long-form questionnaire, the government is not only depriving itself of the only reliable source of a set of statistical data, but also depriving the minority communities that analyze and compare themselves on the basis of these essential data (affidavit of Lise Ouellette, Director General of the Association francophone des municipalités du Nouveau-Brunswick).

 

[31]           Finally, the FCFA argues that it has no objection as to whether the data are collected by means of a mandatory census or by an NHS. However, it believes that the questionnaire must be administered on a mandatory basis since it is the only governance tool by which the implementation of Part VII of the Act may be ensured.

 

[32]           For its part, the Attorney General contends that the FCFA’s action must fail because the 2011 census questionnaire, as set out in the August 12, 2010 Order in Council, prescribes the three (3) questions needed to obtain the data required to ensure the duties arising under the Official Languages Act are fully discharged. In addition, the Attorney General argues that section 41 of the Act does not impose any obligation on the government to use the methodology of the mandatory long-form questionnaire and adds that there is nothing to indicate that the NHS data will not be usable in this regard.

 

[33]           In this respect, the Court notes that a series of affidavits were filed in support of the argument that the voluntary 2011 census questionnaire (NHS) may not be as reliable as the mandatory long-form questionnaire from the 2006 census, the data from which are used by a number of organizations in preparing reports and indicators for Francophone minority groups (see affidavit of Suzanne Bossé, former Director General of the FCFA, Marie-France Kenny, President of the FCFA and Eric Forgues, Assistant Director and Researcher, Canadian Institute for Research on Linguistic Minorities at the Université de Moncton).

 

[34]           Similarly, the affidavit of David A. Binder, retired statistician-mathematician, expressed reservations about the voluntary census but does not categorically state that the NHS data are not reliable. The document entitled “Certified Record (Rule 318)” adduced in evidence indicates that the NHS will not yield the same quality of data. On examination, Jane Badets, employee of Statistics Canada and statistician, expressed the opinion, however, that it was premature to determine the quality of data from a voluntary census. The affidavit of Marc Hamel, Acting Director General, Statistics Canada, also took the same view.

 

[35]           In fact, according to the Court, the only conclusion that can be drawn from the evidence and arguments is that there is uncertainty about the degree of reliability of the data that will be obtained from the NHS. This Court is not satisfied that the NHS data will be unreliable to the point of being unusable (affidavit and examination of Jane Badets, additional affidavit of Marc Hamel, affidavit of Hubert Lussier, Director General of the Official Languages Support Programs Branch). Based on the evidence in the record, the Court finds that it would be premature to state that the NHS data will not be usable and, moreover, it is possible that the NHS methodology will be adjusted (see the article by Michael R. Veall, “2B or Not 2B? What Should Have Happened with the Canadian Long Form Census? What Should Happen Now?,” Canadian Public Policy – Analyses de politiques, (2010) 36:3, at page 397; additional affidavit of Marc Hamel).

 

[36]           It is true that the evidence in the record, including the many arguments and comments surrounding the census issue, shows that the mandatory long-form questionnaire has demonstrated its relevance and importance over the past decades. It is also indisputable that, in general, it is used and appreciated as an assessment tool by organizations, associations and researchers, among others. It seems to be preferred over the NHS. But that is not the issue. From a legal standpoint, the Court must ask itself the following question: by opting for a methodological change, that is, by replacing the mandatory long-form questionnaire by the voluntary NHS, did the Governor in Council violate section 41 of the Act?

 

[37]           At this point, we need to take a closer look at section 41 of the Official Languages Act.

 

[38]           As mentioned above, the FCFA is relying on subsection 41(2) of the Act, which requires federal institutions to ensure that positive measures are taken to enhance the vitality of minority communities (subsection 41(1)). According to the FCFA, the mandatory long-form census is one of those positive measures that are mentioned in subsection 41(2) and, by adopting the August 12, 2010 Order in Council, the government therefore violated its duties under the Act.

 

[39]           It should be specified that subsections 41(2) and 41(3) of the Official Languages Act made their way into the Act by means of an amendment in 2005 and are enforceable (DesRochers). As noted above, subsection 41(2) states that federal institutions have the duty to ensure that positive measures are taken for the implementation of subsection 41(1), which sets out the commitments to enhancing the vitality of English and French linguistic minority communities. Subsection 41(3) specifies that the Governor in Council may make regulations prescribing the manner in which federal institutions are to carry out their duties under subsection 41(2).

 

[40]           However, Part VII of the Act – and specifically subsection 41(2) – does not in any way compel the government to collect any data whatsoever by means of the census. As a result, it does not, a fortiori, in any way require that data be collected by means of a mandatory long-form questionnaire. In fact, no provision of Part VII of the Act, or any other part of that Act – or, in fact, any part of the Charter – requires that data be collected by means of the census as the sine qua non of the rights it protects.

 

[41]           Under these circumstances, the Court is of the opinion that there is no statutory basis for positive measures to be interpreted as including the duty to collect data through a mandatory long-form questionnaire. The only statutory basis in question is that of the Statistics Act concerning the duty to take a census (sections 19 and 21). The way in which the census is taken and the methodology are left to the government’s discretion and the Court is of the opinion that neither Part VII of the Official Languages Act nor section 41 of that Act imposes on the Governor in Council a specific methodology in this regard. In fact, nothing indicates that Parliament, in enacting subsection 41(2) of the Act, intended to limit the Governor in Council’s power and discretion to exercise a delegated legislation function authorized by other federal statutes, namely, the Statistics Act.

 

[42]           It must be noted that the Official Languages Act does not prescribe any obligations that require the government to use a specific methodology such as the mandatory long-form questionnaire census. In fact, when Parliament wishes to proceed in such a way, it does so by way of regulations. Such was the case with the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48, which requires that a census be held as a tool to determine sufficient numbers for the purposes of implementing Part IV of the Official Languages Act.

 

[43]           The relevant paragraphs of the Official Languages (Communications with and Services to the Public) Regulations read as follows:

 

[44]           In the case at bar – Part IV of the Act not being at issue –, the evidence does not contain any regulations made under Part VII of the Act (subsection 41(3)) that would involve defining a specific methodology in relation to the census and no regulations of that type were brought to the Court’s attention.

 

[45]           This Court therefore finds that the Governor in Council, by adopting the August 12, 2010 Order in Council under the Statistics Act, did not go beyond the boundary of the enabling statute and did not violate section 41 of the Act. In these circumstances, there are no grounds for this Court to intervene.

[46]           In view of the negative response to the first issue, the second issue does not arise and the Court is therefore not required to rule on it.

 

[47]           For all these reasons, the Court dismisses this application for judicial review.

 

JUDGMENT

 

            THE COURT ORDERS AND ADJUGES that this application for judicial review be dismissed.

 

 

 

“Richard Boivin”

Certified true translation

Susan Deichert, LLB

 

ANNEX

 

 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1220-10

 

STYLE OF CAUSE:                          THE FÉDÉRATION DES COMMUNAUTÉS FRANCOPHONES ET ACADIENNE DU CANADA et al v. THE ATTORNEY GENERAL OF CANADA

 

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      September 27 and 28, 2010

 

REASONS FOR JUDGMENT:       BOIVIN J.

 

DATED:                                             October 6, 2010

 

APPEARANCES:

 

Rupert Baudais Peter Bergbusch	FOR THE APPLICANTS
René LeBlanc Guy A. Blouin Bernard Letarte	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Balfour Moss LLP Regina, Saskatchewan	FOR THE APPLICANTS
Myles J. Kirvan Deputy Minister and Deputy Attorney General	FOR THE RESPONDENT