Contraventions Act Fund for Implementation of Language Obligations Evaluation

EXECUTIVE SUMMARY

1. Introduction

This document is the final report from the evaluation of the Contraventions Act Fund for Implementation of the Language Obligations. The Department of Justice Canada established the Implementation Fund in 2003, further to a Federal Court decision on the language obligations connected with the implementation of the Contraventions Act. The Implementation Fund was first included in the Action Plan for Official Languages announced in 2003 and was subsequently included in the Roadmap for Linguistic Duality 2008-2013. In accordance with the accountability requirements associated with the Implementation Fund, the Department of Justice conducted this evaluation.

2. Description of the Implementation Fund

The purpose of the Implementation Fund is to enable the federal government, and the provinces on its behalf, to fulfill its language-related obligations as part of implementing the Contraventions Act.

The activities in the context of the Implementation Fund are conducted both federally and provincially.

At the federal level, the Department of Justice concludes agreements with the provinces for the administration of the Contraventions Act, which contain clauses specifically setting out the language rights requirements established by the Criminal Code and the Official Languages Act that fall to the federal government, but which the provinces fulfill on the latter’s behalf. To ensure that these language rights are respected, the federal government is also required to amend, based on the jurisdictions concerned, the Application of Provincial Laws Regulations (SOR/96-312);

At the provincial level, the Implementation Fund provides funding for a range of activities considered necessary for fulfilling the language obligations that the provincial governments and their courts discharge on behalf of the federal government.

3. Methodology

The evaluation of the Implementation Fund is based on two main research methods:

  • A review of all the documentation pertaining to the Implementation Fund;
  • Interviews with various federal and provincial stakeholders who took part in implementing the activities funded by the Implementation Fund.

4. Relevance of the Implementation Fund

The 2001 ruling from the Federal Court confirmed the range of language rights applicable to federal contraventions. Essentially, provinces that enforce federal contraventions are acting on behalf of the federal government and, as such, must uphold all language rights applicable to a federal institution or to the prosecution of a federal offence. The Implementation Fund was created to support the federal government’s efforts to implement the Contraventions Act throughout Canada in a manner that is consistent with all constitutional and quasi-constitutional rights applicable to federal contraventions.

To date, the Implementation Fund has been exclusively dedicated to the adoption by the provinces, on behalf of the federal government, of measures intended to the respect of linguistic rights. Since its sole object is the language obligations connected with implementing the Contraventions Act, its reason therefore is, first and foremost, to enable the federal government to implement its prosecution scheme provided for in the Contraventions Act in partnership with the provinces. As such, the Implementation Fund is intrinsically linked with the Contraventions Act.

It would therefore be prudent for the Department of Justice to merge the accountability process for the Implementation Fund with that of the Contraventions Act. Thus, instead of evaluating the Implementation Fund and the Contraventions Act separately, as has been the case to date, the Department could develop a strategy pertaining to the Contraventions Act that would include a component involving the associated language obligations. In this vein, the intermediate and long-term outcomes of the Implementation Fund must necessarily be connected with the Contraventions Act.  

The parameters around the Implementation Fund have proven to be flexible enough to accommodate institutional and language-related realities that vary considerably across all the provinces and territories. Moreover, the Implementation Fund focused on well-identified needs to ensure the capacity of the provinces to offer, on behalf of the federal government, services in both official languages, as required by the Criminal Code and the Official Languages Act.

Overall, the Implementation Fund is a suitable tool for fulfilling the language obligations associated with implementing the Contraventions Act. The experience acquired to date shows that the Fund has enabled the funding recipients to have the bilingual institutional capacity to fulfill the language obligations associated with implementing the Contraventions Act.

5. Effectiveness

At the time of the evaluation, seven provinces (Prince Edward Island, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba and British Columbia) were prosecuting and processing federal contraventions under their respective justice systems and in compliance with the language obligations arising from the Contraventions Act. Although all seven meet these language obligations, New Brunswick and Quebec do not make use of the resources of the Implementation Fund. In the other jurisdictions (Newfoundland and Labrador, Saskatchewan, Alberta, Yukon, the Northwest Territories and Nunavut), the summary conviction procedure remains the only method of prosecuting federal contraventions. The funding recipients must present annual activity reports. Overall, the funding recipients submit complete activity reports. However, some delays are noted in delivery of those reports. As such, at the time of the evaluation, one province had still not submitted its activity report for the 2010-11 fiscal year.

The information included in these activity reports confirms how the Implementation Fund resources are used and documents the quantity of tickets issued, the federal laws and regulations they are connected with, as well as the quantity of tickets contested in court, including the number of trials in either official language.

All funding recipients of the Implementation Fund conducted needs analyses to determine the type of activities enabling them to fulfill the language obligations associated with the Contraventions Act. The terms and conditions of the Implementation Fund allow for funding the activities identified as being required in view of those various requirement studies.

The range of activities implemented in the provinces and funded by the Implementation Fund includes the hiring of bilingual staff covering judicial activities and extra-judicial services, language training, bilingual communication tools, signage and information management activities required for the administration of federal contraventions.

The activities implemented ensured the provision to funding recipients of services in both official languages in connection with each step in processing a federal contravention, ranging from the issuing of the ticket to the trial when a person pleads not guilty. Ontario is the only province that held bilingual trials connected with federal contraventions. Even though the need did not arise in the three other provinces supported by the Implementation Fund, their organizational capacity for providing judicial services that fulfill the Contraventions Act language obligations was sufficient for responding to such requests.

Each recipient entity of the Implementation Fund is called upon for bilingual extra-judicial services. Since the number of requests for this matter is not recorded, the evaluation was unable to measure the request rate this type of service. However, at the time of the evaluation, no litigant complaints pertaining to the Contraventions Act language obligations, either with judicial or extra-judicial services, had been conveyed to the Department of Justice.

Overall, the activities funded by the Implementation Fund allowed ensuring the bilingual capacity of provincial governments with regard to judicial and extra-judicial services, and maintaining this capacity.

6. Efficiency and Economy

To date, the Implementation Fund has been efficiently administered. The Department established terms and conditions defining eligible expenses for the purpose of the Fund. These reflect generally recognized practices for the delivery of bilingual services in a judicial and extra-judicial context: the hiring and language training of judicial staff, the hiring and language training of judicial support staff, and the development of bilingual tools to support judicial and extra-judicial services. The Department also reviews each project application in order to ensure that resources will be used for purposes specifically associated with the Contraventions Act.

The current evaluation noted that activities funded through the Implementation Fund are closely aligned with the terms and conditions and are thus representative of generally recognized practices for the delivery of bilingual services in a judicial and extra-judicial context. In addition, funding recipients have been able to conduct their activities within the annual budget allocated by the Implementation Fund. Naturally, a provincial government’s capacity to provide bilingual services in the context of a federal contravention may, by extension, make it possible to further provide bilingual services in the context of a penal or criminal offence. This, then, is an unanticipated, yet positive, outcome arising from the Implementation Fund.

As for resources allocated in compliance with the funding agreements, the Department of Justice has invested to date only a portion of the amounts allocated under the Roadmap for Linguistic Duality. Thus, during the first two fiscal years covered by this evaluation (2008-09 and 2009-10), the provinces’ actual spending represented 33% of the total amount allocated for this purpose by the Roadmap for Linguistic Duality. Two main factors explain this percentage. First, all funding recipients have spent less than the maximum amount set in their agreement with the Department. Second, not all jurisdictions have signed an agreement with the Department which means that resources are being set aside for future negotiation of agreements. However, the investment made to date has allowed the funding recipients to ensure that their capacity to provide bilingual services is specifically connected with the Contraventions Act requirements.

Fully implementing the Contraventions Act across the country will require additional funding within the existing budget. Three provinces and three territories have still yet to reach an agreement with the Department of Justice to authorize the implementation of the Contraventions Act in keeping with the associated language obligations. The specific level of resources required by those agreements will only be known once the latter have been negotiated and concluded. In the meantime, the Department must continue the efforts it started, acknowledging that the timeframe required for signing those agreements will be largely determined by the provinces and territories.

Although there is another way to achieve the Implementation Fund objectives, it would result in considerably higher costs. In fact, it involves introducing an independent federal prosecution scheme as set out in the Contraventions Act. Since that option could not be justified financially, the Implementation Fund is still by far the most effective and efficient way to ensure the enforcement of the Contraventions Act.
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