A 10-year review of New Brunswick's Official Languages Act is recommending no sweeping changes to the legislation but a series of clarifications to how it applies to civil servants, municipalities and regional health authorities.

The report released Wednesday proposes one major amendment: to include nursing homes in the act.

But the authors are urging a go-slow approach in that sector given staffing shortages, long waiting lists and the unilingual make-up of many rural areas of the province. 

"We are of the opinion that rigid new linguistic requirements would place many nursing homes in immediate noncompliance with legislation," says the report by Judge Yvette Finn and former deputy minister John MacLaughlin.

Instead they recommend "a strategic approach" to improve bilingual capacity in the province's 70 licensed nursing homes and 357 special care homes and to ensure the language spoken by a new nursing home resident "be taken into account" by authorities.

"We see this as a matter of human dignity," MacLaughlin told reporters.

"To be able to communicate in the language that you've lived in your whole life, particularly when you're vulnerable, or you're being misplaced or you suddenly go from being very independent to dependent, language is something that I think is very important to us." 

Language law expert Michel Doucet says nursing homes should be obligated to respect the Official Languages Act. (Jacques Poitras/CBC)

But he said a gradual approach is the most realistic way to go about it.

"We think that there needs to be a strategy put in place to help nursing homes to be better equipped to provide those services, and in some parts of the province that's going to be a bigger challenge." 

Including nursing homes in the act has been an issue for years and retired law professor Michel Doucet, a language law expert, said there's a legal argument that they're already subject to it.

"The nursing homes are acting for the government and in this capacity they should be obliged to respect the Official Languages Act," he said.

The report also proposes:

• Clarification of the language requirements for provincial civil servants to help them deliver services in both languages as required by the law and make them more competitive for promotions.

• Adopting "all necessary measures" so that provincial employees can work in their choice of English or French.

• Requiring regular reviews of census data so it's clear which municipalities have at least 20 per cent of the population speaking the minority official language, a threshold that triggers a municipal bilingualism requirement.

• Ensuring that new "rural districts" that will be created through the province's local government reform be covered by the act and its 20-per-cent threshold.

"While we have recommended some changes to the act itself, most of our observations and suggestions have to do with its implementation," the report says.

"In particular, we have focused on ways to clear up misunderstandings, to facilitate more streamlined and effective service delivery, and to implement incremental steps" toward making the act the "cornerstone" of the province's bilingual status.

"They're being very cautious on approaching it," Doucet said.

The two commissioners also say the act should be amended to make it clear that it applies to regional health authorities, that it requires them to actively offer service in both languages and that it extends to third parties such as Ambulance New Brunswick and the Extra-Mural program.

The existing languages act already includes sections saying those requirements apply to all government institutions, and a 2019 Court of Queen's Bench ruling about Ambulance New Brunswick underscored that.

But Finn said the law can be "confusing" and it's worth making it more clear.

The report also rejects any rollback of existing bilingualism requirements, noting New Brunswick's official bilingualism is also part of the Charter of Rights and Freedoms.

"Therefore, suggesting changes that call into question bilingualism as a foundation of our province is not an option being considered by our commission, the report says.

Shirley MacLean, the commissioner of official languages for New Brunswick, previously said the law allows her to enter into binding compliance agreements with the province. (Radio-Canada)

The once-a-decade review is required by the act itself and was launched in the wake of a series of language controversies, including a unilingual commissionaire working at the front desk of a government building losing hours, and bilingualism requirements for ambulance paramedics.

That fuelled some anti-bilingualism sentiment.

"A lot of it is based on fear," MacLaughlin said. "A lot of it is based on mistrust.  A lot of it is based on people just wanting a fair deal and feeling they're not getting one if they see somebody else getting what they feel is a better deal."

Premier Blaine Higgs also asked the commissioners to look at second-language education in the province's schools. MacLaughlin and Finn say they'll issue a separate report on that subject.

It is recommending changes to the way the government oversees bilingualism requirements, including creating a standing committee of the legislature and a new department that would become a clearing house for the law's implementation.

That department would report directly to the premier, who by law is responsible for administering the act. 

Enforcing outcome of complaints

The commissioners say they heard different suggestions about the powers of the Commissioner of Official Languages, which now involve investigating complaints and making recommendations without any enforcement powers.

Her role "risks becoming a purely theoretical and inconsequential exercise" unless the premier, who by law is responsible for the Official Languages Act, is required to respond to her reports within a set time frame.

Current commissioner Shirley MacLean proposed that the law gives her the power to enter into binding compliance agreements with the province when it hasn't followed the law.

But Finn and MacLaughlin say they were reluctant to go along with that idea because it's the government's responsibility to enforce the act. 

"We must avoid the perception that the commissioner is responsible for the act, thereby absolving the government of its responsibility," they write.

Instead they're recommending a 90-day time limit for the premier to table a response to the commissioner's annual reports. 

The report says more than 6,000 people responded to a questionnaire as part of the review, and the commissioners held 80 meetings with 200 people and 52 stakeholder groups. 

Francophones reacted with alarm and scorn Thursday after Premier Blaine Higgs appeared to criticize the leader of the Liberal Party for his use of French in the legislature.

At the end of a heated question period exchange about the province's COVID-19 response, Higgs suggested that Roger Melanson alternates between French and English strategically. 

"The only thing he didn't do which would be true to form is make his next question in French," Higgs said.

"Usually in terms of changing the tone, he switches languages and tries to change the narrative." 

Higgs, who is unilingual, told reporters afterward that his remark wasn't specifically about Melanson speaking French.

He said when the Liberals are frustrated with the answers he gives them in question period, they often "calm right down, settle down, switch gears" with their questions.

He said he was commenting on that, not any particular language.

"It wouldn't have mattered whether it was going from English to French or French to English. It was a tactic that is commonly used, changing the tone," he said.

Both the law and the Constitution give New Brunswick MLAs the right to speak English or French during proceedings of the legislature. Simultaneous interpretation is available to all MLAs and all bills, motions and documents tabled must be in both languages.

Liberal Leader Roger Melanson called the premier's comment a new low. (Joe McDonald/CBC file photo)

Higgs's comments 'disgraceful,' Acadian Society says

"CoR are CoR to the core," tweeted activist Rosella Melanson, referring to Higgs's membership in the anti-bilingualism Confederation of Regions Party three decades ago.

The Acadian Society of New Brunswick called the comments disgraceful.

• Higgs faces crucial test with review of languages act

"It shows a fundamental misunderstanding of the two official languages in New Brunswick," said president Alexandre Cédric Doucet.
 
"When I do interviews in English or French, I don't use the same tone, the same words, because it's not the same language." 

Higgs made the remark after an animated 13-minute exchange with Melanson about what the Liberals call mixed messages about hospital outbreaks of COVID-19 and eligibility for vaccine booster shots.

Melanson then used a less aggressive tone of voice to ask the premier to agree to hold an independent review of the province's pandemic response.

That's when Higgs accused Melanson of "shifting gears" rhetorically, which he said often involves the Liberal leader switching to French.

• Green MLAs call out belittling, patronizing language used by legislature colleagues

Asked by reporters what it was about French that represented a change in tactics, Higgs said, "No, changing the emotion, because it was rising. … It doesn't matter which language." 

Green Party MLA Kevin Arseneau said Higgs treated Melanson's use of French as a personal attack. (Jacques Poitras/CBC News)

Melanson said Higgs had hit another new low.

"We're an officially bilingual province and I'm able to speak both languages and I will do it," he said in the legislature.

"I'm very proud of being able to speak my mother tongue, French, and the English language." 

People's Alliance Leader Kris Austin said he thought Higgs’s remark was “just an off-the-cuff comment." (Gary Moore/CBC)

'Making mountains out of molehills': Austin

Green Party MLA Kevin Arseneau said Higgs is incapable of seeing himself in anyone else's shoes and was treating Melanson's use of French as a personal attack.

"His true colours came out and that's what the premier really thinks," he said.

"The message that the premier was giving is that French is some kind of inferior language and is not at the same level as English."

Higgs's government has been the target of numerous complaints over language issues, including the fact there's often no elected official able to speak French at COVID-19 briefings.

"He's always telling us translation is good enough," Arseneau said. "I think he just proved to us that translation isn't good enough." 

People's Alliance leader Kris Austin, who has criticized the implementation of official bilingualism, said Higgs's remark was "just an off-the-cuff comment. I didn't take it as anything derogatory."

Austin said he didn't think Melanson was using French tactically because the simultaneous interpretation at the legislature is excellent and all MLAs understand what's being said in either language. 

"It amazes me how we make mountains out of molehills," he said.

"We've got more important issues to worry about than whether a question is posed in French or English on the floor of the legislature."