Rescinded - Archived - Chapter 1-5 - Use of Media
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Clarification of the obligations set out in sections 11 and 30 of the Official Languages Act
The purpose of these guidelines is to clarify the obligations of federal institutions as set out in sections 11 and 30 of the Official Languages Act (OLA). They also provide a summary of questions that should be raised when determining the institution's obligations.
This section is in Part II of the Act, entitled "Legislative and Other Instruments". It covers any notices, advertisements or other matters published primarily for the information of the public that may or must be published by a federal institution under an Act of Parliament.
Section 11 takes precedence over section 30. It is, therefore, necessary to determine first whether the text, notice or advertisement may or must be published under statutory or regulatory provisions arising from the constitutive act of the institution concerned or any other act to which the institution is subject. If so, section 11 applies, and the medium must be publications in general circulation. Once an institution has determined that one of the acts or regulations governing it requires that a notice or advertisement be published in accordance with section 11 of the Act, it is important to:
1. determine the regions targeted by the notice or advertisement. These regions are not indicated in the Official Languages Act. However, they may be specified in the text of the act requiring or authorizing the publication of a notice or advertisement, or may be evident from the content of the notice or advertisement. It should be borne in mind that section 11 could apply anywhere in Canada in accordance with the requirements of the act concerned (regardless of whether there is a significant demand for services or any other criterion mentioned in Part IV of the OLA);
2. identify both the English-language and French-language publications in general circulation in each region concerned, so as to be able to use the appropriate ones; and
3. select, where no such publication exists in English or in French, the publication(s) in general circulation in the region or regions concerned that will print the text in question in both official languages. The coverage and the frequency of publication will, of course, have a bearing on the publication(s) selected.
In brief, if an institution is required to apply section 11, it does not have any choice of medium — it must use publications to communicate with the public in English and in French. The institution must, however, determine:
- the regions where the matter applies;
- whether there are English-language and French-language publications in general circulation in each of the target regions;
- and, if such publications do not exist, which publication in general circulation in the region concerned will carry the notice or advertisement in both official languages.
This section provides for the use of both official languages in communicating with the target public under the circumstances set out in Part IV of the OLA. It covers, therefore, several types of communications between federal institutions and the public, including advertisements. The following points should assist institutions in clarifying their obligations under section 30:
1. First, it is important to define clearly the public that is to be reached. This will then permit an institution to determine whether this public has to be served in both official languages in accordance with the circumstances set out in Part IV of the Act. For example, if, in a given area, the offices of an institution must provide their services to the public in both official languages, it will have to communicate with its clientele in a way that will reach the clientele in the official language of its choice.
2. It is up to each federal institution to choose the means of communicating effectively with its public in the language of the public's choice. The institution's personnel, who know the target public and the type of information to be conveyed as well as the different media coverage in each official language, can (in the context of a marketing strategy, for example) establish which is the most appropriate medium (press, television, radio, billboards, etc.) for effectively communicating a message to a given public in the official language of its choice.
The type of information to be conveyed also affects the choice of medium. For a short advertisement, or an urgent or time-limited message, for instance, a medium such as radio or television could be more effective in reaching the two linguistic communities across the country. In a different context, an institution's personnel may decide that the press is the most effective medium for informing the public in the official language of its choice, for example, for an announcement of rates or an advertisement that people may want to keep on hand for reference.
3. In general, it is assumed that the same medium will be used to communicate with both linguistic communities. Section 30, however, does not exclude the possibility of using a different medium for each linguistic community, provided that the effectiveness of the communication with individuals in the language of their choice is assured. The frequency of distribution may also necessitate the use of different media.
4. If the official language majority press is used by a federal institution to convey a message to the official language majority, one might expect that the official language minority press would be used to convey the message to the official language minority. It should not be automatically assumed that the minority public also reads the majority press. It should also be noted that, in certain cases, an institution may have to choose between newspapers published in the same language.
If the target public includes the clientele served by the minority press, it is very likely that this would be the most effective medium for contacting this clientele. However, if the information must be communicated quickly or with a specific frequency, it may not be appropriate to use the minority press, which is, for the most part, published on a weekly basis. In short, institutions will have to make their decisions taking into account the specific circumstances.
Whatever the case, an institution has to be able to justify its decision in terms of effective communications with the public in the official language of its choice. The burden of proof rests with the federal institution, which may be required in certain cases to explain its choice and even show before the courts that the medium used for an advertisement, for example, was the most effective means of reaching the public or its clientele in the official language of its choice. Institutions should, therefore, be certain that their control mechanisms ensure proper implementation of their linguistic obligations in this matter.
Finally, beyond the specific duties set out in sections 11 and 30 of the Official Languages Act (which are subject to judicial recourse), it would also be appropriate to mention the federal government's commitment to the development of minority official language communities and the encouragement of the use of English and French in Canadian society.
In brief, to comply with section 30 of the Official Languages Act, an institution must select the medium or media that enable it to communicate with its public effectively in the official language of the public's choice. To do this, a federal institution must:
- define the target public and determine whether the communication must be in both official languages;
- identify the coverage of the media in each language and which ones reach the target public;
- decide on the media to be used and whether to use different media to reach the two linguistic communities (in which case, the institution may have to justify its choice);
- determine (when the press medium is chosen) if it should use the minority press and which one to use.