THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, October 27, 2025
The Standing Senate Committee on Official Languages met this day at 5 p.m. [ET] to examine and report on the regulatory framework of Part VII of the Official Languages Act; and in camera, to consider a draft agenda.
Senator Allister W. Surette (Chair) in the chair.
[Translation]
The Chair: Welcome, colleagues. Before we begin, I would like to ask all senators to consult the cards on the table for guidelines to prevent audio feedback incidents.
Please make sure to keep your earpiece away from all microphones at all times. Do not touch the microphone. Activation and deactivation will be managed by the console operator. Finally, please avoid handling your earpiece while your microphone is on.
Good evening. My name is Allister Surette, and I am chair of the Standing Senate Committee on Official Languages and a senator from Nova Scotia.
Senator Gerba: Amina Gerba, Quebec.
Senator Moncion: Lucie Moncion, Ontario.
Senator Cormier: René Cormier, New Brunswick.
[English]
Senator Patterson: Rebecca Patterson, Ontario.
[Translation]
Senator Poirier: Rose-May Poirier, Saint-Louis-de-Kent, New Brunswick.
The Chair: Thank you. Colleagues, I would like to welcome everyone with us today, as well as those listening to us online on sencanada.ca.
Today, in the first hour of our meeting, pursuant to the order of reference received from the Senate on October 8, we are beginning our study on the regulatory framework of Part VII of the Official Languages Act. To that end, we are pleased to welcome today witnesses from the Treasury Board of Canada Secretariat.
[English]
We have Carsten Quell, Executive Director, Official Languages Centre of Excellence, Office of the Chief Human Resources Officer.
[Translation]
We also welcome Jean Surette, Director, Regulatory Cooperation, Regulatory Affairs Sector.
[English]
And we have Jennifer Brown, Director, Regulatory Policy and Planning, Regulatory Affairs Sector.
From the Department of Justice Canada, we have Robert Dufresne, Acting Chief Legislative Counsel and Deputy Assistant Deputy Minister, Legislative Services Branch, Public Law and Legislative Services Sector; and Jacinthe Bourdages, Director and General Counsel, Official Languages Directorate, Public Law and Legislative Services Sector.
[Translation]
Good evening, everyone, and thank you for accepting our invitation to join us this evening. You have approximately five minutes for your opening remarks, which will be followed by a question period. Mr. Quell, you may begin your presentation. The floor is yours.
Carsten Quell, Executive Director, Official Languages Centre of Excellence, Office of the Chief Human Resources Officer, Treasury Board of Canada Secretariat: Thank you very much for the invitation. I would like to clarify that, at the Treasury Board Secretariat, the work is shared with the team at the Official Languages Centre of Excellence. We are leading the exercise to develop regulations on Part VII, while my colleagues Jean Surette and Jennifer Brown are responsible for the cabinet directive on Treasury Board Secretariat regulations.
[English]
Before I start addressing the Part VII regulations, I would like to briefly touch on the Treasury Board’s new responsibilities.
The modernized Official Languages Act gives the President of the Treasury Board a leadership role in implementing and coordinating the act as a whole.
[Translation]
The Treasury Board Secretariat, through the Official Languages Centre of Excellence, is responsible for supporting Treasury Board and its president in this role. That means an enhanced governance role, where TBS is responsible for the committee of assistant deputy ministers on official languages.
[English]
The Centre of Excellence supports federal institutions in understanding and meeting their obligations under the act. It does this by working with the official languages community of practice, notably, persons responsible for official languages for Parts IV, V and VI. We also have a group of persons responsible for Part VII of the act. We have persons responsible for language training and, of course, there are the official languages champions in each federal institution.
The centre also organizes regular advisory committee meetings and annual events to share updates, address horizontal challenges and exchange best practices.
[Translation]
The Official Languages Centre of Excellence is responsible for developing, interpreting, and reviewing Treasury Board policy instruments on official languages. These instruments set out requirements for federal institutions and relate to Parts IV, V and VI, and more recently Part VII, since the modernization of the act.
Furthermore, it provides advice and guidance to federal institutions on the implementation of these instruments.
[English]
In its expanded role in monitoring and reporting, the centre leads the exercise whereby federal institutions must submit a report on their achievements on official languages. We analyze the data and prepare the annual report that the President of the Treasury Board tables in Parliament, which now, of course, also includes Part VII.
[Translation]
Finally, under the act, Treasury Board, in consultation with the Minister of Canadian Heritage, may recommend to the Governor-in-Council that regulations be made under Part VII; these are the regulations we are discussing today.
In 2024, to develop regulations on Part VII, the Treasury Board Secretariat consulted with 23 organizations representing francophone minority communities, 17 organizations representing anglophone communities in Quebec, the Office of the Commissioner of Official Languages, and federal institutions. It also maintained a dialogue with provincial and territorial representatives.
[English]
Further to these consultations, we have proceeded to analyze each contribution and developed regulatory proposals, in close collaboration with the Department of Justice and the Department of Canadian Heritage.
[Translation]
The work was carried out with a view to balancing the different perspectives and taking care not to exceed the regulatory powers as defined by law.
[English]
Pursuant to section 85 of the act, the President of the Treasury Board will table a draft of the proposed regulations before the House of Commons.
The proposals we have discussed with stakeholders align closely with key elements of Part VII of the act.
These include the obligation to take positive measures; the analyses that federal institutions must conduct to support their decisions; the dialogue and consultation activities that are provided for in the act; the promotion of official language provisions in federal-provincial-territorial agreements; and the evaluation and monitoring mechanisms that are expected of federal institutions.
[Translation]
Tabling in the House is not the end of the process. The act stipulates that tabling must be followed by a period of at least 30 sitting days in the House before the proposed regulation can be published in the Canada Gazette.
Finally, section 86 of the act specifies that, once published in the Canada Gazette, the proposed regulation may not come into force until a further period of at least 30 days of sittings where the Senate and the House sit simultaneously.
This will provide us with a period during which discussions and the review of the proposals can continue and during which parliamentarians, stakeholders and the general public can respond to the proposed regulations.
In closing, I would like to highlight the significant contribution and collaboration we received from key official language stakeholders throughout this exercise. Their input was considerable, and many of their suggestions are at the heart of the proposals contained in the draft regulations, which aim to better regulate how federal institutions must comply with their obligations under Part VII.
To ensure full and consistent implementation of the act, we are also working closely with our partners at the Department of Canadian Heritage.
[English]
The adoption of the regulations is only one step in the full implementation of Part VII of the act. The regulations will be followed by other instruments, such as a directive and tools, on which stakeholders will also be consulted.
[Translation]
Thank you for your attention.
The Chair: Mr. Quell, thank you for your remarks. Ms. Bourdages and Mr. Dufresne, the floor is yours.
Ms. Jacinthe Bourdages, Director and General Counsel, Official Languages Directorate, Public Law and Legislative Services Sector Department of Justice Canada: Thank you for the invitation to appear and thank you for the introduction. My colleague and I will share our time. I am going to talk to you about the role Justice Canada plays with regard to the official languages, which is to provide advice, guidance and governance services. Since the Minister of Justice of Canada is the official legal adviser to the government, Justice Canada provides advice and guidance to the government and federal institutions on official languages and access to justice in both official languages.
In terms of governance, Justice Canada works with other key departments, including the Treasury Board of Canada Secretariat and Canadian Heritage, to ensure effective sharing of information on the compliance of government policies, programs, initiatives and documents related to official languages governance.
The Assistant Deputy Ministers Committee on Official Languages (CADMOL), which brings together nearly thirty federal institutions, is co-chaired by Justice Canada, the Treasury Board Secretariat, Canadian Heritage and the Privy Council Office.
CADMOL, under the responsibility of the Chief Human Resources Officer of the Treasury Board of Canada Secretariat, is a central element of the Official Languages Program’s governance structure. CADMOL is responsible for supporting and monitoring the development of official languages programs and policies and contributes to fostering a whole-of-government approach to meeting official languages obligations.
[English]
The Council of the Network of Official Languages Champions and the departmental network of section 41 coordinators of Part VII of the Official Languages Act are other examples of the Department of Justice’s ongoing involvement.
Section 41 of the act sets out a number of commitments by the federal government, including to enhance the vitality of Canada’s English and French linguistic minorities. The Council of the Network of Official Languages Champions is a horizontal organization of the Government of Canada in which departments, agencies, Crown corporations and regional federal councils work together to advance and promote the official languages program.
Its mandate is to act as an agent of influence on official languages within the Government of Canada, to engage deputy heads and Official Languages Champions in order to promote common approaches and to ensure that official languages occupy a prominent place at the senior management level.
Justice Canada’s Network 41 aims to liaise with official language minority communities across Canada, establish links with community organizations and ensure the effective implementation of section 41 of the Official Languages Act.
[Translation]
Robert Dufresne, Acting Chief Legislative Counsel and Deputy Assistant Deputy Minister, Legislative Services Branch, Public Law and Legislative Services Sector, Department of Justice Canada: Good evening. I am going to talk to you briefly about the role of the Department of Justice in drafting regulations. The Department of Justice has a Legislative Services Branch that provides legislative and regulatory drafting services. Sponsoring departments use our services when they wish to propose legislative or regulatory changes.
Federal laws and regulations are drafted in both official languages, and take into account the co-existence of civil and common law systems in the country.
Part II of the OLA also requires that federal laws and regulations be adopted, printed and published in both official languages. The regulatory process is well defined and guided by Treasury Board Secretariat policies or directives, including the Cabinet Directive on Regulation and the Policy on Regulatory Development.
The development of directions is first and foremost the responsibility of the sponsoring department, supported by its Legal Services. It is therefore within the sponsoring department that choices are made in terms of policies or orientations and implementation instruments.
The legislative drafting services of the Department of Justice then transpose the guidelines into a legal text. In the case of the drafting of regulations, this transposition naturally implies taking into account the scope of the regulatory powers that the legislator — the Parliament — has conferred.
Drafting is also done in accordance with drafting standards and practices, to the extent possible, which are intended to ensure the clarity, predictability and consistency of federal legal texts. These standards and practices are important to the intelligibility of legal rules.
Once the drafting is complete, including the revision, the proposed regulations are stamped — indicating that the review under the Statutory Instruments Act has taken place.
[English]
Examination of regulations is an obligation set out in subsection 3(2) of the Statutory Instruments Act whereby a proposed regulation is examined to ensure that:
(a) it is authorized by the statute pursuant to which it is to be made;
(b) it does not constitute an unusual or unexpected use of the authority pursuant to which it is to be made;
(c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; and
(d) the form and draftsmanship of the proposed regulation are in accordance with established standards.
In the case of a Governor-in-Council regulation — as is the case with the regulation-making powers of Part VII of the Official Language Act — it is subsequently made when the Governor General makes the order, following its presentation at a meeting of the Treasury Board. It is then forwarded to the Clerk of the Privy Council for registration within seven days of it being taken and published in the Canada Gazette, Part II.
As for regulatory proposals, they are normally pre-published in the Canada Gazette, Part I, for consultation. In the case of the Official Languages Act, however — as my colleague discussed — there is a requirement to table the draft regulations in Parliament prior to doing so.
In closing, it is worth recalling a crucial element regarding the role of the Department of Justice in terms of drafting regulations, which is that once the enabling authority framework has been established by Parliament, the decision to regulate or not to regulate, and the policy to be implemented through its regulations, is a matter for the regulatory authority and, in practice, what the sponsoring department puts forward.
We will be happy to answer your questions. Thank you.
[Translation]
The Chair: Thank you. We will now proceed to questions from senators.
Senator Poirier: Thank you for joining us. I have a few questions. Everyone is anxiously awaiting the regulations. Can you share the reasons for the delay with us?
Mr. Quell: I do not consider the situation we are in to constitute a delay. Regulations take time to develop and consultations must be completed, which is the case here.
Then, there is work to be done with the Department of Justice based on input from stakeholders and the regulatory authority; we are entirely within the normal parameters we can expect when it comes to regulations.
Senator Poirier: If I remember correctly, in the bill, shouldn’t the regulations have been brought in last year?
Mr. Quell: That depends on which statement you are referring to.
Senator Poirier: I believe it was in June that the regulations in the bill stated that the regulations were supposed to be brought in. That’s why I was talking about a delay, because we are now behind schedule.
Mr. Quell: With regard to the regulations, we have experience with the regulations under Part IV, which we developed in 2019, and the work on those regulations took three years.
Senator Poirier: That goes against the bill. I asked the government representative in the Senate about this in June, and he didn’t know if the implementation date for the regulation was approaching.
Based on the information you’ve provided, can you tell us when we can expect the regulations to be tabled in Parliament?
Mr. Quell: I can’t speculate on when the regulation will be introduced — not at this time. It’s up to the Governor-in-Council to decide when the regulation will be tabled.
Senator Poirier: You don’t know how far along you are in the process of tabling the regulations?
Mr. Quell: As I just mentioned, we’ve finished consulting stakeholders. We are now in the process of analyzing the input we received. We are consulting with both the Department of Canadian Heritage — which we must consult on the regulations — and the Department of Justice, of course. We provide advice and guidance to our minister, and a decision will then be made on a date for tabling the regulations.
Senator Poirier: But it’s not known when. Thank you.
Senator Cormier: Welcome and thank you for being here. Obviously, our goal today is to try to understand all the issues surrounding the making of regulations. We’ve read and understood the various stages, but in fact — as we say in our line of work — the devil lies in the detail when it comes to definitions, in order to fully understand how far Treasury Board and its partners are prepared to go.
I am referring to section 41(10.4) of the act, which deals with agreements between the federal government and the provinces and territories on what could be called language clauses. I would like more details on what the regulations will include in terms of articulation and definitions around this.
I’m also thinking of subsection 41(11), which deals with the terms and conditions of enforcement. In fact, two terms really strike me, since paragraph 41(11) refers to “prescribing the manner in which any duties of those [federal] institutions under this Part are to be carried out.”
What is meant by “the manner in which they are to be carried out”? What exactly are those procedures?
Also, under section 3.1 of the Official Languages Act, which deals with definitions and interpretations, how will the interpretation principles in section 3 be taken into account when drafting the regulations? I mean, of course, that language rights must be interpreted broadly and liberally, in accordance with these principles derived from case law. Please try to be specific. My concern relates to the definitions and how they will be translated into concrete terms in the regulations.
Mr. Dufresne: Thank you for the question. First, in general terms, I would simply like to establish that the Department of Justice’s clients and everything related to the legal advice we provide to them are covered by solicitor-client privilege. That said, I may be able to answer your question in broader terms.
When drafting regulations, we are careful to respect the regulatory framework set out in the act, the terms of which are normally chosen fairly precisely when the bill itself is drafted. It is standard practice to remain within the scope of enabling authorities and not attempt to define terms that could lead to an expansion or contraction of what is intended in the law. This aligns with case law, if you will. That practice is standard government practice.
[English]
It is a rendition of that, if you will, and the guide to making federal acts and regulations basically states that the mother act is a form of legal constraint on what can be done through regulation.
[Translation]
Senator Cormier: I just want to be sure I fully understand. So you translate the guidelines into legal terms.
Mr. Dufresne: We transpose.
Senator Cormier: You transpose the sponsoring department’s guidelines into legal terms. For example, on the issue of positive measures, how do you translate into legal terms the guidelines that the department or Treasury Board and its partners want to adopt? In other words, to what extent do you need to better understand what positive measures are, how they will be interpreted, and how this will be translated into legal terms in the regulations?
Mr. Dufresne: What I’m trying to say is that, in the absence of specific regulatory powers that would allow us to define or add elements to the law, positive measures…. The rules set out in the law will be the legal framework for those positive measures. The power under the act, if I remember correctly, is to prescribe the manner in which they will be carried out.
Senator Cormier: The manner in which they will be carried out.
Mr. Dufresne: We’re therefore talking about establishing how to comply with these duties.
Ms. Bourdages: I’ll give you an example of such definitions.
You know, when Bill C-13 — which modernized the Official Languages Act, or OLA — was passed, it also enacted a new law, the Use of French in Federally Regulated Private Businesses Act. That act included powers precisely to define terms it contained. The modernized OLA does not include such powers. The Use of French in Federally Regulated Private Businesses Act does. I refer you to section 33 of that statute. It specifically states that the regulations may define certain terms, such as “region with a Francophone presence,” “consumers,” “employees,” “many years of service,” “close to retirement,” and “adverse treatment.” This is to show you a bit of a contrast, in that the Official Languages Act does not contain this provision.
Senator Cormier: I understand. My question was addressed to Treasury Board. In order for them to draft legal texts, guidelines must be clearly defined. How does Treasury Board intend to define the issue of positive measures, the issue of implementation, and all those concepts — which are rather vague for us at the moment and do not allow us to envision how the regulations will be articulated and implemented? What can you tell us about those definitions?
Mr. Quell: All I can say is that no definition can be provided in the regulations for the reasons just mentioned.
What is planned is a process that federal institutions must undergo in order to evaluate the actions they intend to take, such as implementing a program, policy, or initiative. To do so, they will have to engage in consultation and dialogue. The regulations could therefore provide guidance on how to conduct effective consultation, for example.
Then there is the matter of the analysis that must be completed by the institution. You mentioned the issue of provisions relating to official languages in agreements with the provinces and territories. The law requires that these provisions be included. The question here is how the federal government will inform its provincial or territorial partners about the possibility of including language clauses.
Then, in accordance with the act, there is a requirement for evaluation and monitoring mechanisms. So, again, the federal institution will have to demonstrate what measures were taken as part of the analysis. It is up to the Treasury Board Secretariat to report on the measures taken by federal institutions, particularly with regard to achieving the act’s objectives. As I said in my opening remarks, federal institutions are required to report annually.
As part of that exercise, they will be asked how they implemented the provisions of a future regulation.
Senator Gerba: Part VII stipulates that Treasury Board will verify and coordinate the implementation of regulations, or rather ensure that departments are applying the regulations correctly. Could you explain how Treasury Board Secretariat will verify that departments are applying the regulations in question?
Mr. Quell: I will refer to the existing process. The regulatory framework for Part VII is not yet in place, but Part IV is. It starts with the support we provide to federal institutions. First, we need to educate institutions about their duties. I mentioned the existing networks within federal institutions. It is very important that people working in departments — both those at lower levels and official language champions — be aware of their department’s obligations. We are responsible for helping institutions fully understand those obligations.
Following that, we have an exercise known as the annual review. Federal institutions must complete a questionnaire sent to them by the Treasury Board Secretariat and provide supporting documentation as needed. This is an accountability exercise. The aggregate results of this exercise are included in the annual report tabled by the President of the Treasury Board.
Senator Gerba: Thank you. If I understand correctly, you intend to apply the same method you are currently using. Do you have other means? Are there training sessions or meetings? Are you anticipating certain things?
Mr. Quell: Absolutely. Obviously, we have regular meetings. Most of the meetings are virtual. We have a network of about 500 people within federal institutions. I often meet with newly appointed CEOs and chief executives of institutions. I meet with them and go through all the obligations set out in the act. Of course, I emphasize the obligations contained in Part VII. We have regular contact with federal institutions to raise awareness and make it clear that we will be knocking on their door to request evidence demonstrating how they have met their obligations.
Senator Gerba: When it comes to minority communities, do you also have an established consultation method?
Mr. Quell: Absolutely. Thanks to the Part VII regulatory framework process, we have had several meetings with a wide range of community organizations. It is also important to bring all minority community stakeholders together with federal decision makers. We are therefore organizing meetings with our colleagues at Canadian Heritage.
It is important for a department to understand the reality of minority communities. That is not an easy task. Not everyone possesses that knowledge. For example, we invite representatives from minority communities to participate in a day of dialogue where the community explains its needs and the challenges it faces. The federal institution is able to draft its mandate and describe their potential. This is where the federal government and community organizations come together on very concrete issues.
Senator Gerba: Does that happen upstream?
Mr. Quell: Yes.
Senator Gerba: Before the drafting of regulations?
Mr. Quell: Based on the proposals on which we consulted stakeholders, it is precisely because it is very important to have meetings in advance about the actions that will be taken by a federal institution. There will certainly always be feedback.
If meetings are held yearly, there will be an opportunity to look back, identify what worked well and what did not, and look ahead to ensure that things work even better in the future.
Senator Gerba: Thank you very much.
[English]
Senator Patterson: I will go back to the definitions. If I understand correctly, it is really the regulatory framework that you will work collaboratively to define what are fairly vague — I say vague; we like precise language, but we know it doesn’t work very well at the highest level of regulations.
What I would like to look at is the whole interprovincial relationship — the federal-provincial relationship. When you are creating definitions and when we do have provinces using the notwithstanding clause on many things linguistically — and you are talking about privately owned and federally regulated businesses as part of this — how do you see that being built into the regulatory framework in terms of time to develop and how long you anticipate it will take to get through the negotiations? I use Quebec, but it could truly be anywhere. We know there were discussions around the notwithstanding clause when it comes to certain rights, such as linguistic rights of Canadians.
Ms. Bourdages: I would like to distinguish between the Official Languages Act and the federally regulated private businesses, which are under another act and which provides for very specific regulating authorities to define a myriad of expressions. For that act, the regulation will be able to provide very specific definitions, because the regulatory power to do so is there. For the Official Languages Act, the situation is a bit different for the reasons that were provided by my colleague, so we don’t have the same kind of regulatory power. For that reason, there is a chance that the regs might be perceived as expanding the scope of the act or restricting it, because words, even if they are not defined in an act, have meaning.
If I may, I would like to go back to Senator Cormier’s question on positive measures.
[Translation]
Regarding positive measures, I understand there might have been an appetite for a clear definition for several years. However, we know much more about positive measures than we did under the previous legislation. Under the previous legislation, these terms were used perhaps once or twice, and that was it. Now, without defining a positive measure, the legislation uses the term several times. We even have examples of what may constitute positive measures in subsection 41(6). Thus, despite the absence of a definitive and exhaustive definition, we do have examples. There may be other areas that could be more specific. Nevertheless, this is a step forward for stakeholders compared to the situation under the former Official Languages Act.
[English]
Senator Patterson: Thank you. That does help clarify things.
As you said, even creating the big-hand framework will require some consultation. Careful consultation with everybody takes time. Do you anticipate that this will be a challenge to your timeline, even if it takes three years, as you have said previously?
Mr. Quell: I would perhaps distinguish between the process of making the regulations and the process that will exist for consultation once the regulations are in place.
For making the regulations, this is a one-time process. Part IV regulations are revised every 10 years, but once the regulations are made, in our discussions with the minority community stakeholders, it is clear that there is a concern over having efficient consultations because their resources are also limited. What we heard was that when you do consult us, let us know in advance when you will consult so we can prepare, provide us with the data that you will be consulting on ahead of time, explain the data, listen to us and then we want to not just have it go into a black hole; we want to hear back from you. It is good practice, a what-we-heard report that is often part of consultations.
Those are mechanisms that we hope will not slow down the process but will lead to positive measures that are better targeted to the needs and the scope of the new Part VII.
Senator Patterson: Thank you. Yes, it’s pieces, and you are really helping clarify how it all pulls together. Thank you very much.
[Translation]
Senator Moncion: I’m somewhat concerned by some of the things you mentioned.
Ms. Bourdages, you just spoke about positive measures and gave a few examples. Mr. Dufresne, you said that the regulations do not define positive measures — I jotted that down when you said it.
Now, if we’re talking about positive measures without a definition, we’re only talking about examples — often, those are not necessarily followed. Am I mistaken in saying so, or will there be definitions of some kind?
Mr. Dufresne: If I may, first of all, there are no regulations before us, so there is no definition; we’re talking about the “power to define,” the power, if you will, to clarify or add things to the law or…. The “power to define” is the power to establish the scope of application in some way.
That is why, in the absence of explicit power in the law, that power is not exercised. Should we end up in court, it would be invalidated as a consequence of exercising it. There’s an important interplay of respect for the legislative framework.
My colleague mentioned that there are clarifications in the law, so it’s not completely unregulated. Certain laws contain terminology of this kind that is less precise; we can do it, we can issue interpretation bulletins, that sort of thing. However, if we don’t have the power to do so, that doesn’t mean the solution is regulatory, because in a case like this one, it’s a matter of legislating.
Senator Moncion: Thank you.
Mr. Quell, you mentioned the annual reports submitted by the various institutions. How many do you receive in all, compared to the number of institutions?
First of all, how many institutions are required to send you an annual report, and how many actually do so?
Mr. Quell: There are about 180 federal institutions, and right now, we have a two-year cycle, so a federal institution has to report to us every two years. Some institutions are required to do it every year.
Do we receive a report from each federal institution? I don’t have that information in front of me, but very few institutions fail to provide an annual report. Moreover, the annual reports we receive are also shared with your committee.
Senator Moncion: Yes, and that’s why I’m asking you, because my understanding is that it’s the opposite: There are a very small number of institutions that provide the report and a very large number that don’t.
Mr. Quell: I will check.
Senator Moncion: Thank you. I don’t want to mislead anyone either.
The other issue also affects the annual report submitted by Treasury Board. If there are maybe a dozen institutions that submit their reports, is the report that is co-presented by Treasury Board also incorrect?
Mr. Quell: I would say that we would have to get back to you with an answer. However, the vast majority of federal institutions comply with the requirement and provide us with a report when required by Treasury Board.
Senator Moncion: Do you check the contents of the report against what is actually done, or do you check with the institutions to make sure that what is written in the reports makes sense?
Mr. Quell: Yes, we do. We send out a questionnaire and we get the answers. If we have doubts about the answers, we ask for supporting documents. It’s as simple as that.
For example, Treasury Board’s annual report contains best practices. We ask federal institutions, “Are you complying with the requirements? Do you have any best practices to suggest?” Then there are text boxes that are shared with the public, especially among federal institutions, and that give an idea of what can be done to make a good active offer, the “Hello, bonjour” directive, for example.
Under Part VII, it’s the same idea as just recently and last week. I spoke with a small institution, and of course a small institution with 50 or so employees and an institution with 20,000 employees have different means, mandates and capacities. It’s about trying to get the smaller institutions to come together and talk, given their size and perhaps location, about what they can do and how they can learn from each other on what to do to comply with the law and implement it, with not only an eye on the obligation but also a willingness to do the right thing.
Senator Moncion: Thank you.
I’m going to change the subject and come back to the questions asked by Senator Cormier, who talked about subsection 41(10.4), which deals with the agreement and language clauses.
Once again, in the comments you made, you said that it was not imposed, but that it was preferred — those are more or less the words you used — in other words, that it was encouraged, but that it could not be imposed?
Mr. Quell: I believe the wording in the act talks about promoting the inclusion of language clauses. The regulations will definitely provide more details on that. It’s not that the federal government can’t or doesn’t necessarily want to impose language clauses.
During negotiations, the federal institution must be aware of the impact an agreement could have on minority communities and their needs. I would say more broadly that it covers everything that Part VII provides for, including the promotion and protection of the French language. That helps us form a picture of the impact and possibilities of such an agreement and, during the negotiations, promote that idea and get the partner to think about the possibility of having language clauses that will help implement Part VII.
Senator Moncion: We agree that, very often, francophones in minority communities see all of this as wishful thinking. When it comes to actually putting measures in place to transfer funds, that doesn’t always happen.
They thought about it, but they may not have gone all the way in the mandatory measure. As you know, that’s where the problem lies with official language communities, which are often at a disadvantage because they don’t have the agreements and don’t receive the funding that would enable them to grow.
I understand the federal government’s position in not wanting to impose anything on its partners. I find that it puts official language minority communities, regardless of whether in Quebec or elsewhere in Canada, in a difficult position. Thank you.
Senator Cormier: You will think I’m obsessed with the issue of definitions, but I would like Treasury Board to explain something to me.
You have a role, which is to coordinate implementation. You are also responsible for discussing matters with federal institutions and telling them that they are responsible for reporting to us. We understand that: It’s like coordinating the implementation.
However, if we think about the criteria to be considered in defining the regulations and the content of a regulation, what is your share of the content when the regulations are being developed? Based on what criteria, for example, are the definitions in the regulations developed? Who does that? Who develops the criteria?
Mr. Bourdages, you gave examples of positive measures contained in the act, but certain criteria have to be defined at some point. Who does that? Was that you? Is it Treasury Board? Do you essentially play a coordination role?
I would like to understand that more specifically.
Mr. Quell: Certainly, at the beginning of the process, there was a much more elaborate Part VII than the one that existed before. Basically, then, the question is how to develop a new regulation. The act already gives us a structure. My colleague talked about examples of positive measures. That gives us an idea. Based on this idea, I developed five broad themes of the regulations, including the action itself — taking positive measures but also avoiding negative impacts — the issue of analysis, the issue of consultation and dialogue, agreements with the provinces and territories, and monitoring and evaluation mechanisms.
We drafted regulatory proposals. With these in hand, we went to see stakeholders, francophone and anglophone groups, and the Office of the Commissioner of Official Languages, which we must not forget, and told them about the proposals. They sent us their own wishes, their own wants, their own inputs. It was an iterative process of consulting based on something that was proposed to us. There are inputs that come in, and then we change our proposals.
Senator Cormier: I don’t want to get into caricatures, but generally speaking, when there is legal recourse and case law, we suddenly understand and more precisely interpret some elements.
In this case, does that mean that this is how we’ll be able to better understand or get a better grasp of not only the terms of involvement, but the impact of a contained definition?
As you know, communities are asking for more clarity. You spoke earlier about clarity, predictability and consistency. That’s the big concern in regulation-making, making sure that someone is working to clarify the criteria so that we can understand things more clearly, so that we don’t have to go to court and wait three years to get a definition. That’s the gist of my question. Can you answer it?
Mr. Bourdages: I want to come back to the choice of instruments. When it comes time to draft a regulation, you have various choices. There is an act, a regulation, administrative tools, guides and political directives. There are different options available to someone who wants to make a regulation.
If we think about the old Part VII, which was quite succinct, it must be said, and which concerned positive measures and all that, the Fédération des francophones de la Colombie‑Britannique, even though Part VII was very short, managed to give meaning to the obligations applicable in the absence of any regulations.
A court will find a way and interpretation methods to provide meaning. Here, we don’t necessarily have a guide — in any case, not yet on Part VII, perhaps it will be an option for our friends at Treasury Board to study — but we do have a Part VII that is much more fleshed out, much more detailed and with much more specific elements.
There’s a lot of meat in the new Part VII. There’s a lot there. Yes, the regulatory power is appropriate; there are existing obligations in Part VII that are in force, and the regulatory power that will be most used has to do with how those obligations will be carried out. That’s the framework we’re working with.
Senator Cormier: Mr. Quell, what issues do you see as far as Treasury Board’s new responsibilities are concerned? Significant responsibilities have been added. There’s obviously a concern about Treasury Board’s ability — I wouldn’t say willingness, but ability — to carry out these responsibilities and make federal institutions truly accountable. Do you have what you need in terms of instruments? You have the power, of course, and it’s in the legislation. How are you going to exercise these responsibilities to ensure that federal institutions are actually fulfilling their responsibilities?
Mr. Quell: On the issue of accountability, the fact remains that it is the deputy ministers, the CEOs, who are responsible for implementing the act. We play a supporting, monitoring and regulatory role. However, at the end of the day, it’s the deputy heads who are responsible.
If you’re asking me what concerns me, it’s not necessarily a concern, but I think it will be very important to establish a practice with respect to the new Part VII. I mean that once the regulations are adopted, once we have a directive, we will have to work on the guides in consultation with the stakeholders. The problem is when federal institutions need to do the right thing with full knowledge of community issues. I call that practice. If there is a good relationship between federal institutions, a good awareness of community issues, and a good awareness of the possibility for federal institutions to fulfill their mandate by helping minority communities, at that point, I think we’ll achieve—
Senator Cormier: How are you going to support them?
Mr. Quell: We support them through the meetings I mentioned. We are very active. Obviously, there was a transfer from Canadian Heritage to Treasury Board.
For example, for the development of guides, we have taken the Canadian Heritage guides and are in the process of updating them with the new Part VII.
I mentioned the days of dialogue: That’s when federal institutions realize the potential that minority communities represent in fulfilling their own mandate. That’s when we’ll really be able to see the implementation of the new Part VII.
The Chair: Are there any other questions?
Senator Gerba: I think he just answered it.
Is your current capacity in terms of resources sufficient for you to be able to coordinate, verify, track and ensure that the application is compliant, or will you need more resources?
Mr. Quell: We have good resources for those duties and obligations, so yes.
Senator Cormier: With regard to your relationship with Canadian Heritage, obviously, the issues we’ve been seeing for years are the challenges related to working in silos and the lack of real cooperation, understanding of each other’s responsibilities and well-coordinated action plans between departments. We are entitled to be somewhat concerned because of your new responsibilities, the new responsibilities in the act and this other act that also has to be dealt with.
You talked about the Committee of Assistant Deputy Ministers on Official Languages, which is a good instrument. The communities had hoped that a deputy minister responsible for official languages would be appointed.
How do you see this working relationship in concrete terms?
The Privy Council Office was invited, but it is not here today. Can you tell us about the concrete measures and how Treasury Board is working with Canadian Heritage to implement this quasi-constitutional act, which is so important?
Mr. Quell: I just talked about the tools. The mobilization of the federal government is an issue on which we are working together. In the new Part VII, we see a complementary role for the Treasury Board Secretariat in terms of making regulations, accountability and raising awareness within the federal government. Canadian Heritage’s role is related to the action plan; it’s a more externally focused role. However, when it comes to relations with Canadian Heritage, there isn’t really a day that goes by when I don’t communicate or have discussions with my colleagues.
Senator Cormier: Do you have a mechanism? I’m not talking about the Committee of Assistant Deputy Ministers, but between Treasury Board and Canadian Heritage, do you have an established mechanism that allows you to build, create and be accountable?
Mr. Quell: There are a number of working groups. We talk about a working level, so there are a number of meetings.
I would say that a body like the CADMOL, the Committee of Assistant Deputy Ministers on Official Languages, which is co‑chaired by the Treasury Board Secretariat, Canadian Heritage, Justice Canada and the Privy Council, is an instrument where we can clearly see the complementarity and cooperation of federal institutions.
Your question concerned Canadian Heritage and Treasury Board. We have an excellent working relationship every day at various levels.
Senator Cormier: Thank you very much, and good luck.
Mr. Quell: Thank you.
The Chair: We still have time for more questions, if you wish.
I’m going to go back to a question about the timeline. As you know, our communities have been waiting for regulations for months, even years. To such an extent that we thought the three regulations would be released and presented at the same time. On September 25, when the Minister responsible for Official Languages appeared before the Senate, we understood that two regulations would possibly be presented in the coming weeks — this information is from September 25 — and a third later.
You mentioned consultations and working groups. We can see here that there are several steps involved in introducing regulations until they are adopted. The first step has been completed, which is consulting with stakeholders, as you mentioned. The second step, and I dare say this is where you are now, is to draft the preliminary regulations, which will be validated by Justice Canada.
Can you tell us a little more about the factors that are causing the delay in presenting the regulations to Parliament?
Mr. Quell: I cannot necessarily say more than what Minister Guilbeault has mentioned.
So, for the three regulations you are referring to, there is the regulation on administrative and financial penalties, there is the Act respecting the Use of French in Federally Regulated Private Businesses, and finally there is the regulation on Part VII.
Consultations have been held on the three regulations. The analyses are still being carried out, and the Governor in Council will make the decision when the regulations are tabled in the House, but I understand your impatience.
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Senator Patterson: I want to thank you. This has really helped break up the parts and the fact that — you cannot get away from the fact that part of it is federal and part of it is territorially, provincially regulated. I am going back to that interprovincial relation. How do you get those consultations done? It is absolutely critical you are talking with the groups that you have, but how do you talk to the ones who are really going to have some of the levers in making sure the funding goes, the accountability happens within the minority language communities found in the provinces? How do you have that consultation with provinces and territories? Through what mechanism?
Mr. Quell: Thank you. The Ministers’ Council on the Canadian Francophonie is the group of ministers that is seized with issues of how to promote and protect the French language. There is a working group at the officials level, and it is with that working group that we have had many meetings on the development of the Part VII regulations. One of the issues that has come up in those discussions is what we can do federally to better inform our provincial and territorial counterparts of the obligations that are incumbent on the federal level with regard to the federal-provincial-territorial agreements, and also recognize that in each province and territory, these officials are the ones on the ground who are working on francophone minority community concerns, for example, what is already being done and how the federal government can complement those actions.
Senator Patterson: That’s good. Are you finding — again, that you are actually able to share — any big deltas in the regulations that you think are going to need eventual review?
Mr. Quell: What we have learned from the discussions is how important it is, obviously, to ensure that the division of powers under the Constitution is protected. I would say that is one clearly evident concern. Then there are the actions on the ground that different provincial and territorial governments take.
It is helpful to know who these counterparts are, because they work within their provincial government, so they are the spokespersons within their government to be in touch, for example, with the department that is negotiating an agreement with the federal government.
Those discussions were helpful. I think we are coming at it from both ends. The people who are negotiating an agreement are not necessarily always official languages experts, and they shouldn’t necessarily be. What we need to do, both at the federal level and at the provincial level, is make sure that those who are experts have an opportunity to advise the people who are negotiating of obligations and opportunities.
Senator Patterson: Thank you. It sounds a lot like the health care negotiations, which include official languages.
[Translation]
Senator Cormier: Are there elements of Part VII that may not be taken into account in the regulations? For example, we know that Part VII refers to fostering the growth and development of communities and promoting full knowledge of the French language. There are other elements, such as strengthening minority language learning throughout the educational continuum and periodically assessing children who are entitled to receive instruction…. I don’t know if you are the ones who determine these other elements, but will all the elements of Part VII be taken into account in the regulations, or are there elements of Part VII that will be excluded from the regulations?
Mr. Quell: At this stage, I cannot comment on the final product, but everything under Part VII can be considered as part of the settlement in principle. For example, when we talk about the census of children, these are obligations that belong to very specific departments, whereas in drafting the regulations and in the proposals that have been developed, we have focused on the vast majority of federal institutions. We want to ensure that positive measures are taken by all federal institutions, and that is what we have focused on, but there is no reason to exclude a section of Part VII from the regulations.
Senator Cormier: I understand that something could be excluded, but at this stage, you don’t know if it will be excluded; have I understood correctly?
Mr. Quell: At this stage, I cannot speculate on the decision that the Governor-in-Council will make regarding the regulations we are currently developing. For example, the five elements I mentioned are more general in nature, but during our consultations with stakeholders, there was some resonance. These elements were well received and discussed constructively.
Senator Cormier: Can you share with us what you heard during the consultations? Are there any common themes that emerged from the consultations that are important to take into account?
Mr. Quell: From memory, I come back to the issue of clarity. Obviously, this has been mentioned. The commissioner wants robust legislation and equally robust regulations. I mentioned dialogue and consultation activities. The question that concerns us is this: After the consultations, what will you do? Will the results of a consultation be part of the federal government’s analysis? Afterwards, how will stakeholders know what was heard when they were consulted? This is a concern.
Another concern relates to evaluation and monitoring mechanisms. You raised the question: What does the Treasury Board Secretariat do if things do not go exactly as stakeholders would have hoped? How will we ensure accountability within the federal family?
Senator Cormier: I will conclude on that note. I don’t want to sound patronizing at all. I simply hope that you will take advantage of this unique opportunity to contribute to the implementation of this act, which is so important for our country. This is not an act just for official language minority communities; it is an act for Canada as a whole. It is what distinguishes our country from our neighbour to the south, this cultural and economic sovereignty. The Official Languages Act and its implementation are essential.
You have the great privilege at this time of implementing this act. We need to hear from you; we need understanding and clarity. I believe you have the tools you need to do so. Of course, leadership is required; our colleagues in the House of Commons and the government must also support you in this endeavour. I want to thank you, but I hope you will take advantage of this opportunity. It is a once-in-a-lifetime opportunity.
Mr. Quell: I can assure you of our commitment.
Senator Cormier: All right. We will follow up with you.
The Chair: I have a few final questions, unless there are any other questions from the senators. In terms of process, I understand that the 30-day period provided for in the act for the draft regulations is a minimum. In 1991, this period was extended. A joint committee of the House of Commons and the Senate conducted an in-depth study. What factors might require an extension this time?
Mr. Quell: You mentioned an initial experience with the Part IV regulations. There was an experience when these regulations were renewed. As you said, 30 days is a minimum. It is at the end of those 30 days that the next step can be taken, but the Governor-in-Council must comply with the requirements set out in the act. Of course, he or she may decide to wait until the stakeholders or parliamentary committees have had time to express their views before making a decision on the regulations.
The Chair: Let’s say the period is 30 days. Is our committee required to submit its recommendations within those 30 days? If so, that’s one thing; if not, will our recommendations be taken into account if we miss the first 30 days?
Mr. Quell: I would prefer to come back to you with an answer after consulting with our parliamentary affairs officers, if I may.
Senator Cormier: If you open the door, I have more questions.
The Chair: We have time.
Senator Cormier: My question does not specifically concern the regulations, but rather the mechanisms. You have answered it in part, but I will rephrase the question to give you an opportunity to add to your answer.
Have you defined common performance indicators for all departments to assess their compliance with the act? If so, am I correct in understanding that these will be included in the guides? If so, I imagine you cannot send us this information?
Mr. Quell: Since there are no regulations, no indicators have been established yet. In general, if you look at the Treasury Board President’s annual report, you will find quantitative data on the extent to which public services are provided by federal institutions.
We have data on the distribution of the workforce between anglophones and francophones. These are indicators that give us an idea of the extent to which institutions are complying with the law.
Senator Cormier: When the regulations are in place, will you establish specific performance indicators?
Mr. Quell: We have not yet decided whether new procedures should be established for monitoring Part VII. We did so for the first time this year, as part of the process of preparing the annual report for the 2023-24 fiscal year. In this context, we used the questionnaire that we developed some time ago. We added some questions. If I may say so, Part VII is different in nature from other parts of the act. The provision of a service at the border or the distribution between anglophones and francophones is something that is more easily measured with quantitative data than a positive measure taken by an institution, given its mandate and the obligations related to Part VII. We must not forget that we are talking about minority communities, but also about the promotion of bilingualism. Monitoring should be done in such a way as to obtain data that gives us a good idea of current performance, but also helps us improve in the future. I have spoken about good practices.
Senator Cormier: You say that it is more difficult for Part VII than for other parts of the act. From what you are saying, I understand that it is more difficult to assess a federal institution’s ability to fulfill its obligations under Part VII in a context that is very different from measuring service in both languages at the border. That is why I was talking about criteria and mechanisms. We believe it is essential that you have measurement tools. Where do you get the data? Who reports the data to you? Is it the institutions themselves? If they measure their own ability to meet their obligations….
It seems that the actual tools you would need to assess the obligations of federal institutions are a little unclear. Am I wrong? Are they specific? Do you have common performance indicators? You have a role to play in this regard. It’s one thing to promote and talk about what you’ve done, but you need to measure it with clear performance indicators. If you don’t have them, how are you going to be truly effective in holding institutions accountable? That’s what communities are calling for.
Mr. Quell: The exercise we are conducting is based on existing obligations. I mentioned the directives and sometimes even the guidelines that exist. An institution must comply with what is required of it. We set the threshold somewhere, and when the time comes to ask for accountability, the questions asked of the institution correspond to what we are asking the institution to do.
Senator Cormier: All right. Are you asking the right questions?
Mr. Quell: Once the regulations are in place, you will see that the regulations will provide more detail than the act, and our monitoring instruments will be based on the requirements set out in the regulations.
Senator Cormier: I would like to discuss financial and human resources, since you have new responsibilities. We are in a context of budget cuts. It is only natural to be concerned about this issue. Do you have or will you have sufficient financial and human resources to deliver what you need to deliver? We will not pass on your answer to the Prime Minister. We would just like to know the truth. Do you really have the necessary financial and human resources?
Mr. Quell: I will refer to the response I gave to your colleague. Yes, we have the resources required to fulfill our obligations.
The Chair: If there are no further questions, that concludes our discussion for this evening. On behalf of the committee, I would like to thank you for your participation and wish you every success. We expect the settlement to be finalized very soon. Thank you very much and have a good evening.
That concludes the public part of our meeting. We will now continue in camera.
(The committee continued in camera.)