Canadian Heritage Committee on May 2nd, 2024

[Liane Roy, President, Fédération des communautés francophones et acadienne du Canada]

Good afternoon, Mr. Chair and members of the committee. I want to thank you for inviting us to appear before you today together with our colleagues from the FAJEF.

The Fédération des communautés francophones et acadienne du Canada, or FCFA, is the national voice of 2.8 million French-speaking Canadians living in minority communities in 9 provinces and 3 territories. Our organization heads up a national network of some 900 French-language organizations and institutions across the country.

Our communities are determined to live in French and work hard to do so every day. Over the years, they have established more than 700 French-language schools, some 20 francophone and bilingual colleges and universities, health services, community and cultural centres, as well as media outlets. Those institutions didn't just materialize out of thin air. In many cases, minority francophones had to go before the courts to secure them or to defend their existence.

Even though the Canadian Charter of Rights and Freedoms has established very clear language rights, having those rights honoured has proven to be quite another matter. In many cases, in many places across the country, we have had to take legal action that lasted years.

In 1984, a group of Franco-Albertan parents filed suit because they felt they had a charter right to manage their own schools and doggedly pursued the matter to the Supreme Court, where they won their case in 1990, six years later.

I could tell you about Summerside, Prince Edward Island, where children had to travel two hours by school bus every day to go to school in French. After years spent in the courts, those Acadian parents won their case in 2000.

Then there's the five-year struggle in the courts that was required to prevent the closure of Montfort Hospital, the only francophone university hospital in western Quebec.

Lastly, I should mention the long and recent struggle by the Fédération des francophones de la Colombie-Britannique to restore French-language employment assistance services in their community.

The court challenges program provided the support that made those victories possible. It's thanks to this program that there are now 42 francophone schools in Alberta, and the same is true of the cases brought to provide French-language education in the territories that are still before the courts today.

It has to be understood that court challenges are not simple matters. They require time and resources over many years. It's the individuals and groups, dedicated people, who dream, for themselves and their children, about being able to live in French, who go to bat in these struggles, showing immense courage and tenacity in defending their community's collective rights. The court challenges program enabled those people to go all the way.

Let me be clear: The fact that our communities are determined and thriving today is largely due to the many cases we have brought as a result of the court challenges program. We owe many of the institutions that enable us to live in French, as the charter promises, to this program.

That is why the FCFA has always defended the court challenges program because we know all too well how closely its existence is connected to what allows us to live in French. The court challenges program is linked to our sense of belonging and our francophone identity.

Our communities are now increasingly diversified. Just as francophones still encounter barriers in exercising their language rights, so are many francophones facing discrimination based on race or sexual orientation and identity. Living in French is a language rights and human rights issue, and the court challenges program is now more important than ever. Which is why we have resolutely come here today to support Bill C-316.

Thank you for your attention. I will be happy to answer your questions.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Ms. Roy. You were right on time.

Finally, we have the Canadian Bar Association.

Jennifer Khor is chair of the access to justice subcommittee. Ms. Khor, go ahead for five minutes, please.

[Jennifer Khor, Chair, Access to Justice subcommittee, The Canadian Bar Association]

Thank you, Mr. Chair.

Thank you to the committee for the invitation to be here today.

My name is Jennifer Khor. I use the pronouns she/her. I'm the Canadian Bar Association's chair for the access to justice subcommittee.

I'm pleased to be joining you today from the traditional unceded territories of the Mi'kmaq and Wolastoqiyik people in Nova Scotia.

The Canadian Bar Association is the national association of 38,000 lawyers, Quebec notaries, law teachers and students, with a mandate to promote improvements in the law and the administration of justice. The access to justice subcommittee strives to improve and promote access to justice for poor and middle-class people in Canada.

The Court Challenges Program has experienced a series of cancellations and revivals, which underscore the program's inherent instability and emphasize the necessity of an independently administered program. The Canadian Bar Association is a long-time supporter of the program's objectives to advance constitutional rights and freedoms by funding test case litigation and cases of national significance in the areas of equality and official language rights.

In fact, the Canadian Bar Association recommends the expansion of the program's mandate to also include equality challenges with national implications to provincial and territorial laws, policies and practices, claims of discrimination by historically disadvantaged groups under the Canadian Human Rights Act, and dedicated resources for aboriginal and treaty rights and federal responsibilities to indigenous peoples.

Governments have significantly more resources at their disposal, compared to individuals or advocacy groups. This resource asymmetry can manifest in various forms, including access to legal expertise, financial resources for litigation and institutional support. As a result, individuals and smaller organizations face significant barriers when attempting to challenge laws or government policies in court.

In 2006, the Canadian Bar Association passed a resolution with respect to the Court Challenges Program. In that, we asserted that “it is a fundamental premise of the Canadian Constitution and system of justice that, in order to be effective, rights must be able to be exercised”.

The clarification of constitutional rights benefits all Canadians, and the Court Challenges Program has a vital role in increasing access to justice for marginalized and vulnerable groups. The program makes a unique and important contribution to democratic values and citizenship, particularly given the rising costs of charter litigation and the complexity of such litigation.

In the CBA's 2013 “Reaching Equal Justice” report, which sets out a plan to create a more accessible and equitable legal system, the CBA called for a rights culture in which individuals and groups are empowered to know and enforce their rights through strengthening legal capabilities.

In 2016, when the CBA commented on the proposed reinstatement and modernization of the program, we stated that the program “should be run by an organization independent of government.”

Ultimately, a stable, well-funded program is one that can hold the government accountable for its actions by providing a mechanism and a more level playing field through which individuals can challenge laws that may be unconstitutional or infringe on their rights and freedoms. This helps to maintain a healthy balance of power between the government and the people it serves. Enshrining the Court Challenges Program into legislation ensures more equitable access to justice for all.

Thank you.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Ms. Khor, from the Canadian Bar Association.

Each party has six minutes in the first round. Up first will be the Conservative Party.

Mr. Gourde, you have six minutes.

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

Thank you, Mr. Chair.

My first question is for Ian Brodie.

First of all, I would like to thank him for all his years of service in the last Conservative government. A top-level adviser, Mr. Brodie counselled the former prime minister and many ministers in a government that left Canada in very good condition in 2015. As we all know, it's a different story today.

I sincerely want to thank you, Mr. Brodie.

That being said, today the National Assembly of Quebec passed Bill 52, which preserves the use of the override provision to protect the Act respecting the laicity of the State, Bill 21, from court challenges. Four Quebec associations have now indicated their intent to challenge the bill in the Supreme Court. I believe those four associations are eligible for the court challenges program.

Do you think it's fair to allow federal government money to fund challenges to both a bill passed by a majority in the National Assembly of Quebec and a provincial statute of Quebec?

[Ian Brodie, Professor, University of Calgary, As an Individual]

I want to clarify off the top that while I appreciate the member's comments, I'm here not in my previous political capacity but because of my long-standing academic work on the Court Challenges Program.

In the written submission I sent to the committee a week or so ago, I think I set out that there was a continuing problem with the Court Challenges Program in having a federally funded organization funding challenges to provincial legislation. I have a long-standing view on the propriety of using the federal spending power in areas of provincial jurisdiction. I extend that view to this issue on the Court Challenges Program here. If the federal government—the current one or some future one—decides that it wants to intervene in a court case in order to bring additional legal arguments before the courts, of course it's always open to the Attorney General of Canada to intervene in a court case and to bring public interest arguments forward, but to be in the business of effectively subsidizing and encouraging court cases against provincial legislation—or, for that matter, municipal actions—I think is a violation of the principles of the spending power.

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

Mr. Brodie, based on your knowledge of Canadian and international statutes, have any other countries in the world been inspired by the court challenges program? If not, how do other countries operate in similar cases?

[Ian Brodie]

I should say, Mr. Chair, that when I travel internationally, I'm often asked about this because of my academic work on the Court Challenges Program. I have difficulty explaining, either to legal activists or to government officials in other countries, how it came to be that the federal government pays organizations or individuals to sue in court for these kinds of rights issues.

There's a long tradition of public interest litigation challenging legislation and government action in the United States and in other countries. This goes back—we're in 2024—at least 100 years. I'll note that the great advances made on behalf of the black civil rights movement in the United States in court were entirely privately financed by donors and by charitable trust funds established by wealthy donors in the United States. In the signature cases that advanced desegregation of the U.S. universities and the U.S. public school systems, there was no similar Court Challenges Program and there was no similar federal funding of any of those cases.

It is certainly possible, and there are lots of examples around the world. In most of the examples of public interest litigation against government legislation or government policy in the world with functioning constitutions, it's relatively recently and only in Canada that the litigation was financed with the support of government subsidies like this.

[The Vice-Chair, Conservative, Kevin Waugh]

Just like Tuesday, Mr. Brodie, please mute yourself after you answer.

To our other guests, after you answer a question, please mute yourself. If there's a second question to you, you can answer it and then mute yourself again. This is due to the feedback issues we're having here. Mr. Brodie was reminded of that today because of Tuesday, but for the rest of you, when you answer a question, just put yourself on mute afterwards.

Mr. Gourde, we did stop the clock. You have a total of 51 seconds left. Go ahead.

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

Thank you, Mr. Chair.

Mr. Brodie, should the court challenges program be more transparent?

It's currently administered by a third party at the University of Ottawa, but we don't know how many organizations receive funding under the program, what amounts each one receives, or what cases that funding is used for. Four or five Quebec organizations may be challenging a Quebec statute without us knowing how much funding they'll receive from the program for that purpose.

Do you think that's fair and reasonable?

[Ian Brodie]

Absolutely. The Court Challenges Program existed for almost 20 years when it had to disclose who it funded and how much money it sent to each court case. I know that there was some argument at the last committee meeting about that, but I think that's a policy that should be returned to under future contribution agreements. If the law is going to be amended here, it should be clear that that this will be a requirement under the Court Challenges Program.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Mr. Brodie, and thank you, Mr. Gourde.

We'll go to the Liberal Party now.

Mr. Noormohamed, you have six minutes. Go ahead.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Thank you, Mr. Chair.

I would like to thank the witnesses for being here.

Mr. Jensen, I'd like to start with a couple of questions to you. From 1984 to 1993, during Progressive Conservative governments, 24 equality rights challenges were brought before the Supreme Court. Of those, nine had party or intervenor status and were funded by the Court Challenges Program. The vast majority of those were successful.

I think these are important things to note, because I would argue that had those challenges not been funded, they would never have seen the light of day.

Could you briefly give me your assessment of what the impact would be had programs like those, in that era, not had the funding from the CCP to advance equality rights?

[Bennett Jensen]

I think the question has laid out the key factors at play, which are really that the Court Challenges Program facilitated access to the courts, and continues to, for groups and voices that are not properly or adequately represented otherwise and whose perspectives wouldn't reach there otherwise.

With respect, I think it is actually critical that there is federal support in establishing functioning checks and balances within a robust constitutional democracy, for the bringing of challenges to test the constitutionality of legislation and to have that done before the appropriate body in our system, which is the judiciary.

We have to understand that of course the federal government provides extensive funding in defence of legislation. It funds the court system. What we're talking about with the Court Challenges Program is a very, very modest amount of money that facilitates an opening of the door to groups that might otherwise not be able to be there.

The period of time that you're speaking to was when the courts were grappling with, for instance, what it meant to recognize sexual and gender diversity. What did it mean to recognize the rights of women? What did it mean to recognize groups of people who hadn't been at the table historically? It was critical in our understanding as a country and in the development of constitutional law that recognizes all of us.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Thank you, Mr. Jensen.

Mr. Chair, during the time that I still have, which I think is about three and a half minutes, I would like to put forward a motion. It reads as follows:

That, pursuant to Standing Order 108(2), the committee undertake a study of no less than four meetings to study the concerning rise in far-right extremism in Canada; that the study include how far-right extremism plays a role in misinformation and disinformation; how to better support preventive measures for ideologically motivated extremism in Canada and the connection between far-right extremism and harassment towards journalists, women, indigenous peoples, Black, and racialized communities, members of the 2SLGBTQI+ community and religious minorities; that the committee report its findings and recommendations to the House; and that pursuant to Standing Order 109, the committee request that the government table a comprehensive response to the report.

I have the motion translated in both languages. I request unanimous consent of this committee to adopt the motion.

[Marc Serré, Liberal, Nickel Belt, ON]

His clock has stopped also.

[The Vice-Chair, Conservative, Kevin Waugh]

What did you say at the end, Mr. Noormohamed?

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

I asked for unanimous consent to adopt the motion.

[The Vice-Chair, Conservative, Kevin Waugh]

We don't have the 48 hours' notice, as you know.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

That's why I'm asking for unanimous consent.

[The Vice-Chair, Conservative, Kevin Waugh]

Do we have unanimous consent?

No, we do not.

We're going to Ms. Ashton, I believe. I don't know if it was you. Your hand's not up, but I did hear your voice. Go ahead.

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

It was. I got timed out. I had my hand up before the conversation with the clerk. I didn't want to interrupt, but I did want to make an amendment to the motion—

[Rachael Thomas, Conservative, Lethbridge, AB]

I will raise a point of order.

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

I would like to do that, recognizing that you are in discussion.

[The Vice-Chair, Conservative, Kevin Waugh]

Yes, we are, Ms. Ashton.

I'm going to go to Mrs. Thomas on a point of order here.