Duality's long grip on New Brunswick politics

For a facility that recently found itself pulled into the latest hot-button debate about language rights in New Brunswick, the Saint John Heart Centre is remarkably quiet and easy-going.

Its a typical morning as staff answer phones in both languages, talking by phone to patients whove been referred to the centre for open-heart surgery.

The centre may be located in the Saint John Regional Hospital, but the staff and doctors dont exactly see it that way.

"We view ourselves, although we're in [the Horizon Health Authority], as a provincial program," says Dr. Marc Pelletier, one of the centres cardiac surgeons.

"And within that the mandate is to provide bilingual services."

From the moment a patient is referred to the heart centre, their language of choice, English or French, is recorded. It becomes part of their medical chart, so that everyone at the centre knows what their preference is.

"We try to ensure that those patients are allowed to go through the system at every step of the way in the language that they're comfortable with," Pelletier says.

Last month, Fundy-River Valley MLA Dr. Jim Parrott, the heart surgeon who helped establish the centre, was kicked out of Premier David Alwards Progressive Conservative caucus in part for his comments on duality.

Parrott said he was against attempts to duplicate specialized services, such as cardiac surgery, by establishing parallel institutions the goal of galit Sant en franais, a lobby group based in Moncton.

"They're looking at a breast health clinic at the [Dr. Georges-L] Dumont [Regional Hospital] in Moncton," Parrott said.

"There's already one at the City [Hospital in Moncton]. Now are French ladies' breasts different than English ladies breasts? I don't think so."

But Parrott clarified that hes not against patients being served in the language of their choicean important distinction, and a right that Pelletier says is being respected at the heart centre.

In fact, a recent survey of francophone patients showed a satisfaction rate of 97 per cent with the service they received in their language. Surgeons at the centre perform 750 open-heart surgeries each year. Its the only cardiac centre in the province.

"Saint John is modelling, I think, how it can and should be done in every hospital in the province," says Nathalie Godbout, a Saint John lawyer whose francophone father was a patient at the centre last year.

"It was impressive to the whole family actually that he was able to receive meaningful care there," she says.

"It wasn't just passable French. It was meaningful conversations. He was always understood. He was always able to have very good conversations about the decisions he had to make medically."

Pelletier says the centres commitment to bilingual service makes more sense than setting up a second centre for francophone.

Not only it is less expensive, it makes sense for medical reasons, he argues.

"If we went to two centres, one that did 500 open-heart surgeries and one that did 250, as an example, we'd be looking at two of the smallest heart surgery centres in all of Canada," he says.

"How would you have enough physicians to take calls all the time, how would you have enough physicians to respond to emergencies, to those types of things?"

But Dr. Hubert Dupuis, the lead spokesperson for galit Sant en franais, says while Pelletier is a francophone himself, his reasoning is "an argument you hear often from the anglophone side, from anglophone institutions.

"Yes, he has the obligation to serve his patients in both official languages, like everybody else at the Saint John Heart Centre," Dupuis says.

"But that does not mean we can't have services for cardiac patients on the francophone side, inside a francophone institution, where we will also serve anglophones and francophones in the language of their choice."

Duality debate

The debate over duality goes back several decades. In 1969, the legislature unanimously passed the Official Languages Act, which gave New Brunswickers the right to be served by the government in English or French.

The law was controversial, but over time, most New Brunswickers acceptedsometimes grudginglythe logic of the legislation, which is about individual rights.

In the 1970s, another concept of language rights started to get attention: collective rights, also known as community rights.

In 1979, Acadian activists gathered at the Convention dorientation nationale des Acadiens, a meeting that debated ideas such as creating a separate Acadian province. Another popular theme was collective rightsallowing the francophone community to govern its own institutions.

This was, in some ways, the opposite of bilingualism: not one institution serving two language groups, but two institutions, each serving one language group.

"What it means according to me is a service that is planned for, and recognizant of the special needs of the community to be served, not a translation of the services given to another group," says Michel Bastarache, a retired Supreme Court of Canada justice.

The concept first took root in the education system. Francophones complained that being forced to go to school in English had led to assimilation: the loss of their mother tongue and their culture.

The Richard Hatfield government created duality in the school system, and in 1981 passed Bill 88, which recognized the equality of the two language "communities" as well as "their right to distinct institutions within which cultural, education and social activities may be carried on."

But that was all the duality Hatfield was willing to contemplate: when Bastarache co-authored a report recommending extending duality to other government departments, there was a heated backlash, and the government shelved the idea.

In 1992, the Charlottetown constitutional agreement included a section on New Brunswick linguistic duality, essentially incorporating Bill 88 into the Charter of Rights and Freedoms. Canadians voted down the Charlottetown deal in a referendum, but in New Brunswick, the Yes side had 63 per cent of the vote.

Premier Frank McKenna interpreted that as a popular mandate to push ahead, and the New Brunswick legislature and the Canadian Parliament both ratified an amendment to the Charter of Rights and Freedoms, Section 16.1, that included language similar to Bill 88.

At the time, McKenna and his ministers assured New Brunswickers the amendment would not broaden dualityit would only enshrine the status quo.

"We're talking about it in the sense of an education and cultural institutions," cabinet minister Vaughn Blaney said at the time.

"There's no change from what we have now, physically. There's no financial obligation."

But some skeptics, including Confederation of Regions MLA Brent Taylor, pointed to a slight difference in the wording of Section 16.1. It says the two linguistic communities "have equality of status and equal rights and privileges, including the right to distinct education institutions and distinct cultural institutions."

Taylor warned that the word "including" might lead the courts to "open a window" to a right to duality beyond education and culture.

Taylors comments were prescient: francophone legal scholars who advocate broader language rights now point to that very word, "including," in making their argument that Section 16.1 could imply a right to dual health institutions.

Legal milestone

Another legal milestone came in 1999, with the Supreme Court of Canadas Beaulac decision, authored by Justice Michel Bastarache.

"Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada," Bastarache wrote [his emphasis].

That in essence ordered all lower courts in Canada to interpret language laws broadly.

In 2008, in an interview with CBC News, Bastarache without referring directly to Beaulac said the courts "have to, in every case, give the maximum control possible to the minority group, in those instances where the service is essential to maintaining its cultural cohesiveness."

The Beaulac decision and Section 16.1 of the charter were both cited by the New Brunswick Court of Appeal in 2001 when it ruled that municipalities were subject to the Official Languages Act. And both now loom over the debate over duality in the health care system.

Another factor in the health discussion is the Shawn Graham governments 2008 decision to merge eight regional health authorities into two.

At first, Dupuis fought the merger in court, with a now-retired Bastarache providing legal advice. They argued that eliminating the regional health authority in the Moncton area was unconstitutional because it would deprive francophones of their own health-care institution.

Eventually they dropped the suit when the Liberal government agreed to recognize the Vitalit health authority as francophone, though still requiring it to provide service in English as well. The province also promised a "catch-up" plan to ensure specialized services in Vitalit comparable to what is available in Horizon.

Pelletier says the creation of the two RHAs has added to the confusion over language, because it creates a perception that duality already exists.

"One is smaller than the other, and one is primarily French and one is primarily English. So yes, I think that has led to a lot of what you're seeing now, which is, `Why does one group have something and we don't have it?"

Pelletier says he still believes it makes more sense to have a single heart centre serving both language groups equally. "I think you create those provincial programs and you ensure they have a mandate to be bilingual, to serve the whole province, and then you fund them and you support them to that end," he says.

"And that's where I think the solution is, rather than creating two different programs for everything that one service may have and the other may not have."

While its clear that francophone opinion is not monolithic, its not evident how many francophones would agree with Pelletiers vision and how many would favour Dr. Dupuiss.

What is clear, however, is that Section 16.1 and the Beaulac decision have made several New Brunswick governments reluctant to provoke a legal showdown.

Premier Bernard Lord revised the Official Languages Act in 2002 rather than take the ruling on municipal bilingualism to the Supreme Court, and Premier Shawn Graham agreed to a settlement of the RHA dispute in 2010 instead of allowing the lawsuit to run its course.

And earlier this month, in a meeting with Dupuis, the Alward government agreed to finally deliver the "catch-up" plan promised by Graham in 2010.

They understand the reality that Bastarache pointed out in a CBC News interview in 2008: a court fight would be risky, and potentially expensive.

"The courts can't decide on the scope of the rights in isolation," Bastarache said.

"You can't say `the rights apply only to health services.' They'll give a broader definition of the word duality, of the obligations of the government, and then they may be forced to look at other institutions."