Canadian Heritage Committee on Dec. 13th, 2006

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you, Mr. Chair.

I just want to say that I'm a supporter of the program. I would like to make that statement at the beginning.

It's my understanding that the impetus for the creation of the program in 1983 or 1982 was to give official language minorities in Canada the power to ensure that their rights, as clearly stated in the charter, would be respected.

As a Liberal, I believe.... I guess the only point of ideology I have is that no institution is perfect. By definition, I will never accept that an institution is perfect and can't be reformed and made better to adapt to the changing times or whatever.

My question, I guess, revolves around some of the criticisms of the program, namely that some of its decisions may be arbitrary, that certain people's applications are rejected while others are accepted. I don't have a real strong opinion on that, but do you believe, Ms. Tie, that there's any way the program could be improved? I'm not at all in favour of abolishing it; I'm in favour of improving it. Do you see any need for reform?

For example, and it's been brought up before, there is this idea that there might be some kind of revolving door. I don't know. That's why we're having the program officials come. I commend Mr. Bélanger for making that request. There might be a revolving door between the board and some of the groups that benefit from the program. You, yourself, have gone from one to the other. Perhaps we should have a board that is made up of former justices, as we do with immigration judges, where we have people who are members of the Order of Canada who bring a certain impartiality.

Do you acknowledge any of the criticisms of the program, that perhaps in some cases the program has a bias or that its decisions have been arbitrary? In other words, can you step out of your particular interests and see a need for some kind of reform?

[Chantal Tie]

I'd like to say two things. First, the expert panel that doles out the money is appointed. The board has absolutely no say in how that money is disbursed. There is no overlap. I never had anything to say in all the years I was on the program about what cases were going to be funded.

Second, many cases are turned down. I fundamentally think, however, that the people whose interests are affected should control the organization that decides what litigation's going to be done. That is the program's strength, not its weakness.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I understand that. Your point is well taken, but we live in a world where there's a certain vagueness as to whose interests should be served, and so on. I'm just saying it's an imperfect world, and it's not science to say that my interests or somebody else's interests are the primary ones and therefore should be represented.

Thank you for your clarification about the expert board and the difference between the board and the expert committee. I appreciate that. That's essentially the point I wanted to make and the question I wanted to ask.

[Chantal Tie]

I think your idea is interesting, but it would be quite challenging in this country to find a panel of perhaps ex-judges who were representative. We'd need to find former aboriginal judges, former judges of colour, women judges, and judges with disabilities who have the necessary qualifications to actually adjudicate. That would probably be quite challenging, and that's unfortunate. It might be worth considering for the program in an advisory capacity; I don't know.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Going back to my original question, do you see any need for reform of the current program? I think it might be in your best interest and in the country's best interest if we could come up with an agenda for reform that could save the program. That's basically the point I'm trying to make.

[Chantal Tie]

As I said, I'm no longer on the board and I don't speak for the program. But we just went through a Heritage Canada review of the program, which made some suggestions for improvements that we quite happily initiated. I was quite comfortable with how the program came through the review. The Heritage Canada review said we get value for money for this program and it's serving a very important Canadian government purpose. So it's working well.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I understand and agree with that. But were there recommendations for reform?

[Chantal Tie]

I don't have any right now.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

In the review were there recommendations?

[Chantal Tie]

No.

Which one are you referring to?

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

The Heritage Canada one.

[The Chair, Conservative, Gary Schellenberger]

I think that brings an end to our questioning for this section.

I thank our witnesses very much for coming today and bringing their viewpoints to the committee.

We'll take a break and wait for our next witnesses.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

I call the second part of this meeting to order and welcome our witnesses.

We have two people here as individuals: Gisèle Lalonde and Mr. Caza. We'll work our way along the line, so each individual or representative of an organization can give their viewpoint.

Ms. Lalonde.

[Gisèle Lalonde, Former President of SOS Montfort, As an Individual]

Mr. Chairman, we come before you today to raise our concerns about a government decision whose consequences are so disturbing, that we find it hard to believe that the decision-makers gave any serious thought to its impact before making it.

The Harper government decision to abolish the Court Challenges Program has a direct negative impact on Canada's linguistic duality, a direct impact on the assimilation of minority francophones and, assuredly, over time, an impact on national unity.

It would be irresponsible and foolish to believe that the Government of Canada can disrespect linguistic minorities in such a way without undermining the very foundation of this country. The media tells us that this brilliant idea is owed to Prime Minister Harper's chief of staff. If this is true, what we have before us is a government of ideologues, not to say demagogues. Such a state of affairs is extremely troubling to Canadians.

Narrow-minded ideology, unrestrained demagogy, have never contributed to building today's Canada, and in fact are the ideal recipe for its eventual dissolution. We are told that this demagogy is taken from a certain text published by the said chief of staff of the Prime Minister, a book in which he maintains that it is ridiculous for the government to give money to those Canadians who want to bring it to court. Such warped logic is such a distortion of reality that it is scary.

First of all, when a minority decides to bring the government before the courts, it does so because it is convinced that this government is breaking the law, usually the Constitution of Canada or the Canadian Charter of Rights and Freedoms. This means that the direct effect of the Harper government's action is to give itself the power to break the Constitution of the country without anybody being able to contest it legally, the financial burden being too great.

Second, when a minority decides to seek the help of the courts it is always as a solution of last resort, which means it has tried to make the government understand through every other legitimate means.

Third, if by chance a minority manages to raise enough money to dare go before the courts, the government defends itself with our money. How many millions did Ontario taxpayers pay to cover the Harris government's legal costs, and all this to bite the dust miserably twice?

The Franco-Ontarian community and the Montfort Hospital did not waste taxpayers' money in legal costs. We upheld the law of the land. But the Harris government did exactly that, and any government in the country will do precisely the same thing without any hesitation or obstacle the next time it happens.

What the Harper government is asking us to accept, however, exceeds in its deceit what any other government may have done in the past. They are telling Canadians that they have a monopoly on all power, on all truth, and on all rights. Let ordinary people fend for themselves.

This is not just a matter of cutting expenses. The Harper government is depriving the most vulnerable in our society of access to justice system. The forsaken of society are beaten down even lower in the social order. This is not the Canadian way to do things. It is not just shameful, it is a scandal. It goes against everything Canadians believe in, starting with access to justice for all.

I cannot remain silent on the role played by Treasury Board President, Mr. John Baird, in this affair. If anybody should know the impact, not to say the illegality, of depriving the francophone minority of such an essential tool, it must be him. He happened to be the Minister of Francophone Affairs in Ontario, in the Mike Harris government, during the worst days of the Montfort crisis. In addition, it was only at the very end of this five-year struggle that he finally sided with the Franco-Ontarian minority.

Allow us to doubt his sincerity, then and now. I will tell you about an exchange I had with Mr. Baird back then. I have never spoken about it publicly before. And I regret having to do so today, but he leaves me no choice.

The day before the Harris government was to announce it would not seek leave to appeal before the Supreme Court of Canada, Mr. Baird called me at home. During that brief conversation he kept saying "Gisèle, we have to turn the page" on the events of the previous five years. He repeated that phrase several times. The action he took today as President of the Treasury Board shows that he turned the page, but he certainly does not have the same book I have. The only conclusion we can draw from Mr. Baird's actions is that if he can't get the francophone minority one way, he will find another way to do so. There are many ways to kill a people!

It would be rather surprising to learn that this decision was imposed on Mr. Baird, judging by the ferocious defence he mounted for it in the House of Commons. The most deplorable aspect of his involvement is that once again, he is part of a government that seeks to score points with the electorate by attacking the most vulnerable in our society.

I dare say, however, that his government has radically misread the Canadian electorate. This is particularly true of Quebec voters. We suspect strongly that, in its cold calculations, the Harper government concluded that francophone Quebeckers would not oppose his decision since the Court Challenges Program protects its anglophone minority.

But Quebeckers see clearly. They understood right away that the real targets of this decision were their minority francophone brothers and sisters. And, as they rose thunderously to support Montfort, they will not forget this further injustice when the time comes to settle the score.

One thing is sure. We Franco-Ontarians will not let them forget it. We will work relentlessly in every riding, including Quebec, where the vote of francophones can make a difference. We will ask them to reject the government whose indifference is but veiled intolerance. An intolerance against the weakest. Mr. Harper governs by one rule only: might makes right. This requires no courage.

Mr. Chairman, members of the committee, we came to share the indignation of minority francophones in the face of this government's decision. We fully intend to fight this decision by all legitimate means possible. We ask that you wage this battle with us, and continue to speak out as eloquently as you have done in the House of Commons. We ask that you sensitize your voters to the true consequences of the Harper government decision, and that you do so until voting day.

Let me say a few words to those members of the party in power. Most of you, if not all of you, were probably not consulted by your government on this measure. We thank you for consulting us today.

We remind you that you are not powerless in this matter. You have influence within your caucus. And when the government is in the wrong, it is your duty, behind closed doors, to bring it back on course.

We hope that you will understand the true extent of the damage done to the francophone minority and to your own party, and that you will act in the best interest of linguistic duality, in the best interest of all Canadians and in accordance with Canada's Constitution.

Thank you. Thank you, Mr. Chairman.

[The Chair, Conservative, Gary Schellenberger]

Mr. Caza.

[Ronald Caza, Lawyer, As an Individual]

Monsieur le président, I'll speak English in my presentation, because I want to make sure everybody can understand directly the message I'm bringing to you today and not with the aid of interpretation.

The reality is that when you are a member of a minority you need to have recourse to the courts because the protectors of minorities are not the majority. It's not because they're acting in bad faith; it's because they don't understand the needs of the minority. For the last two hundred years, minorities have had to have recourse to the courts to make sure their interests were protected. One of the courts' main responsibilities is protecting minorities. To have access to the courts, especially in issues of constitutional law, you need to have a lawyer.

What's special or different about linguistic rights is that the people who are going to court to have those rights defended usually have a very small personal interest. It's a community right. When they bring that right forward, they do not get any money in return. All they get is the respect of a right, which is why when they need to get access as the only way to get their rights respected, they have to proceed by way of the courts and they need to get financial assistance.

The reality is that when you're dealing with linguistic rights, the consequence of people not coming forward to make sure their rights are respected affects everyone in Canada. It's important to understand what a minority does and how a minority lives. The reason minorities go to court to have their linguistic rights protected is that when you're a member of a linguistic minority, especially the francophone minority outside of Quebec, every time you wake up in the morning you decide you're going to continue making efforts to live in French that day, but when you stop making those efforts that's when you have assimilation. Assimilation of francophones is simply francophones who stop making the efforts they have to make to continue living in French. It's an essential characteristic of Canada that linguistic minorities throughout the country be able to continue living in one of the two official languages.

When members of the linguistic minority--and they can be in Prince Edward Island, Vancouver, Kapuskasing, Sudbury, North Bay, Windsor--go before the courts they're saying there's a government decision or a law telling us we should not be making the effort to continue living in French. That's why we go before the courts. When that law or decision continues to stand, every day members of the francophone minority stop living in French. The result is we have weaker and weaker linguistic minorities throughout Canada.

The Supreme Court of Canada has stated that linguistic minorities are an essential feature of Canada, that the survival of linguistic minorities in Canada is essential to the survival of Canada as a country. When the court challenges program is cut what they cut is the access to the judicial system of very ordinary people to have those rights respected. The consequence--and it's a direct consequence of having cut the court challenges program--is that the assimilation rate of francophones throughout Canada outside of Quebec is going to increase. That is an irreparable harm to the community. It's an irreparable harm to the country. That's why the court challenges program is essential for Canada and must be reinstated.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Ms. St-Amand.

[Gisèle St-Amand, Director General, Commission scolaire de langue française de l'Ile-du-Prince-Édouard]

Good afternoon, Mr. Chair. Good afternoon, ladies and gentlemen.

My name is Gisèle St-Amand and I'm the Director General of the Commission scolaire de langue française de l'Île-du-Prince-Édouard. I have been working in education for 43 years, including 20 years as director general or as a senior administrator.

I am telling you what I do because I want you to know that I'm not here as a lawyer or a journalist or as a political partisan but rather as a francophone who currently lives in a minority community and who spent 20 years in Quebec. My two children are anglophones entitled to English-language education in Quebec and francophones entitled to French-language education in the rest of Canada.

So, I am here to plead in favour of restoring the Court Challenges Program, because the battle is not over, not all the goods in section 23 of the Charter have been delivered, and I am not the first to tell you this.

I want to thank you very much for allowing me to speak. Initially, I sent a brief, which I am certainly not going to read or repeat. I think that you received it, because I was told that it would be translated into English.

I am here today because, as an educator, my mission is always the same, it is to build a better world. That is why I am here today.

I benefited from all the epic battles waged to obtain the right, pleasure and joy of speaking French and of sharing the same pleasure and joy with my children. Consequently, I am working to ensure that all other children of francophones with French-language education rights will have this right.

Too much energy has been deployed and work done to remain quiet today, to not accept an invitation to come and tell you just how much we condemn what the government has done by taking away our means of going before the courts. Not everyone has this right: this right belongs to those with money. That is why this funding program allowed everyone to be treated like everyone else.

I have come here to plead on my own behalf, naturally, but let me say it from the start, I have come here to talk to you about the children of Prince Edward Island, the children who are now in school.

You are sitting on very comfortable chairs. I have students in Prince Edward Island today who don't have the same comfortable chairs we do, who didn't have a comfortable school bus this morning and who today don't have a comfortable school in the generally recognized sense.

For example, there is a school—and we have already filed a statement of claim with the lower courts to ensure that the Government of Prince Edward Island will respect our constitutional rights—that is located in a building along with a bar.

You will see in my brief that on Thursday and Friday evenings people start coming to the bar around 3:00 p.m. So, the following morning, when I arrive at school with my children, the building does not smell like a school. There are cigarette butts in front of the building that also don't belong to the school children.

So, I am making my case on behalf of the Arsenault-Cameron decision, for example, which stated that the francophone minority in Prince Edward Island was entitled to three inalienable and non-negotiable things: a high-quality education, equality of education and management for and by francophones.

I just told you about a school where we do not have the right to hire a caretaker. I just told you about a school we do not have the right to use in the evening without first making a reservation, and ensuring that no one else is using the building, before we can use it. We do not have a voice, nor the right to make decisions, nor certainly a veto right, in that school.

We have already filed a statement of claim before the court; we want the same rights in that school as those applicable to majority schools in Prince Edward Island.

I want to take a few more minutes to tell you about our funding, in Prince Edward Island. The Commission scolaire de langue française de l'Île-du-Prince-Édouard, my current employer, is responsible for an area that goes from east to West.

We rise with the sun and we go to bed under the same star in the evening. As a result, at the Commission scolaire de langue française de l'Île-du-Prince-Édouard, all our schools are quite distant from one another. I have come to tell you today that our funding does not and will not allow us, no matter how creative we are, to provide the high-quality education mentioned in the Arsenault-Cameron decision.

For the students of Prince Edward Island, I want—and I think the government of my country, a country I am extremely proud of—wants the same thing: an education equivalent to that received by the majority. I can tell you right away that three of our six schools in Prince Edward Island were won because we were able to fight thanks to the Court Challenges Program. You should also know that, without that assistance, I fear that charter rights will be a thing of the past for some francophone communities in Prince Edward Island. We don't have the means to go before the courts, because our funding is public, meaning that a school board is funded by the government.

In conclusion, we have parents who were prepared to go before the courts to ensure that their constitutional rights were respected. These parents, who live in Rustico, on the north shore of Prince Edward Island, truly hoped to see their constitutional rights respected, to ensure that they could give their children what you give yours.

The Commission scolaire de langue française de l'Île-du-Prince-Édouard, although it sits at the same table as the two English school boards in Prince Edward Island, receives funding calculated according to the formula for the majority, meaning that none—and I repeat none—of the realities our school board faces are taken into consideration during the funding allocation. So there are a lot of services that anglophone students receive that we cannot provide our students. So, put yourself in the shoes of these children's parents: if you had the choice, which school would you send your kids to?

Like my colleagues who preceded me said, I fear that we cannot provide the quality mentioned in the Arsenault-Cameron decision, or the equivalency mentioned by Judge McQuaid, speaking for the P.E.I. Superior Court, when he said that an educational system of lower quality than that made available to the majority would be incompatible with the tenor of section 23. A judge of the P.E.I. Superior Court said that. I have no idea what political party he supports. I ask you to believe that I have come here as an educator, purely and simply to defend the future of francophone children on Prince Edward Island.

It is often said—and I always like hearing this—that Canada is the world's conscience. Each time I hear that, I feel proud. I must immediately tell you that we are suffering from a crisis of conscience and that we must examine our conscience in Canada. I am pleading my case before the government members here. I want the program that used to exist to be restored or I want the program to exist in another form. However, I beg you, on behalf of the children and the francophones of Prince Edward Island, give us the chance to go before the courts each time—and it happens often—our constitutional rights are not respected.

Our country, the Canada of tomorrow, will resemble the children we raise. Let's raise the best children. Let's raise children who are entitled to a strong, proud Canada, filled with the values that I instilled in my children, in other words, a Canada that is open and that respects all groups, as they are, no matter who they are.

Thank you, Mr. Chair.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

Mr. Tabachnick.

[Marcus Tabachnick, President, Quebec English School Boards Association]

Thank you, and good afternoon.

I'm Marcus Tabachnick, president of the Quebec English School Boards Association. I'm accompanied by David Birnbaum, who is our executive director.

Mr. Chairman, members of the standing committee, the Quebec English School Boards Association thanks you for this opportunity to present its views in support of the reinstatement of the court challenges program of Canada.

Our association is the public voice of Quebec's nine English school boards serving some 115,000 students across the province. The English public school network of Quebec offers a portrait of Canada's English-speaking minority community in all its diversity. There are one-room school houses on Entry Island on the Îles de la Madeleine and in Vaudreuil, just 45 minutes from Montreal; big-city high schools; regional adult education centres; and every variation in between. For many of our students the daily trip to an English school is an hour and a half each morning. There are big challenges, but I would tell you that our system is addressing them with ingenuity and determination. It was in our schools that French immersion was born and perfected. Today, we pride ourselves on producing graduates who are building their futures in Canada's two official languages.

Our schools, like those of francophone communities in the rest of Canada, are the glue that holds our minority-language communities together. Of the 340 schools in our system, more than half serve 200 students or less. The future of those schools and the future of the minority-language communities they serve is inextricably linked. Consequently, our school network, and our association which speaks for it, are vitally concerned by the subject before the committee today. That is because there is also a link that connects us to the future of the Court Challenges Program.

QESBA represents a universally elected level of government, the only level of government that answers directly and exclusively to the members of Canada's English-speaking minority community. This level of government, elected school boards, has the right to control and manage schools serving the minority-language community of Quebec. School boards exercise that right by virtue of decisions rendered in landmark cases made possible by the court challenges program of Canada. The right of students to attend minority-language schools is also a question that the court challenges program was created to help answer.

In Quebec, access is limited by the charter of the French language but nevertheless protected within those limits under section 23 of the Charter of Rights and Freedoms. If individuals are to test the extent of those constitutional protections against the formidable resources of government, they must have the right to do so. The court challenges program is a meaningful and reasonable way to ensure that right. The charter, at section 24(1) says:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

For many individuals and communities in Canada, that recourse is only real if financial support is made available. For many individuals and communities, that resource will only be available if the court challenges program is reinstated.

Subsection 24(1) of the charter states:

24(1) Anyone whose rights or freedoms, as guaranteed by this charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Rights evolve. Circumstances affecting minorities change. The Charter of Rights and Freedoms must be tested by those changing circumstances if its full breadth is to be clear and meaningful to all Canadians.

In the seminal Mahe case on the extent of control and management of schooling afforded to minority-language communities in Canada, the Supreme Court said that continued recourse to the courts would likely be required if the application of the charter was to be fully effective and equitable. The judgment said:

...imposing a specific form of educational system in the multitude of different circumstances which exist across Canada would be unrealistic and self-defeating.

The same judgment continues: “Section 23 is a new type of legal right in Canada, and thus requires new responses from the courts.”

The future of the court challenges program has been falsely framed in some quarters as a question about special interests, as an infringement upon the supremacy of Parliament, as a cash cow for big-city lawyers. Those suggestions, as facile as they are disingenuous, were pretty much summed up by a senior member of the current cabinet. In defending the cancellation of the program, he was quoted as saying: “I just don't think it makes sense for the government to subsidize lawyers to challenge the government's own laws in court.”

It is often said that a democratic society is rightly judged by how it treats its minorities. These are not partisan questions about challenging the government of the day; they are matters that go to the heart of who we are and how we define the fundamental rights and freedoms that unite us. The court challenges program isn't about subsidizing lawyers; it's about ensuring equality before the law and guaranteeing equality of access to the law.

Quebeckers, whatever language they speak, are perhaps particularly exposed and sensitive to minority-language matters.

Consequently, the cancellation of the court challenges program has been greeted by much opposition in my home province. The chief editorialist of La Presse newspaper, in Montreal, noted:

Without the government's financial assistance, which groups or persons will be in a position to spend the hundreds of thousands of dollars needed to pursue a case right up to the Supreme Court? Given the unlimited government resources, citizens who believe that their rights have been violated will feel helpless. Consequently, what is the value of a charter of rights if citizens do not have the means to ensure that it is upheld?

Are there questions relating to the operations and procedures of the court challenges program that legitimately warrant additional scrutiny? Quite possibly. It is not for QESBA to judge, but as Monsieur Pratte concluded: “Ottawa has decided to cure the cold by killing the patient!”

That's a pretty dismissive way for our national government to discharge its solemn role as custodian of our Canadian Charter of Rights and Freedoms.

For the English-speaking parent in the Gaspé, for the English school board member in the Saguenay, not to mention a francophone community leader in Alberta, this program is their doorway to Canada's Charter of Rights and Freedoms, and that charter remains the penultimate guarantor of their future.

The Quebec English School Board Association calls upon this committee and this government to do the right thing. We call upon you to reinstate the court challenges program.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

Mr. Bélanger.

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

Thank you, sir.

People know by now my usual first question.

Madame Lalonde, Madame St-Amand, and to you, Mr. Tabachnick, on the occasions when you may have had support from the court challenges program and could hire legal representatives, lawyers, was the political affiliation of these lawyers a matter of consequence in your choosing them?

[Gisèle Lalonde]

Do you mean to say, at Montfort, if we had chosen someone who was close to the government or—?

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

No. Was the political affiliation of lawyers a factor in their decision?

[Gisèle Lalonde]

Not at all.