THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, March 9, 2026
The Standing Senate Committee on Official Languages met this day at 5:01 p.m. [ET], with videoconference, to examine and report on the regulatory framework of Part VII of the Official Languages Act; and, in camera, to examine and report on such issues as may arise from time to time relating to official languages generally.
Senator Allister W. Surette (Chair) in the chair.
[Translation]
The Chair: Before we begin, I would like to ask you to consult the cards on the table for guidelines to prevent audio feedback incidents. To that end, do not handle the earpieces, especially when the microphones are on. You do not need to touch the microphones, as they are managed by the console operator. The console operator will turn them on and off.
I am Allister Surette, senator from Nova Scotia and chair of the Standing Senate Committee on Official Languages.
I will now ask my colleagues to introduce themselves.
Senator Gerba: Good afternoon, and welcome. Amina Gerba from Quebec.
Senator Loffreda: Good evening, and welcome. Tony Loffreda from Montreal, Quebec.
Senator Henkel: Good evening, and welcome to the committee. Danièle Henkel, Alma division, Quebec.
Senator Moncion: Good evening. Lucie Moncion from Ontario.
[English]
Senator Patterson: Good evening. Rebecca Patterson, senator from Ottawa, Ontario.
[Translation]
The Chair: Thank you, colleagues.
We are pleased to welcome those listening to us this evening, in the room or watching us online at sencanada.ca.
Today, pursuant to the order of reference received from the Senate on October 8, we are examining the regulatory framework of Part VII of the Official Languages Act. To that end, this evening we welcome Geneviève Tellier, Full Professor, School of Political Studies, University of Ottawa, and Stéphanie Chouinard, Associate Professor, Department of Political Science, Royal Military College of Canada.
Good evening, and thank you for having accepted our invitation. I think you know the procedure. You will have approximately five minutes each for your opening statement, which will be followed by a question period.
If I’m not mistaken, Ms. Tellier will give the opening statement.
Geneviève Tellier, Full Professor, School of Political Studies, University of Ottawa, as an individual: Good evening. I would like to thank the Standing Senate Committee on Official Languages for inviting me to testify as part of its study on the regulatory framework of Part VII of the Official Languages Act.
First, I would like to introduce myself, as this is my first time testifying before you. My name is Geneviève Tellier and I am a full professor at the University of Ottawa, with the Public Administration Program at the School of Political Studies.
My research focuses on financial and budgetary issues related to the public sector. Over the years, I have studied several topics that your committee is currently examining: public consultations, the role of central agencies such as the Treasury Board Secretariat, accountability, financial arrangements between different levels of government, and I would even add gender-responsive budgeting.
Some members of the committee may also have read or heard me comment publicly on various issues regarding francophones outside Quebec. I am therefore well aware of the issues affecting minority language communities in this country.
I have carefully reviewed the work that the committee has done so far in this study. Several concerns have been raised about the suitability and feasibility of implementing the new provisions of the act through regulations.
It seems to me, however, that the discussions held so far have neglected one important aspect.
I would like to draw the committee’s attention to subsection 41(8) of Part VII of the Official Languages Act. It is a fairly short subsection entitled “Dialogue and consultation activities, research and evidence-based findings.” It stipulates that federal institutions’ analyses of positive measures and their negative impacts must be based “. . . on the results of dialogue and consultation activities, research and evidence-based findings.”
This program raises several legitimate concerns, but it also offers possible solutions. Your committee and the witnesses heard so far have discussed at length the issues related to dialogue and consultation activities. However, to my knowledge, the draft regulation is silent on the issue of research and evidence. Yet these two elements are essential for evaluating the results of a public policy. Without evidence from research, it is impossible to know whether the measures are positive and whether the impacts are negative.
I therefore believe it is essential that the regulations address the issue of research and evidence. Dialogue and consultation alone are insufficient. Consultations could be conducted without resulting in any positive changes.
This leads me to make another observation. As you have seen, the rules proposed by the federal government focus on rules, procedures, processes, mechanisms and best practices, but they pay little attention to achieving results.
This is a fundamental problem that goes beyond language policy issues. It has become the norm throughout the federal government, and is what researchers refer to as an “audit culture,” a culture that values compliance with directives but neglects results.
This culture is now prevalent throughout the federal government. It will be difficult to change, but it is not impossible. In fact, the application of Part VII of the Official Languages Act could well be a precursor in this regard. I believe I am echoing the words of Senator Cormier, who stated on October 27 that this was a matter of leadership. I would therefore invite you to reflect on this issue.
I would be happy to answer any questions the committee members may have on these topics and on any other issues they deem relevant.
Thank you for your attention.
The Chair: Thank you, Ms. Tellier.
The floor is yours, Ms. Chouinard.
Stéphanie Chouinard, Associate Professor, Department of Political Science, Royal Military College of Canada, as an individual: Good evening. Thank you for inviting me to appear before you to discuss the regulatory framework of Part VII of the Official Languages Act.
My remarks will echo many of the thoughts and briefs you have already heard from stakeholders since you began your work on this issue. The consensus on this issue, both among stakeholders and researchers, is fairly unanimous: It is imperative to go back to the drawing board to ensure that the regulations not only set out processes. They must also set out objectives and the means of evaluating the achievement of these objectives, in terms of the development of communities and progress toward true equality for both official languages.
In its current state, the draft regulations will not prevent us from finding ourselves, in a few years’ time, facing a Gascon 2.0 ruling. I probably don’t need to remind you that the Federal Court ruled in this 2018 decision that the language of Part VII did not impose any obligations as to results or concrete measures to advance substantive equality between the official languages.
This ruling was one of the main reasons that brought the need to modernize the Official Languages Act to the forefront of the political agenda. Much of the work done since 2018, particularly within your own committee, has been aimed at ensuring that the new version of the act would address this shortcoming.
Here are a few proposals aimed at revising the draft regulations to ensure the most effective implementation of the new version of Part VII.
First, the regulations should spell out more precisely how and under what circumstances federal institutions determine the objectives of the policies implemented, which must be clear and measurable. In addition, they must take into account the priorities of communities.
Second, they must also require federal institutions to be accountable for the measures they do or do not adopt, particularly following dialogues and consultations with stakeholders in circumstances where federal institutions may reject community priorities. These first two proposals relate specifically to subsections 41(9) and 41(9.1) of the act and stem from the observation that sections 5 and 6 of the draft regulations lack precision with regard to the obligations of federal institutions in the dialogue and consultation processes.
My colleague and I clearly agreed on several points, and this continues to be the case.
Thirdly, I believe that the regulations must ensure that impact indicators are based on evidence-based findings and that the data is accessible to the public, particularly the research community. Tonight, we want to weigh things in favour of academic researchers. The indicators will be used to assess progress towards achieving the objectives through the positive measures, and to impose a review of these measures if they do not meet the objectives set.
As can be seen in subsections 41(8) and 41(9) of the act:
The analyses . . . shall be founded, to the extent possible, on the results of dialogue and consultation activities, on research and on evidence-based findings.
They serve to take into account the priorities of francophone and anglophone minorities and other stakeholders. However, nothing in the regulations defines or regulates the production or dissemination of such findings or explains how it will be demonstrated that the priorities of stakeholders have been taken into account.
Last but not least, given that the new version of Part VII now explicitly names in subparagraph 41(6)(c)(v) sectors of application of positive measures that fall within provincial jurisdiction as “sectors that are essential to enhancing the vitality of . . . minority communities” and refers to the need to “protect and promote the presence of strong institutions serving those communities.” In these areas, the regulations must be much more explicit with regard to the federal government’s obligations towards minorities in each province and territory in order to define what the act means by “strong institutions.”
This applies to consultation, consideration of priorities and the role that communities and their institutions play in implementing federal-provincial-territorial agreements on official languages. Moreover, the Federal Court’s decision last December in the case of Conseil scolaire francophone provincial de Terre-Neuve-et-Labrador v. Canadian Heritage lends weight to this argument by finding Canadian Heritage guilty of failing to fulfill its obligations to consult with the community under the previous version of the Official Languages Act. However, both the intention of the legislator and the new text of the act itself clearly demonstrate a desire to strengthen these obligations.
These regulatory changes are necessary to ensure that the legislator’s intention is reflected in the implementation of the act and that we do not return to square one, with a Part VII that will have little or no impact on the vitality of communities in the short, medium and long term.
I will stop here. Thank you for your attention. I look forward to continuing the discussion.
The Chair: Thank you very much. I commend you for keeping your presentations within the five minutes allotted to each of you. Let us now move on to the question period. I propose five minutes for each senator’s question and answer, and I would ask you to respect this guideline.
Senator Moncion: Thank you very much, ladies. I was eager to hear from you, because I know you have been involved in this scenario for a long time and have been looking at the law and regulations. You mentioned it, but most people are disappointed with what we expected to see in the regulations. I would like to hear your thoughts on that. You have already mentioned several things.
I would like you to tell us more about the lack of obligations towards our official language minority communities and the long-term effects they are experiencing.
Ms. Tellier: My perspective is slightly more general; my specialty is not languages, but rather public policy. I’m disappointed, yes, but surprised — no. What we are seeing right now with official languages can be seen everywhere in all federal government policies. The message I wanted to convey to you is that this is not specific to official languages, but a problem that affects the entire federal government. I think official languages are an excellent opportunity to call the government to order and say: “You have work to do; stop focusing on details and get to the heart of the matter.” What is happening right now — and has been going on for years — is that we are in a situation where we are focusing on the rules and how the government operates, but we are not looking at the results.
Let me give you an example. I find it very amusing; I have the 2023–2024 Annual Report on Official Languages. There are a whole range of targets that departments must meet, but these targets are completely useless. For example, in every federal institution, appropriate measures have been taken to welcome the public in person in both official languages — this was done 86% of the time. It’s about the process: Users were not asked if they were welcomed in the official languages. In everything we see, communities or users are not questioned. They look at whether the government has done what it said it would do, and the government evaluates itself.
That’s the disappointment, but it’s widespread throughout the government apparatus. I think your current work could help reframe things, because it would be very easy to come up with results and targets. When I hear the words “objectives, targets and results,” I don’t have the same definition as the federal government. The federal government will say, “Have you put a consultation process in place?” “Yes, perfect, you’ve achieved your result, your target, your objective.” That’s an audit culture: You tick the box. We need to go further than that. We then have to ask ourselves what consultation is. We can have a fairly broad definition. There are several types of consultation. If we want communities to be heard, we have to ask them if they have been heard and if they have been able to make their views known. It’s not necessarily a matter of implementing everything they have said, but of knowing whether they have been heard. We need to be more demanding in terms of results, targets and objectives, because at the moment, they are clearly insufficient.
Ms. Chouinard: I think the effect was a cold shower for many stakeholders who took the exercise very seriously. From the outset, many proposals were put on the table, particularly on the issue of consultation. Community organizations, which are often already overburdened, made very specific requests about how they could be useful in a real consultation, particularly with regard to the time allocated to them to prepare properly, the people they would be talking to, and also accountability if their contributions were not taken into account. With regard to the priorities put forward by community representatives, if the decision is made to set them aside, an explanation needs to be provided. I think this is important.
So there are questions about how we consult, but we also wonder where these consultations lead. In this regard, several responses had already been presented, but they seem to have been completely dismissed if we look at the text of the draft regulation. The process seems to be there, but from the stakeholders’ point of view, it does not seem that it will change much from their perspective.
Senator Moncion: Another box has simply been checked to say that it’s done, without results, and it’s a bit discouraging to see that this won’t necessarily lead to the changes that are expected in the future, however near. I will have questions in the second round, Mr. Chair.
Senator Henkel: Thank you again, ladies. This is my first meeting in the Standing Senate Committee on Official Languages, so I’m moved by the language aspect, which affects me too. I see that there’s a great deal of frustration, but I wonder if it can be reversed through concrete action. My question is about responsibility, then.
The regulations don’t designate anyone as being responsible, set out any performance indicators or provide for any coordination structure. That causes a lot of concern that the objectives won’t be met. Based on your knowledge and expertise regarding the issues and the organization of Treasury Board — because I guess that’s where the responsibility stems from — who should be responsible for the application and accountability of these regulations?
Ms. Chouinard: The 192 federal institutions and agencies are responsible. Each one has a responsibility to develop positive measures, hold dialogues and consultations with stakeholders, and be accountable for the measures that are implemented.
Everything obviously starts with Treasury Board, but the Official Languages Act is designed to be horizontal. There isn’t one single place in charge of accountability, because all federal institutions have to do their part to implement this act. It’s extremely complex.
However, it’s true that the draft regulations don’t say much in terms of how we’re going to proceed. That horizontality actually adds to the burden for stakeholders. Say that TALQ or the FCFA receive 192 requests all at once without being granted the resources to provide good answers to the questions they’re asked as part of the development of positive measures. The stakeholders, the representatives of our communities, will be unable to answer the call. That means there’s a real issue there.
Senator Henkel: Thank you.
Ms. Tellier: I would even go a step further and say that the Treasury Board Secretariat is ultimately responsible, no longer just the Department of Canadian Heritage. I find that to be an important development. Yes, it’s the secretariat that has to issue the directives. Personally, I’m not a fan of a high degree of centralization within the federal government, but in this case, yes, because it’s cross-cutting.
I think that it’s precisely Treasury Board that can avoid duplication, that can ensure both flexibility and rigidity, and that is the body that calls public servants to order: If it doesn’t go through the Treasury Board Secretariat, it simply doesn’t go through. Ultimately, then, I think it should be the Treasury Board Secretariat. Let us add the President of the Treasury Board and Treasury Board. There’s a political and administrative side, there’s the public service, but it’s up to them to ensure that the rules are clear and enforced. It’s up to them to monitor the rules that they themselves have set out.
Senator Henkel: That means it’s no longer the government that’s responsible or that evaluates itself; it’s an evaluation that really comes from the field, but which is addressed to an accountable party. That should be the case, but that isn’t what’s in the regulations.
Ms. Tellier: No.
Senator Henkel: Thank you.
Senator Gerba: Welcome.
Ms. Chouinard, you said in your introduction that the draft regulations should be more specific about the role of the territories and provinces, if I understand correctly, to define the concept of a strong institution. It’s you —
Ms. Chouinard: That isn’t quite what I meant.
Senator Gerba: Okay.
Ms. Chouinard: In section 41, for the first time — and this is new in the new version of the act — there are a number of areas that fall under provincial or shared jurisdiction. These include culture, education from early childhood to post-secondary — it says so in black and white — employment and economic development, which are key areas for community development. That makes it imperative, even more so than before, for the federal government to work with the provinces and territories to implement this part of the act.
In federal-provincial bilateral agreements, one of the issues that often arises is that the priorities of the communities in each of the provinces and territories are completely ignored or not taken into account at all. The Federal Court decision from last December is a good illustration of this problem. The decision concerned official language education in Newfoundland and Labrador, where the Franco-Newfoundlander and Labradorians had not been consulted. Their priorities weren’t at all reflected in the bilateral agreement.
Technically, the new version of the act should prevent such a situation from happening again. However, the regulations don’t at all indicate how to proceed. Nor do they indicate what the federal and provincial governments’ obligations are for ensuring that these agreements recognize community priorities, or for ensuring that there’s accountability if they aren’t recognized or taken into account, meaning that governments explain to communities why the agreements don’t reflect their priorities.
As for strong institutions, that’s in the same part of the act. It’s an interesting concept, but it can be a double-edged sword. When we talk about strong institutions that serve communities, are we talking about community institutions? If there’s a place where strong institutions don’t exist, is there an obligation to create them, for example? There are certain requests to that effect in some provinces and territories. Once again, the aim is to make all of this more explicit, determine what these institutions represent, define what a strong institution is, and determine what to do with them if they exist but don’t correspond to what’s understood as a strong institution from a federal perspective, or if they simply don’t exist.
Senator Gerba: I wanted to follow up with the matter of consultation and dialogue activities. Are the draft regulations clear enough about the type and terms of dialogue and consultation activities that federal institutions have to carry out? If not, what are the key criteria for effective consultations?
Ms. Tellier: There are a number of reasons for wanting to hold consultations and for governments to hold consultations. I would say the right reason is to listen to the views of those being consulted on the ground, to come away better informed and to come up with better ideas and better policies. That’s the theory; in practice, it’s often for other reasons. It’s often to legitimize one’s own actions and say, “Yes, we listened to you, but we’re still going to do what we want.” It’s often more of a communications exercise than a genuine effort to gather information.
When it comes to consultation categories, we also need to consider the extent to which we want to involve stakeholders. We can say to the people we consult: “We want your opinion, or we can inform you at the same time.” That can be part of the consultation, but do we want them to be involved in the decision-making process as well? That’s a more complex issue, and I think that’s what should be looked at.
Once we consult linguistic minorities, if these groups tell us they want something in particular, don’t we have an obligation to listen to them and tell them they are part of the decision-making process, that they are not just people who convey information, but that this information is disseminated and that, collectively, we will arrive at a common understanding based on the issues, criteria, resources, and so on? Do we want to involve linguistic communities in decision-making, or do we simply want to listen to them? I don’t think the intent behind the regulations has been clarified at all. These are the kinds of questions we should be asking ourselves when we talk about consultation.
Ms. Chouinard: If I may, the answer to your question is no. I would refer to two documents: one submitted by the Fédération des communautés francophones et acadiennes, which devoted several pages to the requirements for effective consultation, and one from the Office of the Commissioner of Official Languages, which you heard from recently as part of this same study and which also explored this issue.
Effective consultation depends on the resources provided to participating stakeholders, the time they are given to prepare for the consultation, because there must be enough time between the request and the consultation itself, the data provided to those being consulted, because community organizations are not research firms and do not always have all the answers — which brings us back to other parts of the law that sought to address these gaps. It also depends on who is consulted among the stakeholders; they must be people with expertise in the field and real decision-making power, an issue that communities have raised fairly often. Finally, consultation must be something that is not done just once — it’s over, let’s move on to the next one. Consultation is supposed to be ongoing during the development process.
That brings us to the end of the public policy development process, where accountability comes into play. The consultation is supposed to take place at several points in time, not just at one point to say, once again, that we’ve checked the box and can move on to something else. Effective consultation is therefore far more complex than what we’ve seen in the past. The regulations mention a consultation process, but there are several pieces missing from the puzzle for it to be complete.
Senator Gerba: Thank you.
Senator Loffreda: Welcome. This is my first meeting this year. I’ve attended several meetings in the past, but I believe this is my first one under the new legislature.
I am standing in for Senator Cormier. It won’t be easy to fill his shoes, but I will do my best.
Since the regulations do not clearly specify what type of data or evidence-based analysis should support federal institutions’ decisions, should the government consider explicitly incorporating a requirement for evidence-based analysis to inform the assessment of impacts on official language minority communities?
Ms. Chouinard: That’s the easiest question we’ve heard tonight. The answer is yes.
Ms. Tellier: If I may elaborate on that, we should ask ourselves: Who should gather the evidence and who should compile it? My colleague Stéphanie Chouinard mentioned that the evidence will be useful for research peers, but not only for them. There is the federal government itself.
We are well aware of Statistics Canada, but I think we need to go a bit beyond our current data. Could the Commissioner of Official Languages do something? I’d like to draw a parallel with the French Language Services Commissioner of Ontario, who, during his first term, set up studies that led to the creation of the Université de l’Ontario français and the immigration website. That was done with field research. It shouldn’t only be quantitative research, but much more sophisticated and qualitative research as well, which can gauge the situation in the field. You have to go talk to post-secondary students and ask if they are able to finish their bachelor’s degree in French in three or four years. The answer is no. That is the kind of study we need. The question is: Who should conduct the studies? To me, the right answer is that it should be a range of all those entities.
Senator Loffreda: In Quebec, do federal institutions have to reconcile two objectives that may sometimes seem at odds, namely the vitality of anglophone minority communities and the protection and promotion of French in Quebec, which are also important? If so, how?
Ms. Chouinard: We’re talking about two different things. We’re talking about promotion on the one hand and protection on the other. I think you can do both at once. Quebec’s English‑speaking community has a number of rights under the Official Languages Act. That is non-negotiable. The federal government is responsible for those rights. The stumbling block is on the promotion side. Part VII lies at the heart of this tension, which is much more political than on the simpler protection side. That brings us back to the issue of bilateral agreements between the federal government and provinces. This issue will certainly play out differently in Quebec than in the nine other provinces and three territories, especially since the legislator has decided, in the new version of the Official Languages Act, to explicitly state that French is the minority language in Canada. That includes Quebec, where the French language remains vulnerable.
A certain asymmetry will come into play. Personally, as a researcher, I’m not comfortable giving answers that are more political commentary than analysis, but the fact remains that the legislator gave itself an interpretive framework within the preamble to the act, which offers some guidance for those bilateral agreements with Quebec.
Ms. Tellier: As a researcher, I don’t have a specific view on what you’re asking either. However, in the debate around anglophone versus francophone considerations, the issue that seems to stand out is numbers and demographic weight. My sense is that it influences the whole discussion. The anglophone population in Quebec is much larger than the francophone population in the other provinces, except perhaps in New Brunswick. The realities are different.
Funding is one of the many factors. Funding is always an issue, and as soon as funding is on the table, meeting the needs of very small communities is clearly more expensive. Providing a service in French in northern Ontario will certainly cost more than providing an English one, regardless of where you are in Quebec, except in a few cases, because of the demographic weight. That’s where the tension comes from.
Like Stéphanie Chouinard, I don’t have a clearer answer, because that’s not where my research has taken me, but the demographic imbalance is glaring when it comes to the resulting tension and efforts to reconcile the two objectives.
[English]
Senator Patterson: I will follow up on that question.
When you look at this, how do you hold anybody accountable when you don’t have indicators? You have general descriptions, and regulations are meant to clarify legislation. Again, the horizontal integration between provinces and the federal government is, admittedly, a huge challenge. You talked about having access to data input and output, and outcome data that we seem to be missing.
In a regulation, you can set a framework for indicators, which can lead on to whatever research you wish to do. If you had your druthers, how would you want to see a regulation written? It’s not legislation, it’s a regulation, so it’s a bit more precise, and it could address your issue with definitions — maybe, maybe not.
How can this regulation be clearer? What is it that we are measuring so we can actually hold somebody accountable?
[Translation]
Ms. Tellier: I’m not a legal expert, so I don’t want to get into the distinctions between the act and the regulations. I am aware of the debate. However, my understanding is that the regulations should clarify the intent of the act. Personally, when I look at the regulations, I would simply add, “research and evidence-based findings.” Just that would be a major step forward, because it’s not there anywhere. There’s a paragraph on dialogue and another on consultation — which doesn’t mean much, by the way — but there’s no section called research or evidence-based findings. If the government is forced to take action in relation to evidence-based findings, it will have to produce them. Just that would be a step in the right direction.
It’s equally important not to fall into the other trap: being too specific. If things are too specific and something isn’t mentioned, it won’t be in the regulations. It’s important to strike the difficult balance of making something clear without being too specific, in order to avoid gaps. I don’t understand why those two terms aren’t in the regulations when they are in the act. That’s surprising to me.
[English]
Ms. Chouinard: It would be very difficult to write into a regulation what outcomes would look like for every single institution and agency of the federal government. What can be found in the regulation, I think — and I’m also not a legal expert — is for the next panel. I see my colleague who just came in and who might be better able to answer this question.
What we can see is an obligation to have — I apologize, I’m not used to talking about this in English — positive measures that —
[Translation]
I do prefer to answer the question in the language in which it was asked.
Each of those institutions has a duty to determine which positive measures will be taken and how those measures will help to achieve the purpose of the act: progress towards the substantive equality of both official languages. There again, evidence and evidence-based findings are necessary to back up those positive measures. It’s not possible to list the positive measures for every federal agency and institution in the regulations, because we’re not there yet. The dialogue and consultation activities haven’t happened, but the regulations should, at the very least, indicate how to achieve the goal and how to determine whether progress towards substantive equality has or has not been made. All of that is currently missing from the draft regulations.
[English]
Senator Patterson: Thank you.
That does help because you can be big and broad, in general, in regulations that, at least the idea of responsibility and accountability is within regulation, so thank you.
[Translation]
The Chair: I’d like to take the opportunity to ask the last question and follow up on something you said initially, Ms. Tellier. Everything is very geared towards procedure and processes — I believe those were the words you used — and less geared towards results. You went on to say that changing that was hard, but not impossible. What did you mean?
Ms. Tellier: I think that, for this committee and this issue — because there is also the House of Commons — the whole modernization of the Official Languages Act in relation to evidence-based findings is something to consider.
I think there’s a real desire for those findings. Seeking them out and creating that information is not impossible. It is possible to instill in government organizations that this isn’t what you want, that what you want is to move in a different direction.
I think you have the legitimacy and moral weight necessary to do that, because official languages is bigger than just the federal government. Official languages reflect communities, and they can easily say to the government, “Can you change how you’re doing things? It doesn’t work for us. We want clear objectives. We can help you identify those objectives, and here’s what we expect in terms of what you should be doing.”
If you were able to do that, I wouldn’t be surprised if it became a model for public services elsewhere in the world.
The Chair: We also heard this from community organizations. Can you give us your suggestions and recommendations on how to measure the vitality of communities?
Ms. Tellier: It’s important to turn to users for information. I gave you the example earlier of federal agencies and institutions saying that they were successfully providing bilingual services; that is their opinion, not the opinion of the users we’ve asked.
I work in a bilingual post-secondary institution. Go and talk to the students, and what they say will probably be different from what the government tells you.
We don’t know where federal money for bilingual post‑secondary institutions is going. We know it goes to those organizations, but is it being used to put French-speaking and English-speaking students on equal footing? I’m not so sure.
That has to change. We have to get away from the government’s performance and see how its actions are improving the well-being of communities.
That means turning to those people, not federal institutions, for information.
The Chair: Thank you.
Senator Moncion: I want to come back to the much talked‑about evidenced-based findings. You just gave us a concrete example.
Should the evidence-based findings include the number of people? Is that the information that’s needed? Should they include the language that was used? Should they include the number of times services were requested? What should the evidence-based findings cover? The range of information can be broad, and of that, only a small portion may be useful.
Do we really have what you, as researchers, need to really identify what evidence-based findings are for us? This is the information that’s needed; this is the practical stuff you seek out.
All the confusion that is associated . . . . All we hear about are digital data, evidence-based findings and so on. What information do you need when it comes to language, medicine and all the other fields? Is there a basic framework? Is it possible to start from a basic framework and add to it, or is it so broad that it’s hard to know where to start? We can agree that researchers aren’t the ones making the rules.
Ms. Chouinard: A number of types of evidence-based findings would help with the implementation process. One type is microdata. We could take my colleague’s example of the Royal Military College of Canada. We could look at the number of francophone students who managed to complete their bachelor’s degree or officer’s program in the official language of their choice, as opposed to the anglophone students who had the same opportunity. This is more along the lines of microdata. The focus is on a single institution.
Obviously, we have macrodata, such as the data that Statistics Canada can provide on the number of rights holders in minority community schools and the data on short-term, medium-term and long-term language transfers. Between the two, we’ll have the evidence-based findings to support the positive measures implemented under Part VII.
We have a chicken and egg situation here. We can’t talk about evidence-based findings without knowing which positive measures will be implemented. However, without this data, we don’t know which positive measures will prove the most effective on the ground to possibly bring us closer to the substantive equality of the official languages. It isn’t straightforward.
We know that, in a wide range of areas, we don’t currently have what we need to develop the most effective positive measures possible or to determine whether these positive measures are having an impact.
We have a great deal of ground to cover on this front. Moreover, as my colleague said, the research community can obviously get involved. However, this won’t just happen in the universities. The federal government must also get involved.
Senator Moncion: You just used the example of the Royal Military College of Canada. You spoke about the need to gather information that truly meets the college’s needs.
If we look at the federal government, such as the people who handle our tax returns, we need evidence-based findings on specific tax-related issues. We need to adapt somewhat to each environment — I have the English word in mind — where we want to collect data. The needs and the people aren’t served in the same way.
Ms. Tellier: This is where centralization and decentralization come into play. Yes, the Treasury Board Secretariat manages all this. However, it could then tell everyone to adapt to the realities on the ground.
In terms of evidence-based findings, I see more specific and sector-based studies. We want to consider immigration. What do we need? Let’s create a study. Based on that study, we can ask ourselves the following question. What good data do I need, and whom do I need to talk to? Of course, we won’t do everything the same year and we won’t solve all the problems. It’s about setting priorities. Do we want to talk about culture, air transportation or post-secondary education? We need to identify certain areas and explore them in depth, not just with dry quantitative data, but with a context, stories to tell, people consulted. That way, we can see what we need.
We need a research centre, but where should it be? That’s where things get tricky. I don’t have the answer. It could be within the government or outside the government. Canada’s Commissioner of Official Languages would be in a good position to do this. It could be done by researchers with the help of grants. However, we’ll need to think about the whole thing in a somewhat more complex way. We must try to dig a bit deeper and perhaps take the time to take our time. It’s true that we can’t solve every problem.
Senator Moncion: You spoke about air transportation. It’s easy with air transportation. The only thing accounted for is the number of complaints received. We always hear the same thing: “My goodness, it’s terrible, the francophones aren’t getting proper service.” We know that there have been 550 complaints. However, what type of information does that give us? We know absolutely nothing about each complaint.
Ms. Tellier: The same goes for the Commissioner of Official Languages. He talks about the number of complaints. If he had the power to carry out studies, I’m sure that he has many ideas in mind —
Ms. Chouinard: Graham Fraser carried out a study on air transportation where more resources were invested in this issue. When Graham Fraser was commissioner, the fact that it’s now 2026 and we’re still talking about it shows . . . Indeed, resources are lacking in this area.
Senator Henkel: I have many questions. I don’t know where to start. We must ask ourselves the real question. Why, in a country with two official languages, are we still wondering about the legitimacy of these two languages, but also about the legitimacy of our research or research itself? We aren’t just talking about the legitimacy of receiving service in English or French, but also about the consequences of not having access to services in our own language.
I’m wondering whether the act or the regulations take sufficient account of our need to speak our own language, but also of the consequences of not having access to services in our own language. I can’t figure something out. Why does it take so long? Why is it so complicated? Why doesn’t the political will work more quickly and easily?
Ms. Tellier: As long as we’re into great philosophies and great ideas, let’s shake things up.
Senator Henkel: Yes, because we could go on and on about it. I understand that the legislative aspect is significant. However, we’re in a country where people speak two official languages. They could — and very often do — end up in a variety of situations in sectors such as law, education or health care. They can’t and can never excel in any of the sectors because of insufficient access to the language. Why is this? Why is it so difficult to support our researchers and to take concrete action?
Ms. Tellier: I’m happy to hear you talk about this. You’re touching on an area that means a great deal to us.
I have many colleagues who carry out research and who have thoroughly documented what you’re talking about. In particular, studies have been carried out on how poverty and remoteness make it more difficult to access health care and education services. Do we listen to and value this type of research? It’s a valid question.
A passage in the regulations and in the act does talk about scholarly activities. I think that we should focus more on this rather than just listening to what the universities have to say. The communities need research, facts and evidence-based findings. The universities need money. Again, it comes back to this issue. I think that we can certainly do something, such as promoting research programs on the francophonie carried out in French.
You know that English dominates the sciences. The University of Ottawa has research chairs on the francophonie, but a great deal of work is still published in English. That’s fine, insofar as we want to inform researchers from other places about what we’re doing. That said, perhaps we should increase the amount of work in French by offering, for example, a bonus for publishing in French. Researchers who publish in French currently face a disadvantage. They’re less published, less read and less quoted. It’s a bit of a leap of faith to publish in French. I think that the federal government could very well turn things around.
My comment is more philosophical. I don’t know whether it will be helpful. What is bilingualism and is Canada a bilingual country? Why do we want to promote bilingualism? I think that, in the communities — and understandably so — everyone should flourish in their own language. Yet I don’t get the impression that the federal government fully understands what bilingualism means for political institutions. It isn’t to back me up in my choice to use one or two languages, but rather to serve communities in their own language. Who should be bilingual in this country? The machinery of government should be bilingual. I believe that this whole notion is still poorly integrated into the federal government machinery.
Senator Henkel: I think that you touched on something important. The machinery of government should be bilingual.
Ms. Tellier: Exactly.
Ms. Chouinard: In addition to being bilingual, it must also show leadership. For this, we have the act and we’ll eventually have regulations. However, we also need to consider how these regulations will be implemented within the various federal institutions and agencies, and how seriously they will be taken.
For the purposes of this study, your question is quite meaningful. The text of the draft regulations reveals where the problem lies in relation to how seriously the official languages issue is treated. With all the work done since 2018 to come up with this piece of legislation, hopes were high for the Part VII regulations.
Senator Henkel: It also took 30 months instead of 18 months.
Ms. Chouinard: It would be good to see the legitimacy, the will and the leadership in the final text of these regulations.
The Chair: We’re nearing the end. We’ve heard a great deal about the lack of clarity in the regulations. We’ve also heard the Treasury Board Secretariat say that if something isn’t defined in the act, it can’t be defined in the regulations either. The only way to deal with this is to create guidelines later on. Do you have any comments?
Ms. Tellier: I’ll talk again about evidence-based findings and research, which will give you specific targets and indicators for achieving results that aren’t process-oriented. The government will inevitably talk about processes. You need to make sure that you clearly understand the intention behind this. You need to see what you can do to make your efforts and measures more results-oriented. You must say: “These are the results that we want to achieve. Now make sure that we get them.” I have nothing more to add.
The Chair: On behalf of all the committee members, thank you for coming. Thank you for answering our questions and for your opening remarks. We’ll certainly take them into consideration, put them together with the comments from the other witnesses and see what we can do to improve the regulations. Thank you.
For our second panel, we’re joined by video conference by Érik Labelle Westin-Eastaugh, Professor and Dean, Faculty of Law, Université de Moncton. We’re also joined by François Larocque, Full Professor, Research Chair in Language Rights, Faculty of Law, Common Law Section, University of Ottawa.
Welcome to both of you. You’ll have five minutes for your opening remarks. We’ll then open the floor to questions.
We’ll start with Mr. Labelle Westin-Eastaugh and then turn to Mr. Larocque.
Érik Labelle Westin-Eastaugh, Professor and Dean, Faculty of Law, Université de Moncton, as an individual: Thank you, Mr. Chair. Honourable senators, thank you for having me here as part of your study on the draft regulations for Part VII of the Official Languages Act. I’ve been conducting research on Part VII for a number of years. I’ve also argued two court cases on the topic.
As a researcher and lawyer, I would like to share my observations with you. My comments will be direct. I’m concerned about the draft regulations and what they mean for the future of Part VII. Since 1988, Part VII has been caught in a recurring cycle. The legislator adopts ambitious provisions. The machinery of government then interprets them in such a minimalist way that the provisions lose all their teeth, making the next reform necessary. The modernization of the act in 2023 was meant to break this cycle once and for all. The legislator considerably fleshed out section 41. It specified that positive measures had to be concrete, based on analyses and evidence-based findings and framed by evaluation mechanisms.
The regulatory power was meant to complete the task. Honourable senators, therein lies the rub. When I read the draft regulations, I can see that they replicate the very flaw that the legislator sought to correct. For the most part, the text simply paraphrases the act without adding the expected clarification. It perpetuates the normative ambiguity that has prevented the effective implementation of Part VII in the past. For the commitments in Part VII to be implemented, the federal institutions must know three things: when they must act, what objectives they must set and what steps they must take to achieve these objectives. The draft regulations attempt to address part of this issue. They identify the stages in the decision-making cycle where the obligation arises: the design of a program, its restructuring, its abolition, the devolution and so on. However, they don’t specify the objectives to set or the steps required to achieve the objectives. In concrete terms, once an institution sees that it’s in the process of developing or restructuring a program, what should it do to consider the potential for taking positive measures?
What level of analysis is required? What criteria does the institution use to determine that a positive measure is needed? How does it evaluate whether this measure has a positive or negative impact on the communities? What circumstances would justify adopting measures that would have a negative impact? The regulations provide no measurable indicators, minimum thresholds, evaluation methodology or hierarchy of values. They list factors that institutions must consider, but they merely repeat the wording of the act, without specifying what “consider” means in practice.
That gap is problematic. Without clear content, the obligation to consider is very likely to remain a pro forma exercise, a box to be checked, rather than a true legal constraint. Based on our 35 years of experience, we know that federal institutions naturally gravitate toward the least restrictive interpretation when the terms are ambiguous. That’s precisely why the regulations had to provide the clarification that was missing. The accountability mechanisms are equally lacking. You’ve heard from the Treasury Board Secretariat that its monitoring process is primarily founded on persuasion.
A regime without effective controls does not work. Communities cannot be the only guarantors of their rights through costly complaints and legal remedies. We need a regulatory framework that imposes clear constraints upstream. The secretariat replies that it cannot go beyond the framework of the enabling legislation.
With all due respect, that argument does not hold water. Section 41(11) of the Official Languages Act authorizes the secretariat to set the terms for meeting the obligations in Part VII, and section 46 makes it responsible for developing the principles to carry out Part VII. Setting out terms and developing principles are all about being more specific.
That’s the very purpose of regulations. Regulations that merely repeat the wording of the law are useless.
I will conclude with a word of caution. The act is not up for review until 2033. If these regulations are adopted in their current form, there’s every reason to fear that history will repeat itself in the same cycle: ambitious legislative reform is undertaken, the executive branch takes a minimalist approach to implementation, institutions do not take action and communities get frustrated. The decade of parliamentary work to modernize this act — your committee has been a major contributor to that work — may have been in vain. I therefore encourage you to require the Treasury Board Secretariat to produce regulations that live up to the mandate Parliament set out for it in 2023.
Thank you, and I look forward to your questions.
François Larocque, Full Professor, Research Chair in Language Rights, Faculty of Law, Common Law Section, University of Ottawa, As an Individual: Mr. Chair, senators, thank you very much for the invitation to appear before the Standing Senate Committee on Official Languages to share my thoughts on the draft regulations for Part VII.
As several witnesses have told you, many people had been eagerly awaiting these regulations for a long time.
In my opinion, the draft regulations for Part VII should be and are one of the key components of the normative architecture of the federal official languages regime. These regulations will concretely operationalize the commitments codified in sections 41(1), 41(2) and 41(3) of Part VII.
The commitments relating to the vitality of official language minorities include promoting French and English, protecting and promoting French, and advancing learning in both official languages, from early childhood to post-secondary education.
First observation: It’s important to note that these draft regulations are clearly narrow in scope. They only address those three commitments.
The regulations leave out provisions relating to other commitments in Part VII, such as estimating the number of rights holders — that’s section 41(4).
Statistics Canada’s 2021 census included new questions that made it possible to estimate the number of rights holders. These questions should be in the next census, but there’s no guarantee of that. These regulations would have been an opportunity to give effect to that commitment in Part VII.
Similarly, section 41(1) of the new Part VII talks about a federal strategy for the disposal of federal assets. When a federal building is sold, official language communities should be consulted to see if those buildings could be used for the community. It would have been possible to foresee a disposal strategy in these regulations. Unfortunately, the regulations are silent on that commitment as well.
So the regulations only concern the first three paragraphs of section 41, which is not insignificant; they are important, but they don’t constitute all of Part VII.
Nevertheless, to come up with concrete proposals, you’ll find three recommendations in the brief I submitted. I’m happy to elaborate on each of them during the question period.
First, I propose adding a purpose statement to the introductory provisions of the draft regulations. That would be a way to get around the Treasury Board Secretariat’s age-old response, which is that terms cannot be defined. However, there is a practical solution, which I am proposing with the addition of this purpose clause.
Second recommendation: The commitment under section 41(2) needs to be strengthened, because it’s largely eclipsed or obscured in the draft regulations, that is, the commitment to protect, which acknowledges that, of the two official languages, French is more vulnerable, and to take measures to promote and protect French. If we read them all the way through, the regulations are very symmetrical; what we do for French, we do for English, and what we do for English, we do for French. However, the new Official Languages Act that you passed recommends a new, asymmetrical approach recognizing that French is vulnerable and committing Canada to do more to protect this vulnerable official language. So there are ways to strengthen the regulations at this level; one would be to explicitly include a francophone lens in the planned analyses.
Third — but it’s really too complicated to talk about it in detail in the opening remarks — I have identified a few other minor shortcomings that could be considered to strengthen the regulations; that’s the third recommendation, which we could discuss in due course.
Finally, much like my colleagues who have testified thus far and my distinguished colleague Érik Labelle Westin-Eastaugh, I am of the opinion that these regulations are long overdue and, for that reason, because they are somewhat redundant, they repeat things that are already in the act rather than clarifying them. These draft regulations are disappointing, so this is an opportunity to strengthen them and improve them, before we’re all stuck with them for a long time.
Those are my opening remarks.
[English]
Of course, I would be happy to take questions in either official language.
[Translation]
The Chair: Thank you both for your presentations.
We will now proceed to questions from senators. Each member will have five minutes, including question and answer.
Senator Gerba: Welcome to our guests today, online and in person.
On February 24, 2018, before the House of Commons Standing Committee on Official Languages, University of Ottawa professor emeritus Linda Cardinal pointed out the lack of clear guidelines in the draft regulations to achieve concrete results in terms of substantive equality. Based on what you’ve said, you clearly feel the same way.
I feel like asking you this: Should these draft regulations be started over, or is there really an overall recommendation that could strengthen them, be it consultations, gathering data, or clearly defining anticipated results?
Why are we still where we are today?
Mr. Larocque: Who is the question for?
Senator Gerba: Both of you. It’s really an open question, because based on what all of our witnesses are saying, it feels like these draft regulations are of no use to us.
Is that the case, or is there something positive we can take from them? Apart from that, what needs to be done away with?
Mr. Labelle Westin-Eastaugh: Thank you.
I’ll be very frank with you. I kind of feel like we should go back to the drawing board with the regulations. The question I ask myself, particularly as a lawyer who has represented people who filed a complaint under Part VII, is this: Do the regulations help us determine whether a federal institution has met its obligations or not? My conclusion is that the answer is no, because the regulations add nothing to the act in terms of the content of the obligations. There are a few things here and there that are added, but, generally speaking, the content of the obligations is entirely set out in the same wording used in the act. So no clarification was added.
The only thing that’s really new is that it mentions different stages in the policy and program development process. So it’s good to say that there are various stages at which federal institutions must consider the appropriateness of taking positive measures or consider the potential for negative impact. I will acknowledge that that is a win. However, regarding the content of the obligation itself, we can ask ourselves these questions: What is a positive measure? What is negative impact? What justifies a refusal to take a positive measure or the decision to impose negative impact despite the fact that we know in advance that the impact will occur? There are no guidelines in that regard, no directives as to the type of analysis or the type of factors that institutions must consider, apart from those already mentioned in the act.
Mr. Larocque: I’m going to let myself add a little more optimism, however.
Do we have to start all over again? I don’t think so, but this is just a draft.
If a student handed in an assignment to me in this state, I would give them a passing grade, but only just. I would ask the student to redo the work, to explore the issues already identified by my colleague in greater depth, and above all to come back with clear definitions, clear concepts and indicators that would enable public servants, whose daily work will involve applying these regulations, and federal institution managers, who will also be required to know and have a solid grasp of the regulations, to implement the federal government’s commitments in terms of compliance with the regulations. Therefore, much more is needed than what is currently presented in the draft regulations.
That brings me to my first recommendation. It concerns something that was missing and that could be a solution to Treasury Board’s position that terms that are not already defined in the act cannot be defined.
First observation: The regulations contain a definition of “initiative.” This term is not defined in the act. The regulations put forward a definition that is not already in the act. In my opinion, other definitions could also be added.
If you don’t want to define what a positive measure is — that’s a great question in itself, right? What does “positive measure” mean? What are the external parameters of that concept? The act contains somewhat of a response. In section 41(6), you have codified elements of the definition of positive measures. They can be repeated or reiterated in a purpose clause at the top of the regulations. The purpose clause — I don’t know if you have my little brief in front of you — can be an interpretive and practical tool to remind public servants, whose job is to apply these regulations day in day out, how to go about it, what the legislator intended to achieve with the act and how the regulations are intended to implement it.
Perhaps I should have said it first: The proposal to include a purpose clause didn’t come from me. It comes from my colleague at the University of Ottawa, Professor John Mark Keyes, who testified with the FCFA at the House of Commons Official Languages Committee in February. It was his proposal, and I think it’s quite brilliant. He is a law clerk and he worked for decades at the Department of Justice drafting legislation and regulations. He is very knowledgeable.
It was his suggestion to include this purpose clause that could guide and direct public servants in applying the regulations — it would provide rather general guidelines, but would guide things in the same direction, and could reduce the risk of litigation around the meaning of positive measures. In British Columbia, there are tons of cases that have had to go all the way to the Federal Court of Appeal to define what positive measures are. Granted, there were no regulations at that time, but would the proposed draft regulations, in their current form, steer clear of those disputes? The answer is no. More instructions must be given on positive measures, and this is an opportunity to do so.
The Chair: Thank you. Since we’re talking about this, and before giving the floor to Senator Henkel, I don’t know if you heard my question to the previous panel, but during the Treasury Board Secretariat’s presentation. . . . I don’t think there was any reference to a purpose statement, but we’ve heard various groups talk about it. The other issue was that terms that are not already defined in the act can’t be defined in the regulations. That’s why “initiative” can be defined in the regulations: because it’s not defined in the act. I’d like to hear your comments on that.
In the other part of their remarks, they indicated that not everything is included in the regulations, but to a certain extent, there are guidelines or directives that will put more meat on the bones of the regulations. I’d like to hear your comments on those responses.
Mr. Labelle Westin-Eastaugh: That’s a great question. In my opinion, the Treasury Board Secretariat has more leeway than it seems to think, based on its testimony before this committee and the House committee.
For one thing, the Treasury Board Secretariat has the authority to interpret the terms in the act. Basic administrative law principles allow the administrative decision maker to interpret the terms of their enabling legislation, which may include adopting definitions. Of course, the Treasury Board Secretariat isn’t allowed to do what’s known as “fettering its own discretion,” but without getting into the details, it’s clear that the act gives the Treasury Board Secretariat the mandate to define various aspects of implementing Part VII.
First, it has the power to make regulations prescribing the manner in which Part VII is to be carried out. What does that mean? It’s a very broad concept that should be interpreted. The Treasury Board Secretariat seems to be interpreting this concept in a very restrictive manner, which I don’t think is justified. There is also section 46 of the act, which gives the Treasury Board Secretariat responsibility for policies relating to the implementation of Part VII and other parts. The act contains other parts as well.
As such, it is clear that the Treasury Board Secretariat has a normative power. It has the power to define in great detail the normative framework that will govern the implementation of Part VII. The Treasury Board Secretariat is not constrained by the specifics of what’s in the act; it can go beyond the act. The act is just a starting point. To be truly implemented, it needs further clarification, and that is part of its mandate and role in implementing the act.
The Chair: Thank you.
Mr. Larocque: I’ll start by saying that I agree with Mr. Labelle Westin-Eastaugh. Treasury Board can do more than it seems to think. That’s why communities have historically demanded that the Treasury Board Secretariat lead implementation of the Official Languages Act. That was one of the changes that Parliament made when it modernized the act in 2023. Treasury Board has been given a lot more responsibilities, particularly because of the various levers at its disposal and its horizontal influence in the federal machine. That’s my first comment.
From a technical point of view, can regulations define a term that is already defined in the act, or can it change or improve the definition of a term? I will defer to the law clerks who will testify before you on these matters and whose job it is to draft legislation. I recognize that’s not my area of expertise at all.
That said, what I propose in terms of positive measures is to take parts of what’s in subsection 41(6) of the act, which sets out the essentials of positive measures.
What are positive measures, according to the act? They are concrete and tailored to the specific needs and objectives of each community. They take into account the purposes and principles set out in the act. They implement planned commitments effectively. They have a real and measurable impact on enhancing vitality. These are all things that are already in the Official Languages Act, which you passed, so reiterating them in the regulations would be a good start, wouldn’t it? It would guide the actions of officials and those called upon to interpret the regulations.
Are there other types of instruments besides these regulations to which methods and directives can be added? Of course. Having said that, the hierarchy of federal standards starts with the Constitution — the supreme law of the land — then quasi‑constitutional laws, then ordinary laws, then regulations. Guidelines, instructions and methods, which are not binding in the same way as regulations, are at the bottom of this hierarchy. Regulations are binding because they are delegated legislation. It’s the authority of Parliament as exercised by the Governor-in-Council, whereas the other instruments are useful administratively, of course, to achieve and implement the objectives, but they don’t have the same weight as the regulations. That’s why I think we need to take this opportunity to strengthen the regulations that will be made under Part VII as much as possible.
The Chair: Thank you.
Senator Henkel: Thank you for being here, gentlemen. Welcome.
My first question concerns clause 3 of the regulations, which provides that every time a federal department creates, modifies or abolishes a policy, it must consider whether that decision can affect official language minority communities, but only when it is a “significant action.” No one really knows what that means. Is closing the only federal office in a francophone city and cutting funding to a community organization a significant action? If the department says no, it is not required to conduct an analysis. Is there a way to correct this flaw? If so, how?
Mr. Larocque: I think it can and should be done. You found a very relevant example of the kind of problem that comes up on every page of these regulations. An initiative is a significant action other than a program that is initiated and implemented by one or more federal institutions in carrying out their mandate. That doesn’t tell us anything, and clause 3, as you pointed out, talks about significant actions. We need better, more comprehensive and more useful definitions that will really guide decision making.
As I said, yes, it can be done, and yes, it must be done.
Senator Henkel: That leaves the door open to an extremely broad and complex interpretation that could probably lead to inequity.
Mr. Labelle Westin-Eastaugh: I would just add that it would be useful to compare this to the notion of regions with significant demand, as in Part IV of the act. It requires federal institutions to provide services in certain areas with significant demand. It’s a fairly fuzzy concept and subject to all kinds of interpretation.
There is a regulation that specifically identifies regions with significant demand. That’s exactly the kind of thing that could be done here, keeping in mind the differences in context. Regulations could provide a more detailed definition of what a significant decision is. We would have to see proposals to discuss it further, but it’s clear that clarifying concepts like this is exactly what regulations are for.
Senator Henkel: The 2023 act contains a chapter entitled “Dialogue and consultation activities, research and evidence-based findings,” with specific criteria governing those consultations. The draft regulations don’t specify anything in that regard. Yet, in law, the primary function of a regulation is to make a law operational and to turn general obligations into specific and enforceable obligations.
Is it fair to say that the regulations are less ambitious than the act itself, and do they render the act unenforceable? You’re smiling, so I’ll give you the floor.
Mr. Labelle Westin-Eastaugh: I wouldn’t go so far as to say it makes the law “unenforceable,” but you could say it doesn’t make it easily enforceable.
In 2005, a reform of Part VII, sponsored by the late Honourable Senator Jean-Robert Gauthier, enabled Parliament to introduce for the first time the power to make regulations specifying the terms and conditions for implementing Part VII. No regulations have been adopted under this version of the act, although there have been legal proceedings that have resulted in declarations that a federal institution has violated Part VII.
Thus, the law retains its normative force and its binding nature, but it is more difficult to determine whether it has been complied with or violated in a particular context without the benefit of regulations.
Senator Henkel: Thank you.
Senator Patterson: I have a question about the anglophone and francophone communities in Quebec. In your opinion, do the draft regulations sufficiently take into account the specific situation of French as a minority language? Do you have any changes to propose in that regard? They are completely different communities.
Mr. Larocque: Thank you for your question, Senator Patterson. That’s the essence of my second recommendation. I find that the regulations, for the most part, deal with French and English, the two official languages, as they should, on an equal basis under the Canadian Charter of Rights and Freedoms and the Official Languages Act. They are languages that have equal status, rights and privileges. However, the 2023 act added another dimension to this equality: the days of formal equality are past; now it’s time for substantive equality. That’s what the law says. What does that mean? It’s now possible to differentiate between groups. It doesn’t mean giving everyone the same treatment; it means observing the situation on the ground and acting in a way that restores equity between the groups that are being compared.
In response to your question about whether the regulations adequately reflect this aspect of the act, I would say that, in my opinion, they do not.
I noted a few instances where the analyses mention that certain indications relating to immigration or dissemination in French must be taken into account in order to advance scientific knowledge. These factors exist in the act and are repeated in the regulations — which is somewhat useful — but a comprehensive analytical approach is not prescribed, as it would be if a francophone lens were applied.
What do I mean by that? Linda Cardinal has already spoken to you about this at length, and you also have an example in the federal normative corpus, the new policy on francophone immigration adopted by Immigration, Refugees and Citizenship Canada in 2024, which was revised in 2025 to meet the francophone immigration targets.
In that policy, the minister at the time, Marc Miller, explicitly included a francophone lens, an analysis grid that sets out certain specific factors to consider with respect to francophone immigration, factors that reflect what the act states in the preamble and section 2. Specifically, French is in decline, the demographic weight of the francophonie must be restored and the French language must be protected and promoted. That’s what a francophone lens does. It’s the approach to achieving the objective. This objective also appears in Part VII, but it is virtually non-existent in the regulations.
The recommendation would be to draw on what Minister Miller did with the policy on francophone immigration and add a francophone lens as an integral part of the analyses that the leaders of federal institutions must do here.
Mr. Labelle Westin-Eastaugh: I fully agree with what my esteemed colleague, Professor Larocque, said.
Senator Loffreda: Thank you to our witnesses for being with us this evening.
Mr. Larocque, you mentioned that the regulations were narrow in scope, and you made concrete proposals, the third of which had to do with other flaws. Can you tell us more about the other flaws that you didn’t cover during this committee meeting? I would also like Mr. Labelle Westin-Eastaugh to comment on these flaws and respond to your remarks. Thank you.
Mr. Larocque: I would be happy to. Thank you for your question, senator.
They’re on the last few pages of the little document that I circulated.
In addition to the absence of a statement of purpose and a francophone lens, there is also a largely symmetrical approach that does not take into account the principle of substantive equality. “Symmetry” still means francophone-anglophone and anglophone-francophone. That’s good, it’s the bare minimum, but more must be done for French. For example, subsection 4(4) of the proposed regulations could require separate analyses for francophone and anglophone communities, so as not to treat them as a single group in the analyses.
In clauses 5 and 6, there are no language requirements for dialogue and consultation activities. The regulations could specify that dialogue and consultation activities with francophone communities must take place in French. This may seem obvious, but it’s not always the case. Sometimes people who show up at consultations aren’t proficient in both official languages. Similarly, the regulations could specify that consultations with Quebec’s English-speaking communities must be in English. The regulations can contain that level of linguistic specificity.
Getting back to a recommendation put forward by the Fédération des communautés francophones et acadienne du Canada on the subject of dialogues and consultations, people have to be mobilized to participate in the activities the federal government organizes at various times in connection with various initiatives. That costs money, resources and time that non-profits don’t always have, so some financial support could be provided to facilitate the effective participation of community organizations in dialogue and consultation activities. That’s one thing regulations could provide for: that the government facilitate the meaningful participation of those communities.
We were talking earlier about Treasury Board and its role in federal-provincial-territorial agreements. I see that clause 7 provides no role for Treasury Board in advance of meetings to determine the existence of these language clauses in the agreements. Treasury Board could prepare directives to promote the inclusion of language clauses and increase the likelihood of them being added.
Subclause 7(4) talks about the publication of federal-provincial-territorial agreements, but nothing else, whereas we could include, for example, publishing the agreements in a centralized, public way. As a researcher, I’m very interested in federal-provincial-territorial agreements. I would like to see one every once in a while. They are very hard to find. I have to reach out to my contacts to find one. The language clauses that are decisive for our communities could be analyzed. Having a public, transparent website, where our agreements are published and where the clauses that have been agreed to in the negotiation are made public, is one thing we could do.
Clause 9 provides for a 10-year review of the regulations, as in the act. Regulations are supposed to move faster than legislation, so perhaps doing it every five years would be a better idea, meaning that regulations should be reviewed more regularly than legislation. That’s one of my recommendations.
Mr. Labelle Westin-Eastaugh: I have a small comment to add regarding agreements with the provinces. On this point, it would be advisable to go further with the regulations and specify categories of agreements where there must be language clauses. I’m thinking in particular of situations like the one that led to the FFCB decision before the Federal Court of Appeal, which my colleague Professor Larocque mentioned earlier. The federal government decided to stop providing training services directly to the workforce, instead transferring the services it used to provide to the provinces while continuing to fund them. The services could then be provided by the provincial governments. This is a situation where a service was offered by the federal government, where the federal government continued to fund the service and where, in my opinion, it should be mandatory to include language clauses.
In my opinion, obviously not all federal-provincial agreements would necessarily be suitable for the inclusion of language clauses, but there are certain categories that could be determined in advance and that should be defined in the regulations.
The Chair: My question is for Professor Larocque.
You suggested reviewing the regulations sooner than the Official Languages Act, but if the act has weaknesses, how could we improve the regulations a second time without changing the act?
Mr. Larocque: You raise a thorny issue, Mr. Chair. Yes, I would say it depends on what kind of problem it is. If it’s a problem that’s really structural to the act, of course, you have to wait for Parliament to intervene. However, what the Governor-in-Council does may also be deficient or unambitious, and that’s the kind of work that should be done more frequently. Obviously, we must always act within the parameters set by the act, and only Parliament can amend it.
The Chair: I think it was the community organizations that said there was a weakness in the act because it does not define many of the themes we just mentioned. They said that the act would have to be changed and that it would be easier to change the regulations afterwards. I think both can be done.
Mr. Larocque: Both are doable, and then we don’t need to wait until the 10 years are up to amend the act either.
The Chair: That’s right.
Mr. Larocque: There is nothing to prevent an astute senator from introducing a bill to correct a mistake, with a definition in the Official Languages Act, and it all goes through.
It is clear that the revisions that are built in to the act are positive. Doing it every 10 years would already be an accomplishment, wouldn’t it? Especially when you consider that we waited more than 35 years for the last review, between 1988 and 2023. There has been some tinkering with the legislation in the meantime, obviously. By planning to do it every 10 years for the act and every 5 years for the regulations, we ensure that they will be reworked and reviewed at least that often.
The Chair: Neither panel tonight has talked about federal-provincial-territorial agreements. I think I know the answer, but here is my first question: Do the regulations clearly define the circumstances requiring a language clause?
Mr. Larocque: The answer is no. Everything that is provided for in the act is also provided for in the regulations, because the regulations reiterate the act, and that is one of its problems. The act can afford to be a little more vague in general. The commitment here is to promote the inclusion of language clauses, but the act doesn’t go any further and neither do the regulations, unfortunately. As my colleague Professor Labelle Westin-Eastaugh said, we could provide for the circumstances, and also when it would be desirable and necessary to include them.
Mr. Labelle Westin-Eastaugh: I agree with my colleague.
The Chair: You are saying that you could have added another recommendation about the categories of agreements where the language clause should be applied?
Mr. Larocque: Absolutely. I could have added something else, if I had had more time to prepare for today’s meeting.
I still noted a number of things, but yes, I completely agree with you, Mr. Chair. This is an issue I wish I had added to my list, had I had more presence of mind.
The Chair: This is very important for our provinces and territories, and especially for our minority communities located there. What agreements are we talking about? Are they purely provincial and territorial, or are they national as well, in different areas?
Mr. Larocque: There are many permutations, but these are agreements that have an impact on the communities and that affect their vitality and their opportunities to thrive. That’s the issue.
What could it cover? It could cover all the priority sectors: education, justice, immigration and health. There should be language clauses in all these sectors.
Senator Henkel: In the same vein, the regulations ask federal departments to do what they can to include language protections in their agreements with the provinces, for example, when Ottawa transfers billions of dollars to the provinces for health, education or social services. However, what happens if a province refuses to include a clause to protect French-language services, for example, in a federal funding agreement? If a linguistic community is adversely affected, what kind of recourse can it expect?
Mr. Labelle Westin-Eastaugh: I think the issue will need to be carefully analyzed, but a parallel could once again be drawn with the FFCB decision. I haven’t read the decision in a while, but if I remember correctly, the Federal Court of Appeal concluded that transferring the service to a province without including a language clause violated section 7. The court ordered the minister to terminate the agreement and negotiate a new one that complies with the obligations provided for under section 7, including a language clause, I imagine.
That’s one possibility here. The act could be interpreted as prohibiting federal ministers, in some circumstances, from reaching agreements that don’t include language clauses, which would invalidate such agreements. To find out whether this is something that could be done under the new act, a more thorough analysis would have to be done. I can’t do that right here. I think there is a possibility.
Senator Henkel: Thank you.
Mr. Larocque: I think it would be a shame to always turn to the courts, as we had to do with the FFCB decision, to correct something that should have been anticipated with clear instructions in regulations or with the upstream participation of the Treasury Board Secretariat before the agreements were negotiated. The federal interlocutors should have been reminded of the importance and relevance of including language clauses.
While negotiating with their provincial and territorial counterparts, they should also be reminded of the importance of these issues for the communities living in the provinces and territories. They need to be reminded of how much it is in everyone’s interest to ensure the vitality of these communities, which this type of agreement is meant to promote. This kind of frank conversation needs to take place whenever there is an opportunity to include a language clause in intergovernmental negotiations.
Senator Henkel: Thank you.
The Chair: Mr. Larocque, earlier you mentioned the rights holders. Does the fact that the Official Languages Act is quasi‑constitutional have an impact on the content of the regulations?
Mr. Larocque: Excellent question. I would like to hear what my colleague has to say on the matter. I believe that if a quasi‑constitutional act confers a power delegated by legislation, it would be a regulation. A regulation is delegated legislation. That would mean that the regulation would also have special resonance. As we’ve been saying since the beginning of the session, these regulations are very important and long awaited.
Are they long awaited because that’s how the commitments made by the government in the act are operationalized? Are the regulations so important because the commitments were made under a quasi-constitutional act? Perhaps. I will defer to my colleague.
Certainly, as I said in my opening remarks, this standard is critically important to the communities. These are not just any old regulations. They have been awaited for too long, and that is why they need to be properly done, with the teeth and weight that the communities need.
Mr. Labelle Westin-Eastaugh: I would add that the concept of a quasi-constitutional statute is fundamentally a principle of interpretation. It’s a principle that says that it is presumed that Parliament does not intend to repeal or amend a quasi‑constitutional statute, unless it does so explicitly. A quasi‑constitutional statute will supersede a previous one. It will take precedence. It is, in a way, more important.
Regulations derive their normative force from their enabling legislation, so regulations adopted under a quasi-constitutional statute should, in principle, have the same precedence over other statutes.
Practically, what that means is that it’s an act that seeks to implement principles drawn from the Constitution itself, to implement constitutional obligations. The way the act is interpreted and implemented must be guided by these obligations.
The Governor-in-Council or the Treasury Board Secretariat should approach the regulatory drafting exercise in this spirit. Otherwise, it is a matter of interaction with other acts or regulations.
The Chair: Thank you.
Senator Gerba: I would like some clarification. Mr. Larocque, you mentioned that you don’t have access to federal-provincial agreements and, if that’s the case, that means we can’t even know whether the agreements contain language clauses. Who has access to the agreements?
Mr. Larocque: The Treasury Board Secretariat has access to them. I would hope that there is a central database in the government for these agreements, but I don’t know.
One thing I know is that there is no publicly available list. If it exists, let me know so I can refer to it. I’m very interested in it for my research. Every time I tried to find it myself or asked my research assistants to find it, everyone came back empty-handed. It’s not that easy to find.
When I was able to get my hands on it, it was through informal contacts, not through official channels. What I would like to see as a research tool . . . . We were talking about evidence in the previous panel. The evidence is in this kind of document that we can refer to. However, we could conduct studies not by looking at a language clause, but at all language clauses and the way they were drafted. Are there conditions attached to them? If so, which ones? That kind of analysis would be worthwhile and informative. Unfortunately, to be able to do these analyses, you have to have access to the agreements themselves.
Senator Gerba: Are you making a recommendation along those lines?
Mr. Larocque: It’s more of a wish. It’s not a recommendation, but certainly a wish. It’s something I would like to see. A university professor is not the only one asking for this. The FCFA has asked for it several times, as has TALQ. This has been a long-standing issue for a number of stakeholders.
Senator Gerba: Yes, because, to go back to Senator Henkel’s earlier question, if you have to take legal action or seek legal remedy and you don’t have access to the clauses, you’re going nowhere.
Mr. Larocque: It can be very difficult. The clauses can be produced in the disclosure of court proceedings to prepare for a hearing, but that should not be necessary. It’s an agreement between governments. We are not talking about military secrecy or confidential matters. They should be accessible.
Senator Gerba: Thank you.
The Chair: Thank you both for being with us this evening, with your opening remarks and your answers to our questions. It’s much appreciated.
(The committee continued in camera.)