THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, March 23, 2026
The Standing Senate Committee on Official Languages met with videoconference this day at 5 p.m. [ET] to examine and report on the regulatory framework of Part VII of the Official Languages Act, and to examine and report on such issues as may arise from time to time relating to official languages generally.
Senator Allister Surette (Chair) in the chair.
[Translation]
The Chair: Good evening, colleagues. Before we begin, I would like to ask you 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 microphones. Activation and deactivation will be managed by the console operators.
I am Allister Surette, senator from Nova Scotia and chair of the Standing Senate Committee on Official Languages. I will ask my colleagues to introduce themselves.
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Cormier: René Cormier from New Brunswick.
[English]
Senator Patterson: Rebecca Patterson, Ontario.
[Translation]
The Chair: We are pleased to welcome our guests this evening, as well as everyone 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 this end, we are joined this evening by video conference by Geoffroy Krajewski, Chair of the Réseau pour le développement de l’alphabétisme et des compétences, and Denis Desgagné, Executive Director.
We are also joined by video conference by the chair of the Fédération culturelle canadienne-française, Nancy Juneau, as well as Mr. Gabriel Poliquin, Legal Counsel specializing in language rights at the Fédération culturelle canadienne-française, who is here with us. I imagine you are familiar with the procedure. We will give you five minutes for your opening remarks, after which we will move on to the question period. Mr. Krajewski, you have the floor.
Geoffroy Krajewski, Chair, Réseau pour le développement de l’alphabétisme et des compétences: Good morning. Ladies and gentlemen of the committee, we would first like to thank you for including us in your work. Having been closely involved in the work surrounding Bill C-13, we are fully aware of the important role your committee has played in this matter and continues to play with these draft regulations.
My name is Geoffroy Krajewski, chair of the Réseau pour le développement de l’alphabétisme et des compétences, also known as RESDAC. I am here today with our executive director, Denis Desgagné.
We have prepared a brief submission, which we are tabling here and invite you to review. It contains specific recommendations regarding the draft regulations. In the time allotted to us at the outset, we would like to highlight a few points.
I would first like to say a few words about a concept that lies at the heart of our mandate: lifelong learning in a francophone minority context. This concept is now enshrined in subsection 41(3) of the Official Languages Act. This is one of the most innovative amendments resulting from Bill C-13. For the first time, a quasi-constitutional text recognizes that the social, economic, cultural and identity-related success of francophones in the country requires learning opportunities beyond the institutional framework of primary and secondary school or post-secondary education. To succeed in 2026, and throughout their lives, francophones must have opportunities, in their own language, to broaden their skills, enabling them to work successfully in a world facing complex social and economic challenges.
Every day across the country, hundreds of organizations and businesses offer such learning opportunities in both formal and informal settings. Unfortunately, there is a great need for leadership and positive measures to ensure that organizations and businesses in francophone minority communities have access to the same resources as Canada’s English-speaking majority. To succeed, these organizations and businesses need the support of the federal government, as provided for in the Official Languages Act.
The draft regulations were tabled nearly three years after Bill C-13 came into force. In examining the merits of these draft regulations, we felt it was highly relevant to highlight the lack of significant progress in implementing the new provisions of the act. Nothing can justify the stagnation we are currently facing. There should be a fundamental overhaul of the role of the Treasury Board Secretariat, and we should already be engaging in a new relationship and a new form of collaboration with federal departments to reflect the provisions of Part VII of the act. Yet we are still a long way from such a scenario.
In its submission, the Fédération des communautés francophones et acadienne du Canada, the FCFA, put forward recommendations that we support. Our aim here is to clarify or highlight four points relating to lifelong learning.
Firstly, with regard to the factors to be taken into account in the analyses to be carried out by federal institutions, the list currently included in subparagraph 4(4)(b)(viii) of the draft regulations must include a direct reference to learning in non‑formal and informal contexts; otherwise, this would represent a step backwards from the provisions of the Official Languages Act. Our submission includes wording to this effect.
Secondly, with regard to all the work involved in the analyses carried out to support the development of positive measures or the inclusion of language clauses in agreements signed with the provinces and territories, it is essential that these analyses are shared with the communities that are specifically concerned by them. The wording of subsection 4(5) of the draft regulations is inadequate, as it merely requires that these analyses be “carried out”. We therefore recommend that subsection 4(5) of the draft regulations be amended to require federal institutions to systematically publish the full text of the analyses they carry out under Part VII of the Official Languages Act.
Thirdly, it is essential to ensure a high level of transparency with regard to language clauses in agreements signed between the federal government and the provinces and territories. In its current form, subsection 7(4) of the draft regulations provides that federal institutions shall notify the President of the Treasury Board of the publication of any agreement entered into under subsection 41(10.1) of the act. Such notification is of no use to our communities unless they are also informed of these publications. We recommend that subsection 7(4) of the draft regulations be amended to create an obligation for Treasury Board to include in its annual report a list of all language clauses adopted during the financial year covered by each report.
Finally, the draft regulations must clarify the procedures for dealing with situations where a federal institution fails to meet its obligations under Part VII of the Official Languages Act. The nature of these obligations and the anticipated interactions between federal institutions and our communities mean that it would be ineffective and inefficient to expect francophone communities to systematically turn to the Commissioner of Official Languages or the Federal Court every time a problem arises. Whilst these two avenues remain essential, they are nevertheless insufficient. We therefore recommend that provisions be added to provide for alternative methods of dispute resolution between a federal institution and our communities.
In conclusion, I would like to reiterate that the inclusion of subsection 41(3) of the Official Languages Act represents a historic victory for our communities. The regulations adopted to support this provision must now ensure that it has the intended impact. There is still a great deal of work to be done to achieve this. Thank you for your attention.
The Chair: Thank you, Mr. Krajewski. We now give the floor to the chair of the Fédération culturelle canadienne-française, or FCCF, Nancy Juneau.
Nancy Juneau, Chair, Fédération culturelle canadienne-française: Mr. Chair, honourable senators, the FCCF would like to thank you for inviting us to give evidence as part of your study into the regulatory framework of Part VII of the Official Languages Act. We are particularly grateful for your interest in these draft regulations. Your institution plays a key role in protecting and promoting the rights of Canada’s minorities.
As the representative body for the arts and culture sector of francophone and Acadian communities for nearly 50 years, the FCCF supports the recommendations of the Fédération des communautés francophones et acadienne du Canada, the FCFA, in the context of this study. We now wish to offer further insights specific to a sector that is now formally recognized in law as essential to the vitality of our communities.
By their very nature, regulations serve to set out the detailed rules for enforcement or to provide guidance on the implementation of an act. However, due to their lack of clarity and their partial coverage of key elements of Part VII, the draft regulations are incomplete. They absolutely must be revised to reflect the legislator’s intention to strengthen the obligations incumbent upon federal institutions under the modernized legislation.
The FCCF would like to present two recommendations for amendments to these draft regulations, which it considers essential. Firstly, we recommend that the regulations set out detailed implementation procedures for the adoption of positive measures, particularly regarding the obligation of federal institutions to carry out analyses in relation to their mandate.
We note a significant lack of clarity in the draft regulations regarding how institutions are to go about conducting these analyses. The act stipulates that federal institutions must base their positive measures, amongst other things and to the extent possible, on research and evidence used to conduct analyses. Given the scarcity of available data, this issue is of particular concern to us.
Our extensive experience has taught us that the regulations must stipulate two things. Firstly, they must specify that relevant data held by federal institutions must be shared with official language minority communities, or OLMCs, at an early stage of their analyses. Secondly, they must state that institutions are obliged to contribute to the production of data if such data does not exist. This could involve producing the data themselves or supporting its production by representatives of OLMCs, for example by funding research activities.
We also recommend that the regulations set out in greater detail the principles of procedural fairness that guide the procedures for conducting the dialogue and consultation activities that federal institutions are required to carry out with OLMCs.
The act now recognizes that OLMCs face distinct realities that give rise to their own specific needs. The regulations under Part VII must reflect this recognition and define an appropriate methodology for conducting dialogue and consultation activities. In this regard, a differentiated analysis based on language or the application of a linguistic lens would be appropriate, particularly given the formal recognition of the decline of French in North America.
There are many examples of best practice in consultation. The Treasury Board Secretariat could draw inspiration from these to improve the regulations in terms of procedural fairness. To give just one example, we believe it is crucial that the regulations require federal institutions to justify why and how they have taken into account—or failed to take into account—the views of OLMCs, particularly when taking positive measures and making structural decisions.
It should be emphasized that the adoption of ambitious regulations under Part VII of the act is essential to ensure that our communities have equitable access to the institutional resources that are crucial to their vitality. This work is already long overdue.
Had regulations that truly lived up to the aims of Part VII already been in force, the findings we presented here last November as part of your study on strengthening the responsibilities of federal institutions regarding art, culture and heritage in OLMCs would have been very different.
In conclusion, the FCCF reiterates that the draft regulations relating to Part VII must, without fail, be sent back to the Treasury Board Secretariat for further consideration. By failing to provide clear definitions and guidelines, they codify arbitrariness and produce the opposite effect of what is expected from regulations that are supposed to embody the ambition of the strengthened Part VII.
Thank you for your attention. We are ready to answer your questions.
The Chair: Thank you, Ms. Juneau. We will now proceed to questions from the senators.
Senator Cormier: Thank you to the witnesses for being here this evening to shed light on these much-discussed draft regulations.
I must say, having reviewed and listened to all the evidence, that there is a clear consensus regarding these draft regulations. They do not meet the communities’ expectations. They are vague, they lack clarity, and they lack clear definitions. Their purpose is not stated. In short, they present significant challenges.
My questions will focus on various aspects of these shortcomings in the draft regulations. My first question is for Mr. Poliquin and concerns the testimony given by the chair of the FCCF.
During his appearance before our committee, Mr. Érik Labelle Westin-Eastaugh, professor and dean at the Université de Moncton, suggested that the Treasury Board Secretariat interprets its responsibility to set out the terms for implementing Part VII obligations in a very restrictive manner. He stated the following:
Setting out terms and developing principles are all about being more specific.
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.
Do you agree with this analysis? If so, could you elaborate so that we can fully understand? I believe we were told that it was impossible to go beyond what is set out in the act.
Mr. Gabriel Poliquin, Legal Counsel specializing in language rights, Fédération culturelle canadienne-française: Thank you very much, Senator Cormier, and thank you to the committee for inviting me. I wholeheartedly endorse the remarks made by my colleague and friend Érik Labelle Westin-Eastaugh.
Indeed, the very purpose of any draft regulations is to set out the rules governing the implementation of an act. However, the act already exists and sets out principles and obligations that are sometimes clear, sometimes less so, because it grants the government discretion.
The best example relates to the regulations under Part IV of the Official Languages Act, which impose an obligation to provide services in both official languages and stipulate that these services are to be provided where the number of people justifies it, where there is significant demand. What constitutes significant demand?
This is precisely where the regulations go beyond the act by setting out all sorts of highly technical procedures to guide public servants in applying the act, in all manner of different circumstances.
This provides guidance to public servants. For example, if a rural post office is to be established in Saskatchewan, is there significant demand for it? We consult the regulations and follow the procedures.
Essentially, the same thing will happen with Part VII. However, the context is obviously very different. For example, as regards positive measures, as Ms. Juneau said, all Part VII of the act states is that, in carrying out its mandate, every federal institution shall take positive measures. What does “in carrying out its mandate” mean?
For the regulations to be effective and efficient, public servants need guidance on how to draw up an action plan for carrying out their mandate and determining when and how to take positive measures. That is why the FCCF supports this proposal.
In accordance with the regulations, federal institutions must now establish a framework for action regarding positive measures. They must examine what measures are being taken with regard to official languages and what impact these measures have on different communities. Is the impact different for French-speaking and English-speaking OLMCs? There is a framework for action that they must follow.
That said, what the regulations cannot do is remove the government’s discretion. The FCFA’s proposal, supported by the FCCF, simply imposes an obligation to establish a framework for action. Federal institutions retain their discretion as to whether or not to take positive measures. They must, however, address the issue. They do not have the option of doing nothing. It provides a framework for implementing the act. I have other examples.
Senator Cormier: Thank you. That is quite clear.
You’re referring to the regulatory framework that clarifies Part IV of the act. One of the shortcomings that is constantly highlighted is the clear lack of definitions here. It seems that it is not possible to include definitions in the act, for example, a definition of what constitutes a positive measure. What do you have to say about this difficulty raised by the government?
Mr. Poliquin: The government cannot adopt definitions that would restrict its discretion in certain cases. That said, the role of regulations is to set out the procedures for implementation. The government can be creative.
Let’s take as an example the term “structuring decision.” When making a structuring decision, it is important to take positive measures and follow certain steps. It would be difficult for the regulations to define too narrowly what constitutes a structuring decision. That said, to establish implementing procedures, when the government makes a decision — such as abolishing or establishing a program — it must follow the steps set out in subsection 41(7) — if I recall correctly — and the provisions of the regulations to implement and enforce the act, in accordance with the intent of the legislator.
Senator Cormier: Right. Thank you.
Senator Moncion: Ms. Juneau, you mentioned arbitrary effects in your comments. At that point, I believe you were referring to the arrangements relating to procedures. Could you explain these arrangements — that is to say, these arbitrary effects — a little more clearly?
Ms. Juneau: I believe that, in fact, looking at the exercise we are currently undertaking, if, for example, the Treasury Board Secretariat had listened to, taken note of and taken into account the many representations we made prior to these draft regulations, we would most likely be looking at draft regulations that we could accept quite readily, and we would be very pleased with them.
However, that has not been the case. As many have said, these draft regulations are very vague and lack precision, clarity and definitions. I feel that, when regulations are arbitrary, they leave everyone free to interpret them in their own way depending on the context, and this will force official language communities to turn to the Office of the Commissioner of Official Languages or the federal courts to try to clarify matters. This will require time, as well as financial and human resources that we do not necessarily have. This lack of precision alone will force us to seek clarification, but by using other means that will be very costly for many people.
That is what I mean by “codifying arbitrariness.” We will be forced to clarify certain points elsewhere. Why not do this at an early stage, rather than reacting to court rulings or reports from the Commissioner for Official Languages?
Senator Moncion: Thank you.
Mr. Poliquin: I’d like to add something and give you an example.
I have been working in this field for a very long time, representing organizations within the francophone minority community. One of the complaints that comes up very often is that, although the government has talked about a program and calls it a consultation, in reality, it is a mere presentation. They present a fait accompli. “We’ve established this program. Do you have any objections?” And that is all. After that, we hear nothing more about it. The problem is that there are no procedural rules or principles enshrined in the act to prevent this issue. If the regulations stated or provided for something, such as the fact that the government must consult OLMCs and give reasonable notice if it is to take a structuring decision, we would need to define what constitutes reasonable notice. Reasonable notice is the opportunity for the organizations being consulted to consult their representatives themselves. In this way, the rules of the game are established.
As Ms. Juneau said, when the rules of the game are not clearly defined, communities feel they are being treated unfairly. They are forced to turn to the courts to determine what constitutes consultation that respects the principles of fairness. However, the courts are very reluctant to establish these principles, as they show deference to governments. At first glance, this may seem beneficial for the government, which retains the discretion to define what constitutes fair consultation, but in the long term, it is not beneficial, because it perpetuates discontent within official language communities. This discontent is a matter of national unity. In the Official Languages Act, the legislator’s intent is to include OLMCs as participants to a certain extent. They are not decision-makers, but they take part in a collective effort to determine which positive measures meet their specific needs. This is a guiding principle of the new act. It must be implemented. It must mean something.
Senator Moncion: Thank you very much.
I have a question for the Réseau pour le développement de l’alphabétisme et des compétences. You have identified clear amendments or proposals for changes to the regulations. I believe you are referring to the non-formal and informal contexts, if I am not mistaken. Do you have any other amendments that are as clear as these and that you would like to see included in the regulations? When reading the documentation, I was hoping that our report would present the government with very specific amendments to certain aspects of the regulations. I really liked your approach. Do you have any other amendments?
Mr. Krajewski: Certainly.
I would like to draw your attention to the submission we have tabled with your committee. You will see, in particular, that in our submission we endorse all the recommendations made by the Fédération des communautés francophones et acadienne. Furthermore, we have four key recommendations supporting this report from the perspective of lifelong learning, which is RESDAC’s area of activity.
Indeed, there is the issue of recognizing non-formal and informal learning. This is crucial for us when we look at the amendments to Bill C-13. We realize that this recognition of non-formal and informal contexts is the major step forward in Bill C-13. We see that, in the regulations that support and implement this legislation, these contexts are completely overlooked. There is no mention of them at all in the regulations. For us, this is a catastrophic step backwards. It is essential that there be a reference to the recognition of non-formal and informal learning contexts.
Furthermore, we make recommendations regarding the analyses carried out as part of the consultations on language clauses in the federal government’s agreements with the provinces and territories. Once again, the current regulations stipulate that these agreements will not be published. Only the Treasury Board Secretariat will be informed. Francophone communities will not be informed at all of the outcome of these consultations. It is essential that this information be made public in some way.
As Ms. Juneau pointed out, with regard to the issue of recourse, it is essential to provide for alternative and substitute mechanisms in the event of a dispute, in order to avoid systematic recourse to the Commissioner of Official Languages or the federal courts. This is a waste of time and money. In the brief, we make various recommendations on the wording in this regard.
Senator Miville-Dechêne: First of all, I would like to mention that I’m standing in for another senator. I don’t have the same perspective as some of my other colleagues, so please bear with me.
I wonder if there isn’t a risk in having regulations that are too specific. I understand the desire for reassurance.
However, the idea of having very strict procedural rules governing how to consult and carry out certain tasks can create a straitjacket — I am not speaking on behalf of the government. I am thinking, for example, of the CRTC, which has a great many regulations. We have often heard from the CRTC in another committee on which I sit, and the CRTC tells us that the consultation periods are very long, that there are a huge number of regulations and procedures to follow, and that this prolongs the process. Are you being realistic in what you are asking for? Is this a lack of confidence? Are you afraid that if it is not specific enough, you will not be consulted?
Mr. Poliquin: That is a legitimate concern from an abstract point of view. Indeed, we do not want regulations that are as detailed as the rules of civil procedure in a court, for example. Rather, the aim is to set out general principles that apply within their specific context. The regulations cannot limit the government’s discretion in developing a specific consultation process. Of course, each federal institution will have its own context, its own needs and its own relationships with OLMCs. The principles must be set out in general terms to state, for example, that reasonable notice must be given. OLMCs must be heard; there must be a two-way process; and when they receive information as part of a consultation, there must be feedback on their input and an explanation as to why it was or was not taken into account.
This may be done in different ways depending on the federal institution, provided that it meets certain legal standards. These legal standards may be set out as principles that are already recognized by the courts in relation to procedural fairness; they are simply suited to a consultation context rather than a ministerial decision-making context.
What the FCFA proposes, with the support of the FCCF, is that the statements of principle already recognized by the courts — as acknowledged by the Supreme Court in the Baker decision — can and should be adapted to suit individual circumstances.
Senator Miville-Dechêne: I understand the principle of transparency that you are calling for; it seems essential to me, particularly when it comes to evidence and research. Are there any specific characteristics to consider? We are concerned about francophone minority communities. Is this particularly important in this case, because these are often small groups and it is not so easy to obtain representative data? Sometimes we hear that the groups are too small for their needs to be assessed. Does that come into it, or is there generally no transparency promised in these regulations?
Mr. Poliquin: Your question has several aspects to it; it is a complex issue. There are concerns; for example, the FCCF operates in a sector where the scale of operations is small, but where the impact on minority communities is very significant, simply because of the importance of culture. It is also a fact that the FCCF’s member organizations are not well-off, but in order to carry out evidence-based analyses based, that data must come from somewhere.
It is quite possible that the government itself doesn’t have this data. Therefore, the data cannot be restricted. The regulations could stipulate that the data is not limited to what Statistics Canada produces and that it may also come from OLMCs. OLMC organizations will need support to produce this data. It is not that the regulations state that, in all cases, funding will be provided for the creation of evidence, but the government must consider this possibility in its search for evidence.
Senator Miville-Dechêne: Thank you.
Ms. Juneau: I’d like to add a concrete example. We recently received funding to support our national organizations in producing data on their activities in the fields of music, publishing and theatre. This was to help prepare these groups for the bilateral meetings held with federal institutions working in the cultural sector under our collaboration agreement. The fact that we were able to go into these meetings with this data helps to move the discussion forward; it helps to identify gaps where there are weaknesses and to specify the measures that can be taken to address these weaknesses.
The Chair: Thank you.
Senator Cormier: My question is for RESDAC. In your submission, you ask, and I quote:
…that subsection 7(4) of the draft regulations be amended to create an obligation for the Treasury Board to include in its annual report a list of all language clauses adopted…
Moreover, Professor Larocque from the University of Ottawa, who also appeared before us, made a similar recommendation. He proposes the creation of a website where agreements and language clauses would be made public. In other words, there needs to be a centralized and public publication of such agreements.
My question is this: why not bring all the agreements together in one place? What would be the benefits for you, and how would publishing these agreements help you in the work you need to do within the scope of your mandate?
Denis Desgagné, Executive Director, Réseau pour le développement de l’alphabétisme et des compétences: Thank you for the question. First of all, simply having the data is already remarkable. I could give an example of how it would be useful. For instance, with the limited resources we have, we had to conduct our own research to find out what kinds of agreements and language clauses exist, and then consult all our members so that, ultimately, they realized that there were language clauses in places where we hadn’t been involved in the negotiations. It is rare for us to participate directly in negotiations, but we must at least be able to carry out this exercise and exert influence on provincial and territorial governments to ensure we are part of the process.
In the study we carried out, we found that around $55 million a year is transferred to the provinces and territories for workforce and labour market initiatives. We are focused on developing social and economic skills, yet none of these funds goes to the organizations that prepare francophones for the labour market across the country.
So, this is how this data, once made public, would really help us to work more effectively with our governments and better meet the learning needs of francophones and Acadians across the country.
Senator Cormier: In your view, should the draft regulations define the minimum content of these language clauses, given that the federal government, in its dealings with the provinces and territories, has full authority to define that content? Would there be a minimum content requirement? If so, what criteria should be used to assess and monitor language clauses? We obviously hear this legitimate request regarding language clauses, but we have little information from the communities on whether there should be a minimum content or not. What types of assessment should be carried out to determine whether these language clauses, which would be made public, would be effective or not? How should this be assessed? Do you have any ideas on this subject?
Mr. Desgagné: That’s a big question. We’ve looked at what has been done regarding agreements and clauses with First Nations, and we’ve examined how this has developed. We have a committee on language clauses that is currently working on this issue.
We could also build on the excellent work being done in early childhood education and follow up on it. For now, that’s where we stand.
It has to be said that we are completely in the dark about this information. As my chair was saying, if we at least had some information, we could work with it and possibly improve it; we would at least have something to work with.
Senator Cormier: Do you have anything to add on this point, Mr. Poliquin?
Mr. Poliquin: Absolutely. That’s a very good question.
As regards federal-provincial-territorial, or FPT, agreements, I’m not sure that the regulations should specify a minimum content for a clause, but they should specify the rules of the game. At present, in carrying out their mandate, federal institutions may sometimes enter into FPT agreements, but they do not systematically tell us that federal institutions must, as a minimum, consider whether there is a different impact on the French-speaking or English-speaking minority community. That content is missing.
What we want to avoid is a situation similar to the Fédération des francophones de la Colombie-Britannique decision. I don’t know if you are familiar with that case, which was heard by the Federal Court. The government had delegated federal services to British Columbia, and there were no language clauses in that agreement. As a result, British Columbia’s francophone minority language community was excluded from the delivery of services because there were no language clauses. The government simply failed to address this issue.
If there were at the very least a requirement in the regulations stipulating that this issue must be addressed when negotiating an FPT agreement, we could avoid this sort of situation and prevent the matter from ending up in court again.
Senator Cormier: So, should this be enshrined in the regulations? Is that what you’re saying?
Mr. Poliquin: Yes, indeed. It is simply a matter of ensuring that the issue is addressed. The government has the discretion to do as it pleases, but it should at least consider the matter.
Senator Cormier: Right. Thank you.
Senator Moncion: For several weeks now, we have frequently heard talk of the need for evidence. What steps have been taken to identify exactly what this so-called evidence consists of? I imagine that, from one department to another, the data you need to carry out your analyses has not been identified. We don’t have a one-size-fits-all approach where we want everyone to be treated the same way and have the same information. So, has any work been done to identify what this so‑called data is that you need to carry out certain studies?
I think that we are able to determine the number of children who attend school, which is an extremely important piece of information, and the number of children who attend nurseries. What we cannot identify is the number of children who are not attending but who might need the service. So the data we need might vary depending on the information we are looking for.
Let me return to my question. Has this so-called evidence needed to meet your requirements been identified? Has anyone, in true Canadian fashion, sat down and worked out: “I need this from that department, and that from this other department”? That’s what evidence is like: it varies from place to place. If we just want to know whether there is a request in French, and the answer is yes, and then we ask whether the reply was in French and the answer is also yes, we have two pieces of evidence; what use is that to you?
Mr. Krajewski: I’m not sure if I can fully answer your question, but for us, the issue of evidence is absolutely central. When it comes to literacy data, for example, major international studies are carried out. I am thinking in particular of the Programme for the International Assessment of Adult Competencies, known by the acronym PIAAC, which is an OECD initiative and contains a wealth of data on levels of literacy, numeracy and problem-solving in a technological environment.
So, this well-known PIAAC study is updated roughly every 10 years. For example, in 2012, we had a great deal of very interesting data on francophone populations in several provinces, because Statistics Canada, which is responsible for conducting this major national survey, had been advised to carry out a francophone sample in certain provinces, notably Nova Scotia, Manitoba, Ontario and, of course, Quebec.
These figures were particularly revealing. Take the case of New Brunswick, where, thanks to this francophone sample, we were able to highlight a significant difference in literacy levels between the province’s French-speaking and English-speaking populations. The English-speaking populations were, in terms of the Canadian average, around 49%, whilst French-speaking adults in New Brunswick were above 60%. On average, 62% of French-speaking adults were below Level 3, which is the level everyone should, in principle, be at in today’s society. So, given this particular circumstance, this data has enabled us to campaign across the province for the importance of introducing positive measures for francophones.
The PIAAC was updated here in 2024, so we were eagerly awaiting the results to see how the various levels had changed. Unfortunately, no French-speaking sample was requested, which means that we now have data covering the majority of the population, but no specific information for francophones. RESDAC is therefore forced to try to develop tools using the available data, and we are creating a composite index based in particular on the census to try to obtain this data for francophones. However, we can see that, in a large-scale survey such as this, the francophone dimension is completely overlooked and falls under the radar, despite its importance to our francophone communities.
It is true that this data is crucial when we want to work on the ground and demonstrate the importance of implementing certain measures to meet the specific needs of francophone communities, but unfortunately, when we have major surveys like these, which are conducted every 10 years and are generally eagerly awaited... These surveys are a long time coming, and when we get results like these, we are obviously very disappointed that francophone minority communities are completely overlooked.
Senator Moncion: I would just like to add that this request, this analysis or this data collection was a one-off exercise. It is not something that is done on an ongoing basis.
Mr. Krajewski: No.
Senator Moncion: That’s why I try to understand... you need the evidence to be collected on an ongoing basis, so that you can carry out your work on an ongoing basis.
Mr. Krajewski: Yes, that’s essential, of course. On an ad hoc basis, we make do with what we have, but even at that level, we are unfortunately very limited in the data we have.
Ms. Juneau: From the FCCF’s perspective, I might add that, within the cultural and arts sector, because we have a partnership agreement with the country’s major institutions — the Canada Council for the Arts, Telefilm Canada, the NFB, the National Arts Centre and CBC/Radio-Canada, in particular — this has enabled us to make progress on this issue of data.
For example, thanks to the Canada Council for the Arts, we now have the data we need to assess whether artists and the various disciplines in our communities are receiving the grants they need, compared to other groups.
So, I think this issue of data can vary greatly from one department to another and from one program to another. I believe we can define these requirements as we go along with our government counterparts because, if these institutions are to take positive measures, it must be in response to information we have gathered together to try to assess the current situation. It seems to me that this is also a good example of how regulations can clarify that each department needs data, whilst also recognizing the need to define that data according to the nature of the program and the department; there needs to be flexibility so that people can determine, in consultation with OLMCs, the nature of the data required.
The model we have under the agreement is working. When we sit down with the Council of the Arts or Telefilm Canada and discuss the data that we need, they manage to get it and send it to us.
Senator Miville-Dechêne: I just want to circle back to the issue of data, Ms. Juneau.
The data would have to be updated all the time, which could end up being labour intensive. Are you asking for the data to be continuously updated or do you think that studies every five years would work? Even that seems like a lot. We need to know what the reality is to develop programs. This seems rather demanding, does it not?
Ms. Juneau: In our experience with the cultural organizations, in any case . . . . Well, take for example, the Council for the Arts. It wants to know how many artists applied for each program, the rate of success and where the artists are from. It updates its data every year to assess the effectiveness of these programs and access to them. The idea is to take an existing data template and add an OLMC component so that we can conduct those analyses. In many cases, the institutions are producing data, but we cannot extract the data that relates specifically to us, the OLMCs.
Senator Miville-Dechêne: I understand. It is all lumped together.
I will move on to another subject that I found interesting.
You talked about how lifelong learning should be included as a principle in Bill C-13. You said that you were disappointed because this is not reiterated in the regulations. However, just because it is not reiterated in the regulations does not mean that it has disappeared from the act. What specifically did you want the regulations to say about non-formal learning? Do you want them to simply repeat what is set out in the act or do you want them to go further?
Mr. Krajewski: Of course lifelong learning is still included in the regulations. However, the non-formal and informal learning contexts are not. These two terms are really important for us because they are something that was added. When we talk about the modernization of the Official Languages Act, the addition of the terms “non-formal” and “informal” was what was really revolutionary for us.
Yes, it is true that once something is enshrined in law, it remains so, and we could say that just because these terms are not included in the regulations does not mean that they are no longer taken into account. However, experience shows that when things are not written down, there is a tendency for them to be quickly forgotten.
Senator Miville-Dechêne: Please explain this to someone like me who is not really familiar with the subject. You are talking about learning in formal, informal and non-formal contexts. What exactly are you talking about and what sort of positive measures could be taken to help with that? I find this to be a very interesting concept.
Mr. Krajewski: In a nutshell, the act used to recognize only formal learning contexts, that is structured, state-recognized education. Typically, formal learning applies to the school system, so preschool to post-secondary education. It means that students go to school to learn things and develop new skills and that they get a state-recognized diploma for doing so. It is structured learning with formal recognition from the state.
Non-formal learning refers to skills development that takes place in a fully conscious, voluntary and structured way but that is not recognized by a diploma or the state. Generally, this means learning at the community level. For example, people may take classes to develop skills like computer literacy, financial literacy and so on. They may get a certificate at the end of the training, but it does not have any legal value like a diploma does. That is what we mean when we talk about learning in a non-formal context.
As for informal learning, that encompasses any unstructured, voluntary learning. When I talk about that, I always use the example of my son who is the captain of his soccer team. When he goes to play soccer, his main goal is to have fun with his friends and play soccer, but as the captain of his team, he is also going to develop leadership and teamwork skills. Those are skills —
Senator Miville-Dechêne: Is that especially important for francophones in minority communities? Do you want that included in the act and regulations because it is of particular importance for francophones in minority communities?
Mr. Krajewski: Yes, because we see that there is a lot of non-formal and informal training and skills development happening in the communities. There are also specific skills for francophones. That is why RESDAC and its international education partners developed a specific framework. As you know, the skills for success framework that was put in place by Employment and Social Development Canada includes nine core competencies, but the skills for success and growth framework developed by RESDAC and its international education partners adds four core competencies specific to francophones in order to recognize their different reality.
For example, the skills for success framework does not include bilingualism, but for a francophone in a minority community additive bilingualism is a core competency for success and growth.
The recognition of non-formal and informal learning is essential for francophones. It is for anglophones too, of course, but there are special circumstances that apply only to francophones.
Of course it is very important to have this written down in the regulations, because we often tend to forget things that are not written down. When we talk about the education continuum, we usually talk about preschool to post-secondary education. It is as though when a person graduates from college or university, they simply stop learning. Lifelong learning is set aside and forgotten. That is why it is important to include it in the regulations.
Senator Miville-Dechêne: Thank you for clarifying that.
Senator Cormier: I have a quick question and I hope the answer will be quick, even though that might not be the case.
I want to follow up on what my colleague was saying. When things are not defined and they are unclear, we end up with rather vague regulations.
There is nothing in the draft regulations on a number of important aspects of the act, such as the commitment to periodically estimate the number of rights holders under section 23 and the disposal strategy for surplus federal buildings and assets. In short, despite all of the progress achieved by the act, particularly with regard to the notion of substantive equality and the fragility of the French language, there are a lot of things that are not included in the regulations.
Do you also think that a statement of purpose at the beginning would clarify the vision and objectives of these regulations and make things clearer for the public servants who will have to apply them? Do you think a statement of purpose is essential? I would like to briefly hear your thoughts on that.
Mr. Poliquin: Very briefly, yes. A statement of purpose would help the public servants responsible for applying the act to understand why duties are carried out in this manner. The guiding principle here is that the objective of Part VII is substantive equality. Achieving substantive equality sometimes means taking different measures based on the specific needs of each community. Restoring this objective of Part VII would be very important in guiding the public servants who apply the act.
Mr. Desgagné: Given all the people who have been here and who have talked about the importance of all this, I don’t think there is anything we need to add. It was just explained very well. I think it is clear.
Ms. Juneau: I absolutely agree. The preamble gives meaning to the regulations and sets out what they aim to achieve. I think the preamble is necessary to give meaning to the whole document. Without it, the regulations remain vague and arbitrary.
The Chair: This brings us to the end of the first panel. Thank you to RESDAC and the FCCF for being here this evening. Thank you for answering our questions and for your opening remarks.
For our second panel, we welcome from the Association des collèges et universités de la francophonie canadienne, or ACUFC, Martin Normand, Chief Executive Officer; and from the Commission nationale des parents francophones, Gillian Anderson, Board Chair, and Marie-Andrée Asselin, Executive Director.
As you are no doubt aware, you will have about five minutes to make opening remarks, after which we will move on to a question and answer session.
Martin Normand, Chief Executive Officer, Association des collèges et universités de la francophonie canadienne: Thank you very much.
In 2005, the Official Languages Act was amended to include the possibility of establishing regulations to govern the implementation of Part VII. However, that year, a Department of Justice lawyer expressed concern that the greater the level of detail in the regulations, the greater the risk of limiting the scope of Part VII. In other words, the potential for innovation was greater in the absence of regulations.
The situation has changed. Part VII has been greatly expanded, and regulations have become a necessity. However, the warnings of the past have come to fruition. The Association des collèges et universités de la francophonie canadienne, or ACUFC, is of the opinion that the draft regulations for Part VII run contrary to the legislator’s intentions, considerably reduce its scope and fail to give federal institutions the means to take proactive action to advance the substantive equality of the two official languages.
In the brief that we sent you, we talk more about the issues with the regulatory framework, our observations and our expectations. Today, I would like to focus on three general concerns.
First, the regulations run a high risk of stifling innovation in official languages. In our view, the proposed regulations fail to encourage federal institutions to develop positive measures outside the parameters indicated, meaning at specific stages in government action or when determining the potential negative effects of key decisions. On the contrary, the regulatory framework should encourage, for example, federal institutions to develop positive measures that reflect their mandate or to review current measures that fail to advance the official languages towards substantive equality.
Rather than acting as a suffocating ceiling, the regulations must serve as a foundation that propels us together towards concrete, positive and purposeful measures. The proposed framework is too restrictive. It encourages inertia rather than proactive action.
Second, the draft regulations’ proposals regarding the analyses, their use in dialogue and consultation activities and their inclusion in final decisions fall short of the mark. The proposed regulations don’t state how these analyses must be carried out or who is responsible for producing the data to support them. Some institutions have developed best practices in this area that could serve as a benchmark. There also aren’t any plans to publicize the results of these analyses, particularly in preparation for consultation activities. Federal institutions are encouraged only to record the results of the analyses. Yet the results should be shared in the run-up to consultation activities to ensure that the relevant information makes the consultations effective.
Federal institutions also aren’t expected to report on how the consultations played a part in the final decision-making process. The proposed regulations deviate from best practices in civic engagement.
Third, we’re bringing back a legislative oversight of long-standing concern. The act and draft regulations have ruts that limit the scope of federal, provincial and territorial relations. The emphasis on agreements obscures the variety of interactions among the levels of government.
A number of federal institutions have developed positive measures that directly affect the post-secondary sector in francophone minority communities. However, the act opens the door to an uneven implementation of these measures if the governments refuse to work with federal institutions. We hoped that the regulations would provide a framework for dealing with interjurisdictional conflicts and that they would create effective and equitable conditions for the development of measures with a direct and ongoing impact.
The regulations uphold a restrictive vision of government relations, which may hinder the achievement of the legislator’s objectives.
The draft regulations are riddled with grey areas and loopholes. These will have a serious impact on the ability of federal institutions to advance the equality of status and use of English and French and to support the development and vitality of francophone minority communities and the strong institutions that serve them. The post-secondary institutions in particular are crucial in helping to achieve federal objectives. These objectives include providing opportunities for lifelong French-language learning; supporting key sectors such as health care, justice and early childhood education; and working to restore the demographic weight of francophone minority communities. As a result, we would like to see more robust regulations that encourage innovation.
The ACUFC recommends that Treasury Board take note of the widespread dissatisfaction with the draft regulations, review the regulations in light of the main concerns raised by all stakeholders and come back with regulations that better reflect the legislator’s intentions and that set an example in terms of consultations.
The Chair: We now welcome the representative of the Commission nationale des parents francophones, Ms. Gillian Anderson.
Gillian Anderson, Board Chair, Commission nationale des parents francophones: Mr. Chair, honourable senators, good evening. My name is Gillian Anderson, and I am a proud francophone parent from the Saint-Albert, Alberta area. I am also board chair of the Commission nationale des parents francophones, or CNPF. With me is the CNPF’s executive director, Marie-Andrée Asselin.
We are here today to speak to you on behalf of parents who are entitled to French-language instruction in minority communities under the Canadian Charter of Rights and Freedoms.
The CNPF works with parents in minority language communities in Canada on the entire francophone education continuum, from early childhood to post-secondary education.
The regulations on Part VII were long overdue in our communities. However, we are very disappointed with the draft regulations put forward by Treasury Board. You will see that our testimony echoes those of a number of stakeholders who have appeared before you since your work began.
We would also like to point out that the CNPF supports the recommendations made by the FCFA of Canada when it appeared before this committee.
The regulations are supposed to facilitate effective implementation of Part VII of the Official Languages Act, but, given their lack of clarity, they completely miss the mark. We even think that, if they were implemented in their current form, they would limit the scope of the Official Languages Act.
In our opinion, the current draft regulations do not at all correspond to the intention of parliamentarians when they voted to give Canada a strong, modern and respected Official Languages Act.
The new act advocates a differentiated approach that recognizes that French needs more protection and promotion measures than English, while the draft regulations treat both official languages in the same way, as was previously the case.
We expect the regulations to be explicit about how federal institutions must take positive measures for francophones. Right now, the regulations are just repeating what the act already says.
Here is an example in our sector related to the federal-provincial-territorial agreements for early learning and child care. The CNPF feels that it is essential for the regulations to clearly tell federal institutions that they have an obligation to do everything they can to include strong language clauses in bilateral agreements.
We need clear and sound legal leverage. This will ensure that the provinces and territories are required to consult francophone stakeholders in the early childhood sector. Without this obligation, our needs may be ignored when the agreements are implemented.
Clarity must also translate into concrete and measurable actions for francophones. Currently, most provinces and territories do not provide specific data on the impact of investments on our communities. As a result, 80% of children who are entitled to instruction in French in a minority setting still do not have access to a child care space in their language.
The current draft regulations do not require any impact studies or the collection of specific data on francophones. It does not dictate a clear assessment process either. As a result, language obligations may continue to take a back seat when it comes to implementing child care agreements. That’s what we’re seeing on the ground, unfortunately.
As a national association representing francophone parents, we want to avoid at all costs giving federal institutions leeway to circumvent the law. That’s why the regulations on Part VII must be thoroughly reviewed to ensure that language requirements are considered at all stages of the implementation of agreements with the provinces and territories.
Mr. Chair, ladies and gentlemen of the committee, in conclusion, we sincerely hope that the stakeholders in the francophone and Acadian communities, such as the Commission nationale des parents francophones, will be heard. We know what works and what doesn’t in the application of the Official Languages Act. We believe it is essential that the draft regulations be reworked in depth in order to truly advance the substantive equality of both official languages in Canada. We are counting on you to bring our message to Treasury Board.
Thank you for your attention.
The Chair: We will now move on to questions. You will have five minutes each, but we should still have some time left.
Senator Miville-Dechêne: I will start with a question for Mr. Normand.
Achieving the objectives of Part VII depends in part on the ability of federal institutions to influence sectors such as education, as you mentioned. However, that is under provincial and territorial jurisdiction, as you also mentioned.
In your opinion, to what extent do the draft regulations ensure that federal commitments translate concretely into educational services offered to francophones? It’s a tough question, the crux of our country and our Constitution.
Mr. Normand: It is not just “tough”; the crux of our actions at the ACUFC is to juggle with jurisdictions.
I would say that our fear is precisely that the current regulatory framework — with the act itself as a starting point — is not sufficient to prevent jurisdictional conflicts from undermining the potential for positive measures to be taken by federal institutions.
Without going into detail, in the past few months, a provincial government made a decision that nullified a positive measure by a federal institution.
Senator Miville-Dechêne: Could you be more specific?
Mr. Normand: Not exactly, no, because I have to protect the confidentiality of the process, which was resolved in favour of the federal government’s commitments.
We managed to find a solution with the provincial government, which is why I hesitate to get into the details, but there is no procedure to follow. When there is a jurisdictional dispute like that, we can’t go before the Office of the Commissioner of Official Languages, because it’s not within its purview.
The federal institution has no binding powers over the province, and the province can make whatever decisions it wants within its jurisdiction. How do you act when you find yourself in a conflict like that, where the loser is the francophone community that benefited from a positive measure? Fortunately, in this case, we were able to find a positive solution for all stakeholders.
Senator Miville-Dechêne: You got involved, you talked to the parties and you found a solution.
Mr. Normand: Yes, we found a solution, but it involved a lot of resources and capital from a number of federal institutions and a number of our members who are committed to the process.
We couldn’t prevent it from happening elsewhere. I’ll give you another hypothetical example, which has already been discussed publicly. The Government of Alberta has already indicated that it would like to be able to veto research funding that the federal government provides to researchers within the province. Let’s say we had a positive measure from the research granting councils to actively support research in French and the publication of research results in French, and a recipient of Campus Saint-Jean was lucky enough to receive such a scholarship. Then the government said it was not in the province’s interest to accept funding and research to support research in French in the province. What is my leverage for ensuring that a positive measure envisioned by a federal institution is deployed equitably across the country? We could end up with a positive measure that is applied in one province but not in another, and that would create inequities.
Senator Miville-Dechêne: How can the regulations remedy that, since it works on a case-by-case basis and the provinces have the power to say no? What could be added to the regulations to change that?
Mr. Normand: In fact, the legislation is where it needs to be fixed in the first place, and I’m well aware of that. That’s why I mentioned it. We have been fixated on this for a long time. Here, the objective is not so much to find the solution to everything in the regulations, but to broaden the concept of federal-provincial-territorial relations in the regulations and in the act. At the moment, in fact, we are simply talking about it in the context of formal agreements between governments. That kind of federal/provincial/territorial relationship happens on a daily basis, but it’s not codified in agreements. As long as we limit our thinking on federal-provincial-territorial relations to the agreements as such, we avoid an entire range of possible government action.
Senator Miville-Dechêne: It would be a matter of negotiating informal agreements. Something has to be said about that.
Mr. Normand: Something has to be said about federal-provincial relations outside the agreements that must be subject to negotiation or discussion when it comes to equitably deploying positive measures across the country that, at first glance, could fall under jurisdiction that is defined as exclusively provincial.
Senator Miville-Dechêne: Should we start with the text?
Mr. Normand: Yes.
Senator Miville-Dechêne: You would like the text to be changed to ensure that flexibility?
Mr. Normand: Yes.
Senator Miville-Dechêne: Got it. Thank you.
Senator Cormier: First of all, thank you for being here and for being such an enthusiastic witness on these issues. Mr. Normand, one of the things you talk about is innovation and the fact that the draft regulations limit the ability of federal institutions to innovate. Ms. Anderson, you say that the regulations could limit the scope of the act. We gather from what you’re saying that the proposed regulations reduce the scope of the act, which is much broader.
I’m going to refer you to a Federal Court decision, Michel Thibodeau v. Greater Toronto Airports Authority, back when the Part IV regulations were being discussed. However, the Federal Court said that the regulations must be interpreted broadly and liberally, as must the legislation governing them. In other words, the interpretation of the act must be broad. They also said that it could apply to regulations such as those in Part VII.
Do you think that, in a potential statement in the preamble of the regulations, we could include concepts that would allow federal officials and institutions to have a broader and more liberal vision of the interpretation and possible actions to put in place? I would like to hear your thoughts on that.
Ms. Anderson: That’s a hard question to answer. Yes, but at the same time, no. Personally, my fear is that if all this is too broad, it will not promote the conclusion of federal-provincial-territorial agreements. It’s not clear that’s what it means. I’m afraid they’re not going to do anything because they don’t have to. We already have two cases in the country where agreements were signed for a period no longer than one year. That worries me a lot, because they are not respecting the purpose of these regulations and the act itself.
Senator Cormier: In other words, my question relates to the fact that Mr. Normand said that relations between the federal government and the provinces and territories are not limited solely to the language clauses.
I understand, perhaps wrongly, that at this stage, we are not strictly limiting ourselves to issues of language clauses. We are trying to broaden the interpretation. Mr. Normand, I don’t know if you’d like to add anything along those lines?
Mr. Normand: Of course, we can all believe that a broad and generous interpretation of the regulatory framework could apply. However, in this particular instance, I do not believe that would prove to be the case. That is my concern.
For example, one might think that federal-provincial relations are understood in a very broad sense but my impression is that the regulations impose maximum limits for action. They should instead be drafted so that a minimum standard can be developed and improved to better meet the needs and aspirations of communities. Again, as I said earlier, the wording seems to stifle the potential for innovation that could accompany a broad and generous interpretation of the regulatory framework.
Yes, a statement of purpose could possibly provide a context and allow us to understand why implementation procedures are set out in this way, but that will not be enough if the regulations are not amended. The regulations will continue to restrict us within their framework, forcing us to devise implementation measures that fit within the existing stages.
We cannot continue to assume that, without more precise implementation provisions, a broad and generous interpretation will prevail. We have been waiting for regulations since 2005, as I said in my statement, we have not arrived at this conception of positive measures since then. So we need to look elsewhere for more substantial tools.
Senator Cormier: With regard to universities and colleges, should the federal government fail to come to an understanding with the provinces and territories under the agreements, could the federal government possibly enter into agreements directly with community institutions? What do you think about that?
Mr. Normand: In a way, this possibility is mentioned in the regulations.
Senator Cormier: Agreed.
Mr. Normand: The regulations stipulate that positive measures could be considered in the context of transfers of responsibilities. Let us take a broad and generous interpretation of the transfer of responsibilities. Obviously, in this case, it is when a federal institution transfers a responsibility to the provincial government that we would expect positive measures to be taken.
However, in cases where it is not possible to implement a positive measure as part of the transfer of responsibilities, why not consider transferring responsibilities to a sector-based body that could implement the positive measure, if a provincial government were seeking to curb its deployment within its territory?
So, we could think creatively about how to utilize certain elements of the regulations to achieve such a transfer.
Senator Cormier: Do you believe that the content of the regulations would allow for that?
Mr. Normand: If we are creative and generous in how we interpret it, we could do so. These are measures that already exist: a transfer of responsibilities to organizations so that funds can be redistributed. The ACUFC does this in many of its projects; that is to say, we know that funding cannot go directly to post-secondary establishments and federal institutions in many cases. However, measures have been developed to ensure that significant funding earmarked for early childhood projects, to give this example, is transferred to the ACUFC and, subsequently, funds are transferred to our member institutions.
We can take action on the ground in two stages without necessarily going through the provinces. The framework already allows us to do this; we must simply find a tool that encourages federal institutions to consider such solutions, if there are obstacles to the development or implementation of positive measures.
Senator Cormier: To explore this issue a little further, suppose that agreements with provincial and territorial governments do not guarantee compliance with these obligations under Part VII of the act; what should the consequences be for a provincial or territorial government that refuses to include language clauses in its agreements relating to the implementation of Part VII?
Should there be something in the regulations specifying what the consequences would be if the provinces and territories refuse to include language clauses? Should anything in the regulations address this issue?
Ms. Anderson: Absolutely. I say this in the context of having decided to raise our family without clauses such as those you are proposing.
I am really afraid that my nieces, nephews and grandchildren will no longer have access to French and to education in French. This changes from one year to the next depending on who is in power in the provincial government. We have seen several changes of government back home, and this has affected the francophone community. So, in the absence of specific provisions and safeguards regarding the protection of language and culture, I am truly afraid.
We can see what is happening on the ground without the federal government, which insists that these protections be put in place. We will have to say goodbye to French.
Senator Cormier: Thank you.
Senator Patterson: I will ask my question in English, but please answer in French; that is fine with me, as I am the only English speaker here.
[English]
This was excellent testimony. I would like to go back to Mr. Norman. You talked about having a broad interpretation of regulation from the act to the regulation. Other groups have talked about the lack of understanding of definitions. It is hard to have a broad interpretation of a regulation if you do not understand what words mean.
Two of the words that have come up repeatedly are “positive measures” and “negative measures.” There is a whole list.
I would like to hear what you think about how you can keep a broad interpretation of a regulation going but still obtain enough precision in definitions so that you can actually interpret a regulation. What do you recommend?
[Translation]
Thank you.
Mr. Normand: I’ll begin with positive measures, because my interpretation differs somewhat from that of other stakeholders. In my view, the law provides a definition of positive measures. A positive measure must be concrete and taken with the intention of having an effect on the government’s obligations regarding official languages under section 41.
In my view, this is a sufficiently clear definition on which we could build a broad and generous interpretation of what constitutes a positive measure. We discussed this earlier and have mentioned it in the past: I think certain things need to be clarified, but there is a risk that, if we provide too many details, it will become even more restrictive and further stifle innovation.
It is possible to envisage definitions such as this: a positive measure must be concrete; it must be taken with intent and have an impact on the commitments set out in the act; this would then allow us to build relationships with federal institutions through dialogue and consultation, to determine what these positive measures might look like. At the very least, we have a basis on which to build a further definition. That is the advantage of having dialogue and consultation processes enshrined in the act and the regulations. This will enable us to continue our ongoing exchanges with federal institutions so that we can jointly develop what positive measures look like in early childhood, education, justice and health, for example. There will never be a single definition across sectors or in line with the aspirations of the communities where they are implemented.
The Chair: If I may, I did not have the opportunity to ask a question earlier. I’d like to return to your consultations regarding the development of the regulations. If one is familiar with the act, one sees the regulations as they currently stand; I wonder whether you have had a discussion with the Treasury Board Secretariat regarding the implementation arrangements, instruments or tools — such as directives, policies or guidelines — that could be used by each federal institution to ensure compliance.
We also spoke of regulations that are not robust enough or clear enough. Have you had any discussion on this matter? We have heard from the Treasury Board Secretariat that other measures will follow the regulations, including guidelines, policies, and so on. Is this feasible? Have you had any discussions regarding these instruments?
Mr. Normand: We had a meeting with Treasury Board where this was discussed. The issue is that it has been three years since the act was passed and we still do not have regulations. The can keeps getting kicked down the road: we are told that what is not in the act will be in the regulations, and what is not in the regulations will be in the guidelines; we are then told that what isn’t in the guidelines will be in the policies. By the time we get to the policies, we’ll be at the statutory review of the act after 10 years. All of this needs to be done concurrently, because we’re all wasting time in implementing the act.
Yes, there are federal institutions that are good partners — there are some we work with where things are going well. There are concrete, positive measures being taken with intent. There are ongoing dialogues, but there are others who still tell us they are in a holding pattern until they have the full range of tools to act. We have been waiting for these regulations since 2005; if we wait another five to 10 years before having all the tools, we will already be 30 years behind on how we should be acting to develop concrete positive measures in our sectors. Deferring action only further delays the full implementation of the language obligations codified in Part VII — since 1988, in fact.
The Chair: I take it for granted that you have not had any parallel discussions on the regulations concerning these instruments.
Mr. Normand: We made suggestions on this.
Ms. Anderson: I agree with Mr. Normand. Let us bear in mind that by the time we’ve received all these regulations and policies, the children affected will already have finished their college or university studies. There will be no more children then, as they will have decided to study in English.
Senator Miville-Dechêne: Yes, what you’re saying is quite troubling, because it’s true in many situations. Everything takes too long and problems fester. I’m going to ask the parents here a question. The current memorandum of understanding on education includes the preschool sector among the levels of education the federal government and the provincial and territorial governments have committed to investing in for the 2024–25 to 2027–28 periods. To what extent do the draft regulations we are considering take these education agreements into account, particularly to ensure tangible benefits for early childhood?
Ms. Anderson: As you have already read in my brief, 40% of our young people do not have a space, even though they want a space in their mother tongue, which is French. We need to keep renewing these agreements and ensure that all provinces and territories sign the same agreements to continue this good work. It is a privilege. Even though we have created places, this is not something that existed when my children were small. Things have improved a great deal, but the fact remains that 80% of children do not have a child care spot. We are talking about children aged 0 to 4 across the country.
Senator Miville-Dechêne: Are there any provinces where things are going better?
Ms. Anderson: It always depends on the political climate in those provinces.
Senator Miville-Dechêne: We all agree that 80% of children not having a child care space is a huge figure.
Ms. Anderson: It is serious, indeed.
Senator Miville-Dechêne: Is there anything in the draft regulation that leads you to believe this will be speeded up?
Ms. Anderson: We need to have clauses, agreements and distinctions in the regulations that protect what we already have; this provides the opportunity to see improvements in these various areas.
Senator Miville-Dechêne: Here again, we must rely on the provincial governments.
Ms. Anderson: Yes.
Senator Miville-Dechêne: We are still within the same jurisdictional space; do the draft regulations help you to feel confident and hopeful, or not?
Ms. Anderson: No.
Marie-Andrée Asselin, Executive Director, Commission nationale des parents francophones: If I may . . . . Nothing in the regulations explains what would happen if a province was uncooperative and didn’t want to go further than to have a language clause. It would take stronger regulations that explain exactly how a province that refuses to do what it must for our francophone communities can be brought back into the fold, so that it consults the communities and gathers the information and evidence needed to implement positive measures that benefit the francophone community.
At the moment, there’s nothing in the regulations. This is one of the demands being made, that something be done on that score. In your first question, you talked about federal-provincial agreements on areas under provincial or territorial jurisdiction.
The regulations contain a number of options for clarifying what’s possible with respect to agreements for francophones. Collecting evidence, for example, is super important for francophones.
Senator Miville-Dechêne: No province can be forced to act. Do you see things differently? As far as early childhood goes, should federal grants be made available to support certain initiatives if the province is unwilling to help? What, in practical terms, should be done?
Ms. Asselin: The regulations should be robust enough to prevent a province from refusing to cooperate and from ignoring francophone communities altogether. We need to go further than simply adding language clauses to the agreements; we need a specific action plan for francophones and consultations with stakeholders from the sector, along with clear, well-defined and co-developed positive measures. Mr. Normand mentioned that earlier. That’s really what we want.
The draft regulations could highlight all of these things and ensure that a province or territory couldn’t head in that direction.
Senator Miville-Dechêne: I understand. Thank you.
Senator Cormier: To continue with this topic, the Office of the Commissioner of Official Languages proposed seven amendments to the draft regulations. It mentioned the importance of clarifying the content of language provisions included in government agreements, how and how often federal institutions are expected to monitor and evaluate these provisions and the steps to take when they aren’t upheld.
Obviously, your assessment, suggestion and thoughts are perfectly legitimate and consistent with other testimony that we’ve heard.
On a more positive note concerning the Treasury Board Secretariat’s openness to your comments, when the Treasury Board Secretariat testified before the House of Commons Standing Committee on Official Languages on February 12, representatives of the department were receptive to considering proposals to add a statement of purpose. We talked about that. The importance of defining the content of such a statement, the possibility of publicly sharing analyses performed by federal institutions and the possibility of clarifying the conditions for collecting or using evidence meant to inform the analyses of federal institutions were mentioned.
In your opinion, would these three things, which also came up in other testimony before the committee, significantly improve the draft regulations? As a reminder, these things are a purpose statement, public disclosure of the analyses conducted and clarification of the conditions for collecting and using evidence. What can you tell us about those things? Do you have any specific suggestions that we could pass on in our report to Treasury Board to encourage their receptiveness?
Mr. Normand: The purpose statement shouldn’t be seen as a way to bypass the communities’ expectations. A purpose statement alone can’t make up for ambiguities in the regulations. So much the better if there is one, but it’s not enough on its own.
As for publishing the analyses, they should at the very least be made public for a number of reasons. First, they inform decision-making and it’s important to understand the reason for decisions. Second, the analyses produced are often based on the organizations or communities themselves. So, analyses are being produced, but their findings are not being passed on to the groups, which, in my opinion, is at odds with standard procedure for effective consultations and public participation.
I could mention another provision. Elsewhere, Part VII provides that the federal government must make data available for the advancement of every branch of science. So, while the federal government produces data in specific sectors, in our view, other provisions of the act already require that these data be made available. We can use these data for information about data collection, but also to advance research on our communities, which is another of the act’s objectives. So, those two things have to interact if data production is to become more than a mere task, and for it to serve a dual purpose at times when it can be used again for other things. This brings me to data production.
Obviously, we have to be able to identify who is producing these data, how and when. I don’t think that federal institutions can produce all of these data all the time. In some cases, in our sectors, I think that we are in a better position to produce the data, but we don’t always have the necessary tools. If we had effective tools to gather the data that federal institutions need to support their decision-making, I think that we would be in the best position to do it.
These are the kinds of things we can say to each other during dialogue and consultation activities. I think it’s a positive measure to envisage some way for this transfer of data and responsibility for producing data to move forward.
Senator Cormier: Is that clear for you, what dialogue and consultation activities mean? Are the regulations clear on that?
Ms. Asselin: It’s not clear at all. I mean, no one is exactly sure how this is going to be done or who is going to be consulted. Furthermore, we don’t know whether our voice will really carry, what kind of feedback we’ll get on the information that we may have shared with federal institutions or whether it made any difference. Did they simply listen to us without making any changes to the work they did on their programs?
Senator Cormier: The chair spoke about regulations, but also about guides and directives. Do you believe that the information we’re trying to know and understand better would be included in policies, guides and directives issued to the institutions?
Ms. Asselin: I’m not a lawyer, but we definitely want to be heard now. We want to implement the regulations and work with federal institutions based on more specific regulations that effectively regulate institutions without delay. If we delay things, like someone said earlier, it’s a matter of time and in the meantime, our children are growing up and becoming assimilated. We have no time to lose. We really need much more robust and much clearer regulations right now.
The Chair: Before moving on to my question on consultations, I’d like to clarify something, Mr. Normand.
Colleges and universities are in a good position as far as evidence goes, but they need the right tools. I’m curious to know what the right tools are, apart from funding, perhaps.
Mr. Normand: It’s funding to develop the right tools. Let me give you a clear example. We’ve already been asked for data on our post-secondary sector. As we’ve been saying from the start, this is an area of provincial jurisdiction, which means that an indicator may seem perfectly clear to a federal institution, but have a different definition in the provinces.
It surprises a lot of people that the definition of a full-time student varies from one province to another. So, if I want to provide the data I’ve been asked for, I mean, how many full-time students are there in Canada attending institutions belonging to Canada’s francophonie, I can tell you how many there are in each province based on that province’s definition, but for now, I have no tool to perform the meta-analysis.
In my case, it would take an extra effort to make the definitions used by all 12 provinces and territories comparable. At the moment, I don’t have the resources needed to make those definitions comparable. It will have to be done at some point, however, if we want those specific data. So, if we reach agreement with the federal institution during a dialogue and consultation activity that we need this data to proceed, we should determine together how we’re going to get it.
The Chair: Here’s my question about consultations. We know that the ACUFC filed a complaint with the Office of the Commissioner of Official Languages concerning the student visa cap and that the investigation by the Office of the Commissioner of Official Languages found in your favour. Can you help us benefit from that experience by telling us what makes a consultation genuine or effective?
Were any lessons learned that could be included in the regulations or the process?
Mr. Normand: Lessons were learned. For the moment, however, I’m going to save them for another time for different reasons.
You’re right that the Office of the Commissioner of Official Languages ruled in our favour in the complaint against Immigration, Refugees and Citizenship Canada concerning the study permit limit. One of the recommendations by the Office of the Commissioner was to conduct new consultations with institutions belonging to Canada’s francophonie to determine which positive measures would mitigate the negative impact of the decision to cap study permits. That recommendation was made last October. We haven’t received any feedback from IRCC on how they intend to implement this recommendation. That’s why I prefer to keep my opinion on what effective consultations with IRCC would look like to myself until the official consultation planned or expected in light of the report by the Office of the Commissioner of Official Languages takes place.
Clearly, we want to be at the table and participate on an ongoing basis. Consultation and dialogue are important. We can hold consultations on specific issues and address specific public policy objectives. The dialogue can be ongoing. As we see things coming, we can sit down together and set parameters for our discussions that allow us to talk about issues that federal institutions share in common with our sectors. More specifically, however, I’d like to save that for an official consultation that IRCC is going to announce a little later.
I’m sure that you’ll also understand that the Auditor General tabled a report this morning on progress in implementing the international student program. We’re still analyzing that. However, the report refers to certain measures developed specifically for francophone communities. Once again, the Auditor General uncovered a flaw in the data and indicators used to measure the impact of the measures taken by IRCC. We would gladly sit down with them and decide what an effective consultation would look like.
Senator Miville-Dechêne: I have a question on an entirely different topic.
A number of organizations, community spokespersons and even experts testified before the committee that the proposed regulations perpetuate an obligation of means without providing an obligation of result. What concrete results should the draft regulations aim to achieve? Should they aim for concrete results? Should performance indicators be included, starting at the draft regulation stage? This idea is not just talk. However, how do we meet certain objectives and does it all need to be measured?
Ms. Anderson: After listening to all the testimony of the people who came to give evidence, it’s apparent that if all the recommendations that they’ve made to you were considered and included in the various proposed changes, that would work. People would get a sense that the committee listened, that we communicated and that we had a good consultation. A number of good ideas have been proposed to fix different things that aren’t going well in the various sectors. All it takes is to accept the suggestions as they were presented.
Senator Miville-Dechêne: What do you think, Mr. Normand, are performance objectives needed?
Mr. Normand: That might win me over to the idea of a purpose statement, as we spoke of at the outset. We aren’t going to start assigning result indicators for each of our sectors and each of our provinces.
Senator Miville-Dechêne: It’s difficult.
Mr. Normand: It would become difficult.
An interpretative clause at the beginning, if it mentioned the anticipated outcome of positive measures designed to advance toward the substantive equality of both official languages, taking account of circumstances that require greater protection and promotion of French than English, would be some indication of the direction that these measures must take. After that — I repeat — during consultation and dialogue activities, we could determine, for federal institutions, which performance indicators for the measures taken would allow us to include the idea of results, as specified in the interpretive clause. That might be the way to go, to at least include the idea that indicators will be necessary, but without drafting a list.
For example, take the six contribution agreements with federal institutions, each having about ten indicators. Imagine that, and then multiply the agreements by the number of organizations that sign contribution agreements with federal institutions. I don’t think it’s realistic to have an entire compendium of indicators. However, we could set ourselves the goal of establishing indicators that move us closer to substantive equality in each of the sectors. This might be the way to find a creative means of encouraging action on choosing indicators.
Senator Miville-Dechêne: Without getting mired down in endless bureaucracy.
Mr. Normand: That’s it. Because if we codify too much, we run the risk of boxing ourselves in and limiting the full scope of action possible on official languages.
Senator Miville-Dechêne: Thank you.
The Chair: We are getting very close to the end of our panel’s allocated time. Is there anything else you would like to tell us?
Mr. Normand: I would like to add something in response to a question from Senator Moncion.
It’s similar to the issue of indicators. Should we have a list of data that should be produced in advance? I think it’s the same pitfall that applies to indicators. If we had a list of all the data that needs to be produced, it might constrain and limit us to items set out in the regulations, rather than make allowance for what might be useful later on.
Again, as I see it, to determine together what indicators and data we need to support decision-making is the very essence of dialogue and consultation. When we agree on that, on the tools and on how these data are going to be produced, we are innovating and looking ahead for ways to take action on official languages, rather than boxing ourselves into something specific and being stymied by a regulatory framework that reflects the lowest common denominator, rather than something that propels us forward.
Senator Cormier: If the regulations aren’t more specific than that, might you end up in a situation where you once again have to go to court to defend, specify or request clarifications? We know that language rights in Canada move forward to the extent that court challenges are brought to defend them. Is there a direct link between a regulation’s lack of precision and remedies, lengthy procedures, costs, and so on? How do you interpret that?
Ms. Anderson: We’re seeing that already. There are a number of legal cases involving the Commission nationale des parents francophones already. Most concern relations between the provinces and territories and the federal government’s expectations. That already exists. There are already three or four active cases right now. There would be a dozen or so by next week if the funds were available. If we don’t include these specific clauses in our agreements, that’s going to continue.
Ms. Asselin: I would like to add something.
For example, unless we define what a consultation is, the federal institution could claim that it consulted francophone communities. In our view, however, that may not be the case. It’s possible that a meeting was held or that information was exchanged, but not a consultation with everything that entails. People from the other institutions who gave evidence before the committee have defined exactly what this could include as far as clarifications go. Unless the purpose is specified, with confirmation that the regulations also cover agreements between the federal government and the provinces and territories, court action may be necessary to request information not specified in the regulations. That would definitely be our only recourse, since the regulations aren’t clear or precise on the meaning of community consultations, positive measures for our communities or working with us.
Senator Cormier: Thank you.
Mr. Normand: I would add that we certainly hope that things would not go that far, I mean, that the regulations would be interpreted only through court cases. That’s why I’d like to point out, despite everything that’s been said, that there are good players in the federal government. Promising tools have been developed. Positive measures are having tangible and major effects across the country. I think it would serve the Treasury Board Secretariat well to go see what is working right now. What works is probably what should ultimately be codified. If players on the ground and key stakeholders are satisfied with the way that consultations operate, it’s almost certainly a good practice to codify.
A review of work done in certain locations where things are working well may be needed, but in situations where consultations on developing the regulations are not going well, Treasury Board must set a good example for the public service.
All of this is being developed with minimal interpretation of what regulations can be. There is no clear accountability on how feedback has been applied during past consultations with Treasury Board. As I see it, even the process that led us to the draft regulations was inconsistent with Parliament’s true intent as far as consultations go. If we were part of Treasury Board, imagining how we could be the best player in the public service to get all the institutions to pull together, we would avoid the downward spiral of legal conflicts.
Senator Cormier: That’s why your testimony is important. It may even influence or inspire the Treasury Board Secretariat. Thank you very much for your presentations.
The Chair: On behalf of my colleagues, I want to thank you all for joining us this evening. Thank you for your answers and for your presentations. Enjoy the rest of your evening.
We will now move on to the last panel of witnesses for today. Pursuant to the general order of reference given to us by the Senate on September 25, we will now proceed to the consideration of the draft regulations on administrative monetary penalties.
We therefore welcome, from Canadian Heritage, Julie Boyer, Assistant Deputy Minister of Official Languages, Heritage and Regions, and Sarah Boily, Director General, Official Languages.
Ms. Boyer, I understand that you will be speaking for about five minutes before we move on to the question period.
Julie Boyer, Assistant Deputy Minister, Official Languages, Heritage and Regions, Canadian Heritage: Honourable senators, I am pleased to be with you today. My name is Julie Boyer, and I’m the Assistant Deputy Minister of Official Languages, Heritage and Regions, at the Department of Canadian Heritage. With me today is Sarah Boily, Director General, Official Languages, Canadian Heritage. I would also like to point out that the lands on which we are located, in Ottawa and Gatineau, are part of the unceded traditional territory of the Algonquin Anishinaabe Nation.
Our objective today, as it was when we appeared before the Standing Committee on Official Languages in December, is to present the key elements of the draft regulations on administrative monetary penalties. These draft regulations were tabled in Parliament on November 26 and published on March 7 in Part I of the Canada Gazette.
The modernized Official Languages Act gives the Minister of Canadian Heritage the authority to recommend that the Governor-in-Council make regulations granting the Commissioner of Official Languages the power to issue administrative monetary penalties. Regulations are needed to provide a framework for this power. It is a discretionary power of last resort. Its purpose is to strengthen compliance among the entities subject to the obligations of Part IV of the Official Languages Act, which pertains to communications and services to the public.
The Department of Canadian Heritage led the drafting of these regulations in collaboration with the Department of Justice, the Treasury Board Secretariat and the Department of Transport.
[English]
Specific entities are covered by these regulations: Air Canada, Marine Atlantic, VIA Rail Canada and designated airport authorities, as defined in the Airport Transfer (Miscellaneous Matters) Act. These entities were selected because they fulfill the conditions set out in the Official Languages Act.
There are three types of violations delineated by the proposed regulations, each with their own range of penalties. This approach makes adjustments to the penalties based on the nature of the language obligation at stake.
The first type of violation covers services offered through business contracts, such as restaurants, retail shops or car rental counters in airports. The administrative monetary penalties will only come into force a year after the regulations are adopted to give entities time to prepare for implementation. This is type A.
The second type of violation covers most obligations from Part IV of the Official Languages Act, such as signage and active offer, while the third type is reserved for violations concerning public health and safety, again, under Part IV of the act.
[Translation]
The Commissioner of Official Languages of Canada has the latitude and discretion to set the amount of penalties, remaining within the range of the expected amounts. The draft regulations also set out certain criteria for the commissioner to determine the amount of a penalty, as well as aggravating and mitigating factors, and procedural and administrative aspects.
For example, when issuing a notice of violation, the commissioner will need to clearly explain how the amount of the penalty was determined and provide evidence. The result is a set of regulations that respect the discretion of the commissioner but provide clarity and predictability to the parties involved.
In accordance with parliamentary procedure, the publication of the draft regulations in Part I of the Canada Gazette triggers a period of 30 sitting days in both chambers. This stage officially opens the public consultations to receive comments, consider them and publish the final draft in Part II of the Canada Gazette.
Thank you for your attention. We will now take your questions.
The Chair: Thank you.
Senator Cormier: Thank you for being here to enlighten us on these regulations that we’ve heard so much about. You won’t be surprised if I tell you right away about a concern raised by everyone, including the Commissioner of Official Languages of Canada, which is the cumbersome content of the notice of violation that must be produced to justify the administrative monetary penalty.
What can you tell us about this?
When I refer to the notice of violation, in section 6 of the regulations, there is a whole list of considerations, a detailed explanation of how the commissioner determined the amount of the penalty, as well as a list of all the criteria and the methodology used.
Is the department currently thinking about ways to reduce the number of criteria, considering everything you may have already heard, and also given that this opens the door to potential legal recourse if the criteria are not clearly articulated and respected?
What can you tell us about these aspects, which have been widely criticized by stakeholders?
Ms. Boyer: Thank you very much for the question. I would say that in developing the regulations, we looked at other similar policies that also issue administrative monetary penalties.
Most policies are usually managed by a minister. In this case, an officer of Parliament administers the administrative monetary penalties. Therefore, there’s still some flexibility in the implementation of the officer’s role.
The other thing we see in comparing the policies is that those administered by ministers are usually very prescriptive on how to calculate the amount of the administrative monetary penalty — they just dictate it.
Since our regulatory regime targets the Commissioner of Official Languages of Canada, an officer of Parliament, the commissioner has some flexibility in issuing administrative monetary penalties.
Targeted private entities have told us that, in their opinion, we need to ensure predictability in the criteria that the Commissioner of Official Languages of Canada will use when issuing an administrative monetary penalty. In their opinion, so they can avoid a penalty being imposed on them, it’s very important that the criteria the Commissioner of Official Languages will use to issue penalties be clearly identified.
Senator Cormier: In the example you gave in your presentation — to give a concrete example — you talked about a fast-food establishment in an airport that must comply with the Official Languages Act.
Ms. Boyer: Yes.
Senator Cormier: You say that this institution has a one-year time frame before these proposed regulations are implemented so that it can adapt to them.
I go through airports, as do many Canadians. In very concrete terms, how do you think airports will ensure that McDonald’s, the convenience store or the clothing store in the airport comply with the Official Languages Act and, therefore, will rely on all these criteria to provide services in both languages?
What is the department’s or the government’s position on this issue?
Ms. Boyer: Thank you very much for the question.
When the Commissioner of Official Languages of Canada issues an administrative monetary penalty, it’s a last resort, of course. They must have already conducted an investigation, found a breach of the obligation under the Official Languages Act and then offered to enter into a compliance agreement. After all that, should the entity still refuse to comply, the commissioner would issue an administrative monetary penalty, or they would have the option to do so.
That means that the airport would receive the administrative monetary penalty for violation of a language obligation by one of the restaurants, a car rental service, a convenience store or a boutique.
I think they will be very motivated to work and develop tools. When they renew their lease, for example, it will be very clear: There will be a reminder about their official languages obligations. They will have to meet those obligations, otherwise they will be subject to fees or they could receive an administrative monetary penalty.
I think airports will be motivated to educate their tenants, because it’s up to them —
Senator Cormier: Regardless of the size of the airport? Will the schedule take into account the financial capabilities of the carriers? Not all airports have the same means.
Ms. Boyer: I can start with airports, and my colleague can add to my answer by talking about the mitigating criteria for the amount of the administrative monetary penalty.
All airports that have obligations under Part IV of the act must already provide service in French and English. As for the size of the airport, the regulations talk about an airport with 100 employees, but with a million travellers; that triggers the obligations under Part IV.
Sarah Boily, Director General, Official Languages, Canadian Heritage: Per year, yes.
Ms. Boyer: I reviewed what was submitted to the committee, when it states that this should only apply to airports with more than 4 million travellers a year; there’s a lack of consistency with what’s described in Part IV of the act, which says that under the Part IV regulations, where there is a significant presence — with 1 million travellers a year — services must be provided in both official languages.
I believe we should be consistent with Part IV if we’re issuing regulations under the same act and recognize the obligations of the other regulations arising from the Official Languages Act.
Ms. Boily: You mentioned this earlier, but airport service providers will have one year to prepare for this new provision.
In the regulations, you saw the range for type A, which goes from $0 to $25,000, and there are aggravating or mitigating factors. So, taking those factors into account, the commissioner will be able to determine where the penalty amount falls within the range.
Among the aggravating factors will be the extent to which the violation is repetitive — if it’s systemic within the airport. Other factors will be the type of harm caused to travellers, the duration and the number of people affected. Obviously, if few people are affected and the incident is short-lived, that could tip the scales toward a lesser penalty. The opposite would result in a more severe penalty.
You mentioned the size of the airports. Obviously, the regulations state that, for those with fewer than 100 employees, the penalty would not be an admissible criterion.
Senator Miville-Dechêne: Good evening. In December 2025, the Commissioner of Official Languages of Canada made his position on the administrative monetary penalties regime known to the two parliamentary committees responsible for official languages.
The commissioner expressed some confusion about certain elements, including the exclusion of port authorities from the list of institutions subject to the regime, even though they continue to be the subject of a large number of complaints to the office of the commissioner. Why were port authorities excluded?
Ms. Boyer: The act referred to the travelling public. The regulations are intended to target entities that serve the travelling public. When drafting the regulations, it was determined that port authorities deal with fewer travellers. Often, they are more administrative in nature — a port with cargo and a headquarters — but it doesn’t necessarily provide services to travellers.
Senator Miville-Dechêne: Can it do both?
Ms. Boyer: It’s possible.
Senator Miville-Dechêne: There may be cruise ships, for example, which are very popular right now.
Ms. Boyer: When we drafted the regulations, we focused primarily on the travelling public at airports, since most travellers go through airports, not port authorities.
Senator Miville-Dechêne: There’s another omission, according to the commissioner, namely the lack of oversight of the language obligations of the Canadian Air Transport Security Authority, or CATSA, which plays an essential role in air transportation and services to the public. Why was it excluded?
Ms. Boyer: When drafting the regulations, we considered whether CATSA should be included in the entities subject to them. We looked at its business model. We know that it’s largely funded by fees included in travellers’ airline tickets to ensure airport security. This money from ticket sales is given to the government, which then provides parliamentary appropriations to the Canadian Air Transport Security Authority.
CATSA might decide to seek more revenue if it had to pay administrative monetary penalties. We didn’t want our regulations to result in higher airfares. When we drafted the regulations, we decided to exclude CATSA because it’s not a commercial entity that generates revenue. The compliance effect could therefore be minimized, since CATSA wouldn’t be giving its own money back to the Receiver General. It would be travellers’ money. That’s less noticeable.
Ms. Boily: We mustn’t forget that the power to impose administrative monetary penalties falls under a different category of powers held by the commissioner. There are other more remedial powers. If the issues really are systemic and repetitive, the court’s power to issue orders is much stronger than an administrative monetary penalty. There’s always a way to resolve compliance issues.
Senator Miville-Dechêne: In February, representatives of the Office of the Commissioner of Official Languages said that they had studied around 15 federal administrative monetary penalty policies. In a follow-up sent to senators, the office of the commissioner cited examples and noted the following:
The requirements imposed by the [proposed] regulations and by the [Official Languages] Act far exceed those of other [administrative monetary penalty] policies [. . .] Those that do include regulations don’t include requirements for the notice of violation other than what is already set out in the enabling legislation [. . .] no policy requires substantive justification of the methodology used to determine the amount.
Those are the commissioner’s words. Do you agree with him or not? If the commissioner is right, why would he be held to a higher standard than everyone else?
Ms. Boily: Thank you for the question. We really tried to strike a balance between procedural fairness and the commissioner’s ability to fully exercise their powers. Our teams also reviewed the other penalty regimes examined by the Office of the Commissioner. We did some benchmarking. That’s how we set the maximum amount at $50,000.
Senator Miville-Dechêne: Are they exactly the same? Are you sure that these are the same 15 regimes?
Ms. Boily: No. We mustn’t forget that, under our regime, an independent officer of Parliament is responsible for the administration. In the other 15 regimes, the ministers hold that responsibility. They don’t have the same leeway that the commissioner must retain at all costs.
Senator Miville-Dechêne: Thank you.
Ms. Boily: It’s about striking a balance.
Senator Cormier: I have a follow-up question.
When we travel, we clearly encounter issues with the Canadian Air Transport Security Authority. The Office of the Commissioner, which will be responsible for imposing administrative monetary penalties, has put forward some fairly strong proposals. I would like to know how you plan to take them into account.
The Office of the Commissioner noted that the nine elements of the notice of violation listed in section 6 of the draft regulations come on top of the seven elements in subsection 65.6(4) of the Official Languages Act, for a total of 16 elements. It also reiterated the need for travellers to have the same rights regardless of their chosen mode of transportation. It provided examples of four systems that apply to federal entities and noted the following:
These four examples show that it is possible to impose an AMP on a federal institution such as CATSA, and that the argument that it is publicly funded has not prevented Parliament from imposing AMPs under other legislation. We therefore do not understand why this would not be possible under the Official Languages Act. AMPs cannot promote compliance with Part IV if an institution is not subject to them.
As a result, the Office of the Commissioner is proposing a complete removal of section 6, or at least subsections 6(c) and 6(d). It’s also proposing to add port authorities and CATSA to the list of entities subject to the regulations in section 2. A lawyer made the same point. I find the money argument a bit weak in light of the information provided here.
Ms. Boyer: Undoubtedly, an administrative monetary penalty regime seeks to ensure compliance. We’re assessing whether subjecting these entities to the penalties could increase the compliance rate. This is being done for the benefit of travellers, in keeping with the criteria set out in the legislation.
When drafting the bill, we determined that this wouldn’t have the desired effect of increasing compliance. We also took into account that, in the modernized legislation in 2023, the Commissioner of Official Languages has new powers. These include the publication of investigation recommendations, mediation, the compliance agreement, administrative monetary penalties and orders.
The compliance agreement with an agency that fails to fulfill its official language obligations could prove highly effective. Any breach of this type of agreement could be addressed by seeking a Federal Court order to enforce it. This could prove more effective than requesting a reallocation of public funds.
Senator Cormier: Do you have data to help determine the number of complaints made to the Canadian Air Transport Security Authority?
Ms. Boily: We have this data in the Office of the Commissioner of Official Languages’ annual report. We know that non-compliance is a recurring issue, yes.
It bears repeating that we’re still in the consultation process. We’re carefully considering all the suggestions heard.
Senator Cormier: Are compliance agreements already in use?
Ms. Boyer: Yes.
Ms. Boily: Yes.
Senator Cormier: It’s already possible. It doesn’t prevent breaches of obligations under the Official Languages Act.
Ms. Boily: However, the order-making power hasn’t been used yet. This new power could have an impact on an institution such as CATSA.
Senator Cormier: Thank you.
Senator Miville-Dechêne: You’re still analyzing the commissioner’s comments?
Ms. Boily: Yes, exactly.
We published the draft regulations in Part I of the Canada Gazette on March 7, so that we can track —
Ms. Boyer: We have until the end of June, either June 17 or 18, if we count the days. This gives us time to receive comments and make changes before publishing the regulations in Part II of the Canada Gazette.
Senator Miville-Dechêne: If he’s engrossed in writing, excuse me —
The Chair: On that note, I’m glad to hear that you’re keeping up with both committees. At the same time, the draft regulations outlined in the Canada Gazette are the same as the ones introduced last fall. Are you open to making changes and amendments in order to move forward? Why weren’t the regulations amended in Part I of the Canada Gazette?
Ms. Boily: Yes. We gave ourselves more time to hear from all the stakeholders. I think that this was a wise move. We’ve heard some great things, including this evening.
[English]
Senator Patterson: I want to go back to the subject of whom this applies to. I understand that, when it comes to the aviation industry, it is very challenging. You spoke about the Canadian Air Transport Security Authority, or CATSA, but I want to talk about other major airlines in Canada beyond Air Canada. We have Porter Airlines and WestJet. “Official languages” means compliance with the law, but it is about the safety of people who fly being able to access safety instructions in both official languages. We know Porter and WestJet generally comply, but there is no recourse for passengers who are unable to receive services in the language of their own choice, from what we have heard from other testimony.
Has there been any thought about including that? We understand why VIA Rail and Air Canada are included — because of the framework and it is hard, et cetera — but this is also a safety issue, just as in health care.
That is my first question.
An unrelated but connected issue is this: When we talk about provinces and territories — and this came up in other witness testimony — it becomes very challenging when you have other provinces that are not complying. What recourse is there? I noticed that there was a mention of the assumption that there is going to be compliance at the provincial level, but what tools exist within regulations to hold provinces accountable? I realize there are penalties and administrative actions, but what is going to happen? That is a challenge across the country. Thank you.
Ms. Boyer: Thank you, senator, for the question.
You have raised many points, but I will start with this: Air Canada has special obligations because it is subject to the Official Languages Act. That was negotiated when they were privatized, and it remains so; they will always be treated differently as a federal entity.
As for other airlines, I cannot wait to come and present to this committee the next regulation we will be tabling on federally regulated private businesses and the use of French in Quebec and in regions with strong francophone concentrations. That will bring new obligations, including, potentially, for airlines located in areas where there is a strong concentration of francophones. They would have to meet official language obligations and be subject to federal tools — as well as the commissioner — if they do not meet those obligations.
You will have to invite us again when we table this third regulation flowing from the modernized Official Languages Act.
My last point is just a reminder regarding the provinces and territories. I am sure you are familiar with this, but the Official Languages Act can only apply to federal entities. As soon as it is under the provinces and territories not complying, the federal power is limited in that regard, including through regulations or even the Commissioner of Official Languages. Those are really focused on federal legislation.
Senator Patterson: Thank you. I truly understand that. That is one of the complexities of a federation, but it is not good enough.
Ms. Boyer: Yes.
Senator Patterson: When those minority language communities cannot access funding, as we heard in the main news, provinces take great offence to the federal government giving money directly to entities within provinces. This is more of a statement because I realize where we are, but if we truly believe this is important, this will have to be one of those ongoing provincial and territorial discussions that we have.
Ms. Boyer: Yes, thank you.
[Translation]
Senator Cormier: We received a summary of the key recommendations. I would like to read them to you, to see how you could respond:
The testimony and briefs put forward a range of recommendations, some of which are contradictory. These include proposals to:
expand the scope of the draft regulations to cover additional entities or, conversely, exempt airport authorities handling fewer than four million passengers annually as well as contracted services;
— that’s why we say that it’s sometimes contradictory —
promote greater consistency for the travelling public as a whole or, conversely, tailor the AMP regime to the challenges faced by regional entities, including limited financial capacity and challenges recruiting bilingual staff;
I’ll provide a simple example. If I leave home and fly to Halifax, then take a ferry to another location, take another flight to Montreal and then fly to Toronto, I’ll have access to service in both languages in some regions and I won’t in others.
If we’re talking about “tailoring to entities” . . . I don’t know how these regulations will help to standardize — that probably isn’t the right word — the quality of services for passengers to ensure that they can travel without having to read a lexicon to find out whether it’s possible to receive service in their own language.
I won’t read the other elements. However, for example, we’re told that the date of entry into force of the regulations will be reviewed more slowly or more quickly, depending on the case.
There are obviously many concerns about these draft regulations. I’m glad to hear you talk about a certain openness now. I hope that the minister and the government will have this same openness. I think that it’s essential, given the current situation, to make changes to these draft regulations.
I have a more general question. In your opinion, will these regulations improve the services provided? If so, in what way? I’m still quite skeptical about the capacity of small businesses located at airports. Does the government, in terms of financial and human resources, the bilingualism training available . . . . The federal government should remain fairly consistent between its approach to ensuring that Canadians just about everywhere become bilingual and its regulations requiring bilingualism, which we all agree on. A challenge lies in the human and financial resources involved in all this. What can you tell us about this topic?
Ms. Boyer: I would like to think that the addition of another tool for the Commissioner of Official Languages will make the services provided across the country more consistent and improve the traveller’s experience. As you said, there are complaints about repeated failures to fulfill obligations. I must face up to the fact that this may not resolve everything overnight.
That said, we’ve increased the Commissioner of Official Languages’ powers with the modernization of the act. This tool will also affect the budget. We calculated the cost of implementing these regulations, which is necessary when preparing a regulatory package for consideration. We’ve taken into account the potential impact on these entities in terms of language training for their employees.
The federal government is committed to second-language learning. The provinces and territories receive a great deal of funding to make second-language learning available for immersion and for minority languages. As a result, more bilingual employees should emerge from this system and from these “ongoing” federal government investments.
Ms. Boily: We’re looking at the longer-term horizons, of course.
We do have a protocol for agreements on education amounting to $1.4 million over four years. This protocol ensures that education can be provided in French, from early childhood through to post-secondary education, and that programs for learning French as a second language are also available. We dare to believe that this will lead to a larger bilingual workforce and make recruitment easier over the long term. However, it’s certainly a challenge.
The Chair: I gather that all the penalties have been taken into account in consultations with the public — or at least the travelling public — with the entities subject to the penalties and with the Office of the Commissioner. Of course, there are risks. First, it’s cumbersome for the Office of the Commissioner, which may not impose penalties as quickly. We also know that these measures are a last resort. I understand that. However, there are also risks of legal challenges. Are you ultimately taking all this into consideration?
Ms. Boyer: Yes. Moreover, if we don’t provide sufficient definitions regarding the rationale for penalties or the elements of the notice of violation for the Commissioner of Official Languages, the risk of legal challenges can run both ways.
Let me explain. If we fail to sufficiently define the process or rationale that the Commissioner of Official Languages must provide, an entity that receives an administrative monetary penalty, or AMP, is highly likely to ask for an explanation of the amount and criteria used. The lack of definitions could lead to legal challenges. When it comes to definitions, they may not agree with the proposals. They can turn to the Federal Court to present the facts. The Federal Court will rule on whether the commissioner is right and whether the AMP is applicable.
The Chair: The other side of the coin is that too much bureaucracy means fewer penalties, which takes this tool away from the Office of the Commissioner.
Ms. Boyer: I think that we can take this into account. We’ve heard this. I can’t prejudge how the regulations will be changed. I’m a public servant. I don’t have any decision-making power in this area. However, we’ve certainly heard this. I would like to reiterate for the committee that, given that we aren’t talking about a minister with a calculation specified in the regulations or a dictated amount, we need a certain number of criteria or a rationale for what should be included in the notice of violation. Maybe we aren’t talking about 16 criteria . . . . I don’t know how many criteria you counted, but maybe not that many. This could be a recommendation, if we receive input in this area for the process relating to Part I of the Canada Gazette and taking into account your points for consideration.
Senator Cormier: Thank you for your good response.
The Chair: Let me point out a small technical detail. We noticed that you submitted the regulations in Part I of the Canada Gazette on March 7, and an erratum was submitted on March 21.
Ms. Boyer: We’ll be happy to talk to you about it.
Ms. Boily: The statutory instrument published on March 7 is in fact correct. The error is in the regulatory impact analysis statement. For type C violations, the range mentioned was $10,000 to $50,000. However, in the statutory instrument, you’ll see that it’s $5,000 to $50,000. This error slipped into the impact analysis statement. It has already been corrected in the HTML version. I think that the PDF version may have been corrected over the weekend. This may have already been done. If not, it’s a matter of days.
The Chair: It seems that you removed subsections 12(1), 12(2) and 12(3).
Ms. Boily: Yes, another little correction was needed. I’ll get to it —
The Chair: In any case, these are details, not content.
Ms. Boily: That was the main one. However, we removed elements for type A violations, with the exception of health and safety violations. We didn’t want confusion to arise from having type A violations that related to health and safety issues. To make it consistent and simple, we simply referred to type A, type B and type C and we removed the health and safety element for type A.
The Chair: Thank you.
On behalf of my colleagues, thank you for appearing here this evening. I would also like to thank the two previous panels, some of whose members are still here. Good evening, everyone.
(The committee adjourned.)