New Brunswick still has 'a long way to go' for language equality, says watchdog

The COVID-19 pandemic has shown that New Brunswick still has "a long way to go" to achieve real equality between the two official languages, according to the province's languages watchdog.

In March, during the first month of the pandemic, the Office of the Commissioner of Official Languages received "many" complaints related to the provincial government's news briefings on COVID-19, said commissioner Shirley MacLean, who tabled her annual report in Fredericton on Wednesday.

The complaints were mainly related to the government's failure to provide messaging in French, she said.

"In times of crisis, it is important to ensure equal treatment of the province's two official languages," she wrote in her report, entitled Protecting and Promoting New Brunswickers' Language Rights.

The report, MacLean's first since she took on the role in January, outlines 133 complaints her office received between April 1, 2019, and March 31, 2020. Of those, 62 were deemed admissible, with 53 based on a lack of service in French and nine based on a lack of service in English.

MacLean did not provide a total number of COVID-19-related complaints, but did note 10 were filed against the premier's office between March 23-29.

Overall, they expressed "dissatisfaction" with the fact Premier Blaine Higgs speaks "little or no French," that he asked a francophone reporter on one occasion to pose her questions in English, and that English is used predominantly during the briefings that are broadcast live through the government's social media accounts, "showing a lack of respect for the French language."

Although Higgs does speak some French during the news conferences, he mostly speaks English and relies on simultaneous interpreters when reporters ask questions in French. The other main participant in the news conferences, Dr. Jennifer Russell, the province's chief medical officer of health, is fluently bilingual.

It is not acceptable for English to be the main language used and French to be accessible only through simultaneous interpretation.- Shirley MacLean, commissioner of official languages

MacLean, the first anglophone to hold the languages commissioner position since it was created in 2003, said she deemed the situation "urgent" and contacted the premier's chief of staff on March 25 and 26.

In a follow-up letter to Higgs dated March 27, she acknowledges the master of ceremonies now invites reporters to ask their questions in the official language of their choice.

But MacLean urges news conference participants to speak French more often and suggests they speak more slowly to enable the public to understand the simultaneous interpretation clearly.

On Wednesday, MacLean commended Higgs for his efforts to speak French but told reporters it would be "preferable" for the primary spokesperson to be "completely bilingual."

If Higgs is "not capable" of that, she said, pointing out politicians are not obligated to be, then he should appoint someone who is.

"It is not acceptable for English to be the main language used and French to be accessible only through simultaneous interpretation," MacLean states in her report.

The current practice reduces the impact of the government's message to francophones, she said, vowing to continue to advocate for the use of a French-speaking spokesperson during government news conferences.

Other COVID-related complaints involved border checkpoints, hospitals and COVID-19 testing sites, said MacLean.

Just over half the 62 admissible complaints came from the Fredericton/River Valley area, likely because "the machinery of government" is based in the capital, she said, while about one-third were from the Moncton and southeast area.

Horizon aware of 'shortcomings'

Four complaints were filed against the Horizon Health Network, the province's English-speaking regional health authority, and one was filed against the Vitalité Health Network, the province's French-speaking regional health authority.

One of the Horizon complaints involved 13 incidents that occurred mainly at the Moncton Hospital's psychiatric unit between February and June 2019.

An investigation by MacLean's office found the complaint regarding a lack of an active offer of service in both official languages and deficiencies in the delivery of service, both in person and over the telephone, was "in large part founded" in 12 of the 13 incidents. 

Although Horizon appears to have the necessary "measures, tools, and protocols" to deliver services in both official languages, some employees haven't developed the "reflex" of making an active offer or of using a contingency plan if they're unable to speak the language of the recipient's choice, such as immediately finding a bilingual co-worker to help, she said.

"More seriously still, employees of the institution insisted that the complainant speak English" and the violations occurred over more than three months, said MacLean.

Horizon is "aware of its shortcomings" and is taking action to correct the situation, according to the report.

MacLean has recommended Horizon's official languages department conduct monthly audits of the Moncton Hospital's psychiatric unit and send the results to the unit's director as well as to Horizon's CEO. The CEO should forward the results to the language commissioner's office every six months so she can monitor their progress, she said.

In addition, MacLean recommends that Horizon review the psychiatry unit's contingency plan and that satisfaction surveys dealing with official languages be made available to visitors in the unit.

Vitalité acknowledges violation

With the Vitalité complaint, the complainant called the Stella-Maris-de-Kent Hospital in May 2019 and an employee answered in French only. When the complainant asked about her right to receive an active offer of service in both official languages, the employee replied that Stella-Maris-de-Kent is a French hospital.

"Without an active offer, the whole dynamic changes," said MacLean. "It is up to the citizen to request service in his or her language and the person often hesitates to demand this right."

She said Vitalité recognized not having made the active offer was in violation of the Official Languages Act, which she referred to as the OLA.

"It is incumbent upon the institution to ensure that all employees understand not only the importance of the OLA, but also, in the spirit of the act, that they have the utmost respect for the language rights of all New Brunswickers."

MacLean recommends Stella-Maris-de-Kent continue to conduct unexpected audits, on a regular basis, to ensure staff are fully compliant with the act, and if the audits continue to demonstrate "a lack of conformity" regarding the active offer of service, that the hospital develop a strategy to addresses the matter.

12 recommended changes to act

MacLean's report also makes 12 recommendations to improve the Official Languages Act, which must be reviewed by Dec. 31, 2021.

Some of the recommendations include:

• Clarifying the obligations of police departments.
• Legislating the right of provincial public servants to work in the official language of their choice to "once and for all" compel the government to take the necessary measures to allow francophone public servants to work in and be supervised in French.
• Implementing measures to improve compliance with the OLA, including imposing specific deadlines for replying to investigation reports and authorizing the use of enforcement agreements for institutions that contravene the OLA on a regular basis.

MacLean hopes to see a review committee appointed before Jan. 1.

The review process should be transparent, she said, and anyone who wants to make submissions to the committee should be given an opportunity to do so.

"It's the piece of legislation that covers our language rights in New Brunswick and it should be open to the public."

The last review of the act was in 2013.

Another priority for MacLean is the creation of an official languages secretariat to support the premier in implementing the act, as recommended by her predecessor. 

"It is the the opinion of my office that the failure to gain any real traction with regard to the [2015] official languages implementation plan stems from a lack of structure and adequate resources to help the premier, who is ultimately responsible … to implement the provisions of the Official Languages Act," she said.

There is no department or deputy minister whose chief responsibility is official languages.

"We believe that the creation of an official languages secretariat within government would help streamline this important work."