Canadian Heritage Committee on April 18th, 2024

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Mr. Champoux.

I've been intense here too at times.

Ms. Ashton, you have two and a half minutes.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Mr. McKinnon, the Department of Canadian Heritage funds the Court Challenges Program 100% through a contribution agreement. Its funding is divided between two branches—human rights and official languages rights.

Budget 2023 announced an additional $24.5 million over five years, which is double the funding for the Court Challenges Program.

However, every year there are a number of worthy applicants that aren't funded. It's not because they don't qualify, but because the program is underfunded, nor is this funding stable. Even with this legislation, there is a possibility that a future government could underfund the program and deny people access to the justice that they deserve.

Why enshrine the Court Challenges Program without requiring adequate funding?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I don't believe that a private member's bill can speak too much to ensuring adequate funding. Absent a royal recommendation, we can't do anything that results in an increase in the funding.

This bill would not be possible if the Court Challenges Program was not already up and running. It's up and running already, but the choice of making funding permanent versus ad hoc, as it is currently, would require a royal recommendation.

I'm perfectly happy if we see more funding for it to expand its powers, absolutely, but I think that has to be done through a different mechanism.

I'd be happy to support recommendations to the Minister of Finance to fund it further and for the appropriate bodies to enhance legislation as might be appropriate for them.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Thank you for sharing that.

Mr. McKinnon, you drafted a bill to enshrine the Court Challenges Program under law, but it's not lost on me how many times the federal government has fought first nations in court, first nations that are defending their rights. It seems that change for first nations, when it comes to the federal government, often only comes when it is ordered in court.

The Liberals fought first nations residential school survivors, children who were kidnapped from their homes and forced into residential schools where they were abused irreparably. They fought first nations children who didn't get the education funding that they deserved. They fought first nations, including Tataskweyak Cree Nation here in my constituency, that didn't have access to clean drinking water.

In your defence of rights, would you agree that the federal government should not be spending the millions of dollars it is in fighting first nations in court that are simply defending their fundamental rights?

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Ms. Ashton.

We have to move on. I have two more rounds before our first hour is done.

We'll go to the Conservatives. Mr. Gourde, you have five minutes.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

Thanks to my colleague Mr. McKinnon for being here today.

Mr. McKinnon, the court challenges program seems to be relatively unique in the world. Do you know of any other countries that have a similar program?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

No, I don't.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

I think that's the right answer. I did some research and discovered that no other country in the world has taken any inspiration from the court challenges program. I don't know if that's because we're unique or more intelligent than other people, or if it's because we're different from everyone else in the world. Who knows? Sometimes reality is stranger than fiction.

Speaking of political fiction, could the federal government use the program if it wanted to challenge a provincial statute but didn't want to do it directly? It could use an organization from a province to challenge the law of that same province, and that challenge would be funded by the federal government.

Is that possible?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

That speaks of some deeper convoluted conspiracy. I don't believe that's an appropriate use of the Court Challenges Program. I think that if the federal government wants to take on a province, they'll do it head-on.

This is really for individuals who need to protect themselves from the action of government, whether that government is federal or provincial or even municipal.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you for your answer.

Canada is the only country that funds organizations so they can sue their own government. Is that true?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I wouldn't construe this as suing the government, frankly: It's really about taking your problems to a court and having your rights adjudicated.

Thinking about this as suing the government is kind of where Mr. Harper came from, back in the day. I think it's wrong. I think that we have to look at this as a way of supporting and maintaining the essence of the Charter of Rights and Freedoms, which is really a key to our democracy. It behooves the government, and is in the best interests of the government, to honour and respect the Charter of Rights and Freedoms, and if the government gets it wrong at any point, we should know about it and they should know about it, and we should be able to take corrective action.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Under your bill, it would be possible for a third party to select cases that would be funded, but the selection criteria are still unclear.

Could the third-party organization inform us about the selection criteria? Could it also tell us in its annual report how many cases were approved or denied and the reasons why they were denied?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

That would be good information to know. I think it's beyond the scope of this bill. That's really more fundamental to the Court Challenges Program itself and not with respect to whether or not it's permanent or temporary. I would be fully supportive of any measure that could increase the transparency of the program.

At the moment, we do rely on experts who operate independently and decide whether a given case is of sufficient public import and whether the person who is bringing it forward is an appropriate litigant to bring it forward.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

In the long term, do you think the program will require far greater financial resources than is now the case? I'm thinking here of inflation and the number of cases, which may increase. There's also the fact that we want applicants to be treated with some degree of fairness.

Do you think costs will double or triple?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I think that everything costs more all the time, of course. As you mentioned, we have inflation and all kinds of things like that going on.

It's really for the Minister of Finance to determine what kind of funding goes to it. I would certainly encourage more funding than less funding so that all the cases that need to be dealt with can be dealt with.

The Court Challenges Program does not—

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you. We'll move on.

Thank you, Mr. Gourde.

In the second round here, our final MP is Mr. Housefather.

Welcome back. You have five minutes, please.

[Anthony Housefather, Liberal, Mount Royal, QC]

I'm going to start by simply saying that I agree with Ms. Thomas's motion. I believe that anti-Semitism is a very important issue and I regret that we weren't able to discuss that motion today.

I will now turn to Mr. McKinnon, because the Court Challenges Program is absolutely one of the most fundamentally important programs that exist in this country. I think it helps minority language groups, including francophones outside Quebec, English speakers inside Quebec, racial minority groups and others seeking equality rights. It's absolutely fundamental. I congratulate Mr. McKinnon on bringing forward this very important bill.

Mr. McKinnon, do you want to go through the reasons that you think it's important to legislate that only the House of Commons, by a vote, can remove the Court Challenges Program, versus simply allowing governments to arbitrarily do so? What in the history of the Court Challenges Program has led you to this conclusion?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

First of all, I want to acknowledge that Anthony was the chair of the justice committee in which we did that report. I worked with Anthony for four years on that committee. It's good to see you back.

As was mentioned, we saw that both Mr. Mulroney and Mr. Harper cancelled it. I think it's sometimes a case of mistaken priorities. If people think of it as “why should we pay to have people sue us?”, then it's a problem. If we think of it as “why should we pay to support, to advance and to strengthen our democracy?”, then it's not an issue.

It's to make it less of a whim: “Why should we pay for people to sue us? Let's just cancel it.” Make it something that has to be more deliberative. It has to go before the House to be argued and to be debated. It's not going to be a whimsical change; it's going to be a deliberate and a much more difficult thing to change.

As Mr. Housefather mentioned, I think this is a fundamentally important aspect of our democracy. We have to do whatever we can to strengthen it, to maintain it, and when and wherever it's possible, to expand it.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Mr. McKinnon. I agree with you.

I think one thing we sometimes forget is that we're not only a democracy; we're also a country that has a constitution and a charter of rights. The charter of rights means that despite the democratic will of the majority sometimes, the rights of the minority need to be protected.

That's exactly the reason that we want groups seeking language rights and equality rights to have the option of having the funds to challenge government laws that contravene those rights. Sometimes the minority needs tools to take on the whim or the will of the majority. This is exactly what your bill does. Is that not true, Mr. McKinnon?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Absolutely. Certainly the Charter of Rights and Freedoms is a check on the will of the majority. It prevents the will of the majority from becoming a tyranny. That much power, to have merely a majority decision decide everything that can possibly be, is a mistake. We have to constrain those powers in well-defined, just ways so that the power of the democracy can be wielded effectively and properly.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you so much.

Lastly, Mr. McKinnon, I'd like to address the topic of Quebec, which my colleague Mr. Champoux also discussed. I think the court challenges program applies to all provinces, not just Quebec. For example, if any government in the country passes legislation that violates the Canadian Charter of Rights and Freedoms—I would note that we also have the Quebec charter of rights and freedoms—the government is required to fund groups that want to defend their rights in the courts.

Is it accurate to say that this program applies to all the provinces, including Quebec?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I would say yes, absolutely.

If a government is fearful of the Court Challenges Program because its programs might be challenged, I think they need to look much harder at those programs. They need to make sure that when they pass those programs, they are within the bounds that are defined and delineated by the Charter of Rights and Freedoms.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Mr. McKinnon.

Thank you, Mr. Housefather.

Mr. McKinnon, you're more than welcome here. This is your private member's bill. If you would like to stay around for hour or two, please do so.

We have department officials in the room. We'll take a short break, and they'll come to address us within the next three minutes. Then we'll start our second hour.

[The Vice-Chair, Conservative, Kevin Waugh]

All right, everyone; we're ready for the Department of Canadian Heritage.

Thank you very much, Mr. McMurren, director general of strategic policy, planning and corporate affairs, along with Mr. Dendooven, assistant deputy minister, strategic policy, planning and corporate affairs, for being here.

I think, Mr. Dendooven, you have the opening statements for the committee here today. The floor is yours for the next five minutes.

[David Dendooven, Assistant Deputy Minister, Strategic Policy, Planning and Corporate Affairs, Department of Canadian Heritage]

Thank you very much, Mr. Chair.

Thank you for the invitation to provide information on the Court Challenges Program.

First, I recognize that we are gathered on the unceded traditional territory of the Algonquin Anishinabe people.

In my role as assistant deputy minister responsible for the strategic policy, planning and corporate affairs sector, I've been responsible for the Court Challenges Program for more than the past five years.

The University of Ottawa was selected as the independent organization to implement, administer and promote the Court Challenges Program in 2017. It is an arm's-length entity, independent of the government, and it was chosen through an open and transparent process. The university supports two expert panels that are responsible for making funding decisions for the program—official language rights and human rights expert panels—and each expert panel is composed of seven highly qualified members identified through a selection process managed by the Department of Canadian Heritage for possible appointments by ministers.

The Court Challenges Program was initially established in 1978 to enable people living in Canada, regardless of their means, to bring forward legal cases when they believed their fundamental rights had been violated. It also supported individuals and organizations in challenging laws and policies that were perceived as undermining Canada's fundamental rights and freedoms. Since its initial creation 46 years ago, the Court Challenges Program, through its various iterations, has funded and supported major court cases that have significantly shaped and impacted the evolution of jurisprudence in matters of official languages and human rights in Canada.

The Court Challenges Program has historically been, and continues to be, administered by a third party at arm's length from the government, to avoid any real or perceived conflict of interest on the part of the Government of Canada. The program has played an important role in ensuring access to justice and equality for all Canadians.

Moreover, the program has contributed to the protection of the human rights of all people in Canada, supported vulnerable and marginalized communities and helped minorities in defending their rights, consistently promoting justice and equity.

The court challenges program has also played a decisive role in supporting official language minority communities across Canada. By funding challenges of statutes and policies that may erode language legislation, the program helps preserve the vitality of those communities and sustain linguistic duality and diversity in Canada.

I want to emphasize that the court challenges program may not fund challenges to provincial or territorial human rights statutes, policies or practices. However, as has been the case since it was created, the program's official languages component may fund cases involving provincial and territorial governments because some constitutional language rights apply specifically to the provinces and territories.

Since it was restored in 2017, the program has funded 115 official language rights cases and 160 human rights cases. In the 2022–2023 year alone, experts granted funding for 74 cases, consisting of 33 official language rights and 41 human rights cases. Those proceedings mainly involved the language rights of official language minority communities, indigenous rights, the rights of the LGBTQ+ community, those of disabled persons and civil liberties.

The University of Ottawa publishes the data on those cases every year once the annual reports have been posted to the program's website.

The program carries out its mandate to promote equality, justice and human rights in Canada by funding and supporting these cases. Total funding for the program was increased in the 2023 budget. The resulting doubling of the federal budget over five years, as announced in the 2023 budget, will afford the program an additional $24.5 million until 2028. One third of annual funding is allocated for the clarification of language rights, and additional funding will enable the program to support more applications.

In conclusion, the program, since its inception, has produced meaningful results consistent with its mandate and objectives, and effective mechanisms are in place to maintain its integrity and proper functioning, including its independent operation.

Thank you for your attention, Mr. Chair. I will now be pleased to answer questions about the program.