Canadian Heritage Committee on Dec. 6th, 2006

[The Chair, Conservative, Gary Schellenberger]

Welcome to the 27th meeting of the Standing Committee on Canadian Heritage. Today, pursuant to Standing Order 108(2), we have a study on the court challenges program.

Just before we take our witnesses' statements, I would just like to read one little thing about the way we're going to handle some of this:

As you are aware, some of the matters which we may be examining over the next couple of meetings are the subject of legal actions. As a result, I would like to take this opportunity, before we begin, to remind members of the sub judice convention, and to outline how I intend to deal with any issues that might come up.

As stated in the House of Commons Procedure and Practice on page 534, “The sub judice convention is first and foremost a voluntary restraint on the part of the House....” Members of Parliament may therefore decide to exercise a certain degree of restraint when considering matters that are before the courts. While members are free to go about their business freely and without interference, they are also reminded to take into consideration the role of the courts. Accordingly, members and the committee may choose not to do or say things that would prejudice any lawsuit.

Witnesses and members may discuss the various policy and program issues that are before us. We are not here to decide or pass our judgment on the merits of any legal action. Witnesses are not here to plead their legal case, nor are members here to try to bolster or undermine one side or the other in any litigation. If I believe that witnesses or we are straying into any lawsuits or legal matters, I will remind participants to return to the parliamentary arena.

If we all remember our purpose here, while recognizing the proper role of the courts, I am certain that I will not have to make any interventions.

I am not here to be an adjudicator, I hope, on those particular points.

Go ahead, Mr. Kotto.

[Maka Kotto, Bloc, Saint-Lambert, QC]

Mr. Chairman, I understood what you were saying in your preamble, but my intervention referred to a reminder that I would like to make with respect to the fact that we need—

[The Chair, Conservative, Gary Schellenberger]

Just before you do, make them very short comments, because--

[Maka Kotto, Bloc, Saint-Lambert, QC]

It is very brief.

[The Chair, Conservative, Gary Schellenberger]

—our witnesses are finished at 4:30.

[Maka Kotto, Bloc, Saint-Lambert, QC]

All that I wanted to remind you of was the fact that we need to set aside a little bit of time at the end of today's meeting to deal with the motions.

[The Chair, Conservative, Gary Schellenberger]

If we have time at the end of the meeting, we'll do that. If not, on Monday we'll have to ask for an extension of time.

[Maka Kotto, Bloc, Saint-Lambert, QC]

I had foreseen that and I simply wanted you to keep that in mind.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Go ahead, Mr. Bélanger.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chairman.

I, too, have taken note of your admonition. However, we should be aware that until the matter is before the courts, the sub judice rule does not apply. As far as I understand, one of the groups here might have petitioned the courts, but that petition has not yet been responded to or accepted, so technically it is not even before the courts right now, so the sub judice does not apply.

Having said that, I agree that as parliamentarians we should be mindful of our questioning.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

I welcome our witnesses here today. Because we only have an hour or a little less, please try to keep your presentations to ten minutes or less. A round of questioning will be five minutes, and I'm going to adhere to that today; we'll see if we can get more than one round of questioning in. I don't know who would like to go first--would you, Madame Beaulieu?

[Marielle Beaulieu, Executive Director, Fédération des communautés francophones et acadienne du Canada]

Members of the committee, Mr. Chairman, you asked us to appear before you today in order to identify the impact of the elimination of the Court Challenges Program. The FCFA would like to thank you for giving us this time to meet with you in order to make you aware of our opinions, our point of view.

My name is Marielle Beaulieu, and I am the Executive Director of the FCFA of Canada. I'm accompanied by my colleague Diane Côté, who also works at the FCFA, and by my colleagues from the CNPF, the Commission nationale des parents francophones. You will have the pleasure of hearing from them later on.

The FCFA has already submitted a short brief highlighting the situation. I believe that the brief was sent to you in time so that it could be translated and distributed to you for consultation.

Today, in the few minutes available to us, I will try to provide you with a brief overview of the issue by identifying, first of all, the main gains achieved as a result of the Court Challenges Program in the area of language rights—that goes without saying—and by, secondly, pinpointing the repercussions that we expect to see as a result of the elimination of the program.

Let's start at the beginning. For all francophone and Acadian communities across Canada, the CCP has been an essential tool enabling us to both clarify and advance language rights for the francophone minority. Moreover, many language cases have been heard and resolved thanks to the support provided by the Court Challenges Program.

Let's refer to some of the cases that have enabled us to obtain, first of all, school management: the Mahé v. Alberta case, the reference regarding the Public Schools Act of Manitoba; the Association des parents francophones de la Colombie-Britannique v. British Columbia, and I could name many others.

Other cases, such as Doucet-Boudreau and Arsenault-Cameron, enabled us to clarify the state's obligation with respect to education rights and schools.

I will not go into great detail about the issue of education since my colleagues from the CNPF will be able to go into this matter in greater detail. But the question that I would ask you here, this afternoon, and I will put it to all the members of this committee, is as follows. Without such a recourse, would we have French-language schools throughout the country today? I will take the liberty of asking you this question but I will also take the liberty of expressing my doubts about the outcome.

The CCP has also enabled us to fund legal recourse for services in French. We should mention, first of all, the famous Montfort case, which you have all heard about, which allowed us to safeguard the only French-language teaching hospital west of Quebec. There was also the Beaulac case, which clarified language rights for the accused while at the same time specifying the principles and the interpretive framework which apply to language rights in Canada.

Other cases funded by the Court Challenges Program enabled us to clarify the obligations of governments to provide services in French. We could, as well, refer you to the lawsuit initiated by the Federation franco-ténoise in 1999, which was heard in 2006, and which led to a Northwest Territories Supreme Court decision recognizing the territorial government's obligation to provide services in French to its citizens. It should be noted that, unfortunately, the government of the Northwest Territories appealed the decision and it will be difficult for the Franco-Ténois community to pay for the costs of this new step in the legal process.

In a nutshell, we would affirm that the Court Challenges Program, which was created in 1978, has done a great deal to promote the development of francophone and anglophone minorities in Canada over the past few years, thereby contributing to the promotion of the full recognition of the use of French and English in Canadian society.

The elimination of the CCP will have a negative impact on the timelessness of the francophone and Acadian communities in Canada. On many occasions our government has told us that it would pass constitutional legislation and respect it.

History has shown us that, a system such as ours, it is up to the courts to interpret the laws. In other words, even if the governments have the best of intentions, it is the courts that have the authority to interpret laws and their constitutionality.

Let us now look into the impact of the elimination of the program. Numerous lawsuits have enabled us to clarify and consolidate the rights of francophone minorities and to advance the communities. However, at the time that the funding of this program was cut, there remained a considerable amount of legal work to be done to ensure that francophones were able to fully avail themselves of their constitutional rights and achieve true equality, as prescribed by the Canadian Constitution—that goes without saying—and the Official Languages Act.

We have already mentioned the case of the Franco-Ténois community versus the Government of the Northwest Territories, which will be appealed. Lawsuits which are currently underway include the Paulin case in New Brunswick, the Caron case in Alberta, and the school surtax case in Nova Scotia. These cases have been listed in the brief that we submitted and they are well identified.

These cases, like the ones before them, could enable us to advance, recognize, and interpret and enforce the language rights of francophones. In other words, this work will not be completed until there is true equality for both French and English and full access to services in French of equal quality. Up until now, although the courts are not our first choice as far as taking action is concerned—and that is a very important aspect—they have and will always be the best authority to ensure that minorities are able to avail themselves of their rights.

Up until today, Canada has been a model tor the way that it deals with its minorities. In that respect, the CCP has been an incalculable support for facilitating the interpretation of the written and unwritten principles of the charter. Although the rights guaranteed by the charter are a source of pride for Canadians, we still have to ensure that they are in practice, applied and respected on a daily basis.

Without the CCP, communities would have found it difficult to come up with financial resources—this is very clear to us—to remind the federal government and the provincial and territorial governments of their constitutional linguistic obligations and responsibilities. And I would tell you that up until now, the vast majority of language rights cases that have been brought to trial have been against the provincial and territorial governments. Consequently, these cases were about the implementation and application of these rights.

Up until now, the Court Challenges Program has supported groups representing ordinary Canadian citizens who otherwise would not have had the means to ensure that the constitutional rights guaranteed to them under the charter were recognized and respected.

Finally, the abolition of the Court Challenges Program clearly indicates that the federal government has, unfortunately, failed to meet its obligations under the Official Languages Act, particularly part VII, by eliminating, without any consultation, a program that is proving to be essential to the enhancement and development of francophone and anglophone minorities in Canada.

Thank you for listening to us. Thank you, Mr. Chairman. Ms. Côté and I will be pleased to answer your questions.

[The Chair, Conservative, Gary Schellenberger]

Okay. Thank you.

Does someone else have a brief?

[Ghislaine Pilon, President, Commission nationale des parents francophones]

Good afternoon. Thank you for this invitation to appear before your committee.

My name is Ghislaine Pilon and I am accompanied by the Director General, Murielle Gagné-Ouellette. I live in Mississauga, Ontario. I am the mother of two teenagers, Nicolas and Mathieu, and it is because of them that I am here.

I am the President of the Commission nationale des parents francophones. The commission's mandate is to support parents' associations in each province and territory in the promotion of a family, educational and community milieu, that encourages the full development of francophone families in a minority setting. Our federations serve nearly 500 local parent committees coast to coast and some 350,000 parents who use preschool and school services.

With respect to early childhood development, the commission is the representative of the federal government and the francophone and Acadian communities. The commission chairs and coordinates the Table nationale sur la petite enfance francophone, which brings together twelve different partners. It is also an active member of the Table nationale en éducation, which is chaired and coordinated by the Fédération nationale des conseils scolaires francophones.

In all, our 20 or so national partners in education and early childhood development work with 31 school boards, more than 1,250 services, institutions and organizations, which include approximately 400 preschool services attended by 30,000 children under the age of 5, as well as 630 primary and secondary schools attended by 146,000 children under the age of 19. The very existence of these networks of individuals, organizations and institutions is attributed in part to the Court Challenges Program. These networks are, in particular, the result of more than 25 years of strategic actions taken by the francophone parents' movement. Our members are visionary and resilient.

The saga of educational rights began shortly after the adoption, in 1982, of the Canadian Charter of Rights and Freedoms. In 1983, parents in Edmonton took the province to court for refusing to give them a French school. In the 1990 Mahé decision, the Supreme court ruled in their favour, not only for the issue of the school, but for governance of this school.

In 1986, Manitoban parents demanded universal recognition of the right to manage French-language schools. In the Manitoban referral of 1993, the Supreme Court recognized their rights.

The following statistics, which were taken from the annual reports of the Court Challenges Program, speak for themselves. Under the school rights provided for in section 23, members and partners have submitted 183 applications since 1994. These figures do not include the activities of the original Court Challenges Program that was established in 1981 and cut in 1992. Over the past 11 years, 143 parent applications have been approved by the program. That is more than half of the programs approved as far as language rights are concerned. You have guessed it, the francophone parent movement is without any doubt the biggest client of the Court Challenges Program.

Here is a breakdown of the approved projects: 83 lawsuits, 30 activities with respect to access and promotion, 21 legal action plans and 9 impact studies. With respect to these lawsuits, in 11 years of legal challenges, 55 went to trial court, 15 to appeal court and 13 to the Supreme Court. The most well-known cases during this period include the Cameron-Arsenault decision of 2000, which dealt with schools in Prince Edward Island, and the Doucet-Boudreau ruling of 2003, which dealt with the secondary school network in Nova Scotia.

Here are a few of the sustainable results of these cases. The French school network consolidated from one end of the country to the other during the 1980s. The network of francophone school boards was established during the 1990s. The school boards established new schools in most jurisdictions. For example, in Prince Edward Island, four new schools were built as a result of the Supreme Court decision. In Nova Scotia, there are now six new schools. Generally speaking, enrolment has ceased to decline and has stabilized.

The quality of education in French has improved tremendously ever since the schools have been governed by the minorities. This improvement pertains to infrastructure, programming and promotion. School boards and their partners prepared, in 2005, an action plan entitled “Section 23”, in order to complete the French language education system in Canada. Francophone communities are being built and they are assuming responsibility for their French schools. For instance, the only Metis school in Canada, which is located in St-Laurent, Manitoba, will finally have its own building in 2008.

The court is our last resort. Every time that we have filed a complaint, it has been because there has been no other recourse, because not to do so what have been intolerable. Every time there have been months if not years of pressure that has been brought to bear, exchanges of documents, meetings and negotiations. We have the fire in our bellies, the program has given us wings.

We did not invent this system that turns us into gladiators facing down the provinces which are—it is useful to remember this—signatories of the charter. The legislator created the arena and provided the weapons, which includes the Court Challenges Program. Is the legislator an innocent spectator? The citizen is always the one who has to pay for the lack of political will. And here I refer to most of the governments that have been in power since the charter was adopted. Why do governments continue resisting the implementation of our rights? It is no doubt a good investment as far as votes are concerned. In a final analysis, the fact remains that parents have never lost their cases before the courts.

The governments have therefore bought time. But what we, the parents, have lost is considerable: time, energy, money and here I am not referring to federal government money. We have also lost respect for many people, even in our communities, and we have lost generations of children. As we speak, only one out of every two francophone children is in our French schools. Is that linguistic duality in Canada?

But just imagine Canada without section 23 and without the Court Challenges Program. Without their school networks and without their school boards, what state will our communities be in? The purpose of the program is to enable minorities, but the big gift of the program is hope. Who can live without hope?

There is added value in this demanding process, which consists of continually going before the courts. This value is to ensure that case law reflects the changing needs and priorities. Our realities are changing, as is our knowledge of these realities. Thanks to these mechanisms which complement each other, Canada is providing us with a framework to ensure that the process has an impact on public policy. While the linguistic majority may not need this framework, this is certainly not the case for minorities. Case law can help society understand the evolution of knowledge and education.

I will give you the example of recent research on brain development in children. When the charter was adopted, we did not know that language learning begins during the sixth month of pregnancy and levels off before the age of one. Back in 1982, we did not know that the highest cognitive functions reach full capacity before the age of two. The learning capacity of a child at this age is much greater than mine or yours. Such knowledge is crucial for the future of our children, particularly for the future of French education in minority settings.

This is why our parents are demanding that preschool learning be acknowledged as part of the rights given under section 23. All this to say that our work is not over yet and that we would like to continue with our mission without having to go through the legal route. Will we have that choice?

To the legislators, I would say that if you were to give us another avenue we would happily give up going to the courts. Meanwhile, don't touch the Court Challenges Program. Our expectation is as follows: that each government of Canada—the federal, provincial and territorial government—respect its constitutional commitments in an enthusiastic and dignified manner. We continue to hope that this will happen. We do not want to protect the past. We want to build the Canada of the future. And the investment that we want to make, the one that has the greatest yield, is an investment in our children. We want them to be healthy, multilingual, pluricultural, curious, respectful, innovative, productive and resilient.

Are you on our side? That is the challenge that we are putting to you today.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

Mr. Bélanger.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chairman.

In answer to your last question, Ms. Pilon, we, in the official opposition, are on your side. We have demonstrated this on two occasions, first of all when we created the program, and secondly, when we re-established it. We may find ourselves in a situation where we will have to create it for the third time. I believe that we would not hesitate to do so, because my colleagues and I share the convictions that you expressed today about the need for such a program.

I would like to ask you a few short questions of a technical nature in order to clarify certain things that have been said about the elimination of the program and the reasons which prompted the government to do this. First of all, were you consulted before the decision or the announcement that was made by the government to eliminate this program?

[Marielle Beaulieu]

Absolutely not.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Could you quickly describe—because we have only five minutes—how you went about choosing a lawyer once you had obtained a favourable decision from the program to provide financial assistance?

[Marielle Beaulieu]

Obviously, it all depended on the people who applied for legal recourse. We always have a list of lawyers who can meet our needs and who, generally speaking, have some knowledge of language rights. It's a bit like the tendering process, in the sense that we ask qualified people to submit proposals that meet our requirements.

I would point out to you, Mr. Bélanger—and I know that you know this already—that the Court Challenges Program has clearly-defined mechanisms enabling everyone, including organizations seeking recourse and lawyers who would be participating in or facilitating the work, to operate properly. Committees have been set up. Some people ensure that we meet the standards and requirements of the government with respect to accountability, etc.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

In the past, has the political allegiance or non-allegiance of these lawyers been a factor, either negative or positive, in the community's selection of lawyers?

[Marielle Beaulieu]

Absolutely not.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Now I would like to talk to you about the future. As I was saying, I share your opinion that exemplary work has been done up until now in terms of establishing educational rights. Work remains to be done as far as day care centres are concerned. The agreements that had been signed with the provinces contained language clauses, but they will be eliminated as of next March. Under these circumstances, were you planning to go the legal route in order to ensure that the language community's needs were going to be respected and served as regards early childhood education and the real implementation of the new provisions of the Official Languages Act, which came into effect when Bill S-3 was adopted during the 38th Parliament?

[Murielle Gagné-Ouellette, Director General, Commission nationale des parents francophones]

I will answer you on that issue, but I will let Ms. Beaulieu discuss Bill S-3.

With respect to legal recourse for day care centres or early childhood and family centres—an area that is much broader than day care centres, as far as francophones are concerned—our requirements are even more specific for young children aged zero to six. Of course, we are hoping that our school boards will be able to obtain adequate funding to provide, at the very least, pre-school education starting at age 3, within the current system.

So we are certainly trying to continue in this direction, if the provinces should decide not to provide us with this funding. We always hope that we will obtain the funding through negotiations. Some provinces have already met some requirements for pre-school education. We are hoping that this trend will continue.

[Marielle Beaulieu]

As far as Bill S-3 is concerned, which now strengthens part VII of the Official Languages Act, it is clear, in my opinion, that these provisions demonstrate the role of the government to really encourage the development of our communities.

If Bill S-3 did not result in the adoption of positive measures from the government—and that's the term that was used—to promote the development of communities, it is clear that we would think about legal recourse, regardless of whether we had a Liberal, Conservative or any other government in power.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chairman.